Leonal Anthony GARCIA-GARCIA; Karelis Echevarría-Cruz; Conjugal Partnership Garcia-Echevarría, Plaintiffs, Appellants, v. COSTCO WHOLESALE CORPORATION, Defendant, Appellee.
No. 17-1014
United States Court of Appeals, First Circuit.
December 22, 2017
878 F.3d 411
There is no evidence from the record indicating that Rivera-Cruz‘s attorney was manifestly ineffective. Rivera-Cruz‘s ineffective assistance of counsel claim dovetails with his consideration argument. In particular, the former claim stands on two related premises: (1) the plea agreement provided Rivera-Cruz with no benefits in exchange for the rights he surrendered, leaving him worse off than if he had pled guilty without a plea agreement; and (2) informing Rivera-Cruz of this alleged fact would have created a reasonable probability that he would have gone to trial instead of pleading guilty. Because we have already rejected the first premise, the second one necessarily fails.3 That leaves Rivera-Cruz‘s ineffective assistance of counsel claim without a leg to stand on.
III. Conclusion
For the reasons stated above, we affirm.
Vincente J. Antonetti, Javier G. Vázquez-Segarra, and Goldman Antonetti & Córdova, LLC, on brief for appellee.
Before LYNCH, THOMPSON, and KAYATTA, Circuit Judges.
THOMPSON, Circuit Judge.
After approximately eleven years of working his way up the Costco1 employment ladder, appellant Leonal Anthony Garcia-Garcia2 (Garcia) was fired following an investigation which revealed an inventory discrepancy in the Meat Department that he managed. Garcia sued Costco in federal court invoking diversity jurisdiction and alleging an array of Puerto-Rico-based claims stemming from his discharge.3 The district court granted summary judgment in favor of Costco on all counts and Garcia appealed to this Court. We briefly summarize Garcia‘s employment history before we delve into the inventory snafu which ultimately led to his dismissal. In doing so, we view the evidence in the light most favorable to Garcia and draw all reasonable inferences in his favor. See Del Valle-Santana v. Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 128 (1st Cir. 2015).
In 2002, Garcia began working at Costco store #365 located in Caguas, Puerto Rico, as a meat wrapper in the store‘s Meat Department. Throughout his tenure at Costco, Garcia continuously received positive performance evaluations and promotions. In 2006, he was elevated to meat cutter, and then in 2011, to meat manager. As part of his responsibilities as manager, Garcia was tasked with conducting inventory of all goods within the Meat Department. Although meat inventory was not Garcia‘s sole responsibility, it was nevertheless his “primary” one.
Fast forward to October 28, 2013. Steve Stoddard, a Regional Meat Manager at Costco, noticed, while reviewing the Costco meat inventory, that “the ending inventory of $297,000 represented a meat inventory much higher than the actual inventory [Costco] store #365 [could] physically accommodate in the store at any given time.”4 Thereafter, David Soto, then Costco-store-#365‘s manager, along with his assistant manager, Rocío Mendez, and Garcia were tasked with conducting a full accounting of the Meat Department‘s stock. What they found was an ending inventory of $315,000. Given this high ending tally, a manual count of the meat cases was performed, which resulted in a discrepancy of $114,000 in missing product.
Following up, on November 4, 2013, Nayreth Ríos, Internal Auditor at Costco store #365, along with Rocío Mendez and Garcia, performed a second manual inventory count, which resulted in an ending value of $178,000. When handed the result, Stoddard compared the audited manual inventory count with the ending inventory of the previous period and concluded that “the inventory discrepancy was due to a hidden shrink5 of approximately $146,000.” A broader review of the inventory entries revealed that, on the 27th, 28th and 29th of October 2013, manual entries of approximately $114,000 in product were made into the system (known as AS400). At that time, “it was determined that ... Costco‘s inventory of the Meat Department for store #365 had been erratic for over nine monthly periods.”
Thomas Farano, a Loss Prevention/Regional Manager at Costco, conducted interviews to get to the bottom of the product discrepancy. While speaking with Garcia, Farano, along with Jose Mendez, Costco‘s Loss Prevention Manager, and Frank Chiriboga, Costco‘s Regional Meat Manager, accused Garcia of stealing and altering the inventory numbers “to cover up the theft.” According to Farano,
[Garcia] denied any knowledge or involvement in entering the additional inventory into the AS400. [Garcia] indicated that other people had his pass word [sic] and he did not make any fraudulent entries to increase his inventory levels. He also could not offer any explanations to what could have happened which would have impacted the inventory numbers.
