Lopez-Rosario v. Programa Seasonal Head Start ( 2021 )

Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 17-1435
ALJADI LÓPEZ-ROSARIO; MARGIE TORRES-MONTALVO; CONJUGAL
RELATIONSHIP LÓPEZ-TORRES; ALJADIE LÓPEZ-TORRES,
Plaintiffs, Appellants,
v.
PROGRAMA SEASONAL HEAD START/EARLY HEAD START DE LA
DIÓCESIS DE MAYAGÜEZ, INC.; MYRNA CARRERO; BOARD OF
DIRECTORS OF PROGRAMA SEASONAL HEAD START/EARLY HEAD START
DE LA DIÓCESIS DE MAYAGÜEZ, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Eugenio W.A. Géigel-Simounet, with whom Géigel-Simounet Law
Offices C.S.P. was on brief, for appellants.
Jesús R. Morales Cordero, with whom Bufete Morales Cordero,
C.S.P. was on brief, for appellees.
March 4, 2021
HOWARD, Chief Judge. In this action under the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634, Aljadi
López-Rosario ("López"),1 alleges that his employer discriminated
against him on the basis of age. The district court granted the
employer's motion for summary judgment, and López now seeks our
review of that decision. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Given the district court's thorough recounting of the
facts, López-Rosario v. Programa Seasonal Head Start/Early Head
Start de la Diócesis de Mayaguez, 245 F. Supp. 3d 360, 365 (D.P.R.
2017), we offer here only the essential background. In 2002, López
began working at Centro de Desarrollo Familiar Seasonal Head
Start/Early Head Start Diócesis de Mayagüez Inc. ("Programa").
Programa is a not-for-profit corporation that relies on federal
funds to operate "Head Start Program" pre-school care centers for
low-income children. Employment documents signed by López
described his position at Programa as a "Driver/Handyman." In
that position, López was responsible for transporting the young
participants and their relatives; he also had some
responsibilities related to minor repairs. Programa had a separate
1 The other named plaintiffs - Margie Torres-Montalvo and
Aljadie López-Torres - are López's spouse and son, respectively.
Since their claim rests entirely on their relationship with López,
their claims rise and fall with López's claim.
- 2 -
position titled "Handyman," which was focused on repair work at
Programa's facilities.
In 2013, the Head Start Office of the United States
Department of Health and Human Services notified Programa that,
due to a general lack of funding, there would be a reduction in
the assignment of funds that had already been approved for that
fiscal year. Programa lost more than five percent of its budget
(approximately $155,654). Programa adopted a number of austerity
measures, including eliminating all transportation services that
were not provided in collaboration with other funding sources. As
such, Programa reduced the working hours and pay of the two
occupants of the Driver/Handyman position - López and Harry Muñoz.
López protested verbally and his lawyer sent a letter
requesting reconsideration. López's request moved through the
internal grievance processes at Programa. Meanwhile, for the rest
of the fiscal year 2013, López continued working under the new
reduced schedule. Programa's budget during 2014 turned out to be
the same as the reduced 2013 budget. In February 2014, as
typically happened, Programa distributed new annual employment
contracts for that year. The employment contract presented to
López maintained the reduced work hours. He declined to sign it,
and that ended his employment with Programa.
In April 2014, López filed a discrimination charge with
the Puerto Rico Department of Labor and Human Resources
- 3 -
Antidiscrimination Unit. When that agency issued him a "Right to
Sue" letter, he initiated this federal court action asserting his
claim under the Age Discrimination in Employment Act ("ADEA").
After the discovery period, Programa moved for summary judgment.
The district court granted the motion. López timely appealed that
decision.2
II. LEGAL STANDARDS
We review summary judgment decisions de novo. See Aetna,
Inc. v. Pfizer, Inc., 712 F.3d 51, 53-54 (1st Cir. 2013). Our
task on appeal is to assess whether the non-moving party presented
a genuine question of material fact warranting a trial. See
Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016).
During that assessment, we draw all reasonable inferences in favor
of the non-moving party, but we disregard unsupported speculation
and conclusory allegations. See McGrath v. Tavares, 757 F.3d 20,
25 (1st Cir. 2014) (citing Alicea v. Machete Music, 744 F.3d 773,
778 (1st Cir. 2014)). In the end, if the record is devoid of a
genuine issue of material fact, then the grant of summary judgment
was proper and we will affirm. See Tobin v. Fed. Express Corp.,
775 F.3d 448, 450–51 (1st Cir. 2014).
2 While there were other named defendants in the district
court, López expressly limited this appeal to the grant of summary
judgment in favor of Programa. Thus, the grant of summary judgment
in favor of the Board of Directors and Myrna Carrero is not
affected by this appeal.
- 4 -
III. ANALYSIS
The ADEA prohibits employers from discriminating against
employees on the basis of age. 29 U.S.C. § 623(a)(1); see Hoffman
v. Applicators Sales & Serv., Inc., 439 F.3d 9, 17 (1st Cir. 2006).
Having brought only indirect evidence of discrimination, López
must rely on the burden-shifting framework laid out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Del Valle-Santana
v. Servicios Legales de P.R., Inc., 804 F.3d 127, 129-30 (1st Cir.
2015). That framework begins by placing the burden on the
plaintiff to establish a prima facie case of discrimination by
showing that (1) he was at least forty years of age; (2) his work
met his employer's expectations; (3) his employer took an adverse
action against him; and (4) his employer treated similarly situated
younger employees differently with respect to the adverse action.
