Villeneuve v. Avon Products, Inc. , 919 F.3d 40 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1491
MARÍA I. VILLENEUVE,
Plaintiff, Appellant,
v.
AVON PRODUCTS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Juan M. Frontera-Suau, with whom Kenneth Colón and Frontera
Suau Law Offices, PSC were on brief, for appellant.
Elizabeth Pérez-Lleras, with whom Lourdes C. Hernández-
Venegas and Schuster Aguiló LLC were on brief, for appellee.
March 19, 2019
THOMPSON, Circuit Judge. In this diversity case —
governed by Puerto Rico law, as the parties agree (Puerto Rico is
a "state" for diversity-jurisdiction purposes thanks to 28 U.S.C.
§ 1332(e)) — María Villeneuve contests the district judge's orders
jettisoning her discrimination claims against her former employer,
Avon Products, Inc. (just "Avon" from now on). Detecting no
reversible error, we affirm.
HOW THE CASE GOT HERE
Because the judge kicked out Villeneuve's claims on
Avon's motions to dismiss and for summary judgment (the judge
should have treated the first motion as a motion for judgment on
the pleadings, for reasons we will get to), we sketch the pertinent
events in the light most flattering to her cause. See, e.g., Small
Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, 323 (1st Cir.
2017); Estate of Bennett v. Wainwright, 548 F.3d 155, 159 (1st
Cir. 2008).
Villeneuve's Stint at Avon
In January 1998, when she was 30 years old, Villeneuve
started working as a "Caribbean Zone Manager" for Avon, a
multinational cosmetics, fashion, and accessories company.
Sometime in 2005 (the record does not say exactly when), she became
a "District Zone Manager." And several years later, in May or
June 2012, she became a "Caribbean Call Center Correspondent"
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("Caribbean CCC," for short), though her salary was the same as
her District Zone Manager salary. Avon terminated her employment
effective July 11, 2014. She was 47 years old on the day Avon let
her go.
Villeneuve's Suit Against Avon
Unhappy with this turn of events, Villeneuve filed this
lawsuit against Avon in November 2014. Stripped to its essence,
her complaint alleged that Avon had discriminated against her by
firing her because of her age and because of her affectionate,
"longstanding" relationship with an attorney "of a different
gender" who had sued Avon "several" times before on behalf of other
former Avon employees — a relationship that Avon knew about.
Consistent with the judge and the parties, we refer to the claim
involving her "longstanding affective partner" as the "sexual-
orientation-discrimination claim." According to her complaint,
the discrimination in question violated two Puerto Rico statutes:
P.R. Laws Ann. tit. 29, § 185a — a law commonly called "Law 80";
and P.R. Laws Ann. tit. 29, § 146 — a law colloquially called "Law
100."1 As relevant here, Law 80 requires an employer to
1 Reader alert: Puerto Rico amended these laws by passing
the "Labor Transformation and Flexibility Act," effective on
January 26, 2017. The changes govern only prospectively, however
— "[e]mployees hired before the effective date of this act," wrote
the legislature, "shall continue to enjoy the same rights and
benefits they enjoyed before, as expressly provided in the sections
thereof." P.R. Laws Ann. tit. 29, § 121a. So the amendments are
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"[i]ndemni[fy]" the employee if the employer terminates her
"without just cause." See P.R. Laws Ann. tit. 29, § 185a. And
Law 100 outlaws employment practices that discriminate against
persons on the basis of "age" or "sexual orientation." See P.R.
Laws Ann. tit. 29, § 146.
Avon's Partial Motion to Dismiss
and the Judge's Ruling
After answering Villeneuve's complaint, Avon filed a
motion to dismiss the sexual-orientation-discrimination claim
against it — citing Fed. R. Civ. P. 12(b)(6).2 In its memo
supporting its dismissal motion, Avon stressed how Law 100 forbids
an employer from firing an employee because of the employee's
sexual orientation. And Avon quoted a 2013 amendment to Law 100,
which provides that "sexual orientation"
[m]eans the ability of any person of having an emotional,
affectional, or sexual attachment to persons of the
other gender, the same gender, or more than one gender.
. . . [T]o accomplish all the purposes provided herein,
not relevant here. Which is why we simply discuss the law as it
existed when the events at issue occurred — and as is the custom,
"we use the present tense" when doing so. See Graham Cty. Soil &
Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S.
280, 283 n.1 (2010) (taking that tack in a similar situation).
2Because Avon's answer generally denied all claims, the judge
should have construed Avon's motion to dismiss as a motion for
judgment on the pleadings under Fed. R. Civ. P. 12(c). See, e.g.,
Patrick v. Rivera-López, 708 F.3d 15, 18 (1st Cir. 2013). But
this oversight does not matter for present purposes, since "[a]
motion for judgment on the pleadings is treated much like a Rule
12(b)(6) motion to dismiss." See Pérez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 29 (1st Cir. 2008).
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this definition shall be interpreted as broadly as
possible to extend the benefits thereof to any citizen
who is a victim of discrimination, whether it is a one-
time event or a pattern.