Jeremy Dempsey, Vice President of Operations at Costco, also interviewed Garcia6 and accused him of “manipulating inventory and stealing products.” When grilled, Garcia once again was “unable to explain why his inventories were high and erratic
Seven days later, on November 29, 2013, Costco gave Garcia the boot. According to Garcia, Soto delivered the discharge news, and while doing so, apologized to Garcia and admitted Costco had no evidence that “pointed to Garcia as having committed any wrongdoing.” Approximately two months later, Garcia sent a letter to Joe Portera, Costco‘s Executive Vice President, asking Costco to reconsider its decision to terminate his employment. In the letter, Garcia pointed out that other younger employees, “both male and female,” who had been involved in “similar situations” had been allowed to continue working at Costco. He professed, once again, that he did not steal from Costco and urged Portera to reconsider his termination. Garcia‘s request was denied and his employment was never reinstated.
The following year, Garcia, represented by counsel, sued Costco in federal court pursuant to
Following discovery, Costco filed a motion for summary judgment maintaining that the “present case poses no genuine issues of material fact and as a matter of law the instant [c]omplaint should be dismissed.” In support of its motion, Costco filed three affidavits from Costco agents Stoddard, Farano, and Dempsey. Garcia objected to the motion on several grounds, including that Costco had failed to meet its burden of establishing that his termination was based on good cause.7 Garcia also objected to the admission of the three affidavits asserting they were not notarized and, according to Garcia, “all fail to represent[,] assert[,] and/or mention in the specific document that each declarant
STANDARD OF REVIEW
“We review the entry of summary judgment de novo.” Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 126 (1st Cir. 2017). A grant of summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015). “A genuine issue of fact exists where ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.‘” Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009) (quoting Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009)). The court must examine “the record in the light most favorable to the nonmovant” and must make “all reasonable inferences in that party‘s favor.” Ameen, 777 F.3d at 68 (quoting Barclays Bank PLC v. Poynter, 710 F.3d 16, 19 (1st Cir. 2013)). “While we resolve all reasonable inferences in favor of the nonmoving party, we ‘must ignore conclusory allegations, improbable inferences, and unsupported speculation.‘” Taylor, 576 F.3d at 24 (quoting Am. Steel Erectors, Inc. v. Local Union No. 7, Int‘l Ass‘n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008)).
Moreover, when the district court‘s ruling is dependent in part on preliminary evidentiary rulings, we “review the district court‘s evidentiary rulings made as part of its decision on summary judgment for abuse of discretion.” Hoffman v. Applicators Sales and Serv., Inc., 439 F.3d 9, 13 (1st Cir. 2006) (citing Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 31 (1st Cir. 2004)).
DISCUSSION
On appeal, Garcia raises with us the same arguments he made below regarding the admission of the affidavits and the exhibits attached thereto—that neither should have been considered because they were not in compliance with Rule 56(c)(4) of the Federal Rules of Civil Procedure. Additionally, Garcia continues to challenge the judge‘s summary-judgment ruling on the merits of each of his six claims against Costco. We begin with a discussion of the
A. Admission of Affidavits
Before this Court, Garcia once again maintains that Costco‘s supporting affidavits were not in compliance with Rule 56 for two reasons: (1) because the affiants did not declare that they have personal knowledge regarding the matters stated therein; and (2) because the inventory exhibits attached to the affidavits were not authenticated by the affiants. We are not persuaded the judge abused her discretion.
1. Affidavits
Garcia maintains the judge erred by not striking the affidavits of Stoddard, Farano, and Dempsey from the record. According to Garcia: the three affidavits “reveal[] that the affiants did not declare that they have personal knowledge of the purported facts set forth in each of their declarations” and, “[f]or such reason and because the affiants did not declare how they would be competent to testify on those matters raised in the [affidavits] at trial, the [district court] erred in not striking these from the record as they are inadmissible in evidence.”11 (Emphasis in the original). Notably, although Garcia summarily and generally asserts that the affiants lacked personal knowledge about the matters being sworn to, the argument he actually develops on appeal is much more narrow and technical—he argues that the affiants’ mere failure to specifically declare within the affidavits themselves that they did have personal knowledge suffices to make the affidavits inadmissible.
First we note that Rule 56 contains no requirement that the affiant specifically articulate that he or she has personal knowledge. See
But, to the extent the affiants make broader statements about the inventory investigation without making their knowledge readily clear, those statements are either undisputed or are not specifically challenged by Garcia. Again, we note he does not contest the accuracy or veracity of any specific statement within the affidavits.
