DIAZ v. PAVIAHEALTH

04-1172(SEC).

2005 | Cited 0 times | D. Puerto Rico | September 20, 2005

OPINION AND ORDER

Before the Court is Defendant's ("PavíaHealth") motion forsummary judgment (Docket # 25). Plaintiff filed an oppositionto said motion (Docket # 37) and PavíaHealth replied (Docket# 38). The Court then referred this case to Magistrate-JudgeGustavo A. Gelpí for a Report and Recommendation (Docket #39). On June 28, 2005 Magistrate Gelpí issued his Report,recommending that PavíaHealth's motion for summary judgment begranted in its entirety and that Plaintiff's claims againstPavíaHealth be dismissed with prejudice (Docket # 41).Plaintiff then filed an objection to the Magistrate's Report andRecommendation (Docket # 42) and PavíaHealth replied (Docket# 43). After reviewing the Magistrate's findings, the parties'filings and the applicable law, the Court will APPROVE andADOPT the Magistrate's Report and Recommendation, albeit ondifferent grounds. Accordingly, the Court will GRANTPavíaHealth's motion for summary judgment as to Plaintiff'sclaim under the Age Discrimination in Employment Act,29 U.S.C. §§ 621-634 ("ADEA").1

Factual Background

Plaintiff in this case is a fifty-four (54) year-old RegisteredNurse who worked at Pavía Hospital from 1974 until her dismissal in 2002 (Docket # 1at ¶ 10). Until 1997, Plaintiff worked in the Hospital'sEmergency Room as the Nurse Supervisor (Docket # 25 at p. 3).However, in 1997 Plaintiff sought, and was granted, a transfer towork as Nurse Director and Assistant to the Medical Director of aclinic established by the Hospital to treat employees of theHospital (herein "Employee Clinic") (Docket # 25 at pp. 3-4). OnJune 25, 2002 the Employee Clinic was permanently closed (Docket# 1 at ¶ 11) and Plaintiff was terminated from employment (Docket# 1 at ¶ 12).

Upon having filed a claim with the Antidiscrimination Unit ofthe Department of Labor of the Commonwealth of Puerto Rico,Plaintiff received a Right to Sue Letter and proceeded to filethe instant action. Plaintiff alleges that her dismissal was aresult of PavíaHealth's discriminatory animus and that shesuffered discrimination on account of her age. Plaintiff claimsrelief under the ADEA, the Fair Labor Standards Act of 1938,29 U.S.C. § 201 et seq. ("FLSA"), Puerto Rico Law 100 of June 30,1959, 29 P.R. Laws Ann. §§ 146-151, and Article 1802 of thePuerto Rico Civil Code, 31 P.R. Laws Ann. § 5141. Upon theconclusion of discovery, Defendant moved for summary dispositionof Plaintiff's ADEA claim. Defendant put forth two (2) argumentsin support of dismissal: (1) that Plaintiff was at all times anemployee of M. Pavía Fernández d/b/a Hospital Pavía, Inc.(herein the "Hospital") and not of PavíaHealth and, since theformer is a distinct and separate corporate entity from thelatter, Plaintiff does not have an actionable claim againstPavíaHealth; and (2) Plaintiff has failed to present anyevidence in support of her contention that her termination wasmotivated by ageist discriminatory animus. Although theMagistrate only considered the first argument in support of hisrecommendation that PavíaHealth's motion be granted, the Courtwill review the merits of both arguments raised by PavíaHealth.

Standard of Review

Pursuant to 28 U.S.C. §§ 636(b)(1)(B), Fed.R.Civ.P. 72(b)and Local Rule 72(a) for the District of Puerto Rico, a District Court may referdispositive motions to a United States Magistrate Judge for aReport and Recommendation. See Alamo Rodríguez v. PfizerPharms., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003). Theadversely affected party can "contest the Magistrate Judge'sreport and recommendation by filing objections `within ten daysof being served' with a copy of the order." United States ofAmerica v. Mercado-Pagán, 286 F. Supp. 2d 231, 233 (D.P.R.2003) (quoting 28 U.S.C. § 636(b)(1)). Aside from being filedin a timely manner, objections "shall specifically identify theportions of the proposed findings, recommendations or report towhich objection is made and the legal basis for such objection."Local Rule 72(d).

The scope of review of a Magistrate's recommendation is setforth in 28 U.S.C. § 636(b)(1)(c). This section provides that"[a] judge of the [district] court shall make a de novodetermination of those portions of the report or specifiedfindings or recommendations to which [an] objection is made."Id. The Court can "accept, reject, or modify, in whole or inpart, the findings or recommendations made by the magistrate,"however, if the affected party fails to timely fileobjections, "`the district court can assume that they have agreedto the magistrate's recommendation.'" Alamo-Rodríguez,286 F. Supp. 2d 144, 146 (D.P.R. 2003) (quoting Templeman v. ChrisCraft Corp., 770 F.2d 245, 247 (1st Cir. 1985)). Thus, noreview is required of those issues to which objections are nottimely raised. Thomas v. Arn, 474 U.S. 140 (1985), reh'gdenied, 474 U.S. 1111 (1986); Borden v. Sec'y of Health & HumanServs., 836 F.2d 4, 6 (1st Cir. 1987). In fact, a party whofails to file any objections to the Magistrate Judge's Report andRecommendation within ten days of its filing waives his or herright to appeal from the district court's order. Henley DrillingCo. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); UnitedStates v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir. 1986);Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992)("[f]ailure to raise objections to the Report and Recommendationwaives that party's right to review in the district court and those claims not preserved by such objection are precluded onappeal").