See P.R. Laws Ann. tit. 29, § 151(7). With that foundation in
place, Avon revealed its big argument — that Villeneuve's
allegations of being "in a relationship with a lawyer who has sued
Avon in the past" did not put her in a "protected class." In other
words, because, according to Avon, Villeneuve "bases her" sexual-
orientation-discrimination claim "on the profession and conduct of
the person she is dating, i.e., an attorney who has sued Avon,"
her allegations have "nothing to do with [her] sexual orientation"
— which excludes her from the class protected by Law 100. And
Avon saw no basis for extending Law 100's protections to cover
such a situation.
Villeneuve countered that because she alleged "Avon took
into account the specific and affectionate relationship she had
with said lawyer when deciding . . . her employment status at the
company" — i.e., because she alleged this "affectionate and
romantic relationship . . . was a motivating factor" in her firing
— she had "protected status under Puerto Rico Law." Which is why,
her argument continued, the judge had to deny Avon's partial motion
to dismiss.
The judge, for his part, sided with Avon. Noting that
Law 100 bans an employer from terminating an employee "because of"
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the employee's "sexual orientation," the judge ruled that an
employee's "being terminated because the employer disapproves of
the professional legal conduct of the romantic partner . . . is
not . . . a discriminating event within the law." So the judge
granted Avon's motion and dismissed Villeneuve's sexual-
orientation-discrimination claim.
Avon's Motion for Summary Judgment
and the Judge's Ruling
Years of discovery ensued, culminating in Avon's moving
for summary judgment on Villeneuve's remaining claims — age
discrimination under Law 100 and unjust discharge under Law 80.
Its summary-judgment submissions told the following story.
At the time of her firing, Villeneuve worked as a
Caribbean CCC at Avon's Call Center. Overseen by Carmen Miranda,
the Head of the Avon Customer Care Department, the Call Center
employed a number of Call Center Correspondents ("CCCs," from now
on). But Villeneuve was the only Caribbean CCC there.
"[I]n charge of dealing with the Caribbean,"
Villeneuve's duties included training Avon's Puerto Rico and
Caribbean "representatives" to "place orders online";
"perform[ing] welcome calls for new representatives"; "mak[ing]
past-due collection calls to representatives in the Caribbean";
"handling calls in English" and "provid[ing] English materials" on
"request." She was also required to be bilingual; to send emails
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to representatives in the Caribbean reminding them of events
happening in the Caribbean; and to travel within and outside Puerto
Rico. CCCs, on the other hand, did not make calls on past-due
orders; did not travel within or outside Puerto Rico; and only
needed a basic knowledge of English.
Concerned with Avon Puerto Rico's lack of growth,
Adnauer Amorin, Avon's General Manager for Puerto Rico and Canada,
ordered a reorganization — which required a reduction in personnel.
Department heads in Puerto Rico had to achieve a certain level of
savings, for example, with Miranda asked to shave $300,000 from
the Customer Care Department's budget. And after reviewing the
situation, Miranda concluded that the Caribbean CCC's workload did
not justify what Avon was paying Villeneuve. So Avon terminated
Villeneuve, abolishing the Caribbean CCC job and transferring her
duties to other positions.
But Villeneuve was not the only person let go because of
the reorganization, Avon was quick to point out. Several other
employees in five departments — Customer Care, Sales, IT, Supply
Chain, and Finance — lost their jobs too.3 Five firees were younger
than Villeneuve, Avon added. And three were older.
3
A point of clarification: Avon said in its summary-judgment
memo that it had fired nine employees as part of the reorganization
— something Avon repeats in its brief to us. Avon's Human Resource
Manager, Claudia Cifuentes, did say that the reorganization
resulted in Avon's firing "a total of 9 employees." But as the
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Having said its piece on the facts, Avon made a
multifaceted argument for why it should win at the summary-judgment
stage (we highlight its main points). For starters, Avon contended
that because Villeneuve had lost her job as part of "a bona fide
reorganization, . . . implemented to obtain cost savings, optimize
the [c]ompany's resources," and "increase its profits and
competitiveness," she could not establish a prima facie case of
age discrimination under Law 100. Next, Avon argued that even
assuming Villeneuve had a prima facie case, she could not show
that the articulated rationale was pretextual. And because she
was fired during a "bona fide reorganization," her "termination
was with just cause" — which means (at least in Avon's view) that
her Law 80 claim was a no-go.
Villeneuve's memo opposing summary judgment insisted
that Avon got all the important things dead wrong. She claimed,
for instance, that her duties as Caribbean CCC were "essentially
the same" as the CCCs. She also claimed that they had the same
direct supervisor; attended meetings called by that supervisor;
got "the same training" on "Avon products and campaigns"; and
"shared the same work schedule and the same evaluation performance
district judge indicated, the supporting documents show that Avon
fired a total of eight employees — five over the age of forty
(including Villeneuve) and three under that age.
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forms." And she claimed that a "substantially younger" Avon
employee assumed her duties after her termination.
