Feliciano De La Cruz v. El Conquistador Resort & Country Club

CRUZ, LA Maria D. FELICIANO DE Jimenez, Conjugal and Their

Erasmo

Partnership, Plaintiffs, Appellants, CONQUISTADOR

EL AND RESORT Hugh A.

COUNTRY CLUB Appellees. Defendants,

Andrews

No. 99-1810. Appeals, Court of

United States

First Circuit. March 2000.

Heard

Decided June 2000. Denying Rehearing

Order Panel

July

Rehearing Suggestion Rehearing July

En Banc Denied 2000.* * Judge Chief R. has Juan Torruella himself this matter. recused

employees; attending pre-convention meetings; helping the assistant control- monthly closing ler with the of accounts receivable; (6) assisting general cashier. began Six months after she job, salary increased her $4,000, by perfor- ahead of her scheduled López ap- Jeannette M. de Victoria Later, mance review. Feliciano received a pellants. Conquista- letter from El commendation Hopgood-Jovet, Alfredo M. with whom Andrews, president, Hugh dor’s and a Javier Rivera-Carbone and McConnell Certificate,” thanking “Pionero her for her brief, appellees. on for Valdés were first-year oper- contributions to the hotel’s days receiving ations. Just three after the SELYA, Judge, Before Circuit Pionero Certificate and thirteen months COFFIN, Judge, Senior Circuit hired, however, after she was El Conquis- LIPEZ, Judge. Circuit abruptly tador terminated Feliciano’s em- ployment, replacing her with a woman LIPEZ, Judge. Circuit from the Philippines. D. appellants, The María Feliciano de la lawsuit, Feliciano then initiated this al- Jiménez, Cruz, conjugal Erasmo and their leging Conquistador that El fired her be- partnership, brought a claim in the district cause she Rican in was Puerto violation of court for the district of Puerto Rico accus- VII, Title which it makes unlawful for an ing Conquistador Country Resort and “discharge any individual ... Club, a resort hotel located on the east because of such ... individual’s national Rico, Hugh coast of Puerto An- A. 2000e-2(a)(l). origin.” § 42 U.S.C. drews, president, discharg- the resort’s of summary judg- moved for ing Feliciano because of her Puerto Rican ment, asserting discharged that it Felici- origin national violation of Title VII of solely job ano because her performance 1964, Rights the Civil Act of 42 U.S.C. failed to expectations. meet its Conclud- (“Title VII”).1 §§ 2000e to 2000e-17 The ing that provide any Feliciano “failed to granted district court the defendants’ mo- genuine and material facts directed toward summary judgment. tion for affirm. We proving an animus of discrimination on the origin,” basis of national the district court I. granted El Conquistador’s motion. Felici- 1993, In late went work for ano contends that court the reached this El Conquistador manager as the credit ruling only “engaged because it in imper- Fajardo, soon-to-be-opened hotel weighing missible of the and in evidence Feliciano, According Puerto Rico. credibility effect made determinations (1) responsibilities reviewing included: El Conquistador.” favor of approving billing credit or authorizations (2) accounts; for commercial preparing The district court did explicitly not ref- “aging reports” end-of-the-month summar- erence its decision the McDonnell izing accounts Douglas-Burdine-Hicks receivable or debts had burden-shifting collected; yet training been other typically evaluating framework used in Ti- (assuming 1. Feliciano was bom and raised in Puerto that Puerto Rican was a national Rico, parties and the treat that status as a origin purposes disparate for the of a Title VII origin” purposes “national of Title VII. claim); treatment see de also la Concha v. accepted terminology. The district court We also this Univ., 188, F.Supp.2d Fordham 5 191 convenience, accept it for sake of (S.D.N.Y.1998) (same); Cartagena Ogden v. any way deciding underlying without in 459, (S.D.N.Y. Corp., F.Supp. 995 464 Servs. question. Mulero-Rodriguez status v. 1998) (same). Ponte, Inc., 670, (1st Cir.1996) 674 Cir.2000). 424, (1st 202 Su claims. Nev F.3d 429 The disparate treatment tie VII preme opinion in McDonnell ertheless, Court’s focus on Feliciano’s its Green, 792, Douglas Corp. v. 411 U.S. 93 discriminatory animus is consistent with of (1973), 1817, 36 L.Ed.2d 668 estab summary S.Ct. in which decisions prior our pro lished an allocation of the fall on burden to stand or has tended presentation duction and an for the ev order adequate plaintiff adduced whether proof discriminatory-treat in Title VII employer’s stated reason idence goal ment ‘progressive “[w]ith cases for unlawful its action was See, ly ... sharpening] inquiry into the Thomas v. East e.g., discrimination. Cir.1999) (1st 38, questions Co., elusive of intentional dis 183 factual Kodak F.3d 56 man ” — denied, U.S. —, Mary’s crimination.’ St. Honor Ctr. v. 120 S.Ct. rt. ce Hicks, 502, 506, 2742, (2000); 509 U.S. 1174, 145 Rodriguez- 1082 L.Ed.2d Stores, Inc., 125 (quoting L.Ed.2d 407 Texas v. 181 Wal-Mart Cuervos Cir.1999). Burdine, Dep’t Community Although we F.3d 20 Affairs n. analysis U.S. S.Ct. context and factual legal add some (1981)). The L.Ed.2d ruling, court’s we conclude to the district burden initial under the stat “carries] court did that as the district establishing prima ute case judgment appropriate. was origin] discrimination.” McDon [national 802, 411 at 93 Douglas, II. nell U.S. S.Ct. cases, termination employment a grant' We review the district court’s prima a facie plaintiff by establishes case novo, summary judgment evaluating de (1) plaintiff showing that: the is within a light to, record in the most favorable the (2) class; for, protected qualified she was in drawing all reasonable inferences and job at met performing and her a level that of, Mule nonmoving party. the See favor (3) the employer’s legitimate expectations; Inc., Ponte, 670, ro-Rodriguez v. (4) dismissed; she was nevertheless (1st Cir.1996). uphold will sum We 672 departure, sought after her de mary judgment pleadings, where “the equivalent qualifica of roughly someone interrogatories, to positions, answers perform substantially tions to the same file, with the affi together admissions on Mulero-Rodriguez, 98 at work. See F.3d davits, genu if any, show that there is no Rico, 673; University v. Puerto Lipsett any material fact and that ine issue as (1st Cir.1988). 881, Although F.2d 899 864 moving is party entitled a suggests passing that 56(c). a matter of law.” Fed.R.Civ.P. as prima failed a to establish in employment discrimination cases Even case, argumentation in its developed such as or concepts “where elusive motive a prima existence of brief assumes the issue,” compels intent are at this standard assump facie case. We make the same summary judgment non-moving par if the tion. merely upon conclusory allega ty “rests tions, inferences, improbable unsup pri a plaintiff Once the establishes ported speculation.” Medina-Munoz v. case, to the ma facie the burden shifts Co., F.2d Reynolds Tobacco 896 8 R.J. “legitimate, employer to articulate some (1st Cir.1990). employ reason” for its nondiscriminatory 411 Douglas, ment action. See McDonnell Burden-Shifting A. The Framework 802, 93 defen “[T]he U.S. at S.Ct. 1817. forth, through the produces clearly set Because Feliciano no dant must evidence, discrimination, apply introduction of admissible rea direct evidence we which, by if Douglas-Burdine sons for its believed the familiar McDonnell actions fact, finding a support the trier burden-shifting Hicks framework. would Caribe, Inc., that Dominguez-Cruz Suttle unlawful discrimination was Hicks, employment shifting analysis, Douglas cause action.” “the McDonnell (internal by wayside,” 509 U.S. framework falls Mesnick omitted). Co., v. General Elec. quotation marks and citation F.2d Cir.1991), plaintiffs because the burden of El Conquistador produced evidence producing employ evidence to rebut that the hotel from a number of suffered for employment er’s stated reason its ac problems during ten financial Feliciano’s “merges tion with ultimate burden of manager. example, ure credit For al as persuading the court that she has been the though she stated that under ideal circum victim of intentional discrimination.” Bur stances invoices should be mailed hotel dine, U.S. 101 S.Ct. 1089.2 days checkout, guests within seven Feli Thus, we are to decide left whether Felici- deposition ciano admitted her “it persuasion: ano has met burden of (7) days, than always took more seven is, whether the evidence she offered months, sometimes several sometimes Conquistador discharged to show that El (3), three four months” for invoices is her because she Puerto Rican a created be mailed. The hotel carried substantial genuine dispute as to fact. material debts, uncollected which Feliciano con had. not reached an lev “acceptable” ceded Discriminatory B. Pretext and Animus she discharged el when November It is the settled law of this 1994. She likewise stated that write-offs circuit that to survive motion sum of high.” for bad debts 1994 were “kind mary judgment on a disparate Title VII arguably responsi Because Feliciano was claim, plaintiff produce treatment must manager ble as credit for at least some of evidence that: the employer’s articulat problems, Conquistador easily these laying reason ed off the ais producing legitimate, met its burden of a (2) the pretext; and true reason is discrim non-discriminatory employ reason for its Thomas, inatory animus. F.3d at action. v. de ment See Ruiz Posadas San standard, however, 56. This “does not Assocs., Juan 124 F.3d Cir. necessarily require the introduction of ad 1997) (to plaintiffs prima rebut the beyond required ditional evidence that to case, an employer only produce “need (internal pretext.” Id. quota show at 57 competent evidence, true, enough taken as omitted). marks tion and citations The to a enable rational factfinder to conclude pretext same evidence used to show can that nondiscriminatory there existed rea a discriminatory a support finding animus challenged son for the employment ac if it enables a factfinder “reasonably to tion”). infer that unlawful discrimination was a