Applicable Law and Analysis

1. Plaintiff's Employer

In his Report and Recommendation the Magistrate held thatPavíaHealth provided evidence, and Plaintiff failed to contest,that Plaintiff was at all times an employee of the Hospital andnot of PavíaHealth (Docket # 41 at p. 3). As such, theMagistrate found that "due to the lack of evidence establishingthat defendant has any obligations or responsibilities towardplaintiff, her age discrimination claim against Pavia-Health mustbe dismissed." (Docket # 41 at p. 4).

Plaintiff has objected to said finding by alleging that thedetermination of whether Plaintiff is an employee of the Hospitalor PavíaHealth is an issue of fact which must be decided by ajury (Docket # 42 at p. 1). Plaintiff further avers thatthroughout the proceedings in this case PavíaHealth has failedto allege that it was not Plaintiff's employer and that noofficial document has been presented substantiating theMagistrate's finding that the Hospital was in fact Plaintiff'semployer (Docket # 41 at pp. 2-3). PavíaHealth, however,counters by stating that: (1) Plaintiff failed to comply withLocal Rule 56(c) and (e) which resulted in the admittance, asuncontested, of PavíaHealth's statements of uncontested facts inDocket # 24 and (2) pursuant to said uncontested facts, namelySUF No. 9, the Magistrate found that "[t]he Hospital was Diana'semployer at all times during her tenure in the same."(Docket # 24at SUF No. 9).

Local Rule 56(b) requires the moving party to file annexed toits motion for summary judgment "a separate, short, and concisestatement of material facts, set forth in numbered paragraphs, asto which the moving party contends there is no genuine issue ofmaterial fact to be tried." Unless the non-moving partycontroverts this statement, all the material facts set forththerein "shall be deemed to be admitted." Cosme-Rosado v.Rosado-Figueroa, 360 F.3d 42 (1st Cir. 2004) (emphasis added). This is theso-called "anti-ferret rule." See, e.g., Orbi, S.A. v.Calvesbert & Brown, 20 F. Supp. 2d 289, 291 (D.P.R. 1998). Whilefailure to comply with this rule does not automatically warrantthe granting of summary judgment, "it launches the nonmovant'scase down the road toward an early dismissal." Tavárez v.Champion Prods., Inc., 903 F. Supp. 268, 270 (D.P.R. 1995).

In a recent opinion, the First Circuit reaffirmed the validityof the well-known anti-ferret rule previously codified in LocalRule 311.12. Cosme-Rosado, 360 F.3d 42, 45 (noting that"parties ignore [it] at their peril") (quoting Ruiz-Rivera v.Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citations omitted)).As such, the Court is not required to "ferret through the record"lurking for facts that may favor the parties when those factswere not proffered as required by Local Rule 56(c). Morales v.Orssleff's Eftf, 246 F.3d 32, 33 (1st Cir. 2001).

Although both parties have filed separate statements ofmaterial facts, Plaintiff has clearly failed to comply with LocalRule 56(c). Local Rule 56(c) states that: A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted shall support each denial or qualification by a record citation as required by this rule.(emphasis added). Even a cursory review of Plaintiff's filingdemonstrates that she failed to comply with this Rule. Plaintiffsimply filed her own statement of facts, making reference to herown exhibits in the record but without admitting, denying orqualifying the facts set forth by PavíaHealth in its Statementof Uncontested Facts. See Docket # 33. Accordingly, the Courtcannot but deem PavíaHealth's Statement of Uncontested Factsadmitted as provided by Rule 56(e) ("Facts contained in asupporting or opposing statement of material facts, if supportedby record citations as required by this rule, shall be deemedadmitted unless properly controverted.").

However, although the Court agrees with the Magistrate andPavíaHealth in that it remains uncontested that Plaintiff's employer was at all timesthe Hospital and not PavíaHealth, we will refrain fromdismissing Plaintiff's ADEA claims on said grounds. Let usbriefly explain.

In order to impose liability under the ADEA, "there must be anemployment relationship between the plaintiff and the defendant."Iverson v. Ingersoll-Rand Co., 125 Fed. Appx. 73, 75 (8thCir. 2004) (citations and quotations omitted). However, liabilitymay be imposed on a parent corporation if there is evidence thatthe parent corporation controlled the subsidiary's employmentdecision, that is the decision to hire or terminate an employee.Id. at 76 (stating that the central question is: "[W]hat entitymade the final decisions regarding employment matters related tothe person claiming discrimination?") (citations omitted). Seealso, Sedlacek v. Hach, 752 F.2d 333, 336 (8th Cir. 1985)(upholding the application of the exception of "substantialidentity," when a plaintiff claiming relief under Title VII hasfiled a charge with the EEOC against one corporation and notanother and stating that "[a]ggrieved complainants should not becharged with the knowledge of the ofttimes intricate legalcorporate relationships between closely held operating units");EEOC v. Upjohn Corp., 445 F. Supp. 635, 638-39 (N.D.Ga. 1977)(holding that a corporation may be held liable under Title VIIfor the discriminatory actions of its subsidiary when there isevidence that the two corporations were so closely related intheir activities and management as to constitute an "integratedenterprise" and when there is evidence of an "agencyrelationship" between the two corporations).

