Serrano-Cruz v. DFI ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1418
DIGNA SERRANO-CRUZ, HECTOR IRIZARRY,
AND THE CONJUGAL SOCIETY COMPRISED BETWEEN THEM,
Plaintiffs - Appellants,
v.
DFI PUERTO RICO, INC., ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and DiClerico,* District Judge.
Javier A. Morales-Ramos for appellants.
Vicente J. Antonetti, with whom Ilsa Y. Figueroa-Ar s and
Goldman Antonetti & C rdova were on brief for appellees.
March 19, 1997
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Plaintiff-appellant Digna
TORRUELLA, Chief Judge.
Serrano-Cruz ("Serrano") formally resigned from her job with
defendant-appellee DFI Puerto Rico, Inc. ("DFI") on August 22,
1994. Four months later, she and her husband filed suit under
the Age Discrimination in Employment Act of 1967 ("ADEA"), as
amended, 29 U.S.C.A. 621-634 (1985 & Supp. 1996), claiming
damages resulting from allegedly discriminatory, adverse
employment actions resulting in her constructive dismissal. She
and her husband now appeal the district court's grant of summary
judgment for her employer, DFI. We affirm, finding that Serrano
failed to establish a prima facie case under the ADEA.
BACKGROUND
BACKGROUND
In the summary judgment context we relate all material
facts in genuine dispute in the light most favorable to the party
resisting summary judgment, here Serrano. S nchez v. Alvarado,
101 F.3d 223, 225 n.1 (1st Cir. 1996). Serrano worked for DFI's
predecessor firm, Aeroboutiques, from 1984 until it was purchased
by DFI in September 1992. Aeroboutiques, and later DFI, owned
and operated several stores selling gifts and other consumer
merchandise at Luis Mu oz Mar n International Airport in San
Juan. At the time of the change in ownership, Serrano served as
the "assistant general manager" of Aeroboutiques, and, in that
position, assisted the general manager, supervised the operation
of the airport stores, oversaw their physical upkeep (e.g.,
lighting, cleanliness) and their security systems, and performed
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some accounting functions.1 When DFI took over the stores,
Serrano was offered, and accepted, the position of
"comptroller."2 As comptroller Serrano continued to perform her
previous managerial duties, with regular duties including:
maintaining the security system for the airport stores,
supervising store employees and arranging employee vacation time,
having responsibility for the keys to the stores, and attending
security and employee management meetings. In addition, she
assumed accounting responsibilities such as preparing quarterly
reports and keeping the payroll accounts.
The events giving rise to her suit began in February
1994, when the general manager (Manny Lozano) and the president
(Luis Bared) of DFI, Serrano's superiors, began reducing her
responsibilities. She lost managerial control over the security
system for the stores, as well as control over the keys.
Serrano's role in personnel selection was also decreased, and she
was excluded from meetings she had previously attended.
Through a letter to Serrano dated June 21, 1994, Luis
Bared indicated that Serrano was on a 90-day probation period
effective that day. The letter cited DFI's dissatisfaction with
Serrano's "negligent" handling of certain rent payments for the
1 Prior to being assistant general manager, Serrano had occupied
the position of "comptroller" at Aeroboutiques, in which she was
responsible for all of the accounting functions of the company as
well as for general supervision. When she became assistant
general manager, her accounting responsibilities were reduced.
2 The record contains inconsistent references to this position
as either "comptroller" or "controller."
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airport stores. Bared indicated that during the 90-day period,
he and Manny Lozano would be evaluating her performance as
comptroller. Serrano denies that she made mistakes in the course
of discharging her accounting duties as comptroller.
On July 18, 1994, before the 90-day probation period
had ended, Lozano informed Serrano that DFI had decided to
transfer her to a newly created position entitled "retail
manager." Serrano refused the new position, stating that being
fired would be preferable to the new position. In a letter to
Serrano dated July 21, 1994, Lozano stated that Serrano would
receive the same salary and benefits in the new position as she
had received as comptroller, and that she would be given two days
of paid leave to reconsider her decision to turn down the
position. Lozano's July 21 letter further states that, as retail
manager, Serrano "would supervise and be responsible for the
retail operation of our San Juan International Airport stores."
After taking a month of leave, Serrano formally resigned from DFI
on August 22, 1994, and now claims she was forced to resign by
DFI's unacceptable job transfer.
