OPINION AND ORDER
Pending before the Court are Defendants Motion for Summary Judgment andMotion to Strike. (Docket Nos. 17 and 23). On April 25, 2000, Defendantsfiled a Motion for Summary Judgment and a Brief in Support of Defendants'Motion for Summary Judgment. (Docket No. 17). Plaintiffs opposed saidmotion on April 25, 2000. (Docket No. 28). On March 15, 2000. Defendantsfiled a Motion to Strike. (Docket No. 23). Plaintiffs opposed the Motionto Strike by filing Plaintiffs' Response to Defendants' Motion to Strikeand Reply Brief. (Docket No. 30).
For the following reasons, Defendants' Motion for Summary Judgment isDENIED IN PART and GRANTED IN PART. The Motion to Strike is also disposedof in this opinion and order.1
On February 6, 1998, Plaintiffs, Mayra Mejias Miranda ("Mejias") andher husband Luis Enrique Mañan Martinez filed the instantcomplaint against Mejias' employer, Bumble Bee International Inc.("BBII"), two of its officers, Jose A. Toro ("Toro"), personally and onbehalf of the conjugal partnership composed of Elba Ruiz and David Ramos("Ramos"), personally and on behalf of the conjugal partnership composedof Iraida Granell. (Docket No. 1). The complaint prays for judicialredress "in the form of reinstatement, back/front pay, compensatory andpunitive damages, costs and attorneys fees for reason of sex, pregnancy,and medical leave use discrimination under state and federal law."(Docket No. 1).
The following are the relevant facts derived from the complaint and theparties' pleadings examined in the light most favorable to the nonmovingparty: Plaintiff, Mayra Mejias Miranda ("Mejias"), was an employee ofDefendant Bumble Bee International Inc. ("BBII"). (Docket No. 1).Plaintiff commenced work with BBII approximately on August 29, 1988, asan accountant in the Accounting Department of the corporation. (DocketNo. 1). During the year 1995 Plaintiff was promoted to the position ofGeneral Accountant Supervisor until her termination. (Docket No. 1).Plaintiff's job performance evaluations described Plaintiff as performingsatisfactorily and superiorly. In addition, during the course of her jobperformance for BBII Plaintiff had never been reprimanded or disciplined.(Docket No. 1). On October 14, 1992, Emigdio Delestre was hired by BBIIas an accountant and became Plaintiff's supervisor. (Docket No. 17; Exh.10, p. 6). As Accounting Manager for BBII, Emigdio Delestre supervisedthe Accounting Department and wassupervisd by Ramos. (Docket No. 17; Exh. 10, p.24).
BBII filed for protection under Chapter II of the Bankruptcy Code onMay 2, 1997. (Docket No. 17; Exh. 1, p. 27-28). International Home Foodsd/b/a Bumble Bee Acquisitions Corp. acquired BBII while under theprotection of Chapter 11. (Docket No. 17; Exh. 1 p. 27-28). Co-defendantToro, suspecting that BBII's new management would reduce the workforce,as it had in the United States, prepared list of positions he thoughtcould be terminated from BBII. (Docket No. 17; Exh. 11 p. 15-18).Plaintiff's position was not included in that list. (Docket No. 17; Exh.11 p. 15-18). On July 21, 1997, Evan Metropolous, an International HomeProducts officer visited the plant and ordered the elimination of fivepositions. (Docket No. 17; Exh. 11, p. 12). Co-defendant Toro's originallist only contained two positions to be potentially eliminated from theAccounting Department. (Docket No, 17; Exh. 11; p. 18). Therefore, Toroinformed Ramos that he had to recommend three additional positions to beeliminated. (Docket No. 17; Exh. 11, p. 18-19). Co-defendant Ramosrecommended that the position, of Accounting General, Buyer, two hourlypositions and General Accounting Supervisor (Plaintiff) could beeliminated. (Docket No. 17; Exh. 11, p. 15).
On May 1997, Plaintiff became pregnant after a fertility treatmentundergone by the married couple. (Docket No. 1). Said fertility treatmentwas successful and Plaintiff became pregnant with twins. (Docket No. 1).On July 29, 1997, Plaintiff suffered an episode of vaginal bleeding whileat work. (Docket No. 1). After being examined by her physician in theEmergency Room of the Bella Vista Hospital in Mayaguez, Plaintiff wasordered to rest until August 6, 1997. (Docket No. 1). Consequently,Plaintiff's husband delivered a rest certificate to BBII. (Docket No.1). On August 6, 1998, Plaintiff underwent a second physician'sevaluation which resulted in the extension of her resting period untilMonday, August 10, 1997. (Docket No. 1). Plaintiff then, telephonedComptroller Ramos to inform him that her physician had extended her restuntil August 10, 1997. Plaintiffs allege that about a half-an-hourlater, Co-defendant Toro communicated via telephone conversation that asa result of BBII's downsizing, Plaintiff's position had been terminated.(Docket No. 1). It is alleged that Co-defendant Ramos participated insaid conversation. (Docket No. 1).
