ROSA LOPEZ-HERNANDEZ, Plaintiff, Appellant, v. TERUMO PUERTO RICO LLC, Defendant, Appellee, TERUMO MEDICAL DEVICES COMPANY, Defendant.
No. 21-1363
United States Court of Appeals For the First Circuit
March 30, 2023
Before Kayatta, Howard and Gelpi, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Juan M. Frontera-Suau, with whom Frontera Suau Law Offices, PSC, was on brief, for appellant.
Mariana Muniz Lara, with whom Janine Guzman and DLA Piper (Puerto Rico) LLC, were on brief, for appellee.
GELPI,
I. BACKGROUND
Lopez-Hernandez brought this action in the District of Puerto Rico. Upon conclusion of discovery, Terumo moved for summary judgment. The district court determined that Lopez-Hernandez failed to put forth evidence to allow a reasonable juror to find that Terumo‘s reasons for not selecting Lopez-Hernandez for a promotion and for terminating her employment were pretextual and that those actions were really motivated by gender discrimination or retaliatory motives. Rather, the district court found that there was sufficient unrefuted evidence demonstrating Lopez-Hernandez‘s poor performance, deficient supervisory and interpersonal skills, and violations of company policies justifying the failure to promote and the eventual termination. Further, the district court found that Lopez-Hernandez did not show that Terumo‘s reasons were implausible or inconsistent, that she was treated differently than similarly situated male employees, or that decisionmakers made gender-based comments related to the termination decision. The district court lastly found that the only alleged comment related to gender was not related to the employment decision in question and was not made by a decisionmaker.
The district court granted Terumo‘s motion for summary judgment and dismissed Lopez-Hernandez‘s claims with prejudice, finding that she failed to show that Terumo‘s decisions not to promote her, and later to terminate her employment, were motivated by discriminatory animus. This appeal followed.
II. DISCUSSION
A. LOCAL RULE 56
Before delving into the merits of this appeal we find it instructive to first address Lopez-Hernandez‘s failure to comply with District of Puerto Rico‘s Local Rule 56. Local Rule 56 requires that a motion for summary judgment “be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried.” D.P.R. Civ. R. 56(b). The party opposing the motion for summary judgment must then “submit with its opposition a separate, short, and concise statement of material facts. The opposing statement
“Local Rule 56 is in service to Federal Rule of Civil Procedure 56.” Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd‘s of London, 637 F.3d 53, 56 (1st Cir. 2011). Under
Under Local Rule 56, “a district court is free, in the exercise of its sound discretion, to accept the moving party‘s facts as stated” D.P.R. Civ. R. 56(e) when the statements contained in the movant‘s Statement of Uncontested Facts (“SUF“) are not properly controverted.” Advanced Flexible Cirs., Inc. v. GE Sensing & Inspection Techs. GmbH, 781 F.3d 510, 521 (1st Cir. 2015) (quoting Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007)). Said anti-ferret rule is intended to protect the district court from perusing through the summary judgment record in search of disputed material facts and prevent litigants from shifting that burden onto the court. See CMI Cap. Mkt. Inv., LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008); P.R. Am. Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 131-32 (1st Cir. 2010). We have repeatedly emphasized the importance of complying with said local rule and have implored litigants to comply or ignore it “at their peril.” Mariani-Colon v. Dep‘t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007) (quoting Caban Hernandez, 486 F.3d at 7); see also Rodriguez-Severino v. UTC Aerospace Sys., 52 F.4th 448, 458 (1st Cir. 2022).
Before us now is yet another example of the consequence to a litigant who fails to comply with the District of Puerto Rico‘s Local Rules on summary judgment. See Sanchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 210-11 (1st Cir. 2008). Violations of this local rule are astoundingly common and constitute an unnecessary burden to the trial court‘s docket and time, and frequently make their way before us for review.