Serrano was 53 at the time her suit was initiated in
December 1994. There is no direct evidence that DFI's actions
were taken because of Serrano's age. Appellant alleges a few
facts that might suggest discriminatory animus on the basis of
her age. These are: that she was replaced by a woman aged 25
with roughly the same qualifications and with less experience;
that she was treated differently from younger employees by DFI
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management by not receiving free lipstick samples and not being
thrown a birthday party.
The district court granted DFI's summary judgment
motion, ruling that Serrano failed to establish constructive
dismissal as part of her prima facie case of age discrimination
because she did not show that there was a problem with the new
position that would compel a reasonable person to resign. Before
us on appeal is Serrano's ADEA claim against DFI, her state law
claims having been dismissed without prejudice.
STANDARD OF REVIEW
STANDARD OF REVIEW
We review the district court's grant of summary
judgment de novo. Mulero-Rodr guez v. Ponte, 98 F.3d 670, 672
(1st Cir. 1996). Summary judgment is properly granted where "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c).
Under Rule 56, once the moving party has pointed to the
absence of adequate evidence supporting its opponent's case, the
onus is on the party resisting the motion for summary judgment to
respond by presenting facts that show that there is a "genuine
issue for trial." LeBlanc v. Great American Ins. Co., 6 F.3d
836, 841-42 (1st Cir. 1993) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). To oppose the motion
successfully, the nonmoving party "may not rest upon mere
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allegations or denials of his pleading." Anderson, 477 U.S. at
256. "The nonmoving party must establish a trial-worthy issue by
presenting 'enough competent evidence to enable a finding
favorable to the nonmoving party.'" LeBlanc, 6 F.3d at 842(quoting Anderson, 477 U.S. at 249).
DISCUSSION
DISCUSSION
The ADEA makes it unlawful for an employer to
"discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age."
29 U.S.C.A. 623(a)(1) (1985). In a wrongful discharge case
under the ADEA, the plaintiff bears the ultimate burden of
proving that "he would not have been fired but for his age."
Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir.
1988). Where, as here, there is no direct evidence showing that
the employer's actions were motivated by age, the familiar
McDonnell Douglas framework governs. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05 (1973); Greenberg v. Union Camp
Corp., 48 F.3d 22, 26-27 (1st Cir. 1995). Under the McDonnell
Douglas framework, the employee must initially come forward with
sufficient evidence to establish a prima facie case of age
discrimination. Here, Serrano needed to establish that: (i) she
is over forty years of age; (ii) her job performance was
sufficient to meet DFI's legitimate job expectations; (iii) she
was constructively discharged; and (iv) DFI sought a replacement
with roughly similar skills or qualifications. Greenberg, 48
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F.3d at 26. Once the plaintiff has met this modest burden, a
presumption of discrimination arises that shifts the onus to the
employer to come forward with a legitimate, nondiscriminatory
reason for its actions. Id. If the employer does so, the
presumption of age discrimination vanishes and the burden shifts
back to the plaintiff to show that the employer's justification
is pretextual. The burden of persuasion, as opposed to the
burden of production, rests with the plaintiff throughout.
The district court found that although there may exist
a factual dispute between the parties as to whether Serrano met
DFI's legitimate job expectations (the second prong of McDonnell
Douglas), or indeed as to whether DFI's reasons for reducing
Serrano's duties or transferring her job were pretexts for
improper age discrimination, Serrano failed to establish a prima
facie case because, on undisputed facts, she did not establish
constructive dismissal (prong three). On appeal Serrano contends
that there is a triable issue as to constructive dismissal,
making summary judgment improper, and also contends that a
finding of "adverse employment actions" may provide grounds for
relief even if a finding of constructive dismissal is not
supported by the record. We assess each argument in turn.
I. Constructive Dismissal
I. Constructive Dismissal
We must consider de novo whether, as a matter of law,
Serrano failed to make a prima facie showing of constructive
discharge. We have long applied an "objective standard" in
determining whether an employer's actions have forced an employee
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to resign. See, e.g., Calhoun v. Acme Cleveland Corp., 798 F.2d
559, 561 (1st Cir. 1986). For the transfer proposed by DFI to be
deemed a constructive discharge, "'the trier of fact must be
satisfied that the new working conditions would have been so
difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign.'" Id.(quoting Alicea Rosado v. Garc a Santiago, 562 F.2d 114, 119 (1st
Cir. 1977)). An employee may not, therefore, be unreasonably
sensitive to a change in job responsibilities.