Moving from the facts to the law, Villeneuve complained
that Avon had not carried its burden under Law 80 of showing just
cause for her termination, principally because it based its "bona
fide reorganization" theory on inadmissible hearsay evidence.4 And
even if the evidence were admissible, the evidence in no way
indicates Avon faced a decrease in sales or revenues so substantial
as to "put[] at risk the continuity of the business," thus
necessitating a reorganization — or so she protested. She also
argued that Avon failed to give her seniority preference over her
coworkers in "the same occupational classification." As for the
Law 100 matter, Villeneuve contended that Avon's proffered
4
Convinced the evidence was inadmissible, Villeneuve moved
to strike numerous paragraphs in Avon's statement of uncontested
facts (a statement submitted by Avon in support of its summary-
judgment motion) — we note for future reference, however, that
under Fed. R. Civ. P. 56(c)(2), a party may simply object in her
memo to evidence she thinks is inadmissible; "[t]here is no need
to make a separate motion to strike." Fed. R. Civ. P. 56(c)(2)
advisory committee's note to 2010 amendment. Villeneuve also
separately moved to "strike and/or deny" Avon's summary-judgment
motion for providing "incomplete" English translations of several
Puerto Rico Supreme Court cases cited in Avon's summary-judgment
memo. The judge entered an electronic order saying that because
these motions to strike "are directly intertwined with [Avon's]
pending" summary-judgment motion, he would "address[]" them "in
ruling on the motion for summary judgment forthwith."
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explanation was merely a pretext for unlawful age discrimination,
especially since a younger employee assumed her former duties.
With the issues teed up for decision, the district judge
ruled this way. The judge first decided that Avon's evidence
established Villeneuve was a legitimate casualty of a bona fide
reorganization — legitimate, because Avon ordered the
reorganization to combat the Puerto Rico operation's "lack of
growth and to generate savings," not to discriminate against her
on age grounds. On the age-discrimination point, the judge found
that a "bona fide reorganization" led to the firing of eight
employees — three of whom "were less than 40 years old" at the
time (including one who was 29), while Villeneuve (don't forget)
was 47. So "Avon's bona fide reorganization was not motivated by
age discrimination, but [by] economic reasons," and was thus done
with just cause. Villeneuve also showed "no evidence" of pretext,
the judge added. Ultimately, because she "failed to show a prima
facie case of age discrimination under Law 100," and because
"Avon's reorganization was performed 'with good cause' under Law
80," the judge granted Avon's summary-judgment motion.5
5 The judge, though, did not expressly rule on Villeneuve's
motions to strike paragraphs from Avon's statement of uncontested
facts. But his summary-judgment decision did rely on paragraphs
that Villeneuve wanted stricken. While "it is plainly the better
practice for a trial court to rule explicitly on every substantial
motion, it has long been accepted that a trial court may
implicitly deny a motion by entering judgment inconsistent with
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OUR TAKE
Dissatisfied with the judge's dismissal and summary-
judgment rulings, Villeneuve appeals. She and Avon make an array
of arguments in support of their positions. And we address them
below, adding more details as we go along. But first, a quick
primer on the workings of the statutory system in vogue when she
filed her complaint (see our first footnote for an explanation of
all this).
Law 80 and Law 1006
Law 80
Law 80 creates a right of action for at-will employees
fired "without just cause." See P.R. Laws Ann. tit. 29, § 185a.
Stressing that just cause cannot be founded on "the mere whim of
the employer," id. § 185b, Law 80 says that a dismissal is for
just cause when, for example, the employee "indulges in a pattern
of improper or disorderly conduct," id. § 185b(a); there are
"[t]echnological or reorganization changes as well as changes of
style, design, or the nature of the product made or handled by the
[company]," id. § 185b(e); or there are "[r]eductions in employment
it." In re Grand Jury Subpoena, 274 F.3d 563, 577 (1st Cir. 2001).
And that is essentially what the judge did with Villeneuve's motion
to strike various paragraphs in Avon's statement of uncontested
facts.
6 Each case of ours mentioned in this part of the opinion
interpreted and applied Puerto Rico law.
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made necessary by a reduction in the anticipated or prevailing
volume of production, sales, or profits at the time of the
discharge," id. § 185b(f).7 For ease of reference, we will refer
to the last two provisions — the ones relevant here — as,
respectively, "provision (e)" and "provision (f)." Anyhow, if the
employer fires "employees for one of those . . . reasons, . . .
the employer must give preference to those employees with greater
seniority over those with less seniority within the same
occupational classification." Carrasquillo-Ortiz v. Am. Airlines,
Inc., 812 F.3d 195, 196 (1st Cir. 2016).
