OPINION AND ORDER
Plaintiffs, Ventura Tirado Arce ("Tirado") and his common law wife,Norma I. Diaz Alejandro, bring the present action against ARAMARKServices of Puerto Rico, Inc. ("ARAMARK") and ARAMARK Corporation("ARAMARK Corporation"). Plaintiffs' complaint alleges violations of theAge Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 etseq., Title VII of the Civil Rights Act ("Title VII"),42 U.S.C. § 2000e et seq., the Americans with Disabilities Act("ADA"), 42 U.S.C. § 12101 et seq., Puerto Rico Law 100 of May 30,1959, P.R. Laws Ann. tit. 29, § 146 et seq., Puerto Rico Law 44 ofJuly 2, 1985, P.R. Laws Ann. tit. 1, § 501 et seq., Puerto RicoWorkmen's Compensation Act, P.R. Laws Ann. tit. 11, § 1 et seq., andPuerto Rico Law 80 of June 30, 1976, P.R. Laws Ann. tit. 29, § 185 etseq. Co-plaintiff Diaz' claim is anchored to Article 1802 of the PuertoRico Civil Code, P.R. Laws Ann. tit. 31, § 5141.
The defendants move for summary judgment on the ground that theyproffered a legitimate, nondiscriminatory reason for its actions which theplaintiffs did not prove false. The defendants point to the lack ofevidence that Tirado was a victim of age, sex or disabilitydiscrimination and further argue that Tirado did not present admissibleevidence to prove that he is disabled under the ADA. Additionally,ARAMARK Corporation challenges our in personam jurisdiction.
The parties having briefed the aforementioned issues we herebydispose of defendants' motion for summary judgment as follows.
STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.")sets forth the standard for ruling on motions for summary judgment. See,Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir. 2000). It iswell settled, that in ruling on a motion for summary judgment, the Courtreviews the record in the light most favorable to movants and draws allreasonable inferences in their favor. LeBlanc v. Great Am. Ins. Co.,6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994).
The party seeking summary judgment must first demonstrate the absenceof a genuine issue of material fact in the record. See, Fed.R.Civ.P. 56(c);Celotex Corp. v. Catred, 477 U.S. 317; 106 S.Ct. 2548; 91 L.Ed.2d 265(1986). A genuine issue exists if there is sufficient evidence supportingthe claimed factual disputes to require a trial. Morris v. Gov't Dev.Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. GreatAm. Ins. Co., 6 F.3d at 841. A fact is material if it might affect theoutcome of a lawsuit under the governing law. Morrissey v. Boston FiveCents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 1995).
In cases where the non-movant party bears the ultimate burden ofproof, he must present definite and competent evidence to rebut a motionfor summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,256-257; 106 S.Ct. 2509; 91 L.Ed.2d 202 (1986). The non-movant cannotrely on "conclusory allegations, improbable inferences, and unsupportedspeculation." Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1stCir. 2000); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581(1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5,8 (1st Cir. 1990). After an adequate period of time fordiscovery, reliance upon pure speculation is unacceptable. "Plaintiffsare required to garner either direct or circumstantial evidence to backupon their legal claims." Dominguez v. Eli Lilly and Co., 958 F. Supp. 721(D.P.R. 1997), aff'd 141 F.3d 1149 (1st Cir. 1998). The facts includedin the documents and the materials attached to a motion for summaryjudgment, as well as to the opposition papers, must be admissible inevidence. Horta v. Sullivan, 4 F.3d 2, 7-8 (1st Cir. 1993).
Local Rule 311.12 of this District provides that "the papers opposing anotion for summary judgment shall include a separate, short and concisestatement of the material facts as to which it is contended that thereexists a genuine issue to be tried, properly supported by specificreferences to the record." A non-movant's failure to present a statementof disputed facts, embroidered with specific citations to the record,"justifies the court deeming the facts presented in the movant'sstatements of undisputed facts admitted." Corrada Betances v. Sea-Land,Inc., 248 F.3d 40, 43 (1st Cir. 2001); Morales v. A.C. Orssleff's,246 F.3d 32, 34 (1st Cir. 2001).
In the case before us, the defendants met their initial burden byenclosing with their petition a statement of uncontested material factswhich was adequately supported by documents, affidavits, and referencesto depositions. The burden then shifted to the plaintiffs to do likewiseand establish a genuine dispute of material fact that would precludesummary judgment. Despite Local Rule 311.12's unequivocal requirement,the plaintiffs have failed to submit an adequate statement of materialfacts, duly supported by specific references to the record as to whichthey contended there are genuine issues to be tried. Even though theplaintiffs did file a "Statement of Material Facts in Controversy" settingforth a list of facts and documents they allege are material it doesnot, nevertheless, meet the requirements of Local 311.12. Further,plaintiffs fail to contradict the averments presented by defendants intheir statement of facts. The Court will not ferret through the recordand "study all the attached documents, and carefully scrutinize all thedepositions lurking for genuine issues of material facts." Dominguez, 958F. Supp. at 727. Accordingly, pursuant to Local Rule 311.12 we accept asuncontroverted the facts listed in the defendants' statement. See,Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 19 (1st Cir. 1989);Cardona v. Aramark Serv. of Puerto Rico, Inc., 9 F. Supp.2d 92, 95(D.P.R. 1998) ("when a party opposing a motion for summary judgment failsto submit a statement of contested material facts, the court must deem tobe admitted the movant's properly supported statement of materialfacts.")
With respect to the plaintiffs' proposed facts only those foundto be material and properly supported will be deemed admitted.
Plaintiff "Tirado" was born on July 13, 1940. He was recruitedby ARAMARK on May 8, 1972, at the age of 31. He claims to sufferfrom a skin condition known as vitiligo since around 1979.
ARAMARK is a business entity that provides food services to differententerprises in Puerto Rico. ARAMARK's services to its different clientsare governed by contracts with each client. As such, ARAMARK's facilitiesare operated independently from the other, each one is governed bydifferent contracts between ARAMARK and the client company, and each hasits own budget. Also, the salaries ofeach cafeteria employees, as wellas other operational expenses, are paid from the budget allocated to eachclient, and each unit is in charge of recruiting its hourly employees andof purchasing its provisions pursuant to the client's needs andspecifications.
While at ARAMARK, Tirado worked as a Food Service Director ("FSD"),among other positions. As part of his duties as FSD, Tirado managed aparticular cafeteria, developed financial and operational objectives, unitbudgets, monitored the performance of the unit and its employees,supervised the quality of the food services, met with the clients todetermine their specific food services needs and assure that the goalswere met, implemented sales and marketing programs, and supervised theunit's employees.