Per the case law cited above and the evidence in the record, itis entirely possible that PavíaHealth could be held liable forthe discriminatory acts of the Hospital. First, PavíaHealth isthe corporation in charge of the management of the Hospital(Docket # 25 at p. 8). Second, even though Plaintiff's letter ofdismissal bears the Hospital's emblem, Ms. Raquel Ortega,PavíaHealth's Vice President of Human Resources, was the personwho communicated to Plaintiff her termination from employment (Docket# 24 SUF Nos. 4 & 21, Ex. 3 & Docket # 29, Ex. 2). In the thirdplace, PavíaHealth has published newspaper advertisementsseeking candidates for employment at the Hospital (Docket # 24SUF No. 22). Accordingly, a reasonable jury could potentiallyreach the conclusion that PavíaHealth exerts sufficient controlover the employment decisions of the Hospital and is so closelyintertwined with the Hospital as to be held liable for theHospital's discriminatory acts against its employees. It followsthat drawing all inferences in favor of Plaintiff, as we shouldat this juncture, PavíaHealth's request for summary judgment onthe above-stated ground should be DENIED.

2. ADEA Claim

The ADEA provides that "it shall be unlawful for an employer . . .to discharge any individual . . . because of suchindividual's age." 29 U.S.C. § 623(a)(1). When there is no directevidence or "smoking gun" demonstrating the employer'sdiscriminatory animus, the well-known McDonnell Douglasdoctrine has been applied to cases arising under the ADEA.Giusti-Negrón v. Scotiabank of P.R., 260 F.Supp.2d 403, 407(D.P.R. 2003). See e.g., Bramble v. Am. Postal Workers Union,Providence Local, 135 F.3d 21, 25 (1st Cir. 1998); seealso McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05(1973).

In the McDonnell Douglas burden-shifting framework, Plaintiffbears the initial burden of proof to establish a prima faciecase of unlawful discrimination in the work environment.McDonnell Douglas, 411 U.S. at 802. The United States SupremeCourt in McDonnell Douglas established that plaintiffs may usecircumstantial evidence to prove the existence of adiscriminatory animus from an employer, provided that a primafacie case of discrimination is first established. McDonnellDouglas Corp., 411 U.S. at 802-03; Serrano-Cruz v. DFI P.R.,Inc., 109 F.3d 23, 25 (1st Cir. 1997). Once the primafacie case is established, the burden shifts to the employer toarticulate a legitimate, non-discriminatory reason for the adverse employment decision. McDonnell DouglasCorp, 411 U.S. at 802-03; Mesnick v. Gen. Elec. Co.,950 F.2d 816, 823 (1st Cir. 1991); Serrano-Cruz, 109 F.3d at 25(Once plaintiff has carried its burden of establishing a primafacie case "a presumption of discrimination arises that shiftsthe onus to the employer to come forward with a legitimate, nondiscriminatory reason for its actions."). "This entails only aburden of production, not a burden of persuasion; the task ofproving discrimination remains the claimant's at all times."Mesnisk, 950 F.2d at 823. Finally, if the employer providessuch a legitimate non discriminatory reason for dismissing theemployee, the inference of discrimination raised by the primafacie case dissolves and "the burden shifts back to theplaintiff to show that the employer's justification ispretextual." Serrano-Cruz, 109 F.3d at 25-26; St. Mary's HonorCtr. v. Hicks, 509 U.S. 502, 515 (1993).

The elements of the McDonnell Douglas prima facie caserequire Plaintiff to show that: (1) she was at least forty (40)years of age; (2) met the employer's legitimate job performanceexpectations; (3) experienced adverse employment action; and (4)was replaced by a person with roughly equivalent jobqualifications or, in the context of a reorganization, that "theemployer did not treat age neutrally or that younger persons wereretained in the same position." McDonnell Douglas Corp,411 U.S. at 803; Goldman v. First National Bank of Boston,985 F.2d 1113, 1117 (1st Cir. 1993) (quoting Herbert v. MohawkRubber Co., 872 F.2d 1104, 1111 (1st Cir. 1989)).

In the instant case, PavíaHealth has conceded that Plaintiffwould be able to meet the first three elements of the primafacie case (Docket # 25 at p. 12). However, PavíaHealthcontends that Plaintiff does not have any evidence suggestingthat PavíaHealth has not treated age neutrally. Instead,PavíaHealth argues that it had no continuing need forPlaintiff's services as the Employee Clinic was permanentlyclosed, Plaintiff's position in the clinic was permanentlyeliminated, and all of the clinic's employees were dismissed simultaneously (Docket # 25 at pp. 12-13 & Docket # 24 SUF No.18). On the other hand, Plaintiff argues that several days afterher dismissal PavíaHealth posted a newspaper add requestingapplicants for positions of Registered Nurse at the Hospital(Docket # 37 at p. 6). In support of this argument, Plaintiffprovided copies of two newspaper adds by PavíaHealth seekingapplicants for open Registered Nurse positions in the Hospital(Docket # 33 SCF No. 2, Exs. 2 & 3). Without more, we must agreewith PavíaHealth in that Plaintiff has failed to present aprima facie case of age discrimination. Let us explain.