Accordingly, we find no abuse of discretion in the lower court‘s decision to admit the affidavits. See Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 445 n.1 (1st Cir. 2009) (no abuse of discretion in admitting employer affidavit to show what motivated employee‘s firing because “the relevant question in th[at] case [was] not whether [the employer] was correct that [the employee] had violated rules, but whether that perceived violation was the reason it fired him“).
2. Exhibits
As to the exhibits attached to the affidavits, Garcia maintains that they were not authenticated by the affiants or certified under oath and therefore, should have been excluded. We disagree. As noted, the district court never reached the merits of this contention because Garcia‘s argument was merely boilerplate—it characterized the exhibits as lacking authentication without noting any specifics. While Garcia attempts to resurrect this argument on appeal by adding in a bit more bite (he gets more specific and argues the exhibits are “illegible and unsigned“), his attempt is futile. See McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (“It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal.“). Importantly, Garcia does not challenge the district court‘s finding that his argument regarding the exhibits was mere boilerplate. Accordingly, “[w]e reject, as procedurally defaulted,” Garcia‘s arguments relating to the authenticity of the exhibits. See id.
Seeing no abuse of discretion, we proceed first to address Garcia‘s wrongful discharge challenge and then take up his gender-based discrimination and defamation claims.
B. Wrongful Discharge (Law 80)
Garcia‘s wrongful discharge claim is based on a Puerto Rico statute, colloquially known as “Law 80,” which provides a remedy to employees who are discharged “without just cause.”
- “the worker indulges in a pattern of improper or disorderly conduct[;]”
Id. § 185b(a) . the employee‘s failure to perform his or her work “in an efficient manner, or ... doing it belatedly and negligently or in violation of” quality standards; Id. § 185b(b) .- “repeated violations of the reasonable rules and regulations established” by the employer, if a written copy has been duly furnished to the employee.
Id. § 185b(c) .12
The following burden-shifting framework is applicable to Law 80 claims: “(1) the employee must [first] show that he or she has been discharged and allege that the dismissal was not justified; (2) the burden then shifts to the employer to show, by a preponderance of the evidence, that the dismissal was justified; and (3) if the employer shoulders that burden, the employee must rebut the showing of good cause.” Echevarría, 856 F.3d at 140.
In the present case, our de novo review demonstrates that Garcia easily overcomes the first hurdle—it is undisputed that he was discharged from his employment with Costco and he alleges in his complaint that such discharge was not justified.
The burden now shifts to Costco to show by a preponderance of the evidence that Garcia‘s discharge was based on good cause. See id. To meet the good-cause prong, Costco “need only demonstrate that it had a reasonable basis to believe that [Garcia] has engaged in one of those actions that the law identified as establishing such cause.”
whim, but rather for a sensible business-related reason.” Hoyos v. Telecorp Commc‘ns, Inc., 488 F.3d 1, 10 (1st Cir. 2007) (emphasis added). The termination need only be “non-arbitrary” and bear “some relationship to the business’ operation.” Pérez, 804 F.3d at 9.
Costco cites Garcia‘s inability to account for the $146,000 in missing meat product as the cause of his termination. As noted, Garcia, as meat manager, had inventory oversight of the Meat Department. He himself admitted at his deposition that ensuring that the reported inventory figures comported with the physical inventory in the Meat Department was his “primary responsibility“; despite this, under his supervision, the meat inventory was inflated for a total of nine monthly periods. When Costco agents inquired about the discrepancy, Garcia was unable to explain or justify the numbers. At best, the record shows that Garcia wasn‘t satisfactorily performing his primary job responsibility. Given this backdrop, we believe the evidence presented by Costco would compel a reasonable jury to conclude that Costco has met its good-cause burden and that its decision to dismiss Garcia was not made on a whim.13 See Hoyos, 488 F.3d at 10. Therefore, Costco has shouldered its burden of proving by a preponderance of the evidence that Garcia‘s employment was terminated for good cause. See Pérez, 804 F.3d at 10 (“Although [employee] has shown that he was discharged, a reasonable jury could only conclude that [employer] ha[d] met its burden of showing just cause.“)
The following three themes can be distilled from Garcia‘s brief (with a lot of effort on our part) as addressing why he believes he has rebutted Costco‘s good-cause showing: (1) he had an excellent employment record at Costco; (2) no inventory discrepancy actually existed; and (3) even if one did exist, Costco failed to prove he was the one responsible.14 We address and reject each of these arguments in turn.