Lopez-Hernandez responded to Terumo‘s motion for summary judgment, denying fifty-nine and qualifying seven of Terumo‘s SUF. These failed to adhere to Local Rule 56(c) & (e)‘s record citation requirement. Numerous “facts” memorialized in her opposition statement were supported only by general references to Lopez-Hernandez‘s SUF yet those citations
identified record material supporting the assertion.‘” Caban Hernandez, 486 F.3d at 7-8 (quoting D.P.R. Civ. R. 56(e)).
Because of Lopez-Hernandez‘s failure to properly controvert Terumo‘s statement of uncontested facts, we deem Terumo‘s statement of uncontested facts admitted under Local Rule 56. With this backdrop we next address our review of the district court‘s entry of summary judgment.
B. MOTION FOR SUMMARY JUDGMENT
Lopez-Hernandez claims that she was discriminated against on the basis of sex in two contexts. First, she was not selected for a promotion and, close in time, Rafael Benitez (“Benitez“), Operations Director at Terumo, allegedly made comments about not liking her and about not being used to working with women. Second, she was terminated from her employment several months after complaining about Benitez‘s alleged sex discrimination. We address each in turn.
1. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material
We review a district court‘s grant or denial of summary judgment de novo, examining the record in the light most favorable to the nonmovant and drawing all reasonable inferences in that party‘s favor. Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015). “The party moving for summary judgment must show that ‘there is no genuine dispute as to any material fact’ and that it ‘is entitled to judgment as a matter of law.‘” Rodriguez-Severino, 52 F.4th at 461 (quoting
2. Title VII: SEX DISCRIMINATION
Title VII of the Civil Rights Act of 1964 forbids a covered employer from “discriminat[ing] against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual‘s . . . sex.”
Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate “a legitimate, nondiscriminatory reason” for the adverse employment action. Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir. 2003). After the employer presents evidence of a non-discriminatory reason, the plaintiff must show that the proffered non-discriminatory reasons are a pretext for unlawful discrimination. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir. 1996). At all times the burden of persuasion remains with the plaintiff. Tex. Dept. of Cmty. Affs. v. Burdine, 450 U.S. 248, 255-56 (1981); Mariani-Colon, 511 F.3d at 221.
Although we draw all reasonable inferences in the nonmovant‘s favor, we will not “draw unreasonable inferences or credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective.” Caban Hernandez, 486 F.3d at 8. It bears repeating that genuine issues of material fact are “not the stuff of an opposing party‘s dreams,” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), and “a party cannot successfully oppose a motion for summary judgment by resting ‘upon mere allegations or denials of his pleading,‘” Pina, 740 F.3d at 795 (quoting LeBlanc v. Great Am. Ins., 6 F.3d 836, 841 (1st Cir. 1993)).
Lopez-Hernandez places great weight on her deposition testimony that, when reviewing her 2016 performance evaluation, during the selection process for the
Notwithstanding, if the record shows as a matter of law that Lopez-Hernandez was not qualified for the position of Senior Production Supervisor, her discrimination claim must fail. See, e.g., Goncalves v. Plymouth Cnty. Sheriff‘s Dep‘t, 659 F.3d 101, 107 (1st Cir. 2011) (affirming grant of summary judgment for the employer because the plaintiff “failed to show that she was . . . qualified” and thus could not “meet her burden of showing a prima facie case of discrimination“); Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (explaining that a plaintiff must show that she “was qualified for an open position for which she applied” as a prima facie element of a failure-to-promote claim). That is the case here, as evidenced by the facts deemed admitted under Local Rule 56.
The Senior Production Supervisor job required:
Excellent communication, interpersonal, supervisory and teamwork skills, including abilities for people management, motivating the personnel to obtain top performance, handling personnel scheduling, evaluating discipline, providing coaching, ensuring adequate communication with staff, serving as liaison with other production supervisors for efficient transitions, ensuring compliance with all procedures, and communicating in English and Spanish.
Under Terumo‘s Employee Manual, an internal candidate seeking a promotion must have satisfactorily performed in his/her current role for a minimum of one year and must meet the qualifications for the new position in order to be considered.