In the first place, the Court notes that both of the exhibitspresented by Plaintiff have been submitted in Spanish in clearviolation of Local Rule 10(b) which states that: All documents not in the English language which are presented to or filed in this Court, whether as evidence or otherwise, shall be accompanied at the time of presentation or filing by an English translation thereof, unless the Court shall otherwise order.See also Local Rule 43. Accordingly, the Court cannot and willnot consider said exhibits in the adjudication of the presentedmotion. "It is well settled that federal litigation in PuertoRico [must] be conducted in English." Cordero-Soto v. IslandFinance, Inc., 418 F.3d 114, 118 (1st Cir. 2005) (holdingthat a district court does not abuse its discretion by refusingto consider Spanish-language exhibits in the adjudication of amotion for summary judgment) (quoting González-De-Blasini v.Family Dept., 377 F.3d 81, 88 (1st Cir. 2004)). However, wetake this opportunity to briefly comment on the probative valueof said exhibits. Said newspaper adds were published byPavíaHealth and not by the Hospital, Plaintiff's actualemployer. Furthermore, the positions for which applicants werebeing sought were different from Plaintiff's position, that isNurse Director and Assistant to the Medical Director of theEmployee Clinic. It has been established that an employerperforming a reorganization or a reduction in force may, butdoes not have to, offer a transfer, relocation to anotherposition, nor offer transfer to a lower paying job to a personaffected by a layoff. Varela-Terón v. Banco Santander de P.R., 257 F.Supp.2d 454, 461 (D.P.R. 2003)(citations omitted). Thus, the fact that Plaintiff would havebeen qualified for other open positions within the Hospital didnot oblige the Hospital to accommodate her.

However, even if we were to hold that Plaintiff established aprima facie case of age discrimination, which we do not,Plaintiff has utterly failed to rebut PavíaHealth's assertedlegitimate and non-discriminatory reason for the adverseemployment action. Ruiz v. Posadas de San Juan Assocs.,124 F.3d 243, 248 (1st Cir. 1997) (stating that "the employerneed only produce enough competent evidence, taken as true, toenable a rational factfinder to conclude that there existed anondiscriminatory reason for the challenged employment action").It remains uncontested that the Employee Clinic was permanentlyclosed by the Hospital and that all three of the clinic'semployees were terminated and their positions eliminated (Docket# 24 SUF No. 18). Furthermore, at the time of Plaintiff'sdismissal, her former position as Nurse Supervisor of theHospital's Emergency Room had been filled (Docket # 24 SUF No.19). In addition, Plaintiff testified that she has never been theobject of age-based jokes, stories or swear words (Docket # 24SUF No. 26 Ex. 3). See Giusti-Negrón, 260 F.Supp.2d at 410(holding that discriminatory comments may be probative ofpretext).

Lastly, it is also uncontested that the Hospital incurred inmillionaire losses during 2000 and 2001 (Docket # 14 SUF No. 15).Although Plaintiff attempts to controvert said fact with anarticle by the Caribbean Business ranking PavíaHealth Firstamong the Top Ten Healthcare Companies, we are not persuaded(Docket # 33 SCF No. 6, Ex. 1). As has been previouslyestablished, it remains undisputed that, at least for legal andeconomic purposes, PavíaHealth is a distinct and separatecorporation from the Hospital. Also, the fact that a company isconsidered profitable on one end does not mean that it cannotmake adjustments to better meet its financial objectives. If acorporation decides that a certain branch of its business is nolonger profitable or a good investment, it is free to take themeasures it deems appropriate to correct the situation. Thus, the ultimate issue inthis case is not whether PavíaHealth or the Hospital made alogical and wise business decision in closing the clinic and nottransferring Plaintiff to another position within the Hospital.The issue in this case is strictly whether Plaintiff'stermination was motivated by ageist animus. Courts are not "superpersonnel departments, assessing the merits — or even therationality — of employers' nondiscriminatory businessdecisions." Feliciano-De-La-Cruz v. El Conquistador Resort &Country Club, 218 F.3d 1, 8 (1st Cir. 2000) (quotingMesnick, 950 F.2d at 825). Furthermore, the ADEA "does not stopa company from discharging an employee for any reason (fair orunfair) or for no reason, so long as the decision to fire doesnot stem from the person's age." Giusti-Negrón,260 F.Supp.2d at 408, 410 (quoting Freeman v. Package Mach. Co.,865 F.2d 1331, 1341 (1st Cir. 1988)). See González v. El Día,Inc., 304 F.3d 63, 69 (1st Cir. 2002) (quoting Pollard v.Rea Magnet Wire Co., Inc., 824 F.2d 557, 560 (7th Cir. 1987)(stating that "no matter how mistaken the firm's managers, [theADEA does] not interfere")). Thus, put simply, the record iscompletely devoid of any evidence pointing to PavíaHealth'sdiscriminatory animus and PavíaHealth has produced sufficientevidence to sustain the fact that the closing of the EmployeeClinic was a legitimate and nondiscriminatory reason forPlaintiff's termination. "It is not enough for a plaintiff merelyto impugn the veracity of the employer's justification; he must`elucidate specific facts which would enable a jury to find thatthe reason given is not only a sham, but a sham intended to coverup the employer's real motive: age discrimination.'" Mesnick,950 F.2d at 824 (internal citations omitted); Ruiz, 124 F3d. at248 (Plaintiff "must do more than cast doubt on the rationaleproffered by the employer, the `evidence must be of such strengthand quality as to permit a reasonable finding that the . . .[termination] was obviously or manifestly unsupported.'")(internal citations omitted). Accordingly, PavíaHealth's requestfor summary judgement as to Plaintiff's ADEA claims is GRANTED. Conclusion

The Court has reviewed the record de novo and has decided toAPPROVE and ADOPT the Magistrate's Report and Recommendationon different grounds. Consequently, PavíaHealth's motion forsummary judgment is GRANTED. Plaintiff's ADEA claim will beDISMISSED WITH PREJUDICE. Plaintiff's FLSA and supplemental lawclaims under the laws of the Commonwealth of Puerto Rico againstPavíaHealth remain pending. The parties are instructed to filetheir Joint Pretrial Memorandum by October 11, 2005. Failure todo so will result in the imposition of sanctions. PartialJudgment shall be entered accordingly.