In 1997 ARAMARK negotiated a contract to operate the cafeteria atJohnson & Johnson's Janssen plant in Gurabo. At all relevant times,Lesbia Rolón ("Rolón") was ARAMARK's General Manager incharge of ARAMARK's approximately seven Johnson & Johnson accounts.As a result of differences between Rolón and Janssen'smanagement, and due to Janssen's reported dissatisfaction with the FSD atthe cafeteria, around May or June of 1998 Tirado was appointed FSD at theJanssen unit because ARAMARK's officers firmly believed that he couldmake a change at Janssen and improve ARAMARK's business relationship withthis client. While Tirado worked at Janssen, said Company's managementwas very happy with ARAMARK's performance in the cafeteria. Prior to thisassignment, Tirado was working as an FSD at ARAMARK's unit at the LifeSavers plant in Las Piedras.
Around December 10, 1998 Tirado had a work-related accident, soughttreatment from the State Insurance Fund ("SIF"), the local workmen'scompensation agency, and was ordered to rest by the SIF. Pursuant to theSIF regulations, Tirado could not work while on SIF-ordered rest. WhileTirado was resting, Rolón remained temporarily in charge of theJanssen cafeteria.
On December 7, 1998 Janssen notified ARAMARK that their food servicesagreement would be cancelled effective January 22, 1999. On December 17,1998, ARAMARK's Managing Director, Gene Monteagudo ("Monteagudo"),acknowledged and accepted, through a letter to Janssen's management, thelatter's decision to terminate its agreement with ARAMARK.
On January 25, 1999 Tirado's SIF-ordered rest came to an end when theSIF authorized him to continue treatment while working. On or around thefollowing day, Tirado relayed this information to ARAMARK. However, hewas informed that Janssen had canceled its agreement with ARAMARK, thatthere were no vacant FSD positions at the moment and that, for thesereasons, he was being laid off. The record shows that in fact ARAMARK didnot have vacancies for an FSD position in January 1999.
The ADEA makes it "unlawful for an employer . . . to discharge anyindividual or otherwise discriminate against any individual . . . becauseof such individual's age." 29 U.S.C. § 623 (a)(1). Under the ADEA, anemployer is liable if age was the motivating factor in the employer'sdecision. "That is, the plaintiff's age must have `actually played a rolein [the employer's decision making] process and had a determinativeinfluence on the outcome'." Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 141; 120 S.Ct. 2097; 147 L.Ed.2d 105 (2000) (citing HazenPaper Co. v. Biggins, 507 U.S. 604, 610; 113 S.Ct. 1701; 123 L.Ed.2d 338(1993).
Thus, in this case, plaintiff Tirado has the burden of establishingthat ARAMARK intentionally discriminated against him. See, Shorette v.Rite Aid of Maine, Inc., 155 F.3d 8, 12 (1st Cir. 1998). Where, ashere, there is no direct evidence of discrimination, the plaintiff mayprove his case through the burden-shifting framework set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792; 93 S.Ct. 1817; 36 L.Ed.2d668 (1973). Under this framework, the plaintiff must prove that: (1) hewas over forty (40) years of age; (2) his job performance was sufficientto meet his employer's legitimate job expectations; (3) he experienced anadverse employment action; and (4) the employer did not treat ageneutrally. See, Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995); Goldmanv. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993). Ifthe plaintiff loses his job in a reduction in force he "need notdemonstrate that he was replaced, but may show that the `employer did nottreat age neutrally or that younger persons were retained in the sameposition'." Goldman v. First Nat'l Bank of Boston, supra, at 1117 (citingHebert v. Mohawk Rubber Co., 872 F.2d 1104, 1111 (1st Cir. 1989).
This prima facie showing is not onerous and once the plaintiff meetsthis burden, a presumption of discrimination arises and the employer mustproffer a legitimate, nondiscriminatory reason for its actions. TexasDept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254; 101 S.Ct. 1089; 67L.Ed.2d 207 (1981). The burden at this second stage is one ofproduction; it "can involve no credibility assessment." St. Mary's HonorCenter v. Hicks, 509 U.S. 502, 509; 113 S.Ct. 2742; 125 L.Ed.2d 407(1993). The burden of persuasion remains with the plaintiff at alltimes. Reeves, 530 U.S. at 142; St. Mary's Honor Center, 509 U.S. at518; Hidalgo v. Overseas Condado Ins. Agencies, 120 F.3d 328, 334 (1stCir. 1997). Furthermore, "[a] defendant need not persuade the court thatit was actually motivated by the proffered reason. The explanationprovided must be legally sufficient to justify a judgment in its favor."Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988).
If the employer produces a legitimate, nondiscriminatory reason for itsactions, the presumption of discrimination vanishes or "drops out of thepicture", Reeves, 530 U.S. at 143; St. Mary's Honor, 509 U.S. at 511, andthe burden shifts back to the plaintiff to show that the employer'sreasons are a mere pretext for discrimination. Serrano-Cruz v. DFI PuertoRico, Inc., 109 F.3d 23, 25-26 (1st Cir. 1997); Woods v. FrictionMaterials, Inc., 30 F.3d 255, 260 (1st Cir. 1994). During this thirdprong, the "plaintiff must do more that simply refute or cast doubt on thecompany's rationale", Medina-Muñoz, 896 F.2d at 9, but must showan impermissible discriminatory animus. LeBlanc v. Great Am. Ins. Co., 6F.3d at 842; Vega v. Kodak Caribbean, Ltd., 3 F.2d 476, 479 (1st Cir.1993).
In making this determination, the Court may not "sit as super personneldepartments, assessing the merits or even the rationality of employers'non discriminatory business decisions." Mesnick v. Gen. Elec. Co.,950 F.2d 816, 825 (1st Cir. 1991); Feliciano De La Cruz v. ElConquistador Resort and Country Club, 218 F.3d at 8; Rodriguez-Cuervosv. Wal-Mart Stores, 181 F.3d 15, 22 (1st Cir. 1999). See also, Mechnigv. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)("Courts do `not sit as a super-personnel department that reexamines anentity's business decisions.' `No matter how medieval a firm'spractices, no matter how high-handed its decisional process, no matter howmistaken the firm's managers, [the law does] notinterfere.'"), quotedin Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002).
The defendants have conceded, for summary judgment purposes, thatTirado presented a prima facie case of age discrimination. Instead theyproffered a legitimate, nondiscriminatory reason for its actions, i.e.,that Tirado was laid off because Janssen cancelled its food servicesagreement with ARAMARK effective January 1999, at which time ARAMARK hadno vacant FSD positions.