Once the a non offers determinative factor in the adverse em (internal discriminatory action, reason for its ployment quotation action.” Id. omitted). shifts to burden back to the show marks citations There is proffered coverup” simply that the reason was “a “no mechanical formula” deter for a “discriminatory mining decision.” McDon plaintiffs whether the Douglas, nell discriminatory U.S. animus suffices step At summary this third the burden- forestall judgment. See id. Conquistador’s by 2. Our focus on discriminatory stereotypes El motive or fected or other discharging responds types national-origin intent of unconscious bias. As Thomas, theory namely, pointed Feliciano’s that we out in ultimate "[t]he case— Conquistador's decision her question employee to fire was is whether the has been by disparately motivated anti-Puerto-Rican This bias. is treated 'because [national ori case, Co., a like gin].’ regardless not Thomas Eastman Kodak This is so of whether the — denied, (1st Cir.1999), employer consciously 183 F.3d 38 cert. intended to base the U.S. —, origin], simply S.Ct. 145 L.Ed.2d 1082 or evaluations on did [national (2000), plaintiff alleged unthinking stereotypes which the that the so because of or bias.” employer's decision-making process was af at 58. Id. adjustment, raise, evaluating In whether not merit-based which therefore, proper, weigh we all came seven was must months before Feliciano’s ter- mination, discrimina- it proves nothing circumstantial evidence of about the ho- tion, including strength plain- of the tel’s view of the adequacy of Feliciano’s employer’s prima performance tiffs facie case and the at the time she was fired. El action, Conquistador for its mindful insists that proffered the letter of com- reasons individual “everything depends that on mendation and the Pionero Certificate did that it facts.” Id. demonstrate believed Feliciano was performing satisfactorily they because We first Feliciano’s at consider expressed praise no individualized Feli- on El that Conquistador’s tack declaration ciano, generic only recognition but sent to discharged it because was not her she employees. numerous It hotel also dis- adequately job. performing her evalu putes explanation her of the reasons for ating Conquistador’s, whether El stated problems. the hotel’s financial her firing pretextual, reason for that, agree We with Feliciano viewed in is not Feliciano was actu question whether her, light -favorably expla- most her ally performing expectations, below but nations of problems, the hotel’s coupled Conquistador whether believed she salary commendations, with the raise and Mulero-Rodriguez, was. See 98 F.3d at permit would a reasonable trier of fact to 674; Goldman v. First Bank National Conquistador infer that El actually did not Boston, (1st Cir.1993). doing job believe that Feliciano was her To show that El did not Although poorly. Feliciano undoubtedly job performance believe that her was un had responsibility manager as credit satisfactory, Feliciano offered evidence many of the areas which the hotel suf- problems the financial hotel fered financial problems e.g., uncollected fault, were not her and that El Conquista — debts, accounts, aging untimely billing— dor had indicated her that she was explanations problems, true, of these if Feliciano, doing good job. According to might absolve her of blame. For example, problems hotel’s financial were caused it would be unreasonable to hold her re- an by inexperienced improperly sponsible malfunctioning computer for a staff, a bug computer trained hotel in the system, banquet a failure of the staff to system, a department failure of the finance sheets,” “spec general pol- deliver a hotel’s “spec to obtain for group sheets” activities contracts, group icies' or a regarding fail- banquets presumably and that have would adequate ure of the hotel to hire staff to timely facilitated billing, and a failure to Moreover, keep pace billing. with al- provide backups for the banquet checks. though that acknowledged Feliciano her ignored She contended that the hotel her coordina, job training employees, included other it requests to hire additional billing that would be unreasonable assume this and help improve billing. tors hotel staff to training meant all of the employees impli- high She maintained that the percentage cated in numerous she problems de- aging of bad checks and accounts receiv scribed. were able attributable to the resort’s group contract than policies rather her It to infer is also reasonable that