That same day, Ramos spoke with Plaintiff and informed her that she wasentitled to severance pay, but that BBII would provide payment only ifshe signed a release form. (Docket No. 1). On August 7, 1997, BBII sent amessenger to Plaintiff's home to deliver a release form for Plaintiff tosign.2 (Docket No. 1). To this day, Plaintiff has not signed therelease. (Docket No. 1). Plaintiff alleges that the reason given by BBIIfor her termination is a pretext to discriminate against her because ofher sex, pregnancy and/or her utilization of medical leave. (Docket No.1). In addition, Plaintiffs claim that Plaintiff's termination from heremployment is in violation of federal and state laws and was executedwithout just cause. (Docket No. 1).
II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
The function of summary judgment is "to pierce the boilerplate of thepleadings and examine the parties' proof to determine whether a trial isactually necessary." Vega-Rodriguez v. Puerto Rico Telephone Co.,110 F.3d 174, 178 (1st Cir. 1997). Accordingly, federal courts will grantsummary judgment where "the pleadings,de-positions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is no genuine issueas to any material fact and that the moving party is entitled to judgmentas a matter of law." FED. R. CIV. P. 56(c).
To defeat a motion for summary judgment the resisting party will haveto show the existence of "a trial worthy issue as to some materialfacts." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1stCir. 1997). A fact is deemed "material" if the same "potentiallyaffect[s] the suit's determination." Garside v. Osco Drug Inc.,895 F.2d 46, 48 (1st Cir. 1990). "An issue concerning such a fact is`genuine' if a reasonable factfinder, examining the evidence and drawingall reasonable inferences helpful to the party resisting summaryjudgment, could resolve the dispute in that party's favor."Cortes-Irizarry, 111 F.3d at 187. Nonetheless, "speculation and surmise,even when coupled with effervescent optimism that something definite willmaterialize further down the line, are impuissant on the face of aproperly documented summary judgment motion." Ayala-Gerena v. BristolMyers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996) (citations omitted)
The movant for summary judgment, of course, must not only show thatthere is "no genuine issue of material facts," but also, that he is"entitled to judgment as a matter of law." Vega-Rodriguez, 110 F.3d at178. Further, the court is required to examine the record "drawing allreasonable inferences helpful to the party resisting summary judgment."Cortes-Irizarry, 111 F.3d at 187. There is "no room for credibilitydeterminations, no room for the measured weighing of conflicting evidencesuch as the trial process entails, no room for the judge to superimposehis own ideas of probability and likelihood . . ." Greenburg v. PuertoRico Maritime Shipping Auth.,835 F.2d 932, 936 (1st Cir. 1987). The factsmust be examined under the above criteria because on a potential appealthe appellate court examines "the undisputed facts in the light mostcongenial to the appellants and adopts their version of any contestedfacts which are material to our consideration of the issues."Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997).
Moreover, the test for summary judgment is applied with the highestrigor when a disputed issue turns on a question of motive and intent."Summary judgment procedures should be used sparingly . . . where theissues of motive and intent play leading roles . . . It is only when thewitnesses are present and subject to cross-examination that theircredibility and the weight to be given their testimony can be appraised.Trial by affidavit is no substitute for trial by jury which so long hasbeen the hallmark of `even handed justice.'" Poller v. Columbia Broad.Sys., 368 U.S. 464, 470, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962);cf. Pullman-Standard v. Swint, 456 U.S. 273, 288-90, 102 S.Ct. 1781,1790-1791, 72 L.Ed.2d 66 (1982) (discriminatory intent is a factualmatter for the trier of fact); see also William Coll v. PB DiagnosticSys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995); Oliver v. Digital Equip.Corp., 846 F.2d 103, 107 (1st Cir. 1988); Lipsett v. University of P.R.,864 F.2d at 895. "Under such circumstances, jury judgments aboutcredibility are typically thought to be of special importance."Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1stCir. 1983). In Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433(1st Cir. 2000), the Court recently stated that "determinations of motiveand intent, particularly in discrimination cases, are questions bettersuited for the jury." Id. (citing Mulero-Rodriguez v. Ponte, Inc.,98 F.3d 670, 677 (1st Cir. 1996)). However, "even in cases where elusiveconcepts such as motive or intent are at issue, summary judgment may beappropriate if the nonmoving party rests merely upon conclusoryallegations, improbable inferences, and unsupported speculation."Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1stCir.1996). See also Lipsett, 864 F.2d at 895.
Further, pursuant to Local Rule 311.12, the proponent of a summaryjudgment motion shall serve and file "annexed to the motion a separate,short, and concise statement of the material facts as to which the movingparty contends there is no genuine issue to be tried and the basis of suchcontention as to each material fact, properly supported by specificreference to the record." Local Rule 311.12. Recently, in Ruiz Rivera v.Riley, 209 F.3d 24, 26 (1st Cir.2000), the First Circuit Court of Appealsheld that "non compliance [with Local Rule 311.12], as manifested by afailure to present a statement of disputed facts . . . justifies thecourt's deeming the facts admitted and ruling accordingly." Id. Theimportance of this rule is to "lay  out the material facts in disputeclearly for a district court that is swamped with an over-whelming numberof civil and criminal dispositive "motions." Dominguez v. Eli Lilly andCo., 958 F. Supp. 721, 727 (D.P.R. 1997). "Without such a rule, the Courtwould have to search through the record, with or without the assistanceof counsel, for lurking evidence of a genuine issue of material fact.Local Rule 311.12 prevents `the recurrent problem of ferreting throughthe record' and `the specter of district judges being unfairly sandbaggedby unadvertised factual issues.'" Id. (quoting Stepanischen v. MerchantsDespatch Transp. Corp., 722 F.2d 922, 930-31 (1st Cir. 1983). (internalcitations omitted)):
A. The Title VII Claim
Title VII proscribes that it is an unlawful act for an employer todischarge an individual because of such individual's sex. See42 U.S.C. § 2000e-2(a)(1); Vera-Lozano v. InternationalBroadcasting, 50 F.3d 67 (1st Cir. 1995). "After the Supreme Court heldthat this phraseology did not proscribe discrimination on the basis ofpregnancy . . . Congress augmented Title VII by enacting the PregnancyDiscrimination Act of 1978 ("PDA"), Pub.L. 95-555, § 1, 92 Stat. 2076(1978) (codified at 42 U.S.C. § 2000e(k))." Smith v. F.W. Morse &Co., Inc., 76 F.3d 413, 420 (1st Cir. 1996). Pursuant to the PDA
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.