Tirado now has the burden of showing that the proffered reason forplaintiff's layoff was but "a pretext for discrimination." Burdine, 450U.S. at 253; St. Mary's Honor, 509 U.S. at 507-08. The plaintiffsattempted to meet this burden by: (1) citing alleged comments byARAMARK's personnel; (2) questioning transfers and vacancies; (3)presenting statistics, and (4) other miscellaneous incidents. We shallanalyze each of these arguments separately.
1. The Alleged Comments
According to the plaintiffs, almost two years prior to Tirado'slayoff Monteagudo, Managing Director for ARAMARK Services of PuertoRico, Inc., referred to newly hired employees as "new blood" that hewanted to inject into the Company. He also indicated that from them"we can learn." Defendants' Statement of Uncontested Material Facts(docket No. 36) ¶ 36(a) The Court finds these comments are notindicative of age discrimination. "Standard usage and common sensedictate that . . . `new blood' means change. Th[is] comment, whetherreviewed in the abstract or in the context of his case, simply cannotsupport a determination of age bias." Fortier v. Ameritech MobileCommunications, 161 F.3d 1106 (7th Cir. 1998). See also, EEOC v. ClayPrinting Co., 955 F.2d 936 (4th Cir. 1992) (the statement "youngblood" is not probative of age discrimination or of a discriminatoryanimus); Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6thCir. 1989) (the statement "younger blood" does not create a genuineissue of fact in age discrimination case). Also, it has been notedthat "[w]ords of praise of youth . . . do not, by themselves, indicatea bias against more mature workers." Mesnick, 950 F.2d at 825. Seealso, Shager v. Upjohn Co., 913 F.2d 398, 400-02 (7th Cir. 1990)(superior's remark that "[i]t was refreshing to work with a young manwith . . . a wonderful outlook on life and on his job" not probative ofage discrimination); Merrick v. Farmers Ins. Group, 892 F.2d 1434,1438-39 (9th Cir. 1990) (the court granted summary judgment foremployer despite comment that plaintiff's replacement was "a bright,intelligent, knowledgeable young man.").
Moreover, these remarks were remote in time and the plaintiffs have notoffered any evidence of a nexus between the statements and Tirado'slayoff. Dominguez-Cruz v. Suttle Caribe, 202 F.3d 424, 433 n. 6 (1stCir. 2000) (noting "circumscribed" evidentiary weight of "temporallyremote" statements); Mulero-Rodriguez v. Ponte, 98 F.3d 670, 676 (1stCir. 1996) (statements made eight months before plaintiff's dischargewere "too remote in time for a sufficient nexus to exist" between thestatements and the discharge); Birbeck v. Marvel Lighting Corp.,30 F.3d 507, 512 (4th Cir. 1994) (statements made two years before thedecision to terminate plaintiff were too far removed); Phelps v. YaleSec., Inc., 986 F.2d 1020 (6th Cir. 1993) (statements made almost ayear before plaintiff's layoff were too remote to constitute evidence ofdiscrimination).
As further grounds for his age discrimination claim Tirado points to acomment made by Monteagudoexpressing that he had some "old dust" tosweep. Plaintiffs failed, however, to present evidence as to when andunder what circumstances these were made or a causal connection betweensaid expressions and Tirado's layoff. Gonzalez v. El Dia, Inc., 304 F.3dat 69-70 (Court disregarded alleged discriminatory comments whenplaintiff did not specify neither the time or context in which they weremade). In addition, "it is far from clear that the alleged remarksbespeak any age-based animus at all." Id., at 70 (citing Fernandes v.Costa Bros. Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999) (notingthat "a statement that plausibly can be interpreted two different ways— one discriminatory and the other benign — does not directlyreflect illegal animus"); Speen v. Crown Clothing Corp., 102 F.3d 625,636 (1st Cir. 1996) ("ambiguous remarks, tending to suggest animusbased on age, are insufficient, standing alone, to prove an employer'sdiscriminatory intent."); Lehman v. Prudential Ins. Co. of Am.,74 F.3d 323, 329 (1st Cir. 1996) (same). See also, Weston-Smith v.Cooley Dickinson Hosp., 282 F.3d 60, 65 (1st Cir. 2002) ("[t]hiscircuit has made clear that inherently ambiguous statements do notqualify as direct evidence"). Plaintiffs admitted that Monteagudo did notspecify what he meant with the expression and the context in which it wasmade renders the comment ambiguous, at best.
Based on the foregoing, the Court finds that the comments presented bythe plaintiffs fail to create a triable issue of fact as to age animus.
2. Employee Transfers and Vacancies
The plaintiffs' proffer of age discrimination animus is also premisedon ARAMARK's laying him off rather than transfer him to another unit whenARAMARK lost the Janssen account. According to the plaintiffs, ARAMARKhad a practice of transferring employees to other cafeterias whenever theunits in which they worked were closed down or if the FSD of a unit hadto be relocated for some reason.
ARAMARK counters this argument by presenting admissible evidenceindicative that transfers effected in the past were made because therewere vacancies available in other units at the time. However, in thiscase defendants have shown that in January 1999, when Tirado wasauthorized by the SIF to resume work while still undergoing treatment,ARAMARK had no vacant FSD positions in other units.1 Defendants havealso proffered that past transfers or relocations were made because theCompany had the need to fill those positions the employees weretransferred to. The plaintiffs have not presented evidence to rebut thisexplanation. Therefore, there is no evidence in the record that wouldallow a reasonable jury to conclude that Tirado was not transferred toanother unit for discriminatory reasons.2
The plaintiffs have offered the following statistical evidence toattempt to prove that Tirado's layoff was discriminatory: (a) a list ofthe FSD's employed by ARAMARK as of January 1999, with their birth andhiring dates; (b) a list of employees recruited by ARAMARK between 1995and 2000 who have worked as FSD's and their ages; (c) a list of FSD'swhose units were closed between 1995 and 2000 and the outcome of saidclosings, and (d) a table with information from the Puerto RicoDepartment of Labor and Human Resources regarding the employment statusof the Puerto Rico civilian population in terms of their ages. Accordingto the plaintiffs, said "statistics by age groups when compared withDefendants['] recruitment practices showed the preference of Defendantstowards the younger population and suggest Defendants['] discriminatoryanimus against Plaintiff for reasons of age." Plaintiffs' SurreplyStatement of Material Facts ¶ 122.