It is undisputed that Serrano, when offered the
position of "retail manager," was promised the same salary and
benefits she enjoyed as comptroller. Salary considerations are
important in determining whether a job transfer can support a
claim of constructive dismissal. See Greenberg, 48 F.3d at 27(noting no change in salary in course of finding no constructive
dismissal) (collecting cases); Stephens v. C.I.T. Group, 955
F.2d 1023, 1027 (5th Cir. 1992) (noting reduction of salary in
course of finding constructive dismissal); Pe a v. Brattleboro
Retreat, 702 F.2d 322 (2d Cir. 1983) (finding no constructive
discharge where job responsibilities were changed without any
reduction in pay); cf. N ez-Soto v. Alvarado, 918 F.2d 1029,
1030-31 (1st Cir. 1990) (in political demotion case, demotion
without salary cut found insufficient for constructive
dismissal). Although important, the fact that salary and
benefits have not been decreased has never been held to be a
conclusive factor; courts applying the objective standard in
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ADEA constructive dismissal cases consider a variety of often
case-specific factors. See Greenberg, 48 F.3d at 27-29(discussing salary in addition to assessing new work conditions);
Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-62 (2d Cir. 1993)
(noting no decrease in salary, but focusing mainly on working
conditions); see also Flaherty v. Gas Research Inst., 31 F.3d
451, 457 (7th Cir. 1994) ("[A]n employer does not insulate itself
from liability for discrimination simply by offering a transfer
at the same salary and benefits."). Common sense suggests that a
job transfer without a reduction in salary and benefits may,
under certain circumstances, be unacceptable to a reasonable
person who is overqualified and humiliated by an extreme
demotion, or underqualified and essentially "set up to fail" in a
new position. With this in mind, we turn to Serrano's situation.
In the present case, the fact that after her transfer
Serrano would remain the second highest salaried employee in
DFI's airport organization takes on great importance, for the
simple reason that this is one of few concrete facts we have
regarding the position that she was offered. Serrano, by not
trying out, or finding out more about, the newly created
position, cannot possibly muster proof that, in the course of a
trial, could lead a jury to find that the newly created position
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would compel a reasonable person with her background to refuse
the offer and resign.3
The precise contours of the new position, which appears
to have been created for Serrano, are unclear. In view of
Lozano's characterization of the new position, in his July 21,
1994 letter to Serrano, as one in which Serrano "would supervise
and be responsible for the retail operation of our San Juan
International Airport stores," it is impossible to conclude that
the position would compel a reasonable person in Serrano's shoes
to quit. Based on Serrano's own sworn statements, she had held
general supervisory duties over the stores for Aeroboutiques
(DFI's predecessor), and continued to hold supervisory
responsibilities while also assuming accounting responsibilities
in her position as comptroller for DFI. Serrano considers the
move from comptroller to "retail manager" to be a devastating
change in status, but cannot point to specific problems that
would arise, other than the fact that she is unqualified to
3 Appellant's basic contention regarding the new position --
that it involved sales tasks she was not qualified or experienced
enough to carry out -- rests on bare allegations that simply
cannot be verified, because the position of "retail manager" did
not exist before it was specially created for Serrano. It also
follows that plaintiff's argument that the district court erred
by not determining the exact nature of her duties as comptroller
are misdirected. No additional precision regarding the nature of
her position as comptroller could help her, in view of the lack
of evidence regarding her proposed position. Moreover, Serrano's
background included a broad variety of managerial tasks besides
strictly financial ones, having served previously as assistant
general manager as well as comptroller. When we do consider
Serrano's description of her duties, we find that the fluid
nature of managerial responsibilities in DFI's organization only
makes speculation about the position of "retail manager" more
unreliable.
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"push" merchandise. She cannot prove, however, that the newly
created position of "retail manager" would involve a sufficient
amount of daily, hands-on sales work to compel a reasonable
person in Serrano's position to resign. Serrano's constructive
discharge claim, therefore, rests on speculations regarding the
new position, as well as on her sworn statements to the effect
that supervising retail sales would harm her dignity. Loss of
prestige in a job transfer, standing alone, cannot support a
finding of constructive discharge. See Alicea Rosado, 562 F.2d
at 119-20 ("[A] limited blow to one's pride or prestige does not
provide reason enough to resign during whatever period may be
required to seek judicial relief.").