performance. Finally, Feliciano cited her Conquistador El would not have sent Feli raise, salary letter, commendation and generic ciano even if it commendations Certificate, Pionero as further evidence job truly perfor were dissatisfied with her El Conquistador that did not believe that company mance and would that have performing job she was her unsatisfactori communicated formally its dissatisfaction ly- way terminating in some her em before that, short, Conquistador

El although counters because the evidence ployment. $4,000 salary pretext disputed, increase was routine is thin and Feliciano summary judgment that issue level in El employees survives on her same Con- fact could because a reasonable trier of quistador’s department finance who “were Conquistador find that El not believe did replaced by foreigners”;3 Americans or job un- performance that Feliciano’s was (2) that El Conquistador’s executive com- her for some satisfactory, hence fired was “comprised entirely mittee of non- other reason. Ricans”; replacement, Puerto that her woman, Filipino prior hired her was however, case, In this the evi termination; that these facts only that El pretext suggests dence of indistinguishable make this case from our Conquistador fired her for some reason Rico, Nestle decision Olivera v. Puerto performance. does not unrelated to It Inc., Cir.1990), F.2d 43 a case Conquistador’s on any light shed what entry which we reversed the was, let firing true reason for her alone finding after sufficient evidence show that the reason was discrimination (there, discriminatory age animus dis- origin. based on Feliciano’s Puerto Rican crimination), see id. 49-50. Indeed, if even a rational trier of fact could from the infer specifically, More Feliciano that claimed Conquistador’s that El decision fire Conquistador terminated “Messrs. (because Feliciano “unfair” she was con Guzmán, Rivera all [Aponte], Arenas and job well), that perform proof tinued to her Rican Puerto nationals who were former is not sufficient to state a claim under department finance employ- Computer, Title VII. See Smith v. Stratus ees,” replaced them with non-Puerto (1st Cir.1994). Inc., F.3d Title Ricans. The record does this support designed VII was not to transform courts assertion. Feliciano testified her depo- personnel into “super departments, as that, at she El Conquis- sition the time left sessing the merits —or even the rationali tador, Mr. working Guzmán still with ty nondiscriminatory employers’ busi —of company. said that she be- Mesnick, ness decisions.” F.2d at came aware that Guzmán was asked VII, 825. To relief obtain under Title so, resign when he but pro- told she permit evidence must a factfinder reason duced no evidence to admissible confirm ably to that infer unlawful discrimination hearsay. this She stated she did not employ was a determinative factor in the know “for a fact” Aponte whether Rivera Thomas, er’s decision. See 183 F.3d at resign. was asked to She did not think Although ori “[e]vidence of [national Rather, that Arenas was terminated. she gin] need not smoking animus be of the thought from he had retired the com- gun variety, totality ... circum of the pany. permit stances must a reasonable infer employer’s ence justification that the for allegation Feliciano’s that El Conquista- the action challenged was a for executive comprised dor’s committee was Goldman, ... discrimination.” 985 F.2d entirely of equally non-Puerto Ricans is added) (internal quota at 1119 (emphasis 1994, In flawed. November the committee omitted). tion marks and citation members; had two Puerto in Rican Octo- discrimination, proof As of Felici ber 1998 three Ricans Puerto sat on that argues: Indeed, ano that prior body. to her termi times various the execu- nation were there other Puerto Rican tive committee members from had the that, respect 3. arguments Feliciano insists with to the would be waived because Felici- employees Puerto Rican dismissed from El failed to in the ano raise them district court. Shoe, Conquistador’s department, Higgins finance El Con- See v. New Balance Athletic Inc., (1st Cir.1999) quistador comply request (stating to failed 194 F.3d with personnel production of appeals files. Feliciano that the court of will not reverse an however, not, challenge any discovery granting summary judgment does order on the ba- had, court). rulings appeal. arguments in this Even if she such sis of in the not made trial