The Court of Appeals for the First Circuit has pointed out that in adisparate treatment context, "statistical evidence . . ., in and ofitself, rarely suffices to rebut an employer's legitimate,nondiscriminatory rationale for its decision to dismiss an individualemployee." Le Blanc, 6 F.3d at 848. IA this case, the informationregarding the persons who worked as FSD's between 1995 and 2000 is flawedbecause plaintiffs failed, for instance, to "provide importantinformation regarding the pool of applicants." LeBlanc, 6 F.3d at 848.Also, "[w]e are not told whether `qualified older employees wereavailable or applied for those jobs'." Id., citing Simpson v.Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir. 1987). See also, WardsCove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1989) (statisticscarried "little weight absent some indication of the number of [older]applicants or the composition of the relevant labor market."); Villanuevav. Wellesley Coll., 930 F.2d 124, 131 (1st Cir. 1991). Significantly,"the fact that recently hired employees are younger than [Tirado] is notnecessarily evidence of discriminatory intent, but may simply reflect ayounger available work force." Le Blanc, 6 F.3d at 848. See also,Rodriguez v. Smithkline Beecham, 224 F.3d 1, 7-8 (1st Cir. 2000) (to beprobative statistics must be linked to available pool of applicants).
The plaintiffs' statistics compare the ages of two (2) FSD's whowere discharged with that of FSD's who were not discharged. Thesefigures show that plaintiff Tirado and Luis R. Diaz, 58 and 55 yearsold respectively, represent "66% . . . of the oldest [FSD] population."However, plaintiffs fail to acknowledge that the statistics also showthat the second oldest FSD, Argemiro Gómez, only six and a halfmonths younger than Tirado, was not discharged. In addition, Luis R.Diaz, one of the two FSD's mentioned by the plaintiffs, was rehiredby ARAMARK in February 2000, at the age of 57.3 ARAMARK's Statementof Uncontested Material Facts (docket No. 36) Exh. 11; ARAMARK'sMotion to Strike Plaintiffs' Statement of Contested Facts (docket No.41) Exh. 4 pp. 7, 22, 70-72.
Plaintiffs have failed to explain how the remainder statisticsshow a pattern of age discrimination by defendants. Therefore, theCourt finds that the statistics provided by the plaintiffs fail tocreate a triable issue of fact as to whether Tirado was laid off fordiscriminatory reasons.
4. Miscellaneous Incidents
The plaintiffs have further offered as evidence of age discriminationthe factthat in 1997 Tirado asked his supervisor, Lesbia Rolón,why a 60-year old was assigned to the third shift and she allegedlyresponded: "to see if he [the 60-year old] resigned." We note that thereis no evidence of either time proximity, of the reason why the supervisorwanted the employee to resign or of a causal nexus between said remoteincident and Tirado's layoff. There is also no evidence that Tirado andthe 60-year old employee were similarly situated or that Rolónplayed any role in the decision to lay off Tirado. Consequently, theseactions fail to create a triable issue of fact as to whether Tirado wasthe subject of age discrimination. Gonzalez v. El Dia, Inc., 304 F.3d at72 (when employees were not similarly situated the Court failed to findan age-based animus); Rodriguez-Cuervos, 181 F.3d at 21 ("a claim ofdisparate treatment must rest on proof that the proposed analogue issimilarly situated in all material respects") (citation omitted);Medina-Muñoz, 896 F.2d at 10 (statements made by "one who neithermakes nor influences [a] challenged personnel decision are not probativein an employment discrimination case").
The plaintiffs also proffer that as a result of the closing of acafeteria in 1998, which resulted in the layoff of most of ARAMARK'semployees in the unit, the cafeteria's chef who, according to Tirado, wasclose to 60 years of age was laid off. Tirado, however, does not know thereasons for his layoff, or whether there was any vacancy for a chefposition in another unit at the time. This, added to the lack of evidencethat Tirado and the other employee were similarly situated, fails tosuggest a discriminatory animus against Tirado.
The Court, therefore, dismisses Tirado's claim under the ADEA.
TITLE VII — SEX DISCRIMINATION
Title VII makes it unlawful, inter alia, to discharge any individualbecause of his sex. 42 U.S.C. § 2000e-2 (a)(1). Similar to an ADEAcase, plaintiff Tirado has the burden of establishing that the employerintentionally discriminated against him. The McDonnell Douglas burdenshifting framework establishes the order of proof for situations, likethe instant case, where direct evidence of sex discrimination islacking. Under this framework, the plaintiff must present a prima faciecase of sex discrimination by establishing that: (a) he is within a classprotected by Title VII; (b) he met his employer's legitimate jobexpectations; (c) was laid off; and (d) his employer did not treatmembers of the protected class neutrally or retained persons not withinthe protected class in the same position. McDonnell Douglas Corp. v.Green, 411 U.S. at 802; Smith v. Morse & Co., 76 F.3d 413, 421 (1stCir. 1996); Petitti v. New England Tel. and Tel. Co., 909 F.2d 28, 32(1st Cir. 1990).
As under the ADEA, this burden is not onerous and once established, apresumption of discrimination arises. Burdine, 450 U.S. at 253-54; Smithv. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994). At thispoint, the employer must articulate a legitimate, nondiscriminatory reasonfor its actions. Once the employer meets its burden of production (not ofpersuasion) the presumption of discrimination created by the prima faciecase "drops out of the picture" and the plaintiff must prove that theemployer's reason for its actions was a pretext for sex discrimination.Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 253; Zapata-Matos v.Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st Cir. 2002).
The defendants conceded for summary judgment purposes that plaintiffspresented a prima facie case of sex discrimination. In turn, as shownabove, the defendants presented a legitimate, nondiscriminatory reasonfor the decision at issue.
Tirado anchors his sex discrimination claim on the fact that three outof five FSD's recruited by ARAMARK in the two years prior to his layoffwere females. He also claims that when he was transferred from ARAMARK'scafeteria at the Life Savers plant to Janssen he was substituted by afemale.
The Court finds that Tirado cannot meet his burden of showing that hisemployer discriminated against him because of his sex. The fact thatthree of the five FSD's recruited by ARAMARK in 1997 and 1998 werefemales is in no way enough to show discrimination against Tirado. Atthis stage, because defendants presented a legitimate, nondiscriminatoryreason for his layoff, Tirado is not aided by the presumption ofdiscrimination created by the prima facie case. In addition, Tirado hasnot shown that he applied and was not recruited for those positions.Furthermore, Tirado has not offered any evidence as to who applied or wasinterviewed for the positions in question. Again, Tirado's statisticscarry "little weight absent some indication of the number of [male]applicants or the composition of the relevant market." Wards Cove PackingCo. v. Atonio, 490 U.S. at 650-52; Smithkline Beecham, 224 F.3d at 7-8;LeBlanc, 6 F.3d at 848; Villanueva v. Wellesley Coll., 930 F.2d at 131.