42 U.S.C. § 2000e(k). Therefore, at the time of Plaintiff's dischargefrom BBII, Title VII's prohibition on gender discrimination also includedpregnancy-based discrimination.
In cases were the employee is claiming discrimination on the basis ofpregnancy, Plaintiff has the burden of "proving that defendantpurposefully terminated her employment because of her pregnancy." Smith,76 F.3d at 420. However, "[a]bsent the evidentiary equivalent of a`smoking gun.' the plaintiff must attempt to prove her case by resort toa burden-shifting framework."3 Id. at 420.See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56,101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1973). Under the McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973), "burden shifting framework," Plaintiff can establish a primafacie case of pregnancy discrimination by showing that 1) she is pregnant(or has communicated an intention to become pregnant); 2) her jobperformance has been satisfactory; but 3) nonetheless, the employerdismissed the person from employment; while 4) a comparably qualifiedperson continued to have her duties performed. See Smith, 76 F.3d at 421.See e.g. Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1stCir. 1990); Lipsett v. University of Puerto Rico, 864 F.2d 881, 899 (1stCir. 1988).
A rebuttable presumption that discrimination sparked the adverseemployment action is created when a prima facie case is established andimposes a upon the employer the burden of presenting a legitimate,nondiscriminatory motive for the action. Burdine, 450 U.S. at 254-55, 101S.Ct. at 1094-95; Lipsett, 864 F.2d at 899. "If the defendant clears thismodest hurdle, the presumption of discrimination vaporizes. . . . and theplaintiff (who retains the ultimate burden of persuasion on the issue ofdiscriminatory motive throughout) must then prove that the employer'sproffered justification is a pretext for discrimination." Smith, 76 F.3dat 421. See Mesnick v. General Electric Co., 950 F.2d 816, 823-24 (1stCir. 1991); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct.2742, 2749, 125 L.Ed.2d 407 (1993).
Plaintiffs may also establish a Title VII discrimination case by "aprima facie case, combined with sufficient evidence to find that theemployer's asserted justification is false . . ." Reeves v. SandersonPlumbing Products, Inc., ___ U.S. ___, 120 S.Ct. 2097, 2101, 147 L.Ed.2d105 (2000). In Reeves, the Supreme court rejected a "pretext plus" rule,whereby, a discriminatee must show that the employer's actual reason fortaking the adverse action was discriminatory. Id. at 2106.
Defendants in their Motion for Summary Judgment state that "it isuncontested that Mejias was pregnant when she was laid off by BBII. It isalso undisputed that Mejias had performed her job at an acceptablelevel.4 As such, the first three (3) elements of the prima facie caseare met." (Docket No. 17). However, Defendants allege that "Mejias failsto prove her fourth element of the prima facie case. There is no evidencethat BBII undertook the reduction in force in a manner that was eithernot gender neutral or that it retained employees of the opposite genderin the same position," thus, failing to establish a prima facie case.(Docket No. 17). Defendant further points out that the Plaintiff was notreplaced but that her position was eliminated and other employees wereassigned her duties. (Docket No. 17).
Examining the record and drawing all inferences in favor ofPlaintiffs, as required under a summary judgment analysis, the Courtfinds that Mejias has established a prima facie case of discrimination onthe basis of gender and pregnancy.5Vega-Rodriguez, 110 F.3d at 178. In order to satisfy the fourth prongPlaintiff must show either that she was replaced by an individual who wasnot a member of the protected class, or that a comparable non-protectedperson was treated better. See Davidson v. Franciscan Health System, OhioValley, 82 F. Supp.2d 768, 772 (S.D.Ohio 2000). Plaintiff argues thatthere is enough evidence to establish that when Plaintiff took medicalleave, she was replaced; the duties of the General AccountingSupervisor, were mainly absorbed by the Accounting Manager; and a fewothers were absorbed by the Senior Accoutant and the Secretary. (DocketNo. 17 Defendants' Statement of Uncontested Material Facts No. 21).
Plaintiff may also "satisfy the fourth prong of her prima facie casesimply by showing that the employer had a continued need for `someone toperform the same work after [Plaintiff] left.'" Cumpiano, 902 F.2d. at 155(citing Lipsett, 864 F.2d at 899). In addition, "[w]hen an employerdefend an employment discrimination case on the ground of positionelimination, the position may not, like a Dali painting, fade from oneimage to another only for the first image to reemerge at the blink of aneye." Smith, 76 F.3d at 423. Here, the record indicates that the dutiesand responsibilities of Mejias' occupation were assumed mainly by Mr.Delestre and other employees of the company. (Docket No. 17, Defendants'Statement of Uncontested Facts No. 21) (emphasis added).