1. Employment History
Garcia maintains that as to his “purported job incompetence and just cause for dismissal,” he presented evidence that he had a great employment history with Costco, highlighting that “during the same year of his termination, (2013) he was favorably evaluated and received a salary increase.” He also cites to his history of frequent promotions, high ratings on quality inspections, and high monthly aver-
age sales to rebut Costco‘s good-cause showing.
While evidence of overall positive employment reviews may be used to establish pretext when an employee is later terminated for poor performance, see Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 140-43 (1st Cir. 2012), Costco has never suggested that it was anything but pleased with Garcia‘s work performance before his elevation to Meat Department manager. Indeed, in 2010 Costco had named Garcia employee of the month. However, Costco need not establish a continuous pattern of poor behavior to satisfy the good-cause prong; instead, one instance can suffice. See Hoyos, 488 F.3d at 6 (“Although Law 80 generally refers to multiple episodes of misconduct as constituting good cause, ‘Law 80 does not invariably require repeated violations, particularly where an initial offense is so serious, or so reflects upon the employee‘s character, that the employer reasonably should not be expected to await further occurrences.‘“) (quoting Gonzalez v. El Dia, Inc., 304 F.3d 63, 75 (1st Cir. 2002)). Undeniably, Costco‘s proffered reason—a costly and unexplained $146,000 inventory discrepancy within the department Garcia managed—is so severe that Costco could not have been “expected to await further occurrences.” See id. Therefore, Garcia‘s first attempt to rebut Costco‘s good-cause showing fails.15
Next, Garcia argues that there was no actual inventory discrepancy as all the products that Costco agents claimed were missing were, in fact, “physically there and part of the inventory.” According to Garcia, when he specifically asked to see the list of “missing items,” Costco was unable to provide him with one.16 Garcia maintains that the apparent inventory discrepancy could easily be explained: Costco agents compared a partial inventory (of just beef and pork resulting in a low $160,000 figure)17 with the inventory reported for the entire Meat Department. In other words, there appeared to be a discrepancy because they did not compare the same products.
Garcia‘s attempt to undermine Costco‘s evidence of hidden shrinkage fails. Stoddard‘s affidavit, including the inventories and emails attached thereto, show that the “partial inventory” of pork and beef Garcia refers to was in fact compared to a manual inventory conducted for the same meat items. Here‘s what the record shows: Stoddard was surprised by the reported inventory of $297,000 and requested that Soto perform another inventory; after the results were still high ($315,000), Stoddard requested a manual recount of the entire Meat Department ($178,000) and, specifically, the results for “pork and meat.”18 Stoddard then compared the results of the manual recount sent by Soto to reported
inventories for seven specific “pork and meat” items. The $114,000 discrepancy found was the result of a comparison between what was reported and what was physically present for these seven meat items.19 Thus, Garcia‘s argument that the apparent discrepancy is based on an inherently flawed analysis is not supported by the record.
3. Other Employees
Lastly, Garcia faults Costco for failing to meet “its burden of demonstrating without any doubt” that he is the person who actually engaged in the alleged theft and/or inventory manipulation. Other employees, including managers and auditors, had his password, says Garcia, and could have accessed and entered false inventory figures into AS400. Once again, we are not persuaded.
For starters, Garcia clearly has the standard wrong; Costco need not “demonstrate[] without any doubt” that Garcia manipulated the numbers. Instead, it must show by a preponderance of the evidence that it had good cause to terminate Garcia. See
Accordingly, because a reasonable jury would be compelled to find that Costco has met its burden of proving just cause and that Garcia has failed to rebut such showing, the district court correctly granted summary judgment on the Law 80 claim.20 Id. at 8.
C. Gender Discrimination (Law 100 and Law 69)
In addition to his wrongful discharge claim, Garcia alleges that he was discriminated against in violation of Law 100,
One method of showing that an employer‘s stated reasons are pretextual “is to produce evidence that the plaintiff was treated differently than other similarly situated employees.” Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003) (citations omitted). While the “examples of disparate treatment ‘need not be perfect replicas, ... they must closely resemble one another in respect to relevant facts and circumstances.‘” Id. (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)). In other words, when comparing the plaintiff‘s experience to that of other employees, “apples should be compared to apples.” Woodward v. Emulex Corp., 714 F.3d 632, 639 (1st Cir. 2013) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)).