In the three and a half years in which Lopez-Hernandez worked for Terumo and its predecessor, the company received a steady stream of complaints from Lopez-Hernandez‘s peers, subordinates, and support personnel about her interpersonal, supervisory, and communication skills. These complaints included reports that Lopez-Hernandez was disrespectful to her subordinates, that she showed favoritism to some employees and retaliated against others, that she gave her subordinates incorrect or conflicting instructions about procedures, that the team she supervised did not complete pending tasks and required documentation, and that she did not verify that operators under her supervision were following quality procedures. Terumo produced exhibits from twenty different individuals (including human resources professionals, Lopez-Hernandez‘s supervisors, and employees who had submitted complaints regarding Lopez-Hernandez to the company) to evidence these complaints. Lopez-Hernandez was given feedback, repeatedly, for failing to adequately perform her duties as a supervisor, including for her mistreatment of employees and failure to maintain quality controls.
Lopez-Hernandez did not communicate effectively and was often hostile and disrespectful to other employees in documented incidents. She rejected feedback and coaching opportunities despite being offered multiple opportunities to improve. The Senior Production Supervisor position required the ability to energize and motivate subordinates; Lopez-Hernandez, however, had created such a hostile work environment among her group that several of her subordinates sought psychiatric services, several asked to have their shifts
Lopez-Hernandez also contends that if her performance issues were “as ample and as ongoing” as Terumo asserted, then she should have been terminated. This does not actually deny the complaints made against her or the performance deficiencies identified by Terumo, and the company made clear that it raised these deficiencies with Lopez-Hernandez in repeated attempts to help her improve her job performance, thus explaining why she was not previously terminated.
Lopez-Hernandez asks us to disregard Terumo‘s evidence, arguing that it comes from interested witnesses and therefore may not be considered under Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). In Reeves, the Supreme Court explained that, at summary judgment, a court:
[m]ust disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’
Id. at 151. (quoting 9A C. Wright & A. Miller, Federal Practice and Procedure § 2529, at 300 (2d ed.1995)).
In Dennis v. Osram Sylvania, Inc., 549 F.3d 851 (1st Cir. 2008), as here, the appellant argued that the district court at the summary judgment stage should not have credited certain declarations because the proponents were interested parties. Id. at 856. We held that the appellant misread the scope of Reeves and explained that “[a]t summary judgment we need not exclude all interested testimony, specifically testimony that is uncontradicted by the nonmovant.” Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir. 2007)). Doing so, we acknowledged, would make it impossible for employers at the summary judgment stage to defend against retaliation claims, especially at the second step of the burden-shifting framework described infra. Id. And in this case, any argument for ignoring fulsome evidence of performance deficiencies is undercut by the volume of specific and similar complaints over time from so many different employees, documented long before the decision at issue here was made.
As we concluded previously, Lopez-Hernandez failed to adequately controvert Terumo‘s statement of uncontested material facts, and like the appellant in Dennis, she reads Reeves too narrowly to compel the result she seeks. We therefore conclude that Lopez-Hernandez has failed to make out a prima facie case of discrimination on her failure-to-promote claim.
3. Title VII: Retaliation
Lopez-Hernandez further contends that the district court erroneously dismissed her retaliation claim under Title VII. She posits that, nearly five months after she lodged an internal sex discrimination complaint against Benitez, Terumo terminated her employment in retaliation. She further acknowledges that while temporal proximity may suggest retaliation, it is not sufficient in certain cases to sustain a reasonable inference of the but-for causation required to prevail in a retaliation action.
The district court concluded that “[a]ssuming arguendo that [Lopez-Hernandez] could make a prima facie case of retaliation, [Terumo] has produced substantial evidence of a non-discriminatory reason for Plaintiff‘s termination, namely the plethora of complaints filed against her for violations of company policies and mistreatment of her coworkers.” Lopez-Hernandez, 2021 WL 1811641, at *4. The district court also concluded that the Appellant had simply not shown that Terumo‘s stated reason was false and pretextual, nor had she provided sufficient evidence to even establish the existence of a trial-worthy issue. Moreover, it reasoned that Appellant‘s reliance on temporal proximity was misplaced. “[W]hile temporal proximity is one factor from which an employer‘s bad motive can be inferred, by itself, it is not enough -- especially if the surrounding circumstances undermine any claim of causation.” Lopez-Hernandez, 2021 WL 1811641, at *4 (quoting Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 720 (1st Cir. 2014)).