Plaintiff was promoted to General Accounting Supervisor on June 1993,part of her duties as Supervisor were to oversee the general accountingarea, accounts payable, raw fish inventory and accounts receivable.(Docket No. 23; Exh., 4 p. 59). In addition, Plaintiff had theresponsibility of evaluating the work of the employees who worked in theGeneral Accounting section.6 (Docket No. 23; Exh. 2, p. 33-34). Theseare all very significant functions that were assumed almost in theirentirety by Mr. Delestre. (Docket No. 17, Defendants' Statement ofUncontested Facts). The evidence shows that there was a continued need byBBII to have Plaintiff's duties performed, therefore, the Court concludesthat Plaintiff has satisfied the fourth prong in the McDonnell Douglasburden shifting framework.
As previously mentioned, another way Plaintiff can prove the fourthprong of herprima facie case is by providing evidence that shows that pregnantemployees are treated differently from non-pregnant employees who areotherwise similarly situated. Based on the totality of the evidence,again examining the matter in the light most favorable to the nonmovingparty, the Court finds that Plaintiff has also satisfied the fourth prongof her prima facie case. According to Defendants' Statements ofUncontested Facts the employees laid off by BBII included males that werenot on medical leave and females who were not pregnant. (Docket No. 17;Exh. 1, p. 27-28). The decision of which positions were going to beeliminated during the first determination was taken by José Ramosand was later approved by Evan Metropolous, an officer from InternationalHome Products. (Docket No. 28; Exh. 4, p. 14-18). However, there is nowritten documentation of the process of evaluation and decision makingthat took place. (Docket No. 28, Exh. 4, p. 19, Exh. 3, p. 99). Further,although Jose Toro had contemplated downsizing the company, Plaintiff'ssupervisory position was not to be eliminated on the first general layoff. (Docket No. 30; Exh. 4 p. 18, 21). Subsequently, after Metropoloustook a tour through the Accounting Department, he determined that anotherthree positions had to be eliminated. (Docket No. 28; Exh. p. 11-21). Thedecision of which additional employees were going to be terminated wastaken by Co-defendant Ramos. (Docket No. 28; Exh. 4, p. 11-21). When theadditional three persons to be laid off were chosen on BBII, Mejias'pregnancy was already known, as well as her medical pregnancy history.(Docket No. 28; Exh. 3, p. 95-99).
The two positions eliminated in the Accounting Department were MilagrosSoto, a woman with children and Mayra Mejias then pregnant with twins.(Docket No. 28, Exh. 2, p. 34-35). Defendants in their motion to strikeargue that since Milagros Soto was not "similarly situated" to Mejias,said contested fact should be stricken from the record. (Docket No. 23).However, this Court finds that although Nitza Colon was not pregnant atthe time of her termination, the record suggests that both Mrs. Colon andMejias were similarly situated.7 Assuming argnendo, Defendant iscorrect, the facts show that the two additional positions to beeliminated by David Ramos, besides Plaintiffs position, were not reallyeliminated. (Docket No. 38; Exh. 1; Exh. 2, p. 34-35). These two women,although not from the Accounting department, "were sent back to theproduction section where they came to help in data entry in the accountingdepartment." (Docket No. 38, Exh. 2, p. 34-35). In addition these twowomen were not married or had small children at the time. (Docket No.38, Exh. 2, p. 34-35).8 Therefore, it can be concluded that based onthe evidence on the record pregnant employees were treated differentlyfrom nonpregnant employees.
"Once a prima facie showing has been established, the burden ofproduction shifts to the employer to articulate some legitimate,nondiscriminatory reason for the adverse employment action." Ruiz, 54 F.Supp.2d at 109. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535(1st Cir. 1996); McDonnell Douglas, 411 U.S. at 802-805, 93 S.Ct. at1817. Defendants have articulated said reason asserting that because
Bumble Bee underwent financial hardship prior to reducing its force and laying off Mejias. During 1997, the Company filed for bankruptcy and International Home Foods bought its operations. In order to save BBII from it financial difficulties, the management decided that all its plants would undergo a cost containment and reduction in force strategy at all levels.
(Docket No. 17). In addition, Defendants aver that BBII implemented areduction in force in Puerto Rico, because "the higher mangementunderstood that to reach the economic goals which had been set by BBIIneeded to eliminate more positions." (Docket No. 17). Since, "[t]heproduction of such a nondiscriminatory reason dispels the presumption ofimproper discrimination," Plaintiff must be afforded an opportunity toshow that the employer's reason was in fact a pretext or sham." Ruiz v.Caribbean Restaurants, Inc., 54 F. Supp.2d 97, 104 (D.P.R. 1999) (citingKing v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997)).
In response to Mejias establishing her prima facie case, BBII hasnullified it by articulating valid nondiscriminatory reasons for theactions taken against Plaintiff. Plaintiff are still able to escapesummary judgment if they can show the reasons articulated by BBII werebut a pretext or a sham, for the employer's real motive of pregancydiscrimination. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9(Cir. 1990).