Finally, Tirado's second argument for alleging sex discrimination isunpersuasive. The mere fact that a female replaced him when he wastransferred to Life Savers is insufficient at this stage to provediscrimination. More importantly, the transfer from the Life Saversfacility is not the adverse employment action at issue. Rather, thepertinent employment decision was Tirado's layoff for which the defendantshave already presented a legitimate, nondiscriminatory reason. Gonzalezv. El Dia, Inc., 304 F.3d at 71 (finding that retirement offer was notthe adverse employment action at issue; instead, a suspension without payand a termination were the adverse actions). The plaintiffs have notshown that ARAMARK's reason was false or a pretext for sexdiscrimination. Tirado's failure to create a triable issue of factconcerning his sex discrimination claim warrants the dismissal of saidcause of action.
The ADA prescribes that no employer "shall discriminate against aqualified individual with a disability because of the disability of suchindividual." 42 U.S.C. § 12112 (a). The term "disability" is definedas "a physical or mental impairment that substantially limits one or moreof the major life activities of such individual." 42 U.S.C. § 12102(2)(A). In order to qualify for the ADA's protection, the plaintiff bearsthe initial burden of establishing that: (1) he suffers from a"disability" within the meaning of the ADA; (2) he is able to perform theessential functions of his position with or without reasonableaccommodation; and (3) the employer's actions were based in whole or inpart on his disability. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,18 (1st Cir. 2002); Quinn v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 n. 3(1st Cir. 1999); Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538,541 (1st Cir. 1999).
The ADA does not define the term "substantially limits." The SupremeCourt has stated that "`substantially' in the phrase `substantiallylimits' suggests`considerable' or `to a large degree'." Toyota MotorMfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 691, 151L.Ed.2d 615 (2002). The related EEOC regulations define "substantiallylimits" as either (i) the inability to "perform a major life activitythat the average person in the general population can perform," or (ii)being "[s]ignificantly restricted as to the condition, manner or durationunder which [one] can perform a particular major life activity ascompared to the condition, manner or duration under with the averageperson in the general population can perform that same major lifeactivity." 29 C.F.R. § 1630.2 (j). See also, Toyota, 122 S.Ct. at690. On the other hand, "`[m]ajor' in the phrase `major life activities'means important. `Major life activities' thus refers to those activitiesthat are of central importance to daily life." Id., at 691 (citationsomitted).
In our analysis of whether an impairment is a disability, we mustconsider: (i) the nature or severity of the impairment; (ii) its expectedduration; and (iii) its anticipated long-term impact.29 C.F.R. § 1630.2 (j)(2)(i)-(iii). Where the major life activity is"working", additional factors include: (i) the geographical area to whichplaintiff has reasonable access; (ii) the number of jobs in thatgeographical area which require the same abilities as plaintiff's formerjob, but from which plaintiff would be disqualified due to hisimpairment; and (iii) the number of jobs in that geographical area whichdo not require the same abilities as plaintiff's former job, but fromwhich plaintiff would be disqualified due to his impairment.29 C.F.R. § 1630.2 (j)(3). See also, Gonzalez v. El Dia, Inc., 304F.3d at 73. "Merely having an impairment does not make one disabled forpurposes of the ADA. Claimants also need to demonstrate that theimpairment limits a major life activity." Toyota, 122 S.Ct. at 690.
Under the ADA, the term "discriminate" includes the employer's failureto make reasonable accommodations to the known physical or mentallimitations of an otherwise qualified individual with a disability.42 U.S.C. § 12112 (b)(5)(A). Unlike other "discriminations" theplaintiff is not required to prove — through direct evidence or theMcDonnell Douglas burden shifting scheme — that the employer'somission was motivated by discriminatory animus directed at thedisability. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264(1st Cir. 1999).
A failure-to-accommodate claim has a different set of requirements, allof which must be met if the plaintiff is to survive a motion for summaryjudgment. The First Circuit Court of Appeals listed the followingrequirements: (a) the plaintiff must furnish sufficient admissibleevidence that he is a qualified individual with a disability within themeaning of the ADA; (b) that he worked for an employer covered by theADA; (c) that the employer, despite its knowledge of the employee'sphysical limitations, did not accommodate those limitations; (d) that theemployer's failure to accommodate the known physical limitations affectedthe terms, conditions, or privileges of the plaintiff's employment. See,Higgins, 194 F.3d at 264.
In this case, the plaintiff Tirado complains that his job at Janssenforced him to walk for a total of up to ten minutes a day (at differenttimes) back and forth between two buildings and that this affected hisvitiligo condition. He argues that ARAMARK failed to provide a reasonableaccommodation and that his layoff was discriminatory by reason of hisdisability.
Tirado, however, has failed to prove that at all relevant times he wasa "qualified individual with a disability." He sustainsthat he hasvitiligo, a skin condition resulting in patches of depigmentation,4but did not present admissible evidence to prove that said conditionsubstantially limits a major life activity. See, Toyota, 122 S.Ct. at 691("[i]t is insufficient for individuals attempting to prove disabilitystatus . . . to merely submit evidence of a medical diagnosis of animpairment."); Sutton, 527 U.S. at 483 ("[t]he determination of whetheran individual has a disability is not necessarily based on the name ordiagnosis of the impairment.") For instance, he did not submit evidenceconcerning the nature or severity of his condition nor how the conditionor symptoms affect his body and to what degree.
Tirado admitted that the vitiligo does not affect his ability toperform manual tasks, take care of himself, walk, see, hear, speak,breath, learn and work. ARAMARK's Statement of Uncontested Material Facts(docket No. 36) ¶ 41. Yet, in his opposition documents he argued,without supporting admissible evidence, that the vitiligo "substantiallylimited main life functions of working and walking under the sun . . .and interfered with [his] ability to work at Janssen." Brief in Supportof Plaintiffs' Opposition (docket No. 37) p.21.5 Significantly,Tirado failed to present evidence to explain how and to what extent hewas limited in the activities of working and walking under the sun.Gonzalez v. El Dia, Inc., 304 F.3d at 74 (plaintiff must show admissibleevidence as to precisely how the condition affected the major lifeactivity in question). This Court also notes that in his depositionTirado stated that the vitiligo did not affect his ability to work.Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1stCir. 1994) (party opposing summary judgment cannot create genuine issueof material fact with affidavit that contradicts clear answers tounambiguous questions in an earlier deposition).