SO ORDERED.

OPINION AND ORDER

Before the Court is Defendant's ("PavíaHealth") motion forsummary judgment (Docket # 25). Plaintiff filed an oppositionto said motion (Docket # 37) and PavíaHealth replied (Docket# 38). The Court then referred this case to Magistrate-JudgeGustavo A. Gelpí for a Report and Recommendation (Docket #39). On June 28, 2005 Magistrate Gelpí issued his Report,recommending that PavíaHealth's motion for summary judgment begranted in its entirety and that Plaintiff's claims againstPavíaHealth be dismissed with prejudice (Docket # 41).Plaintiff then filed an objection to the Magistrate's Report andRecommendation (Docket # 42) and PavíaHealth replied (Docket# 43). After reviewing the Magistrate's findings, the parties'filings and the applicable law, the Court will APPROVE andADOPT the Magistrate's Report and Recommendation, albeit ondifferent grounds. Accordingly, the Court will GRANTPavíaHealth's motion for summary judgment as to Plaintiff'sclaim under the Age Discrimination in Employment Act,29 U.S.C. §§ 621-634 ("ADEA").1

Factual Background

Plaintiff in this case is a fifty-four (54) year-old RegisteredNurse who worked at Pavía Hospital from 1974 until her dismissal in 2002 (Docket # 1at ¶ 10). Until 1997, Plaintiff worked in the Hospital'sEmergency Room as the Nurse Supervisor (Docket # 25 at p. 3).However, in 1997 Plaintiff sought, and was granted, a transfer towork as Nurse Director and Assistant to the Medical Director of aclinic established by the Hospital to treat employees of theHospital (herein "Employee Clinic") (Docket # 25 at pp. 3-4). OnJune 25, 2002 the Employee Clinic was permanently closed (Docket# 1 at ¶ 11) and Plaintiff was terminated from employment (Docket# 1 at ¶ 12).

Upon having filed a claim with the Antidiscrimination Unit ofthe Department of Labor of the Commonwealth of Puerto Rico,Plaintiff received a Right to Sue Letter and proceeded to filethe instant action. Plaintiff alleges that her dismissal was aresult of PavíaHealth's discriminatory animus and that shesuffered discrimination on account of her age. Plaintiff claimsrelief under the ADEA, the Fair Labor Standards Act of 1938,29 U.S.C. § 201 et seq. ("FLSA"), Puerto Rico Law 100 of June 30,1959, 29 P.R. Laws Ann. §§ 146-151, and Article 1802 of thePuerto Rico Civil Code, 31 P.R. Laws Ann. § 5141. Upon theconclusion of discovery, Defendant moved for summary dispositionof Plaintiff's ADEA claim. Defendant put forth two (2) argumentsin support of dismissal: (1) that Plaintiff was at all times anemployee of M. Pavía Fernández d/b/a Hospital Pavía, Inc.(herein the "Hospital") and not of PavíaHealth and, since theformer is a distinct and separate corporate entity from thelatter, Plaintiff does not have an actionable claim againstPavíaHealth; and (2) Plaintiff has failed to present anyevidence in support of her contention that her termination wasmotivated by ageist discriminatory animus. Although theMagistrate only considered the first argument in support of hisrecommendation that PavíaHealth's motion be granted, the Courtwill review the merits of both arguments raised by PavíaHealth.

Standard of Review

Pursuant to 28 U.S.C. §§ 636(b)(1)(B), Fed.R.Civ.P. 72(b)and Local Rule 72(a) for the District of Puerto Rico, a District Court may referdispositive motions to a United States Magistrate Judge for aReport and Recommendation. See Alamo Rodríguez v. PfizerPharms., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003). Theadversely affected party can "contest the Magistrate Judge'sreport and recommendation by filing objections `within ten daysof being served' with a copy of the order." United States ofAmerica v. Mercado-Pagán, 286 F. Supp. 2d 231, 233 (D.P.R.2003) (quoting 28 U.S.C. § 636(b)(1)). Aside from being filedin a timely manner, objections "shall specifically identify theportions of the proposed findings, recommendations or report towhich objection is made and the legal basis for such objection."Local Rule 72(d).

The scope of review of a Magistrate's recommendation is setforth in 28 U.S.C. § 636(b)(1)(c). This section provides that"[a] judge of the [district] court shall make a de novodetermination of those portions of the report or specifiedfindings or recommendations to which [an] objection is made."Id. The Court can "accept, reject, or modify, in whole or inpart, the findings or recommendations made by the magistrate,"however, if the affected party fails to timely fileobjections, "`the district court can assume that they have agreedto the magistrate's recommendation.'" Alamo-Rodríguez,286 F. Supp. 2d 144, 146 (D.P.R. 2003) (quoting Templeman v. ChrisCraft Corp., 770 F.2d 245, 247 (1st Cir. 1985)). Thus, noreview is required of those issues to which objections are nottimely raised. Thomas v. Arn, 474 U.S. 140 (1985), reh'gdenied, 474 U.S. 1111 (1986); Borden v. Sec'y of Health & HumanServs., 836 F.2d 4, 6 (1st Cir. 1987). In fact, a party whofails to file any objections to the Magistrate Judge's Report andRecommendation within ten days of its filing waives his or herright to appeal from the district court's order. Henley DrillingCo. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); UnitedStates v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir. 1986);Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992)("[f]ailure to raise objections to the Report and Recommendationwaives that party's right to review in the district court and those claims not preserved by such objection are precluded onappeal").