"In this final round of shifting burdens, it is up to the plaintiff, unassisted by the original presumption, to show that the employer's stated reason "was but a pretext for [pregnancy] discrimination.' . . . To achieve this plateau, [a pregnancy discrimination] plaintiff must do more than simply refute or cast doubt on the company's rationale for the adverse action. The plaintiff must also show a discriminatory animus based on [pregnancy] . . . Generally speaking, the principles discussed above abide at the summary judgment stage. Most pertinent for our purposes, it remains true that when, as here, the employer has articulated a presumptively legitimate reason for discharging an employee, the latter must elucidate specific facts which would enable a jury to find that the reason given was not only a sham, but a sham intended to cover up the employer real motive: [pregnancy] discrimination."
Ruiz, 54 F. Supp.2d at 113 (citing Medina-Munoz, 896 F.2d at 9). SeeMorgan, 901 F.2d at 191 (Contesting the factual underpinning or objectiveveracity of reasons for the employment decision "by the employer isinsufficient, without more to present a jury question."). Id. Thus,Plaintiff "must introduce sufficient evidence to support two findings:(1) that the employer's articulated reason for [the adverse employmentaction against] the plaintiff is a pretext, and (2) that the true reasonis discriminatory." Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 674(1st Cir. 1996) (quoting Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995)). Aspreviously stated, the Plaintiff retains the burden of persuasionthroughout the entire proceedings. St. Mary's Honor Ctr. v. Hicks, 509U.S. at 507-12, 113 S.Ct. at 2747-750; Carey v. Mt. Desert Island Hosp.,156 F.3d at 31.
"[T]he issue [of pretext] is not whether [BBII's] reasons to fire[Mejias] were real, but merely whether the decisionmakers  believedthem to be real." Mulero-Rodriguez, 98 F.3d at 674, "The First Circuithas stated repeatedly that Courts will not assume the role of superpersonnel departmentsto assess the merits or even the rationality of non discriminatorybusiness reasons." Maldonado-Maldonado v. Pantasia Mfg. Corp.,983 F. Supp. 58, 65 (D.P.R. 1997) (citations omitted).
In Smith, the court stated that [A] position elimination defense is not defeated merely because another employee, already on the payroll, is designated to carry out some or all of the fired employee's duties in addition to his own, or because those duties are otherwise reallocated within the existing work force. (citations omitted). The elimination of a position signifies the employer's belief that it can get by with one less helper; it does not necessarily convey a belief the work the employee had been doing was superfluous and need not be performed at all.
Smith, 76 F.3d at 423. However, "[w]hether or not trimming the fat from acompany's organizational chart is a prudent practice in a particularbusiness environment, the employer's decision to eliminate specificpositions must not be tainted by a discriminatory animus." Id. at 423.Therefore, "an employer who selectively cleans house cannot hide behindconvenient euphemisms such as `downsizing' or `streamlining.'" Id.
Viewing the totality of the evidence on this issue and drawing allinferences in favor of Plaintiff under the standards set forth forsummary judgment, the Court finds that the evidence presented by theparties is sufficient to make out a jury question as to pretext anddiscriminatory animus. For example, within the prima facie analysis, thefollowing facts when examined together may create an inference ofdiscrimination and/or an issue of "motive and intent" for the jury toultimately decide: (1) the fact that there is no written documentation ofthe process of evaluation and decision making (objective or subjective)that took place in order to determine which employees were going to beterminated; (2) the fact that Plaintiff's supervisory position was not tobe eliminated on the first determination to lay off employees; (3) thefact that Mejias' pregnancy was already known, as well as her medicalcomplications when the decision to terminate her employment was made; and(4) the fact that immediately after Plaintiff called her supervisor toinform him that her physician had extended her rest until August 10,1997, about a half-an-hour later. Plaintiff was notified that herposition had been terminated. (Docket No. 1) (Docket No. 1; Docket No.28; Exh. 3, p. 95-99, Exh. 4 p. 18, 19, 21). Based on the above, theCourt finds that there are genuine issues of fact as to whetherPlaintiff's termination was a genuine business decision of downsizing,pretextual or a sham to disguise discrimination.9 Therefore,Defendants' Motion for Summary Judgment on this issue is DENIED.
B. The Family Medical Leave Act
Congress passed the FMLA in 1993 "to entitle employees to takereasonable leave for medical reasons, for the birth or adoption of achild, and for the care of a child, spouse, or parent who has a serioushealth condition." 29 U.S.C. § 2601(b)(2). The FMLA applies to anyman or woman who was worked at least 1250 hours a year at a firmemploying 50 or more employees at least 20 weeks of the year. See29 U.S.C. § 2611(2), (4) (defining "eligible employee"). Neitherparty disputes that Mejiasqualifies as an employee under the FMLA and that BBII is an eligibleemployer.
Pursuant to the FMLA,
[A]n eligible employee is entitled to a tots of 12 weeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter of the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
29 U.S.C. § 2612. The FMLA allows for a party to commence a cause ofaction when violations of the act, described in 29 U.S.C. § 2615,take place. The following are the acts or violations addressed in 29U.S.C. § 2615:
(a)Interference with rights
(1) Exercise of rights shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this sub-chapter.