Helpfully, Puerto Rico's Supreme Court has explained
that provision (e) "allows the dismissal of employees without
having to pay the compensation . . . if that decision is made as
part of a [c]ompany's reorganization that is so required." Zapata–
Berríos v. J.F. Montalvo Cash & Carry, Inc., 189 P.R. Dec. 414,
426 (2013) (certified partial translation provided on appeal by
Villeneuve, our docket entry number 47-2). Or put slightly
differently, employers
can modify the way [they] do[] business through some
type of change directed to optimizing [their] resources
and increasing the profits, be it [by] eliminating
positions, creating others new or merging some already
existing as a vehicle to face financial or competition
problems, as long as it is a bona fide restructuring.
7 The statute provides other examples too.
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Id.As for provision (f), Villeneuve plays up the following
from Zapata–Berríos. "[T]he economic situation caused by the
reduction in production, sales or profits in a [c]ompany," Puerto
Rico's top court said, "can lead . . . employer[s] to take measures
to limit the costs, such as reducing the workforce." Id. But
that "does not mean that every reduction in sales or profits will
translate in[to] just cause for a dismissal" — rather, provision
(f) "will only apply to those situations in which the referenced
reduction is substantial to the point that it threatens the
continuity of the company." Id.; see also id. at 426-27(emphasizing that "[s]uch reduction in sales, profits, or real or
foreseen production must be significant to the degree that it
threatens the stability and economic solvency of the business").8
8Now is a good a time to discuss Villeneuve's gripe about
Avon's use of partially translated cases in its summary-judgment
memo. She first argues that Avon's failure to give the judge full
translations of these cases should cause us to reverse his summary-
judgment ruling. The problem for her, however, is that the judge
did not use these cases in his summary-judgment analysis. See
generally Dávila v. Corporación de P.R. para la Difusión Pública,
498 F.3d 9, 16 (1st Cir. 2007) (finding no reversible error where
the "untranslated" documents had no "bearing on the district
court's ratio decidendi"). Battling on, she also argues that the
parts of Zapata–Berríos she had translated for this appeal (quoted
above) cut the legs out from under the judge's summary-judgment
decision (for what it's worth, Villeneuve relied on these snippets
of Zapata–Berríos in her papers opposing summary judgment, but
without giving the judge any English translations). The problem
with this line of argument is that the translated pieces on which
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Law 80 operates through the following burden-shifting
regime. The plaintiff has the initial burden of showing that the
employer actually or constructively fired her, and of alleging
that her firing was not justified. See, e.g., Echevarría v.
AstraZeneca Pharm. LP, 856 F.3d 119, 140 (1st Cir. 2017); Álvarez-
Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 28 (1st
Cir. 1998). If she does that, the burden shifts to the employer
to show just cause for the firing. See, e.g., Echevarría, 856
F.3d at 140; González v. El Día, Inc., 304 F.3d 63, 75 (1st Cir.
2002). And if the employer does that, the burden shifts back to
the plaintiff to rebut the employer's showing. See Echevarría,
856 F.3d at 140.
Construing Puerto Rico law, we recently described what
an employer must show "to establish just cause under Law 80." See
Pérez v. Horizon Lines, Inc., 804 F.3d 1, 9 (1st Cir. 2015). "[A]n
employer," we said, "need only demonstrate that it had a reasonable
basis to believe" that the case's circumstances fit within an
example of just cause listed in the statute. See id. (emphasis
added).9 To our minds, Law 80's language forbidding "an employer
she pins her hopes are of no help to her, for reasons we discuss
later.
9 Pérez dealt with the improper-or-disorderly-conduct
example. Id. at 9-10. But nothing in Pérez limits its application
to that example.
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[from] act[ing] on a 'whim'" suggests "that a 'just' discharge is
one where an employer provides a considered, non-arbitrary reason
for an employee's termination that bears some relationship to the
[company's] operation." Id. at 9. We then noted that Puerto
Rico's high court
has . . . resisted reading Law 80 to impose statutory
penalties "just because an employer makes an error of
judgment," since such a rigid reading (which would seem
to require courts to regularly review the merits of
companies' internal investigations) would go "beyond the
letter and spirit of the law."
Id. at 9-10 (quoting Narvaez v. Chase Manhattan Bank, 120 P.R.
Dec. 731, 20 P.R. Offic. Trans. 766, 773 (1988)). We emphasized
as well that we judges do not serve "as [a] super personnel
department[], assessing the merits — or even the rationality — of
employers' nondiscriminatory business decisions." Id. at 10(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir.
1991)). And wrapping up, we wrote that while "Law 80 undoubtedly
circumscribes the reason for which an employer may terminate an
employee[,] . . . we do not read the statute to require a factfinder
to regularly review the objective accuracy of an employer's
conclusions." Id. (footnote omitted).
Law 100
Among other things, Law 100 prohibits discrimination in
employment because of age or sexual orientation. See P.R. Laws
Ann. tit. 29, § 146. And "sexual orientation" again "[m]eans the
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ability of any person of having an emotional, affectional, or
sexual attachment to persons of the other gender, the same gender,
or more than one gender" — a definition courts should "interpret[]
as broadly as possible." See P.R. Laws Ann. tit. 29, § 151(7).
Under Law 100, a plaintiff must first establish a prima facie case
by showing the employer actually or constructively fired her, and
by alleging the employer did so discriminatorily. See Baralt v.
Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir. 2001). If she
satisfies these modest requirements, a rebuttable presumption of
discrimination arises, shifting the burden to the employer to prove
it had "just cause" for the firing, see id., with just cause's
meaning drawn from Law 80, see Pérez, 804 F.3d at 8 n.4 (noting
that Law 100's burden-shifting regime largely mimics Law 80's).
If the employer establishes just cause, the presumption vanishes
and the plaintiff must prove that the employer's stated reason was
merely a pretext for unlawful discrimination. See García-García
v. Costco Wholesale Corp., 878 F.3d 411, 423 (1st Cir. 2017);
Pérez, 804 F.3d at 8 n.4; see also Álvarez-Fonseca, 152 F.3d at 28(noting that in such circumstances, "[t]he plaintiff must prove
that, even if the dismissal was justified," the employer still
infracted "Law 100 because the dismissal was motivated by
discriminatory animus instead of or in addition to the legitimate
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reasons for dismissal").10 But if the employer does not establish
just cause, it must prove that the firing was not motivated by
illegal discrimination. See, e.g., Baralt, 251 F.3d at 16;
Álvarez-Fonseca, 152 F.3d at 28.
The Judge's Dismissal Ruling
Standard of Review
Because Avon filed its Rule 12(b)(6) motion after filing
its answer to Villeneuve's suit, the judge should have treated the
motion as a Rule 12(c) motion. See Pérez-Acevedo, 520 F.3d at 29.
No matter, we say. And that is because under either rule, we
review the judge's order dismissing Villeneuve's sexual-
orientation-discrimination claim with fresh eyes (what the law
calls "de novo" review), keeping in mind the following points.
Dismissal is proper if — after accepting all well-
pleaded facts as true and viewing them in the light most favorable
to Villeneuve — the complaint fails to allege a plausible right to
relief. See, e.g., Doe v. Brown Univ., 896 F.3d 127, 130 (1st
Cir. 2018); Díaz–Nieves v. United States, 858 F.3d 678, 688-89
(1st Cir. 2017); Hochendoner v. Genzyme Corp., 823 F.3d 724, 730
10"'[P]retext'" generally "means deceit used to cover one's
tracks." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681,
684 (7th Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000)); see also Black's Law Dictionary 1380
(10th ed. 2014) (defining pretext as "[a] false or weak reason or
motive advanced to hide the actual or strong reason or motive").
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(1st Cir. 2016); Pérez-Acevedo, 520 F.3d at 29. Plausibility
demands that the factual allegations "be enough to raise a right
to relief above the speculative level." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). And we gauge plausibility by
drawing not only on "judicial experience," but also on "common
sense." See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Also, "[a]lthough a plaintiff must plead enough facts to make
entitlement to relief plausible in light of the evidentiary
standard that will pertain at trial — in a discrimination case,
the prima facie standard — she need not plead facts sufficient to
establish a prima facie case." Rodríguez-Reyes v. Molina-
Rodríguez, 711 F.3d 49, 54 (1st Cir. 2013). And ultimately, we
can affirm the order on any basis evident from the record. See,
e.g., Doe, 896 F.3d at 130.
Now for our analysis of the judge's handling of
Villeneuve's sexual-orientation-discrimination claim.
Sexual-Orientation-Discrimination Claim
Villeneuve plausibly pled that Avon fired her. But she
did not plausibly plead that her firing constituted sexual-
orientation discrimination in violation of Law 100, even after
accepting her complaint's well-pleaded facts as true and
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construing them in the light most pleasing to her. Our reason for
thinking so is straightforward.
Remember: Law 100 bars employers from firing employees
because of the employees' "sexual orientation" — i.e., it forbids
companies from discriminating against workers because of the
workers' "ability" to have "an emotional, affectional, or sexual
attachment to persons of the other gender, the same gender, or
more than one gender." See P.R. Laws Ann. tit. 29, § 151(7).
Remember too: Villeneuve alleged Avon canned her "because of her
longstanding affective relationship with a lawyer" — "a person of
a different gender than her" — who "had filed several federal cases
of employment discrimination and/or unjust dis[charge] against
[Avon]." And therein lies the rub: Villeneuve's key allegation
is not that Avon fired her "because of" her "ability" to have "an
emotional, affectional, or sexual attachment to [a] person[] of
the other gender." It is that Avon fired her because of her
companion's litigious involvement with the company. So she has
not plausibly pled sexual-orientation discrimination in her
discharge.