Even if we continue our analysis, we must note the Supreme Court'sskepticism to rule that "working" is a major life activity. Sutton v.United Air Lines, Inc., 527 U.S. 471, 492 (1999). Assuming arguendo thatworking is indeed a major life activity, Tirado failed to presentevidence to show that his impairment rendered him unable to perform abroad range of jobs, as distinguished from the particular job that heheld at ARAMARK. See, Toyota, 122 S.Ct. at 692-693 (citing Sutton v.United Air Lines, Inc., 527 U.S. at 492); Gonzalez v. El Dia, Inc., 304F.3d at 74; Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54,58 (1st Cir. 2001) (noting that ADA requires an "individualizedinquiry," and "[w]hen the major life activity of working is at issue. . . the plaintiff assumes a more fact-specific burden of proof'.")29 C.F.R. § 1630.2 (j)(3)(i) (same). Tirado did not present evidenceeither "as to the employment demographics in the relevant geographicarea, from which a factfinder rationally might assess the appropriatesection 1630.2(j)(3) criteria." Gonzalez v. El Dia, Inc., 304 F.3d at74.
Tirado merely stated that his skin itched when he was exposed to thesun. This, without more, is insufficient to meet his burden to show thathe had a disability under the ADA. Toyota, 122 S.Ct. at 691-692(individual seeking protection mustoffer evidence about the extent ofthe limitation caused by the impairment); Albertson's, Inc. v.Kirkingburg, 527 U.S. 555, 567 (1999) (impairment not invariably adisability, but must be analyzed on an individual basis, taking intoaccount the individual's ability to compensate for the impairment). Afterall, the ADA requires the courts to assess "the existence of a disabilityto be determined in . . . a case-by-case manner." Toyota, 122 S.Ct. at692.
We have not located a single case in which a court found that "walkingunder the sun" is a major life activity under the ADA and we find that itis not. In any event, Tirado has not presented admissible evidence toestablish a significant limitation in a major life activity. The courtsdo not assume that an impairment substantially limits a major lifeactivity. Rather, the plaintiff must show how the impairment limits amajor life activity. Clemente v. Executive Airlines, Inc., 213 F.3d 25(1st Cir. 2000) (plaintiff failed to present evidence about how herhearing loss substantially limited the major life activities of hearingor speaking; she also did not adduce sufficient evidence that, comparedto the average person in the general population, she was significantlyrestricted in her hearing). As the ADA provides, the limitation imposedby the individual's condition must be substantial.
The Court finds that Tirado failed to prove that his vitiligo conditionconstituted a disability within the meaning of the ADA. Therefore, thedefendants did not have a duty to provide a reasonable accommodation.6
Tirado's claim that his layoff was a result of disabilitydiscrimination is also without merit. As mentioned above, Tirado failedto prove that his condition constituted a disability under the ADA.Notwithstanding this, ARAMARK presented a legitimate, nondiscriminatoryreason for its actions. The plaintiffs have not shown that the reasonasserted is false nor does the record suggest that his layoff was in anyway related to Tirado's vitiligo condition.
Accordingly, Tirado's disability discrimination claim under theADA is also dismissed.
Tirado's disability discrimination claim under Puerto Rico's Law 44 ofJuly 2, 1985 must also be dismissed because Tirado is not a disabledindividual within the meaning of Law 44. Law 44 was amended through Law105 of December 20, 1991 to strictly conform its provisions to the ADA.Garcia Diaz v. Darex, 99 TSPR 79; Rios v. Cidra Mfg. Operations of P.R.,98 TSPR 74.
Law 44 was initially enacted to prohibit discrimination againstindividuals with physical or mental disabilities in public institutionsor private entities which received funds from the Commonwealth of PuertoRico. See, Statement of Motives of Law No. 44 of July 22, 1985. Followingthe promulgation of the ADA, Puerto Rico's Legislature approved Law 105of December 20, 1991 with the express purpose of extending Law 44'sprotection to persons employed by private institutions in Puerto Rico andto conform Law 44 to theADA. See, Statement of Motives of Law 105 of December 20, 1991.
In order to comport Law 44 to the ADA, Law 105 amended the definitionof "individual with physical disability" to include all persons that havea disability that substantially limits one or more of the major lifeactivities; that the person have a history of such a condition; or thatthe person be regarded as having such a disability. See, 1 P.R. LawsAnn. § 501(d) (1999).
Plainly, the definition of disability in Law 44 mirrors the ADA'sdefinition of disability. Since it was the Legislature's express intentto harmonize the local statute with the ADA, it follows that ADAprecedent regarding the definition of disability must be read into casesarising from the local statute. UPR v. Asoc. Profesores Universitarios,136 D.P.R. 335 (1994); Bruno López v. Motorplan, 134 D.P.R. 111(1993); Pérez Maldonado v. J.R.T., 132 D.P.R. 972 (1993).
Accordingly, Tirado's claim based on Puerto Rico's Law 44 is likewisedismissed inasmuch as he failed to present sufficient admissible evidenceto establish that he is disabled. See, Gonzalez v. El Dia, Inc., 304 F.3dat 74 n. 8 (affirming dismissal of coterminous claim under Law 44 upondismissal of ADA claim); Acevedo-Lopez v. Police Dep't of P.R.,247 F.3d 26, 29 (1st Cir. 2001) ("the Commonwealth prohibits employmentdiscrimination on the basis of disability in a similar fashion as theADA").
IN PERSONAM JURISDICTION OVER ARAMARK CORPORATION
Defendants argue that this Court lacks in personam jurisdiction overARAMARK Corporation because said entity "has no minimum contacts withthis forum and operates as a separate corporate entity from ARAMARKServices of Puerto Rico, Inc., plaintiff's former employer." Brief inSupport of Defendants' Motion for Summary Judgment (docket No. 36) p.19.ARAMARK Corporation is incorporated under the laws of Delaware, with itsprincipal place of business in Philadelphia, Pennsylvania. It is notauthorized to do business in Puerto Rico and does not have physicalpresence or employees in Puerto Rico.
Defendants having challenged our authority to exercise personaljurisdiction it becomes plaintiff's burden to prove the necessaryfacts to establish that defendant is indeed amenable to judicialproceedings in this forum. Jet Wine & Sprits, Inc. v. Bacardi & Co.,298 F.3d 1, 7 (1st Cir. 2002); Daynard v. Ness, Motley, Loadholt,Richardson & Poole, 290 F.3d 42, 50 (1st Cir. 2002).