(2) Discrimination It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
(b) Interference with proceedings or inquires
Is shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual —
(1) has filed any charge, or has instituted or cause to be instituted any proceedings, under or related to this subchapter;
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.
29 U.S.C. § 2615. The FMLA defines "a `serious health condition' asany physical or mental condition that involves inpatient care orcontinuing treatment by a health care provider." 29 U.S.C. § 2611(11).In addition, under the FMLA, complications related to pregnancy figureamong the examples of serious health conditions given in the SenateReport accompanying the FMLA.10 See H.R.Rep. No. 8(I), 103d Cong.,1st Sess., (1993).
The First Circuit Court of Appeals has adopted the view that "whenthere is no direct evidence of discrimination, the McDonnell Douglasburden-shifting framework applies to claims that an employee wasdiscriminated against for availing himself of FMLA protected rights."11Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998). Aspreviously stated, "[u]nder that framework, a plaintiff employee mustcarry the initial burden of coming forward with sufficient evidence toestablish a prima facie case of discrimination or retaliation." Id. "Ifhe does so, then the burden shifts to the employer "to articulate somelegitimate nondiscriminatory reason for the employee's [termination],'sufficient to raise a genuine issue of material fact as to whether itdiscriminated against the employee." Id. (citing Burdine, 450 U.S. at255, 101 S.Ct. 1089). "If the employer's evidence creates a genuine issueof material fact, the presumption of discrimination drops from the case,and the plaintiff retains the ultimate burden of showing that theemployer's stated reason for terminating him was in fact a pretext forretaliating against him for taking protected FMLA leave," Hodgens, 144F.3d at 160. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.
Following the McDonnell Douglas burden shifting framework, "in order toestablish a prima facie case for a FMLA violation, a plaintiff must showthat (1)[she] is protected under the Act; (2)[she] suffered an adverseemployment decision; and (3) either [she] was treated less favorably thanan employee who had not requested FMLA leave or the adverse decision wasmade because of [her] request for leave." Watkins v. J & S Oil Co.,164 F.3d 55 (1st Cir. 1998). See Oswalt v. Sara Lee Corp.,889 F. Supp. 253, 259 (N.D.Miss. 1995); aff'd, 74 F.3d 91 (5th Cir.1996).
Defendants contend that "[Plaintiff] does not tie her lay off with theFMLA dispositions" and that Plaintiff has failed to "identify the reasonswhy she thinks she is entitled to a remedy under the Act," and thus, herclaim under the FMLA should be dismissed. (Docket No. 17). However,Plaintiffs claim that the importance of bringing forth Mayra Mejias'rights under the FMLA is to show that Defendants eliminated her positionin anticipation to Plaintiff's entitlement to a prolonged medical leavebased on coverage under the Act. (Docket No. 30) (emphasis added).Therefore, an assessment should be made as to Plaintiff's coverage underthe act.
The Court finds that Plaintiff satisfies the first prong of the burdenshifting framework. First, she is an employee who is unable to work dueto a serious health condition. As previously stated, the FMLA applies toemployees who suffer complications or illnesses related to pregnancy as aserious health condition. According to the facts on the record, as aresult of her multiple pregnancy on July 29, 1997. Plaintiff sufferedvaginal bleeding while she was working at BBII. (Docket No. 17; Exh. 1).Plaintiff's obstetrician, after she received medical attention, orderedher to rest until August 6, 1997. (Docket No. 28; Exh. 1). On July 30,1997, after a second episode of vaginal bleeding she was hospitalized atthe Bella Vista Hospital. (Docket No. 28; Exh, 1). After a secondevaluation Mejias' doctor ordered her resting period extended because ofcomplications with her pregnancy. (Docket No.28; Exh. 1). Based on thetotality of the evidence the Court finds that Plaintiff is a protectedperson under the FMLA because of her medical complications with herpregnancy being covered by the Act.
The second prong has already been admitted as satisfied by Defendants.(Docket No. 17). Defendants admit that Mejias suffered an adverseemployment decision when she was discharged from BBII. (Docket No. 17).Therefore, the only step left for Plaintiff to prove in orderto establish her prima facie case is that "either [she] was treated lessfavorably than an employee who had not requested FMLA leave or theadverse decision was made because of [her] request for leave." Watkinsv. J & S Oil Co., 164 F.3d 55 (1st Cir.1998). The record shows that whenPlaintiff (was terminated from her employment at BBII on August 1997,Plaintiff was fifteen weeks pregnant with twins. (Docket No. 28; Exh. 1,p. 8). Plaintiff and her husband had undergone fertility treatments inorder for Plaintiff to conceive. (Docket No. 28; Exh. 1; Exh. 3, p. 96).Her pregnancy was known to her peers and employers. (Docket No. 28; Exh.1, p. 9).
After her second episode of vaginal bleeding and being hospitalized onJune 30, 1997, she informed her supervisor David Ramos during a phonecall of her medical complications and of her physician's order to remainin bed until August 6, 1997. (Docket No. 28; Exh. 1). Co-defendant Ramosdid not then disclose to Plaintiff of any decision or intention toterminate her position. (Docket No 28; Exh. 1). A medical restcertificate was delivered to BBII by Plaintiff's husband, Co-plaintiffLuis Enrique Mañan. (Docket No. 28; Exh. 1). After a secondevaluation of Plaintiff's condition by her physician, Plaintiff wasordered to extend her resting period until Monday, August 10, 1997.(Docket No. 28; Exh. 1). On August 7, 1997, Plaintiff telephoned hersupervisor, Co-defendant Ramos, to inform him of the physician orderedextension of the resting period and that she would return to work onAugust 10, 1997. (Docket No. 28; Exh. 1). Approximately half an hourPlaintiff's conversation with Mr. David Ramos, José A. Toro,BBII's General Manager, together with Mr. Ramos via telephone conferenceinformed Plaintiff that her position was terminated. (Docket No. 28;Exh. 1; Exh 3, p. 110-11).