Of course we cannot state with absolute certainty that
the position offered to Serrano would not have turned out to be
strongly objectionable to a reasonable person, as Serrano
suggests. But, in the summary judgment context, we need not do
so. The decisive consideration here is that, by not accepting
the newly created and ambiguous position, Serrano foreclosed the
possibility of presenting concrete evidence, rather than mere
assertions, to a jury regarding the nature of her new working
conditions. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at
257 (to oppose summary judgment motion, plaintiff cannot rely on
assertions in pleadings and must come forward with evidence that
a jury could consider). We have long expected that those who
seek to initiate ADEA claims will do so while still employed, and
the instant case reminds us of the wisdom of this expectation.
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See, e.g., Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 55
(1st Cir. 1984) ("Even the victim of unlawful discrimination is
expected to seek legal redress while still employed unless
actually fired, or constructively discharged due to a 'drastic
reduction in the quality of working conditions.'" (quoting Alicea
Rosado, 562 F.2d at 119-20)). Here, with no evidence of a
drastic reduction in work conditions sufficient to support
Serrano's resignation, summary judgment is appropriate.
Moreover, other factual circumstances tending to
strengthen a case for constructive dismissal were not present
here. There was no evidence, for example, of suggestions by the
management of DFI that Serrano take an early retirement.4 Cf.
Calhoun, 798 F.2d at 564 (jury's finding of constructive
discharge bolstered by evidence of repeated inquiries regarding
early retirement). There was also very little in the way of
evidence showing animosity toward Serrano on account of her age.5
Cf. Greenberg, 48 F.3d at 28 (finding of no constructive
4 Serrano's contention that DFI's grant of a 48-hour period to
reconsider the offered job transfer -- one that she had already
turned down -- was a "humiliating action" designed to lead her to
resign is very difficult to accept. The July 21, 1994 letter
from Lozano to Serrano which describes the 48-hour
reconsideration period also states, "I want to make it absolutely
clear to you that no one in the Company (DFI Puerto Rico, Inc.)
intends or desires to fire you as an employee of DFI."
5 On appeal, Serrano places great emphasis on the assertion that
she was replaced, in her capacity as comptroller, by a younger
woman. Assuming this is correct, she does not contend that this
occurred prior to her resignation. Therefore, while this fact
may be related to issues of pretext, it is unrelated to our
finding that Serrano fails to satisfy the third (constructive
discharge) part of the McDonnell Douglas prima facie case.
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discharge "buttressed by the fact that [the employee] couples
his allegation of constructive discharge with virtually no
evidence that [the employer's] motives stemmed from an animosity
towards age."). All of these considerations lead us to the
conclusion that the district court properly found that Serrano
failed to establish a prima facie case.
II. Adverse Employment Actions
II. Adverse Employment Actions
Serrano contends that the district court erred by
failing to consider whether she had established a prima facie
case of "adverse employment actions," as distinguished from the
issue of constructive dismissal. Based on the recitation of
damages in Serrano's amended complaint, however, her suit is
plainly one seeking a remedy for improper dismissal, and not one
seeking a remedy for adverse employment actions. Her allegations
regarding damages consist of the following: lost income and
benefits from the date she was forced to resign, and various
other damages she and her husband have incurred arising out of
the economic hardship brought about by her dismissal. All of
Serrano's alleged economic harms would not have come about had
Serrano accepted the position, which offered the same salary and
benefits. See Shealy v. Winston, 929 F.2d 1009, 1012 n.2 (4th
Cir. 1991) (finding no constructive discharge and holding there
is no further ground for relief on theory of adverse employment
action, because "appellant would then face the barrier of proving
any damages when he clearly would have been employed . . . at the
same salary and benefits."). For example, the removal of various
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responsibilities from Serrano in the months preceding the
proposed transfer, if they are seen as separable from her
resignation, cannot, even if proven to be discriminatory, support
this suit for lost income and benefits. Given the way Serrano
has framed this lawsuit, relief cannot stem from a finding that
the actions of DFI, short of leading to her dismissal, were
discriminatory adverse employment actions.6
CONCLUSION
CONCLUSION
For the reasons stated in this opinion, the district
court's grant of summary judgment is affirmed.
6 In fact, for substantially the reasons discussed with regard
to constructive dismissal, Serrano fails to establish a prima
facie case under the ADEA of adverse employment action on the
basis of the proposed job transfer. See Flaherty, 31 F.3d at
457; Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 135-
36 (7th Cir. 1993) (finding failure to make prima facie case of
adverse employment action where employee, claiming adverse change
in job responsibilities, did not accept transfer position at same
salary and therefore could not substantiate claims about that
position).
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