Absent an evidentiary hearing the court may determine in personamjurisdiction based on a prima facie review of the properly documentedjurisdictional facts as presented by plaintiffs. Jet Wine & Spirits,Inc., 298 F.3d at 7. "[I]n evaluating whether the prima facie standardhas been satisfied, `the district court is not acting as a factfinder;rather, it accepts properly supported proffers of evidence by a plaintiffas true and makes its ruling as a matter of law.'" United States v. SwissAm. Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (citing United StatesElec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp.,987 F.2d 39, 44 (1st Cir. 1993). See also Daynard, 290 F.3d at 51(court need not resolve disputed facts but rather accepts plaintiff'sproffer in ascertaining adequacy of prima facie showing).
When, as here, federal question is the basis of jurisdiction and thereis "insufficient statutory authorization for extraterritorial service,"the Court's power to assert personal jurisdiction over a nonresidentdefendant is governed by the forum state's long arm statute. UnitedElec., Radio and Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080,1086 (1st Cir. 1992). Our local long arm statute allows for theexercise of personal jurisdiction over nonresident defendants, interalios, in situations when the litigation arises out of transactionsconducted in Puerto Rico.7
The Due Process Clause of the Fourteenth Amendment limits the power ofa forum to assert personal jurisdiction over a nonresident defendant.Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104S.Ct. 1868, 80 L.Ed.2d 404 (1984). Accordingly, when allowed to by thelocal long arm statute, the "exercise of personal jurisdiction must befound to be consistent with the due process requirement of the UnitedStates Constitution." Davila-Fermin v. Southeast Bank, N.A.,738 F. Supp. 45, 47 (D.P.R. 1990). See also, Matosantos Commercial Co.v. Applebee's Intern, Inc., 2 F. Supp.2d 191, 195 (D.P.R. 1998); RafaelMargarida & Co. v. Audi of America, Inc., 721 F. Supp. 394, 398(D.P.R. 1989). Due Process is satisfied when personal jurisdiction isasserted over a nonresident defendant that has "certain minimum contacts"with the forum, such that the maintenance of the suit does not offend"traditional notions of fair play and substantial justice." HelicopterosNacionales, 466 U.S. at 413-414; Int'l Shoe Co. v. Washington,326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). As part of thisanalysis, "[a]ll the facts must be evaluated to determine whether thedefendant purposefully established minimum contacts within the forum."Young v. Pannell Fitzpatrick & Co., 641 F. Supp. 581, 585 (D.P.R.1986).
Contacts are sufficient for the exertion of personal jurisdiction whenthey are the result of a purposeful act by defendant. The Supreme Courthas made it very clear that "[t]he unilateral activity of those who claimsome relationship with a nonresident defendant cannot satisfy therequirement of contact with the forum state. The application of that rulewill vary with the quality and nature of the defendant's activity, but itis essential in each case that there be some act by which the defendantpurposefully avails itself of the privilege of conducting activitieswithin the forum State, thus invoking the benefits and protections of itslaws." Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing Int'l ShoeCo., 326 U.S. at 319). Importantly, "random, isolated, or fortuitous"contacts with the forum are not enough. Keeton v. Hustler Magazine,Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). "Whetherdefendant's contact with the forum is described as an `affirmative act'or `purposeful availment,' the inherent foreseeability of consequences isone of the keystones of personal jurisdiction." Escude Cruz v. OrthoPharm., Corp., 619 F.2d 902, 904 (1st Cir. 1980). Foreseeabilityrequires that a defendant's contacts with the forum be such that saidparty "should reasonably anticipate being haled into court there."World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct.559, 62 L.Ed.2d 490 (1980).
The plaintiffs rely on the following factors in support of our personaljurisdiction over the nonresident codefendant: (1) a stationary with thename of ARAMARKCorporation; (2) a newspaper ad with the name ARAMARKCorporation; (3) an introduction of an employee's handbook; (4) severalletters with the ARAMARK logo from certain company officers; (5) paystatement with the ARAMARK logo.
As mentioned above, pursuant to Rule 4.7 if a company transactedbusiness in Puerto Rico, either personally or through an agent, the Courtmay exercise personal jurisdiction over it. Further, Rule 4.7 expresslymandates that the claim asserted in the complaint "arise" from thecontacts of the non-domiciled defendant with the forum. Escude-Cruz v.Ortho Pharm., 619 F.2d at 905. See also Redondo Constr. Corp. v. BancoExterior de España, S.A., 11 F.3d 3, 5 (1st Cir. 1993) (specificjurisdiction over defendant present inasmuch as claim resulted fromdefendant's acts within forum); Am. Express Int'l, Inc., v.Mendez-CApellan, 889 F.2d 1175, 1179 (1st Cir. 1989) (defendantcorporation's activities within Puerto Rico unrelated to the causes ofaction asserted); Rosich v. Circus & Circus Enter., 3 F. Supp.2d 148,150 (D.P.R. 1998) (plaintiff's injuries must be "connected withdefendant's contacts with Puerto Rico"); Pou v. Am. Motors Corp., 127D.P.R. 810, 819 (1991) (in personam jurisdiction requires minimumcontacts with the forum and that the claim be related to or arises fromthose contacts).
In other words, there must be a causal relationship between thedefendant's activities within the forum and the claims asserted inthe pleadings.
Whether certain events "arise out of" a nonresident defendant's actions within Puerto Rico is comparable or analogous to whether certain actions can be said to be the legal, or proximate cause of the injuries suffered by a plaintiff. This court has previously commented on the concept of legal causation.
Pizarro v. Hoteles Concorde Int'l, C.A., 907 F.2d 1256, 1258 (1st Cir.1990).
The record shows that ARAMARK Corporation is incorporated under thelaws of Delaware; has its principal place of business in Philadelphia,Pennsylvania; is not authorized to do business in Puerto Rico, and doesnot have physical presence or employees in Puerto Rico.
Further, defendants have proffered, without evidence to the contrary,that the stationary, the letters and newspaper ad with the ARAMARKCorporation logo shows a "discontinued business judgment error of Mr.Monteagudo", ARAMARK Services of Puerto Rico, Inc.'s Managing Director.The Court finds this discontinued practice insufficient to extendpersonal jurisdiction over codefendant.