Q Sweden, States, Hong Kong, (upholding Leba- United where India, Mexico, Colombia, as non, “[s]ubmitting discriminatory well as the of issue Likewise, fact that Felici- Rico. the intent to a jury Puerto on this record would company recent replacement ano’s was a amount to more than nothing an invitation discriminatory provides speculate”); hire no evidence to see also Connell v. Bank of Boston, (1st Cir.1991) animus. (“[T]he question is whether is there There are crucial differences between literally no favoring the non-mov- age case and the discrimina- this Olivera ant, but is any upon whether there a which by In upon tion case relied Feliciano. jury properly proceed could to a find ver- Olivera, employer’s we concluded that “the favor.”) (internal dict in that party’s quota- action articulated reasons for its dis- [of omitted).4 tion marks and citations charging plaintiff] convincingly the were added). (emphasis Id. at 49 refuted.” Affirmed. There, plaintiff produced the evidence that eight people of a part reorgani- fired as ORDER DENYING PANEL

zation, four or were forty five of them over REHEARING all but replaced one were within two by persons thirty. years under See id. July Moreover, “had told employer get than once that had to more rid ‘[he] order, In this address appellant’s we [plaintiffs] several subordinates because argument that our decision Feliciano v. they performing according were not to his 2000) Conquistador, El F.3d 1 Cir. opinion up to standards because of their (evaluating employment discrimination ” Finally, age.’ Id. offered a VII), claim contrary under Title is to the package retirement inducement aimed at recent Supreme decision of the Court over employees fifty-eight. id. Products, Reeves v. Plumbing Sanderson — Here, Inc., —, no evidence that offers U.S. fired Puerto in L.Ed.2d (evaluating Ricans claim under greater proportion Age than non-Puerto Ri- in Employment Discrimination Act). cans, engaged Reeves, pattern firing Supreme a Puerto Court said replacing Ricans and with non-Puer- it was conflict resolving them between the Ricans, or adopted corporate policies Courts of to Appeals plain “as whether a ..., discriminatory prima toward Puerto Ricans. tiffs facie case discrimination is no by There evidence of statements combined a with sufficient evidence for Conquistador’s management reject or in employ officers reasonable factfinder dicating Ricans, against nondiscriminatory bias Puerto explanation er’s for its decision, no evidence that El Conquistador’s adequate liability evalua is to sustain performance tion of her by was infected intentional discrimination.” Id. at 2104. stereotyped thinking types or other of un In some plaintiffs circuits a evidence of Thus, national-origin pretext, conscious bias. if we prima case and without trial, more, jury remanded for adequate get jury “would be left to the aon claim; others, guess pretext.” the reasons behind the discrimination there was Reynolds requirement Med v. R.J. plaintiff produce ina-Munoz a that the Co., Cir.1990). 