After reviewing the record, we conclude that Garcia‘s gender discrimination claims under Law 100 fail because he has not “proffered sufficient admissible evidence, if believed, to prove by a preponderance of the evidence ... that the employer‘s justification ... was merely a pretext for impermissible [gender] discrimination.” See Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007) (quoting Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092 (1st. Cir. 1995) (ellipses in original)). In support of his pretext argument, he claims “similarly situated female employees” were treated differently and cites several examples of employee wrongdoings that went unpunished.23
First, Garcia notes that three female employees, including Beatriz Gomez, Rocío Mendez, and Johanne Oquendo, were allowed to continue their employment at Costco after they admitted to authorizing a $95,000 purchase which was later discovered to be fraudulent. Garcia suggests that the monetary amount involved in this incident alone should have been enough to terminate these employees. Even assuming that the employees implicated in the incident were “similarly situated” because of the monetary value of the fraud, a crucial fact, which Garcia acknowledged at deposition but omitted from his brief, is that this incident also involved two male employees who like their female colleagues were not terminated. See Mariani-Colón v. Dep‘t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 222 (1st Cir. 2007).
To have a plausible differential treatment claim, Garcia was required to first show that employees of the opposite sex were similarly situated and that he “was treated differently and then that gender was the reason for that difference.” Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002) (citations omitted). Given that male employees were also involved, this fraud incident does little to support Garcia‘s allegation that he was treated differently than female employees, let alone “that gender was the reason for that dif-
Second, Garcia maintains that Johanne Oquendo and Rocío Mendez were involved in some sort of “issue with the use and payment of the chemicals,” but were allowed to continue working at Costco.24 Garcia also cites to an incident where Rocío Mendez failed to follow managerial procedure after she observed another employee improperly use Garcia‘s password to access AS400. We can easily dispose of both examples as Garcia fails to explain exactly how these women were “similarly situated” to him—he provides no detail and no support other than his subjective belief that he was being discriminated against by Costco. See Mariani-Colón, 511 F.3d at 222 (summary judgment affirmed in favor of employer in employee‘s Title VII discrimination claim because employee‘s “statements merely reflect [his] ‘subjective speculation and suspicion’ that he was treated unfairly“) (quoting Quinones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006)). His general statements that are not properly supported by the record fail to carry the day.
Prior to the inventory discrepancies and Garcia‘s termination, Garcia had been repeatedly promoted by Costco and “[t]here were no statements or behaviors by [Costco agents] involved in terminating [Garcia] from which an inference of discrimination could be drawn.” See Rivas Rosado, 312 F.3d at 534. The evidence presented at summary judgment would not permit a reasonable jury to find that Garcia had carried his burden of proof on the ultimate
issue of discrimination. After taking a fresh look ourselves, we conclude that the district court did not err in dismissing with prejudice Garcia‘s gender discrimination claim.
D. Retaliation (Law 69)
Moving along, Garcia alleges that his discharge was an act of retaliation after he complained to Costco agents that he was being treated differently than his female co-workers—recall he told Dempsey, Soto, and Farano during the inventory investigation that Beatriz Gomez, Rocío Mendez, and Johanne Oquendo were not disciplined after engaging in similar alleged misconduct. Law 69,
Garcia maintains that “the facts demonstrate that prior to his unlawful termination, [he] grieved of gender based disparate treatment” by Costco and that the temporal proximity—being fired just seven days after he last grieved—may alone create the causal connection “between the firing and the activity because it is strongly suggestive of retaliation.” See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (“[O]ur law is that temporal proximity alone can suffice to meet the relatively light burden of establishing a prima facie case of retaliation.“) (quoting DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008)). Here, though, any probative force of the chronology is belied by the fact that the allegation of discrimination itself only came in response to Costco‘s accusation of a defalcation that was itself the cause for the discharge that ensued. See Germanowski v. Harris, 854 F.3d 68, 74-75 (1st Cir. 2017). For purposes of this appeal, we will nevertheless assume without deciding that Garcia has produced adequate evidence to establish a prima facie case. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001); see also Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 67 (1st Cir. 2008) (“For simplicity‘s sake, we assume without deciding that the plaintiff established a prima facie case....“).
Taking it from there, the burden then shifts to Costco to articulate a legitimate, non-retaliatory reason for its action. See Collazo, 617 F.3d at 46 (citation omitted). Given Costco‘s reason for discharging Garcia—the inventory discrepancy—as discussed in detail above, Costco has met this burden. Having been successful, “the burden shifts back to [the plaintiff] to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant‘s retaliatory animus.”