Similarly, the letter from Gregory L. Nance, officer of ARAMARKCorporation in Atlanta, Georgia, does not afford personal jurisdictionover ARAMARK Corporation. In U.S.S. Yachts, Inc. v. Ocean Yachts, Inc.,894 F.2d 9, 11 (1st Cir. 1990), the First Circuit found that threeletters sent to Puerto Rico were insufficient to warrant the exercise ofin personam jurisdiction. The Court, therefore, finds that the twoletters presented by the plaintiffs — less imparting than the onesrejected in U.S.S. Yachts — do not provide support to theallegation of ARAMARK Corporation's minimum contacts with Puerto Rico.See also, Aylward v. Fleet Bank, 122 F.3d 616, 618 (8th Cir. 1997)(finding three telephone calls and one letter in a seven-month periodinsufficient to support the exercise of personal jurisdiction when therelevant acts did not stem from those contacts).
The same conclusion follows regarding the newspaper ad. See,Helicopteros Nacionales, 466 U.S. at 418-19 (placing local newspaper adsinsufficient to satisfy requirements under theDue Process Clause);Pizarro v. Hoteles Concorde Int'l, C.A., 907 F.2d at 1260 (nineadvertisements placed by defendant in local newspaper did not justify theexercise of personal jurisdiction).
The pay stub presented by the plaintiffs was sent by ARAMARKCorporation in Philadelphia, Pennsylvania to ARAMARK Services of PuertoRico, Inc.'s employee.8 The undisputed evidence in the record showsthat ARAMARK Corporation and ARAMARK Services of Puerto Rico, Inc.operate independently and that their finances are not intermingled. It isalso uncontested that ARAMARK Corporation has no employees in Puerto Ricoand that the salaries of the employees of ARAMARK Services of PuertoRico, Inc. are paid from its bank account with Banco Popular in PuertoRico. The plaintiffs have not contested these facts in any way.Therefore, the pay statements cannot move this Court to exercise personaljurisdiction over ARAMARK Corporation.
Finally, the plaintiffs have failed to show how the employee handbookwith the name of ARAMARK Corporation proves said corporation'sinvolvement in Puerto Rico. Again, this is insufficient to warrant theexercise of personal jurisdiction over ARAMARK Corporation. In Moreno v.John Crane, Inc., 963 F. Supp. 72, 76 (D.P.R. 1997), which held asfollows:
Even though JCC is admittedly owned by JCI, the truth of the matter is that their daily operations are practically independent from each other; JCC's management is entirely unrelated to JCI's; and there is no centralized control over labor relations. Just as in Mas Marques, it did not matter that the subsidiary corporation purchased half its inventory from its parent company and occasionally contracted with its parent company for accounting or bookkeeping services; in the instant case, the fact that JCC purchased some equipment from JCI, used some of its stationery for writing internal memorandums and exercised its own prerogative to use JCI's catalog and resource manual does not, in and of itself, demonstrate that both corporations were actually an integrated enterprise. (Emphasis added).
See also, Helicopteros Nacionales, 466 U.S. at 418-19 (the nonresidentcorporation's only contacts with Texas — contract negotiationswithin the state, accepting checks drawn on a Texas bank, purchasingmaterials and services from a corporation located in Texas, and sendingemployees to Texas for training — "were insufficient to satisfy therequirements of the Due Process Clause of the Fourteenth Amendment.").
The allegations in the complaint, together with the evidence inthe record, do not show that ARAMARK Corporation engaged in acts"done or consummated" within Puerto Rico or that plaintiffs' claimsarise out of ARAMARK Corporation's actions in the forum. The recordalso lacks evidence to meet due process requirements.
Plaintiffs having failed to meet their burden we conclude that ARAMARKCorporation's alleged contacts with Puerto Rico are insufficient toexercise in personam jurisdiction over codefendant in this case.
Based on the foregoing, the Motion for Summary Judgment filed byARAMARK and ARAMARKCorporation (docket No. 36) is GRANTED.9
Accordingly, plaintiffs' federal claims as well as Tirado's claim underPuerto Rico's Law 44 are hereby DISMISSED.
It is further ORDERED that the remaining supplemental claims arehereby DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that this court lacks in personam jurisdictionover codefendant ARAMARK CORPORATION.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
The Court having disposed of plaintiffs' claims through its Orderissued on this date, it is hereby
ORDERED AND ADJUDGED that plaintiffs' federal claims as well as VenturaTirado's claim under Puerto Rico's Law 44 are hereby DISMISSED WITHPREJUDICE.
The remaining supplemental claims are hereby DISMISSED WITHOUTPREJUDICE.
It is further ORDERED AND ADJUDGED that this court lacks in personamjurisdiction over codefendant ARAMARK CORPORATION.
IT IS SO ORDERED.
1. The plaintiffs aver that in December 1998 ARAMARK had two vacanciesfor FSD positions. It is uncontested, however, that in December 1998Tirado was not authorized to return to work pursuant to the SIF'sindications. At that time, it was impossible for ARAMARK to foreseewhen, if ever, Tirado would be released by the SIF and/or allowed toreturn to work.
2. The Court notes that in December 1997 Judith Rosado, a female FSDtwenty-four years younger than Tirado, was laid off because ARAMARK'scontract with the unit where she worked was canceled. The same happenedin February 1998 with Olga Echevarria, a female twenty years younger thanTirado. See, ARAMARK's Motion to Strike Plaintiffs' Statement ofContested Facts (docket No. 41) Exh. 2.
3. Plaintiff Tirado was 58 years old when he was laid off byARAMARK.
4. W.B. Saunders, Dorland's Illustrated Medical Dictionary, (25thEd. 1974).
5. According to Tirado, his condition worsened when he was exposed tothe rays of the sun. However, Tirado proffered no admissible evidence asto why, how and under what circumstances his condition worsened oridentify specific limitations caused by his condition.
6. The Court further notes that Tirado never requested from ARAMARK atransfer to another unit. In addition, the record shows that althoughTirado used a hat to cover his head while exposed to the sun in his freetime, he chose not to wear a hat or use an umbrella at work. There is noevidence that this simple measure was not allowed by ARAMARK or would nothave been effective for Tirado when walking between buildings.
7. Rule 4.7 provides in its relevant part that "(a) [w]heneverthe person to be served is not domiciled in Puerto Rico, the generalcourt of justice shall take jurisdiction over said person if theaction or claim arises because said person: (1) Transacted businessin Puerto Rico personally or through an agent . . ." 32 P.R. Laws Ann.,App. III (1983).
8. Defendants included as part of their evidence a certified letterfrom the Puerto Rico Department of State that shows that when the letterwas issued ARAMARK Corporation was not registered in the Commonwealth ofPuerto Rico's Division of Corporations in the Department of State.
9. See also plaintiffs' opposition (docket No. 37); defendants'reply (docket No. 38) and plaintiffs' sur-reply (docket No. 39).