“Title VII bars employers from retaliating against an . . . employee because she ‘has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.‘” Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 24 (1st Cir. 2014) (quoting
When direct evidence of retaliation is lacking, as it is here, we utilize a familiar burden-shifting framework. To establish a prima facie case of retaliation, Lopez-Hernandez must show: “(1) she engaged in protected conduct; (2) she suffered an adverse employment action; and (3) that a ‘causal nexus exists between the protected [conduct] and the adverse action.‘” Garayalde-Rijos, 747 F.3d at 24 (third alteration in original) (quoting Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014)); see also Univ. of Tex. S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for
We now turn to the first requirement: protected activity. Neither party disputes that the internal complaint constituted protected activity. The parties also agree that Appellant satisfies the second requirement, as termination is an adverse employment event. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002) (citing Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)).
Terumo argues that Lopez-Hernandez cannot show the requisite causal connection between the internal complaint and her termination since its decision to terminate her was based on her misconduct and Benitez was not involved in said decision. We agree. The temporal proximity of almost five months between the internal complaint and the misconduct that led to Lopez-Hernandez‘s dismissal does not evidence that there was a causal connection between Appellant‘s complaint and her termination. Calero-Cerezo v. U.S. Dep‘t of Just., 355 F.3d 6, 25 (1st Cir. 2004) (“Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity.“). Besides asserting that she was dismissed four and a half months after filing an internal complaint, Lopez-Hernandez fails to set forth evidence connecting her protected activity to the adverse action. See Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 85 (1st Cir. 2005); Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (explaining chronological proximity does not establish causality by itself, especially if “[t]he larger picture undercuts any claim of causation” (quoting Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997))).
In view of the uncontested facts, Appellant has not shown that a reasonable jury could conclude that her internal sex discrimination complaint was the but-for cause of her termination. Summary judgment was thus also proper on Lopez-Hernandez‘s retaliation claim.
4. PUERTO RICO LAW CLAIMS
Lopez-Hernandez also raised claims under Puerto Rico Laws 100, 69, and 115, the local counterparts to federal anti-sex discrimination and retaliation statutes.2 These are subject to the same analysis as their federal counterparts. Indeed, Title VII‘s anti-retaliation law and the anti-retaliation provisions under Puerto Rico Law 115 largely overlap. “Law 100, for all intents and purposes, is . . . the Puerto Rican ‘analog[ue] to Title VII.‘” Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 97 (1st Cir. 2018) (quoting Monteagudo v. Asociacion de Empleados del Estado Libre Asociado de P.R., 554 F.3d 164, 169 n.3 (1st Cir. 2009)). Similarly, “Law 69‘s prohibitions on gender-based employment discrimination . . . appears to be aligned with Title VII law; the latter‘s precedents being used freely to construe the former.” Id. (quoting Gerald v. Univ. of P.R., 707 F.3d 7, 28 (1st Cir. 2013)).
Given the symmetry between the anti-retaliation provisions under Title VII and Puerto Rico Laws discussed above, we affirm the dismissal of Lopez-Hernandez‘s
Lastly, Lopez-Hernandez also brought a claim under Law 80, which “requires employers to compensate at-will employees who are discharged without just cause.” Ruiz-Sanchez v. Goodyear Tire & Rubber Co., 717 F.3d 249, 254 (1st Cir. 2013). While Law 80 does not have a federal equivalent, the record contains ample evidence that Lopez-Hernandez was terminated for just cause. Moreover, Lopez-Hernandez fails to develop any argument as to her Law 80 claim and, thus, we deem it waived. See Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (explaining that “a litigant has an obligation ‘to spell out its arguments squarely and distinctly,’ or else forever hold its peace.” (quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988))).
As such, we affirm the dismissal of Lopez-Hernandez‘s Puerto Rico law claims.3
III. CONCLUSION
The judgment of the district court is AFFIRMED.4