Garcia has presented no evidence by which a reasonable jury could conclude that Costco‘s proffered reason for terminating him was mere pretext and that his termination “was the result of the defendant‘s retaliatory animus.”
E. Defamation
Garcia‘s final arguments address his defamation claims. He contends the judge
A defamation claim based on all three sources of Puerto Rico law “requires that the plaintiff prove: (1) that the information is false, (2) that plaintiff suffered real damages, and (3) in the case of a private figure plaintiff, that the publication was negligent.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 98 (1st Cir. 1996) (quoting Mojica Escober v. Roca, 926 F.Supp. 30, 33 (D.P.R. 1996)); see
As at issue here, communications within an organization “among ‘managers or supervisors of a discharged employee, regarding the reasons for‘” an employee‘s discharge are covered by a conditional privilege. Soto-Lebrón v. Fed. Express Corp., 538 F.3d 45, 63 (1st Cir. 2008) (quoting Porto y Siurano, 132 D.P.R. at 353-54). Because the privilege is conditional, it is lost if the employer abuses it by giving the statement “excessive publicity” or by publishing it for “improper reasons.” Id. The privilege also vanishes if the publication is made to one whom there is no reason to believe will protect the author‘s interest or the community‘s. Porto y Siurano, 132 D.P.R. at 354.
Garcia argues that the district court twice erred, first by ruling that Costco‘s publications were subject to privilege; according to Garcia, Costco “abused its conditional ... privilege by publicizing defamatory statements to other [Costco] employees who had no right to know about Garcia‘s termination of employment.” Second, Garcia argues that he “proffered evidence to prove malice,” as the statements “were made with knowledge of falsity and reckless disregard as to their truth.”
We agree with the district court‘s conclusion that Garcia‘s allegations in support of his defamation claims “are the textbook definition of ‘conclusory.‘” As the district court noted, all that Garcia put forth fell into three groups: “(1) conversations that he sustained with his superiors as part of the investigation into the inventory discrepancies;” “(2) alleged information relayed ... by ... other Costco employees” (including Garcia‘s father-in-law who worked at Costco); and “(3) two emails sent by Jerry Dempsey to Yoram Robanenko and David Soto” accusing Garcia of altering company documents.
As it relates to group one conversations—Garcia‘s superiors accusing him “of negligence, lying, stealing merchandise[,] and of manipulating inventory and its data[,]“—clearly these communications are intra-business communications covered by the qualified privilege. See Porto, 132 D.P.R. at 354-55. Garcia has failed to present any evidence to support his allegation that the privilege was lost due to “excessive publication” or that any publication was made for “improper reasons.” See
Moreover, as it relates to the remaining groups two and three statements—those purportedly made by Costco managers to employees, which eventually made their way to Garcia—we agree with the district court that they “are based on nothing more than hearsay and gossip, and, as such, do not provide a solid basis for a defamation claim.” Garcia presented no supporting affidavits or deposition transcripts from the individuals who allegedly learned these defamatory statements from Costco managers. The deposition transcript of Israel Echevarría-Nieves (Garcia‘s father-in-law), which accompanied Garcia‘s objection to Costco‘s motion for summary judgment, does not provide any support for Garcia‘s allegations. Echevarría-Nieves (like we mentioned earlier), an employee at a separate Costco store, noted that his manager, Rafael Reyes, asked him what he thought had occurred at store #365 but that he didn‘t have an answer for
him. According to Echevarría-Nieves, his manager said that prices were inflated and that numbers did not match, and that Garcia “had no reasoning or answer to that;” “that it appeared that it was either they had stolen the merchandise or they had inflated the inventories.” When specifically asked whether Reyes had told him that Garcia had stolen the merchandise, Echevarría-Nieves responded: “No. [Reyes] just said that he didn‘t understand how something like that could‘ve happened.” Not only is this statement hearsay, even if it were admitted and accepted, it readably does not support Garcia‘s claims. See United States v. $8,440,190.00 in U.S. Currency, 719 F.3d 49, 61 (1st Cir. 2013) (“[I]t ‘is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted[.]’ “) (quoting Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012)).
Accordingly, even viewing the evidence in the light most favorable to Garcia, he has completely failed to present any triable issue relating to his defamation claims to survive summary judgment. Accordingly, we affirm the entry of summary judgment in favor of Costco.26
AFFIRMED.