Id. at 129.
Although López has satisfied three of these
requirements, the district court properly concluded that his
failure on the fourth prong entitled Programa to summary judgment.
The opinion issued by the district court is sound, and we adopt
its reasoning; we add only a few points of emphasis.
To begin, we easily conclude that López's showing on the
first and third prongs of the prima facie case were sufficient:
Programa conceded below that López was over forty years of age at
the time of the challenged action and that the reduction in hours
- 5 -
and pay constituted an adverse employment action.3 As to the
second prong, López succeeded in raising a triable issue as to
whether his work performance met Programa's legitimate
expectations. Evidence in the record established that López worked
for Programa for approximately twelve years, and for the last two
years López did not receive any warnings. Moreover, Programa
offered López an opportunity to renew his employment in the 2014
fiscal year, a meaningful indication that Programa considered his
performance at least sufficiently satisfactory to keep working
there.
At the summary judgment stage, evidence of this kind
suffices. See, e.g., Meléndez v. Autogermana, Inc., 622 F.3d 46,
51 (1st Cir. 2010) (pointing to the plaintiff's ten years with the
employer and receipt of awards as evidence that was "minimally
sufficient to show that there was a triable issue as to his ability
to meet [his employer's] legitimate expectations"); Vélez v.
Thermo King de Puerto Rico, Inc., 585 F.3d 441, 448 (1st Cir. 2009)
(noting that a "long record of employment" contributed to an
adequate showing regarding work performance). In reaching this
conclusion, we are guided by our prior acknowledgments that "an
employee's burden at the prima facie stage is not particularly
3Given our conclusion that the reduction in hours satisfied
the adverse employment action prong, there is no need to analyze
whether other actions amounted to a constructive discharge, as
López urges.
- 6 -
onerous." Meléndez, 622 F.3d 46, 51 (citing Benoit v. Tech. Mfg.
Corp., 331 F.3d 166, 173 (1st Cir. 2003)).
López's success ends there, however, because he did not
establish a genuine issue of material fact on the fourth prong of
his prima facie case of discrimination. López did not produce
evidence that Programa failed to "treat age neutrally" when it
reduced work hours for its drivers. Brennan v. GTE Gov't Sys.
Corp., 150 F.3d 21, 26 (1st Cir. 1998). López attempted to point
to the experience of two of his co-workers: Harry Muñoz and Angel
Ruiz. However, neither of these two individuals are satisfactory
comparators.
We explain, starting with Muñoz. Although Muñoz held
the same Driver/Handyman position as López, Muñoz's hours and pay
were reduced alongside López's hours and pay. Since Muñoz and
López received the very same treatment, Muñoz's experience does
not help López establish a triable issue as to whether Programa
treated individuals of different ages differently in reducing
hours. See, e.g., Marcano–Rivera v. Pueblo Int'l., Inc., 232 F.3d
245, 252 (1st Cir. 2000) (holding that the plaintiff failed to
establish that similarly situated employees without disabilities
were treated differently where the record revealed that all
employees in the relevant position received the same adverse
employment action).
- 7 -
López's reliance on Ruiz as a comparator also hits a
dead end, though for a different reason: the record does not
support the claim that López and Ruiz were similarly situated
employees. First, the summary judgment record illustrates that
their positions at Programa were meaningfully distinct. While
López worked as a Driver/Handyman, Ruiz worked as a Handyman.
Despite what those titles might superficially suggest, the
difference in the positions was not semantic nor was it created
after the fact for the purposes of litigation. Handyman and
Driver/Handyman were listed separately in Programa's internal
documents, and those documents describe those positions as having
substantially different responsibilities. Pursuant to the job
descriptions, the Driver/Handyman position was focused on
transporting preschool, infant, and toddler participants. The
Handyman position was focused on maintenance, repairs, and other
forms of manual labor in the facilities. The Handyman position
required skills in carpentry, masonry, plumbing, and electricity;
by contrast, the Driver/Handyman position required driving-related
licenses and courses, as well as the ability to relate to children.
Positions that have markedly different focuses, responsibilities,
and qualifications are insufficient comparison points for
disparate treatment claims; that remains true even if the positions
have a narrow degree of overlap. See Goncalves v. Plymouth Cty.
Sheriff's Dep't, 659 F.3d 101, 106 (1st Cir. 2011) (quoting
- 8 -
Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 5 (1st Cir. 2000)) (explaining that in employment
discrimination cases, "[s]imilarly situated candidates must share
'roughly equivalent qualifications to perform substantially the
same work'").
There are additional gaps in López's case for surviving
summary judgment. For example, López also failed to produce
evidence showing that Ruiz and López had similar performance levels
and disciplinary records. See, e.g., Adamson v. Walgreens Co.,
750 F.3d 73, 82 (1st Cir. 2014) (affirming grant of defendant's
motion for summary judgment where there was no evidentiary showing
that plaintiff and other employees had the same disciplinary
record). In the end, López's failure to present a similarly
situated employee who was treated differently prevents him from
establishing a prima facie case of discrimination.
Where, as in this case, "the plaintiff has failed to
limn a prima facie case, the inference of discrimination never
arises, and the employer's motion for summary judgment will be
granted." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.
1991) (citing Menard v. First Sec. Servs. Corp., 848 F.2d 281,
285–87 (1st Cir. 1988)). Accordingly, we end our analysis here.
Affirmed. Each side to bear its own costs of appeal.
- 9 -