Further, although José Toro had contemplated downsizing thecompany, Plaintiff's supervisory position was not to be eliminated whenthe first lay off was decided. (Docket No. 30; Exh. 4 p. 18, 21).Plaintiff's supervisory position was eliminated by David Ramos after asecond further lay off was planned. (Docket No. 30, exhibit 4, page 18,21). However, as stated heretobefore, there is no documentation orevidence regarding the process and criteria used in arriving at thedecision to terminate Plaintiff. (Docket No. 28, exhibit 4, p. 14-18).When Co-defendant Ramos informed Mejias of the decision to terminate heremployment, Plaintiffs medical complications were known, as well as theextent of the period of absence of Plaintiff from work on medical leave.(Docket No. 28; Exh. 3, p. 98-99). Based on the above evidence, the Courtfinds that Plaintiff has proven a prima facie case.
Plaintiffs have demonstrated a prima facie case, therefore, the burdenthen shifts to Defendants to articulate a legitimate, nondiscriminatoryreason for Plaintiff's layoff. See McDonnell Douglas, 411 U.S. 792, 93S.Ct. 1817, 36 L.Ed.2d 668. As previously stated. Defendant hasarticulated said reason asserting that because "Bumble Bee underwentfinancial hardship prior to reducing its force and laying off Mejias.During 1997, the Company filed for bankruptcy and International HomeFoods bought its operations. In order to save BBII from its financialdifficulties, the management decided that all its plants would undergo acost containment and reduction in force strategy at all levels." (DocketNo. 17).
Plaintiffs must now show the reasons articulated by BBII were but apretext or a sham, for the employer's real motive of pregnancydiscrimination. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9(1st Cir. 1990). As previously stated, the fact that there is no writtendocumentation of the process of evaluation and decision making for theemployees' termination; initially Plaintiffs position was not to beeliminated; Plaintiff's pregnancy and medical problems with it werealready known when the termination decisionwas made; and about a half-an-hour later after Plaintiff informed BBIIthat she would be taking time off, Plaintiff was told that her positionhad been terminated; all raise issues as of pretext and/or of "motive andintent." (Docket No. 1) (Docket No. 1; Docket No. 28; Exh. 3, p. 95-99,Exh. 4 p. 18, 19, 21). Based on the above, the Court finds that there aregenuine issues of fact as to whether Plaintiff's termination waspretextual or a sham. Consequently, Defendants' Motion for SummaryJudgment on this issue is DENIED.
C. Individual Liability Under Title VII and Puerto Rico Anti-discrimination Laws
1. Individual Liability Under Title VII
Title VII of the Civil Rights Act of 1964, as amended,42 U.S.C. § 2000e et seq., prohibits any employer, employmentagency, or labor organization from engaging in unlawful employmentpractices based upon an individual's race, color religion, sex, ornational origin. 42 U.S.C. § 2000e. Specifically, the term employerrefers to a person engaged in an industry affecting commerce, employingfifteen (15) or more employees for twenty (20) or more weeks in thecurrent preceding calendar year from the date of the allegeddiscriminatory act. Defendants assert that the claim against them intheir personal capacity should be dismissed, because Title VII does notallow a cause of action against them in their individual capacity.(Docket No. 17).
This Court has recently addressed the issue as follows:
"First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martimez, 119 F.3d 982, 992 (1st Cir. 1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir. 1995) (similar). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F. Supp.2d 203, 206-207 (D.P.R. 1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F. Supp. 72 (D.P.R. 1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F. Supp. 115, 120 (D.P.R.1997) (ADEA)."
Julia v. Jaussen, Inc., 92 F. Supp.2d 25, 28-29 (D.P.R. 2000) (citingDiaz v. Antilles Conversion & Export, Inc., 62 F. Supp.2d 463, 465(D.P.R. 1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociadode P.R., 48 F. Supp.2d 81, 87 (D.P.R. 1999)(SEC) (ADA and ADEA); Sifrev. Department of Health, 38 F. Supp.2d 91, 105-106 (D.P.R. 1999) (JP)(ADA and Rehabilitation Acj); Figueroa v. Fajardo, 1 F. Supp.2d 117, 120(D.P.R. 1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep't of P.R.,968 F. Supp. 783, 785-786 (D.P.R. 1997) (JP)(ADA); Moreno v. John Crane,Inc., 963 F. Supp. 72, 76 (D.P.R. 1997) (SEC)(ADA); Figueroa v. Mateco,Inc., 939 F. Supp. 106, 107 (D.P.R. 1996)(PG) (ADEA); Hernandez v.Wangen, 938 F. Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII);Anonymous v. Legal Serv. Corp., 932 F. Supp. 49, 50-51 (D.P.R. 1996)(PG)(ADA); Flamand v. American Int'l Group, Inc., 876 F. Supp. 356,361-64 (D.P.R. 1994) (HL) (ADEA); see also Meara v. Bennett,27 F. Supp.2d 288, 290 (D.Mass. 1998) (ADA); Miller v. CRC Companies,Inc., 908 F. Supp. 1054, 1065 (D.N.H. 1995) (ADA); see generally Montezv. Romer, 32 F. Supp.2d 1235, 1241 (D.Colo. 1999) (Rehabilitation Act);Baublitz v. California, No. C98-0434 CRB, 1998 WL 427444 at * 1(N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega NursingServs., Inc., 989 F. Supp. 1462, 1464 (S.D.Fl. 1997) (RehabilitationAct). Therefore, Plaintiff's claim against underTitle 11 Defendants in their individual capacity are hereby DISMISSED.