Applicable Law and Analysis

1. Plaintiff's Employer

In his Report and Recommendation the Magistrate held thatPavíaHealth provided evidence, and Plaintiff failed to contest,that Plaintiff was at all times an employee of the Hospital andnot of PavíaHealth (Docket # 41 at p. 3). As such, theMagistrate found that "due to the lack of evidence establishingthat defendant has any obligations or responsibilities towardplaintiff, her age discrimination claim against Pavia-Health mustbe dismissed." (Docket # 41 at p. 4).

Plaintiff has objected to said finding by alleging that thedetermination of whether Plaintiff is an employee of the Hospitalor PavíaHealth is an issue of fact which must be decided by ajury (Docket # 42 at p. 1). Plaintiff further avers thatthroughout the proceedings in this case PavíaHealth has failedto allege that it was not Plaintiff's employer and that noofficial document has been presented substantiating theMagistrate's finding that the Hospital was in fact Plaintiff'semployer (Docket # 41 at pp. 2-3). PavíaHealth, however,counters by stating that: (1) Plaintiff failed to comply withLocal Rule 56(c) and (e) which resulted in the admittance, asuncontested, of PavíaHealth's statements of uncontested facts inDocket # 24 and (2) pursuant to said uncontested facts, namelySUF No. 9, the Magistrate found that "[t]he Hospital was Diana'semployer at all times during her tenure in the same."(Docket # 24at SUF No. 9).

Local Rule 56(b) requires the moving party to file annexed toits motion for summary judgment "a separate, short, and concisestatement of material facts, set forth in numbered paragraphs, asto which the moving party contends there is no genuine issue ofmaterial fact to be tried." Unless the non-moving partycontroverts this statement, all the material facts set forththerein "shall be deemed to be admitted." Cosme-Rosado v.Rosado-Figueroa, 360 F.3d 42 (1st Cir. 2004) (emphasis added). This is theso-called "anti-ferret rule." See, e.g., Orbi, S.A. v.Calvesbert & Brown, 20 F. Supp. 2d 289, 291 (D.P.R. 1998). Whilefailure to comply with this rule does not automatically warrantthe granting of summary judgment, "it launches the nonmovant'scase down the road toward an early dismissal." Tavárez v.Champion Prods., Inc., 903 F. Supp. 268, 270 (D.P.R. 1995).

In a recent opinion, the First Circuit reaffirmed the validityof the well-known anti-ferret rule previously codified in LocalRule 311.12. Cosme-Rosado, 360 F.3d 42, 45 (noting that"parties ignore [it] at their peril") (quoting Ruiz-Rivera v.Riley, 209 F.3d 24, 28 (1st Cir. 2000) (citations omitted)).As such, the Court is not required to "ferret through the record"lurking for facts that may favor the parties when those factswere not proffered as required by Local Rule 56(c). Morales v.Orssleff's Eftf, 246 F.3d 32, 33 (1st Cir. 2001).

Although both parties have filed separate statements ofmaterial facts, Plaintiff has clearly failed to comply with LocalRule 56(c). Local Rule 56(c) states that: A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted shall support each denial or qualification by a record citation as required by this rule.(emphasis added). Even a cursory review of Plaintiff's filingdemonstrates that she failed to comply with this Rule. Plaintiffsimply filed her own statement of facts, making reference to herown exhibits in the record but without admitting, denying orqualifying the facts set forth by PavíaHealth in its Statementof Uncontested Facts. See Docket # 33. Accordingly, the Courtcannot but deem PavíaHealth's Statement of Uncontested Factsadmitted as provided by Rule 56(e) ("Facts contained in asupporting or opposing statement of material facts, if supportedby record citations as required by this rule, shall be deemedadmitted unless properly controverted.").

However, although the Court agrees with the Magistrate andPavíaHealth in that it remains uncontested that Plaintiff's employer was at all timesthe Hospital and not PavíaHealth, we will refrain fromdismissing Plaintiff's ADEA claims on said grounds. Let usbriefly explain.

In order to impose liability under the ADEA, "there must be anemployment relationship between the plaintiff and the defendant."Iverson v. Ingersoll-Rand Co., 125 Fed. Appx. 73, 75 (8thCir. 2004) (citations and quotations omitted). However, liabilitymay be imposed on a parent corporation if there is evidence thatthe parent corporation controlled the subsidiary's employmentdecision, that is the decision to hire or terminate an employee.Id. at 76 (stating that the central question is: "[W]hat entitymade the final decisions regarding employment matters related tothe person claiming discrimination?") (citations omitted). Seealso, Sedlacek v. Hach, 752 F.2d 333, 336 (8th Cir. 1985)(upholding the application of the exception of "substantialidentity," when a plaintiff claiming relief under Title VII hasfiled a charge with the EEOC against one corporation and notanother and stating that "[a]ggrieved complainants should not becharged with the knowledge of the ofttimes intricate legalcorporate relationships between closely held operating units");EEOC v. Upjohn Corp., 445 F. Supp. 635, 638-39 (N.D.Ga. 1977)(holding that a corporation may be held liable under Title VIIfor the discriminatory actions of its subsidiary when there isevidence that the two corporations were so closely related intheir activities and management as to constitute an "integratedenterprise" and when there is evidence of an "agencyrelationship" between the two corporations).