We of course take seriously our duty to interpret the
definition of sexual orientation "broadly" to achieve the
statute's "purposes." See P.R. Laws Ann. tit. 29, § 151(7). But
an employee's being in an affectionate relationship with a lawyer
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who has sued the employer simply is not a protected class under
the statute. And to hold otherwise (as Villeneuve says we should)
would require us to create indirectly what the Puerto Rico
legislature did not provide directly — something we have no power
to do. See, e.g., P.R. Laws Ann. tit. 31, § 14 (proclaiming that
"[w]hen a law is clear and free from all ambiguity, the letter of
the same shall not be disregarded, under the pretext of fulfilling
the spirit thereof"); Warner Lambert Co. v. Tribunal Superior, 1
P.R. Offic. Trans. 527, 559 (1973) (stating that because "[n]o
ambiguity in the letter of the law []or doubts about the
legislative intention exist," a court's "enlarg[ing]" a statute's
definition "by judicial construction . . . would be tantamount to
subverting the true sense and purpose of the statute").
And because Villeneuve's sexual-orientation-
discrimination claim does not cross the plausibility line, we must
let the judge's dismissal of that claim stand.
The Judge's Summary-Judgment Ruling
Standard of Review
We examine the judge's summary-judgment decision afresh.
See Rivera-Corraliza v. Puig-Morales, 794 F.3d 208, 214 (1st Cir.
2015). Viewing the facts and inferences in the light most friendly
to Villeneuve, see Delgado-Caraballo v. Hosp. Pavía Hato Rey, Inc.,
889 F.3d 30, 34-35 (1st Cir. 2018), we ask whether Avon has shown
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"there is no genuine dispute as to any material fact and . . . is
entitled to judgment as a matter of law," see Fed. R. Civ. P.
56(a). And as always, we can affirm the judge's decision on any
ground found in the record, including a ground the judge did not
rely on. See Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 92
(1st Cir. 2014).
Unjust-Discharge Claim
Because Villeneuve met her opening burden under Law 80
— she showed that Avon fired her, and she alleged that her firing
was not justified — the burden is now on Avon to show that it had
an adequate justification for letting her go. See, e.g.,
Echevarría, 856 F.3d at 140. And it is to that subject we turn.
Discussing provision (e) of Law 80, the Puerto Rico
Supreme Court has made crystal clear that an employer is off the
liability hook if it made a discharge decision "as part of a
[c]ompany[] reorganization that is so required." See Zapata–
Berríos, 189 P.R. Dec. at 426. Thus, to again quote Puerto Rico's
high court, an employer
can modify the way it does business through some type of
change directed to optimizing its resources and
increasing the profits, be it [by] eliminating
positions, creating others new or merging some already
existing as a vehicle to face financial or competition
problems, as long as it is a bona fide restructuring.
Id.
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And given the summary-judgment evidence, a
reorganization under provision (e) is precisely the situation
here. Worried about Avon Puerto Rico's rate of growth, Avon
initiated some cost-saving measures — among them, having
Department-Head Miranda slash $300,000 from the Customer Care
Department's budget. As part of her cost-savings analysis, Miranda
concluded both that the Caribbean CCC position did not have enough
work to justify the expense of paying Villeneuve and that persons
in other positions could do what Villeneuve was doing. So Avon
eliminated the Caribbean CCC position, with Miranda herself making
the decision. Which meant that Villeneuve — who was the only
Caribbean CCC — lost her job because of the reorganization, as did
several others, including a 29-year-old CCC.
Villeneuve tries to beat back this bona-fide-
restructuring conclusion with several arguments. None is
convincing, however.
Relying on Zapata–Berríos, Villeneuve first says that no
bona fide reorganization occurred because "[o]nly those situations
in which the decrease in sales or revenues . . . put[] at risk the
continuity of the business qualify as just cause under [provision]
(f) of . . . Law 80." Admittedly, Zapata–Berríos did note that
provision (f) applies when "the referenced reduction is
substantial to the point that it threatens the continuity of the
- 22 -
company." 89 P.R. Dec. at 427. But Zapata–Berríos did not use
the threatens-the-company's-continuity lingo in discussing
provision (e). See id. at 426-27. And as we just noted, the
Villeneuve/Avon situation falls within the ambit of provision (e).
So her provision-(f)-centric theory carries no weight.11
Arguing everything but the proverbial kitchen sink,
Villeneuve also complains that much of the evidence Avon offered
— especially concerning its financial condition — constituted
inadmissible hearsay. Whether this is so we need not decide
because, as we just discussed, Avon's defense under provision (e)
requires no evidence of dire financial circumstances. Rather, it
merely requires proof that the employer let the employee go in a
bona fide reorganization. And on that front, we have these
paragraphs from Miranda's statement made under penalty of perjury
(pursuant to 28 U.S.C. § 1746), which drew no hearsay challenge
from Villeneuve:
11. I decided that as part of achieving the
required savings [for Avon Puerto Rico], the Caribbean
Business would be restructured. . . . Therefore, the
position of Caribbean [CCC] would be eliminated. I
believed that the workload associated with the position
at that time was not enough to justify its salary, and
11The district judge concluded that Avon conducted its
reorganization under provisions (e) and (f). But given our ability
to affirm the judge on any basis supported by the record, see
Collazo-Rosado, 765 F.3d at 92, we can and do ground our decision
on provision (e).
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the duties could be successfully consolidated with other
positions.