5, 10 employer Tobacco F.2d additional that the evidence act circumstances, such summary discriminatory Under with judg ed animus. See id. at is proper. placed ment v. Lattimore Polaroid 2104-05. The Court the First Cir (1st Cir.1996) 99 F.3d in Corp., group, (citing 467-68 cuit the latter see id. granted summary appellants challenge 4. The district court also 1985. The do not judgment in favor of the defendants on claims any appeal. the dismissal of of these claims on 1981, 1983, brought pursuant §§ to 42 U.S.C. Materials, Inc., tionally against plaintiff Woods v. Friction 30 F.3d discriminated (1st Cir.1994)). all plaintiff.” remains at times with the at Although 120 S.Ct. the Court Although prior our use of the la that that emphasized “[p]roof the defen- bel, in a “pretext plus,” may have resulted unworthy explanation dant’s is of credence misunderstanding proof required about the simply is one form of circumstantial evi- to claim in this cir state a discrimination probative dence that is of intentional dis- cuit, explain have been to that we careful crimination, ... that] appropri- [and [i]n phrase did not mean that the circumstances, ate the trier of fact can always present beyond the must evidence reasonably falsity infer from of the ex- proof pretext of order establish dis planation dissembling that the is crimination. both and Thomas Woods up discriminatory a it purpose,” cover Co., emphatically v. Kodak we Eastman showing did not announce a rule that a of said that this is not the case. See Thomas pretext always summary precludes alone Co., Kodak Eastman judgment alleging a case intentional — (1st Cir.1999) denied, U.S. —, cert. contrary, discrimination. To the 145 L.Ed.2d 1082 that, emphasized judg- Court “Whether ‘plus,’ it (“Although uses the label ment matter is appropriate as a of law ‘pretext First standard plus’ Circuit’s does any particular depend case on a will num- necessarily of require the introduction ber of factors. Those include the strength beyond required additional evidence that case, plaintiffs prima the pro- (internal pretext.”) quotation show proof bative value that the employ- omitted); Woods, marks F.3d false, er’s explanation any is other (“[S]ome 260 n.3 where prima cases exist a supports that the employer’s pretext facie case and the of a disbelief may properly case and that be considered provide strong enough could inference judgment on a as a motion matter actual permit discrimination to the fact- law.” Id. 2109. Our conclusion that plaintiff.”). finder to find for the Feliciano failed to adduce sufficient evi- precedents Our consistent are with dence to survive Reeves, our application prece- of those particular based on the weakness her dents in the case at hand consistent case, therefore, entirely is consistent with explained with Reeves. We that Feliciano the Supreme Court’s conclusion that required any was not to show evidence in plaintiff in Reeves was entitled to have his pretext addition to her evidence of order by jury. claim heard get jury. Although to the we concluded petition panel rehearing The is de- explanations job Feliciano’s of her nied. performance problems generated a triable issue of pretext, we found her evidence of (consisting primarily “thin” of her

own explanations why she was unable to job

perform her adequately). That evi- any light

dence did not “shed on what

Conquistador’s firing true reason for

was, let alone show that the reason was

discrimination based on Feliciano’s Puerto

Rican origin.” approach

Our was therefore Reeves,

consistent with which makes clear of persuading ultimate burden “[t]he

the trier fact that the defendant inten-

Case Details

Case Name: Feliciano De La Cruz v. El Conquistador Resort & Country Club

Court Name: Court of Appeals for the First Circuit

Date Published: Jul 28, 2000

Citation: 218 F.3d 1

Docket Number: 99-1810

Court Abbreviation: 1st Cir.