Per the case law cited above and the evidence in the record, itis entirely possible that PavíaHealth could be held liable forthe discriminatory acts of the Hospital. First, PavíaHealth isthe corporation in charge of the management of the Hospital(Docket # 25 at p. 8). Second, even though Plaintiff's letter ofdismissal bears the Hospital's emblem, Ms. Raquel Ortega,PavíaHealth's Vice President of Human Resources, was the personwho communicated to Plaintiff her termination from employment (Docket# 24 SUF Nos. 4 & 21, Ex. 3 & Docket # 29, Ex. 2). In the thirdplace, PavíaHealth has published newspaper advertisementsseeking candidates for employment at the Hospital (Docket # 24SUF No. 22). Accordingly, a reasonable jury could potentiallyreach the conclusion that PavíaHealth exerts sufficient controlover the employment decisions of the Hospital and is so closelyintertwined with the Hospital as to be held liable for theHospital's discriminatory acts against its employees. It followsthat drawing all inferences in favor of Plaintiff, as we shouldat this juncture, PavíaHealth's request for summary judgment onthe above-stated ground should be DENIED.

2. ADEA Claim

The ADEA provides that "it shall be unlawful for an employer . . .to discharge any individual . . . because of suchindividual's age." 29 U.S.C. § 623(a)(1). When there is no directevidence or "smoking gun" demonstrating the employer'sdiscriminatory animus, the well-known McDonnell Douglasdoctrine has been applied to cases arising under the ADEA.Giusti-Negrón v. Scotiabank of P.R., 260 F.Supp.2d 403, 407(D.P.R. 2003). See e.g., Bramble v. Am. Postal Workers Union,Providence Local, 135 F.3d 21, 25 (1st Cir. 1998); seealso McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05(1973).

In the McDonnell Douglas burden-shifting framework, Plaintiffbears the initial burden of proof to establish a prima faciecase of unlawful discrimination in the work environment.McDonnell Douglas, 411 U.S. at 802. The United States SupremeCourt in McDonnell Douglas established that plaintiffs may usecircumstantial evidence to prove the existence of adiscriminatory animus from an employer, provided that a primafacie case of discrimination is first established. McDonnellDouglas Corp., 411 U.S. at 802-03; Serrano-Cruz v. DFI P.R.,Inc., 109 F.3d 23, 25 (1st Cir. 1997). Once the primafacie case is established, the burden shifts to the employer toarticulate a legitimate, non-discriminatory reason for the adverse employment decision. McDonnell DouglasCorp, 411 U.S. at 802-03; Mesnick v. Gen. Elec. Co.,950 F.2d 816, 823 (1st Cir. 1991); Serrano-Cruz, 109 F.3d at 25(Once plaintiff has carried its burden of establishing a primafacie case "a presumption of discrimination arises that shiftsthe onus to the employer to come forward with a legitimate, nondiscriminatory reason for its actions."). "This entails only aburden of production, not a burden of persuasion; the task ofproving discrimination remains the claimant's at all times."Mesnisk, 950 F.2d at 823. Finally, if the employer providessuch a legitimate non discriminatory reason for dismissing theemployee, the inference of discrimination raised by the primafacie case dissolves and "the burden shifts back to theplaintiff to show that the employer's justification ispretextual." Serrano-Cruz, 109 F.3d at 25-26; St. Mary's HonorCtr. v. Hicks, 509 U.S. 502, 515 (1993).

The elements of the McDonnell Douglas prima facie caserequire Plaintiff to show that: (1) she was at least forty (40)years of age; (2) met the employer's legitimate job performanceexpectations; (3) experienced adverse employment action; and (4)was replaced by a person with roughly equivalent jobqualifications or, in the context of a reorganization, that "theemployer did not treat age neutrally or that younger persons wereretained in the same position." McDonnell Douglas Corp,411 U.S. at 803; Goldman v. First National Bank of Boston,985 F.2d 1113, 1117 (1st Cir. 1993) (quoting Herbert v. MohawkRubber Co., 872 F.2d 1104, 1111 (1st Cir. 1989)).

In the instant case, PavíaHealth has conceded that Plaintiffwould be able to meet the first three elements of the primafacie case (Docket # 25 at p. 12). However, PavíaHealthcontends that Plaintiff does not have any evidence suggestingthat PavíaHealth has not treated age neutrally. Instead,PavíaHealth argues that it had no continuing need forPlaintiff's services as the Employee Clinic was permanentlyclosed, Plaintiff's position in the clinic was permanentlyeliminated, and all of the clinic's employees were dismissed simultaneously (Docket # 25 at pp. 12-13 & Docket # 24 SUF No.18). On the other hand, Plaintiff argues that several days afterher dismissal PavíaHealth posted a newspaper add requestingapplicants for positions of Registered Nurse at the Hospital(Docket # 37 at p. 6). In support of this argument, Plaintiffprovided copies of two newspaper adds by PavíaHealth seekingapplicants for open Registered Nurse positions in the Hospital(Docket # 33 SCF No. 2, Exs. 2 & 3). Without more, we must agreewith PavíaHealth in that Plaintiff has failed to present aprima facie case of age discrimination. Let us explain.