12. In addition, amongst others, as part of the
reorganization I decided to terminate one [CCC]
position, corresponding [to an employee] who was . . .
29 years old at the time.
See generally In re Martínez-Cátala, 129 F.3d 213, 218 (1st Cir.
1997) (explaining that such a statement "has the same effect as an
affidavit"). Avon used these paragraphs in crafting its statement
of uncontested facts, again without triggering a hearsay challenge
from Villeneuve. See generally Vélez v. Awning Windows, Inc., 375
F.3d 35, 41-42 (1st Cir. 2004) (holding that a court must take
facts in the moving party's statement of uncontested facts as
"true" if the opposing party does not object). Ultimately, these
aspects of Miranda's testimony show Avon "had a reasonable basis
to believe" Avon Puerto Rico needed a reorganization, see Pérez,
804 F.3d at 9 — thus supporting the bona fides of that
reorganization and bringing the case's situation within the
provision (e) example of just cause listed in Law 80, see Zapata-
Berríos, 189 P.R. Dec. at 426 (stressing that provision (e) lets
employers change how they do "business through some type of change
directed to optimizing [their] resources and increasing the
profits, be it [by] eliminating positions, creating others new or
merging some already existing as a vehicle to face financial or
competition problems, as long as it is a bona fide restructuring").
- 24 -
Hence, Villeneuve's hearsay arguments cannot carry the day for
her.
As a fallback, Villeneuve thinks Miranda lacked personal
knowledge about these facts. But we think otherwise. We say this
because paragraph 28 of Avon's statement of uncontested facts
provides: "Commercial Director for Avon in Puerto Rico, Rodrigo
Echeandía, met with . . . Miranda[] to discuss the reorganization
. . . ." And paragraph 30 adds: "Miranda was tasked with reaching
savings totaling $300,000.00 in the Customer Care Department."
Enough then about hearsay personal knowledge.
Contending that the Caribbean CCC and the CCC jobs were
one and the same, Villeneuve next argues that Avon violated Law 80
by firing her even though she had more seniority than some of the
CCCs Avon did not fire. Not so, we conclude.
Law 80, recall, declares that if an employer fires an
employee for a restructuring reason like that found in provision
(e), then "the employer must give preference to those employees
with greater seniority over those with less seniority within the
same occupational classification." See Carrasquillo-Ortiz, 812
F.3d at 196. While the parties agree on little else, they agree
that in sorting out a job's occupational classification, an
inquiring court must focus on factors like:
(i) the functions and duties of the position; (ii) the
requirements for filling the position, including the
- 25 -
necessary knowledge and skills as well as the academic
background; (iii) [the] manner of compensation[;] and
(iv) the way in which the work is performed.
See Díaz Fontánez v. Wyndham Hotel Corp., 155 P.R. Dec. 364, 371
n.12 (2001) (certified partial translation provided by Avon,
district court docket entry number 56-1).
Silhouetted against this precedential backdrop, the
summary-judgment record adequately supports the conclusion that
the Caribbean CCC and the CCC posts were not within the same
occupational classification, despite both being part of the Call
Center. We say this because: (i) the Caribbean CCC had to deal
with emails from Caribbean representatives, make past-due calls,
send reminders of special Caribbean events, and provide field
support — the CCC had none of these duties; (ii) the Caribbean CCC
had to have an associate's degree in communications or
administration plus be bilingual — the CCC had neither requirement;
(iii) the Caribbean CCC had a higher salary than the CCC; and
(iv) the Caribbean CCC had to travel outside Puerto Rico — again,
the CCC had no such requirement. Yes, Villeneuve sometimes did
tasks that CCCs did. And sometimes persons from a temp agency
worked temporarily as CCCs and covered for her when she was absent
— Anna Ovalle was one such person. Even so, "Avon deemed the
Caribbean [CCC] position as separate and distinct from the [CCC]
position" — a quote lifted from statements made by Department-Head
- 26 -
Miranda and Human-Resources-Manager Cifuentes, made under penalty
of perjury.12
Unfazed, Villeneuve thinks she should still win on this
issue because "there is no contemporaneous evidence with the
reorganization in question that Avon performed any analysis as to
the alleged occupational classification differentiation." But
hers is a one-sentence suggestion (which she basically repeats in
her reply brief), made with no supporting authority, and so is
waived. See, e.g., Mount Vernon Fire Ins. Co. v. VisionAid, Inc.,
875 F.3d 716, 727 n.11 (1st Cir. 2017); Rezende v. Ocwen Loan
Servicing, LLC, 869 F.3d 40, 43 (1st Cir. 2017) (finding that a
litigant "waived" an "argument by failing to cite any authority
whatsoever in support of his conclusory assertion").
Having debunked Villeneuve's many Law 80-based
arguments, we end this longish part of our opinion by upholding
the judge's decision to grant summary judgment for Avon on her
unjust-discharge claim.
12 Cifuentes did not make any force-reduction decisions —
Miranda did, but only for the Customer Care Department. The
department heads, though, had to tell Cifuentes which positions in
their departments would be affected.
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Age-Discrimination Claim
Villeneuve showed Avon actually terminated her
employment. And, as now relevant, she alleged Avon discharged her
because of her age. But as we just explained, Avon showed it had
just cause for acting as it did. So the burden fell on her to
show Avon's given reason was a pretext for age discrimination.
See García-García, 878 F.3d at 423; Pérez, 804 F.3d at 8 n.4. She
makes several potential pretext arguments. But they all come up
short.
For example, Villeneuve contends that no bona fide
workforce reduction occurred because Avon did not eliminate the
Caribbean CCC post — rather, she says, Avon simply replaced her
with Anna Ovalle, who was much younger than she was. So, she goes
on, Avon's stated ground for the firing was a pretextual cover for
age discrimination. Color us unconvinced. Ovalle — a temporary
employee from a temp agency who had previously covered for
Villeneuve during Villeneuve's vacations — did perform
Villeneuve's old duties after the firing, while also performing
"those of a [CCC]." But — and it is big "but" — Ovalle did this
during a transition period in which Avon worked on distributing
Villeneuve's former responsibilities to other Avon employees, "the
Specialist for District Managers and the WEB Specialist, with
support from the Campaign Administration Area," to quote Miranda's
- 28 -
statement. Which kiboshes Villeneuve's Avon-replaced-me-with-
Ovalle thesis.
Somewhat relatedly, Villeneuve asserts that Avon's
reorganization reason was pretextual because Avon's explanation of
what happened to her duties after the firing shifted over time.
For support, she points to Avon's response to interrogatory number
14 — an interrogatory that asked Avon to "[i]dentify the employee
and/or employees" who "perform[ed] all and/or some of the duties
[she] performed . . . as Caribbean [CCC]." Responding, Avon first
objected because the interrogatory did "not specify" a "time
period." And then Avon answered that after her termination "due
to the reorganization," Villeneuve's "duties were distributed to,
and absorbed by, Francisca Mendoza, District Sales Manager
Specialist, and Carmen Rivera, former Web Specialist, as backup to
Francisca Mendoza." Basically yelling "Gotcha!" at Avon,
Villeneuve asserts that the deposition of a former supervisor shows
a contradiction because the supervisor testified that Ovalle
performed Villeneuve's duties for some (unspecified) time. But we
see no contradiction because, as Miranda explained, Ovalle simply
filled in while Avon transitioned those duties to others.
Ever persistent, Villeneuve also complains that some
temporary employees from the temp agency made "water cooler
comments" about her age — for instance, one time, after she said
- 29 -
she did not like singer and Avon spokesperson "Fergie" (then of
the group "the Black Eyed Peas"), they said she was "an old lady"
who "listen[s] to the Bee Gees." And when she talked to her
supervisors about this, they said, "Well, there is a generation
gap," adding "these guys have kids" and "[y]ou have grown-ups."13
But the kicker for her is that none of these people had a part in
the firing decision. And she makes no case-based effort to explain
how these non-decisionmakers' remarks are sufficient to prove
pretext. See González, 304 F.3d at 69 (emphasizing that "stray
workplace remarks, as well as statements made either by
nondecisionmakers or by decisionmakers not involved in the
decisional process, normally are insufficient, standing alone, to
establish either pretext or the requisite discriminatory animus"
(internal quotation marks omitted)). We thus deem this facet of
her pretext argument waived for lack of development. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Still searching for a persuasive pretext theory,
Villeneuve writes that right before she got fired, she "notice[d]"
that Avon "had been hiring younger people and firing older people."
The "people" she is referring to are or were temporary employees.
13Labeling the comment-makers "immature," these supervisors
also told Villeneuve to pay no mind to them — advice she herself
called "wise."
- 30 -
Anyway, conspicuously absent from her is any indication of the
applicant pool — we do not know, for example, whether older workers
even applied for these positions. See LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 848 (1st Cir. 1993) (emphasizing that "the fact
that recently hired [employees] are younger than [the plaintiff]
is not necessarily evidence of discriminatory intent, but may
simply reflect a younger available work force"). Also
conspicuously absent from her is any mention of the circumstances
surrounding the firings. Which devastates this aspect of
Villeneuve's pretext theory, given that she cannot defeat a
summary-judgment motion with "conclusory allegations" or
"unsupported speculation." See Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Gómez v. Stop
& Shop Supermarket Co., 670 F.3d 395, 398 (1st Cir. 2012) (holding
that "[a]ssumptions" made in a brief "are not a substitute for
evidence" needed to avoid summary judgment).
With Villeneuve's pretext arguments out of the way, we
uphold the judge's decision to grant summary judgment for Avon on
her age-discrimination claim.
FINAL WORDS
Having found Villeneuve's arguments wanting, we affirm
the judge's rulings dismissing her sexual-orientation-
discrimination claim and granting summary judgment for Avon on her
- 31 -
unjust-discharge and age-discrimination claims. We also award
Avon its costs on this appeal. See Fed. R. App. P. 39(a)(2).
- 32 -