In the first place, the Court notes that both of the exhibitspresented by Plaintiff have been submitted in Spanish in clearviolation of Local Rule 10(b) which states that: All documents not in the English language which are presented to or filed in this Court, whether as evidence or otherwise, shall be accompanied at the time of presentation or filing by an English translation thereof, unless the Court shall otherwise order.See also Local Rule 43. Accordingly, the Court cannot and willnot consider said exhibits in the adjudication of the presentedmotion. "It is well settled that federal litigation in PuertoRico [must] be conducted in English." Cordero-Soto v. IslandFinance, Inc., 418 F.3d 114, 118 (1st Cir. 2005) (holdingthat a district court does not abuse its discretion by refusingto consider Spanish-language exhibits in the adjudication of amotion for summary judgment) (quoting González-De-Blasini v.Family Dept., 377 F.3d 81, 88 (1st Cir. 2004)). However, wetake this opportunity to briefly comment on the probative valueof said exhibits. Said newspaper adds were published byPavíaHealth and not by the Hospital, Plaintiff's actualemployer. Furthermore, the positions for which applicants werebeing sought were different from Plaintiff's position, that isNurse Director and Assistant to the Medical Director of theEmployee Clinic. It has been established that an employerperforming a reorganization or a reduction in force may, butdoes not have to, offer a transfer, relocation to anotherposition, nor offer transfer to a lower paying job to a personaffected by a layoff. Varela-Terón v. Banco Santander de P.R., 257 F.Supp.2d 454, 461 (D.P.R. 2003)(citations omitted). Thus, the fact that Plaintiff would havebeen qualified for other open positions within the Hospital didnot oblige the Hospital to accommodate her.

However, even if we were to hold that Plaintiff established aprima facie case of age discrimination, which we do not,Plaintiff has utterly failed to rebut PavíaHealth's assertedlegitimate and non-discriminatory reason for the adverseemployment action. Ruiz v. Posadas de San Juan Assocs.,124 F.3d 243, 248 (1st Cir. 1997) (stating that "the employerneed only produce enough competent evidence, taken as true, toenable a rational factfinder to conclude that there existed anondiscriminatory reason for the challenged employment action").It remains uncontested that the Employee Clinic was permanentlyclosed by the Hospital and that all three of the clinic'semployees were terminated and their positions eliminated (Docket# 24 SUF No. 18). Furthermore, at the time of Plaintiff'sdismissal, her former position as Nurse Supervisor of theHospital's Emergency Room had been filled (Docket # 24 SUF No.19). In addition, Plaintiff testified that she has never been theobject of age-based jokes, stories or swear words (Docket # 24SUF No. 26 Ex. 3). See Giusti-Negrón, 260 F.Supp.2d at 410(holding that discriminatory comments may be probative ofpretext).

Lastly, it is also uncontested that the Hospital incurred inmillionaire losses during 2000 and 2001 (Docket # 14 SUF No. 15).Although Plaintiff attempts to controvert said fact with anarticle by the Caribbean Business ranking PavíaHealth Firstamong the Top Ten Healthcare Companies, we are not persuaded(Docket # 33 SCF No. 6, Ex. 1). As has been previouslyestablished, it remains undisputed that, at least for legal andeconomic purposes, PavíaHealth is a distinct and separatecorporation from the Hospital. Also, the fact that a company isconsidered profitable on one end does not mean that it cannotmake adjustments to better meet its financial objectives. If acorporation decides that a certain branch of its business is nolonger profitable or a good investment, it is free to take themeasures it deems appropriate to correct the situation. Thus, the ultimate issue inthis case is not whether PavíaHealth or the Hospital made alogical and wise business decision in closing the clinic and nottransferring Plaintiff to another position within the Hospital.The issue in this case is strictly whether Plaintiff'stermination was motivated by ageist animus. Courts are not "superpersonnel departments, assessing the merits — or even therationality — of employers' nondiscriminatory businessdecisions." Feliciano-De-La-Cruz v. El Conquistador Resort &Country Club, 218 F.3d 1, 8 (1st Cir. 2000) (quotingMesnick, 950 F.2d at 825). Furthermore, the ADEA "does not stopa company from discharging an employee for any reason (fair orunfair) or for no reason, so long as the decision to fire doesnot stem from the person's age." Giusti-Negrón,260 F.Supp.2d at 408, 410 (quoting Freeman v. Package Mach. Co.,865 F.2d 1331, 1341 (1st Cir. 1988)). See González v. El Día,Inc., 304 F.3d 63, 69 (1st Cir. 2002) (quoting Pollard v.Rea Magnet Wire Co., Inc., 824 F.2d 557, 560 (7th Cir. 1987)(stating that "no matter how mistaken the firm's managers, [theADEA does] not interfere")). Thus, put simply, the record iscompletely devoid of any evidence pointing to PavíaHealth'sdiscriminatory animus and PavíaHealth has produced sufficientevidence to sustain the fact that the closing of the EmployeeClinic was a legitimate and nondiscriminatory reason forPlaintiff's termination. "It is not enough for a plaintiff merelyto impugn the veracity of the employer's justification; he must`elucidate specific facts which would enable a jury to find thatthe reason given is not only a sham, but a sham intended to coverup the employer's real motive: age discrimination.'" Mesnick,950 F.2d at 824 (internal citations omitted); Ruiz, 124 F3d. at248 (Plaintiff "must do more than cast doubt on the rationaleproffered by the employer, the `evidence must be of such strengthand quality as to permit a reasonable finding that the . . .[termination] was obviously or manifestly unsupported.'")(internal citations omitted). Accordingly, PavíaHealth's requestfor summary judgement as to Plaintiff's ADEA claims is GRANTED. Conclusion

The Court has reviewed the record de novo and has decided toAPPROVE and ADOPT the Magistrate's Report and Recommendationon different grounds. Consequently, PavíaHealth's motion forsummary judgment is GRANTED. Plaintiff's ADEA claim will beDISMISSED WITH PREJUDICE. Plaintiff's FLSA and supplemental lawclaims under the laws of the Commonwealth of Puerto Rico againstPavíaHealth remain pending. The parties are instructed to filetheir Joint Pretrial Memorandum by October 11, 2005. Failure todo so will result in the imposition of sanctions. PartialJudgment shall be entered accordingly.

SO ORDERED.

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