2. Individual Liability Under Puerto Rico Anti-discrimination Laws
Contrary to what Defendants aver, Plaintiff's claims against Defendantsin their individual capacity under Puerto Rico laws do not lack merit.The Supreme Court of Puerto Rico recently found that under Puerto RicoLaw Nos. 17, 69 and 100, an agent, official, administrator or supervisorof a business can be found personally liable for violations of theaforementioned laws. Rosario Toledo v. Distribuidora Kikuet, Inc., ___D.P.R. ___, 2000 WL 943550 at *5 (P.R. 2000). However, a conjugalpartnership's assets will not be found liable for damages caused by one ofthe partners. Id.
Consequently, Defendants' Motion for Summary Judgment on the issue ofpersonal liability under Puerto Rico laws is DENIED in part as to theclaims against: 1) Jose A. Toro, BBII's Vice-President and GeneralManager; and 2) David Ramos López, BBII's Comptroller. Inaddition, Defendants' Motion for Summary Judgment on the issue ofpersonal liability is GRANTED in part as to the claims against: 1) ElbaRuiz and the conjugal partnership formed with Jose A. Toro; and 2) IraidaGranell and the conjugal partnership formed with David Lopez Ramos.Therefore, the personal liability claims asserted by Plaintiffs against:1) Elba Ruiz and the conjugal partnership formed "with Jose A. Toro; and2) Iraida Granell and the conjugal partnership formed with DavidLópez Ramos are hereby DISMISSED.
D. Claims Under the Commonwealth's Constitution
Plaintiffs allege in the complaint that BBII breached Article II,§ 20 of the Commonwealth's Constitution. (Docket No. 1). However, inthe Motion for Summmary Judgment, Defendants claim that since Plaintiffs"have not demonstrated the requisite state action in order to becomeentitled to relief under Puerto Rico's Constitution," theirconstitutional claims must fall. (Docket No. 17). This Court in Santiagov. Canon U.S.A., Inc., 1997 WL 188453 *5 (D.P.R.), did not find any"precedent recognizing a direct private cause of action for sexdiscrimination under the Puerto Rico Constitution." In addition, theCourt stated that "[n]evertheless, the Supreme Court, in the context ofthe right to privacy arising from Art. II sections 1, 8, and 16 of theConstitution of Puerto Rico, has held that the right to privacy operatesex propio vigore between private parties without the need forcomplementary legislation." Id. at footnote 2. See Colon v. RomeroBarcelo, 112 D.P.R. 573 (1982); Arroyo v. Rattan Specialties, Inc., 117D.P.R. 35 (1986). Moreover, although the Puerto Rico Supreme Court hasyet to recognize a private cause of action for sex discrimination underthe Puerto Rico Constitution, "the Supreme Court might eventually createa cause of action analogous to the one for violation of the right toprivacy." Id. The Supreme Court has not created this cause of action, andthus, this federal court refuses to trailblaze causes of actions thatshould be considered by the Supreme Court of Puerto Rico. "The districtcourts may decline to exercise supplemental jurisdiction over a claimunder subsection (a) if(1) the claim raises a novel or complex issue ofState law." 28 U.S.C. § 1367(c)(1). Therefore, for the abovementioned reasons Defendants' Motion for Summary Judgment of Dismissal isGRANTED WITHOUT PREJUDICE.
E. Claims Arising Under Puerto Rico Laws
Plaintiff has alleged violations of Puerto Rico law arising out of thesame nucleus of facts giving rise to her federal claims. Basically,Plaintiff claims a violation of the Maternity Leave Act ("Law3")12, P.R. Laws Ann. tit. 29 § 467; Puerto Rico's WrongfulDismissal Act ("Law 80"), P.R. Laws Ann. tit. 29 § 185; Puerto RicoEmployment Discrimination Law, ("Law 100"). P.R. Laws Ann. tit. 29 §146; and Puerto Rico's Sex Discrimination Statute, ("Law 69"), P.R. LawsAnn. tit. 20 § 185 et seq.
"Previously with regard to Puerto Rico Law 10013 claims and the accompanying burden-shifting standard thereunder, this Court in Maldonado-Maldonado v. Pantasia Mfg. Corp., 983 F. Supp. 58, 65-6 (D.P.R. 1997) was guided, as it is now, by the Supreme Court of Puerto Rico cases such as Narvaez v. Chase Manhattan Bank 120 P.R. Dec. 731 (1988); Baez Garcia v. Cooper Labs., 120 P.R. Dec. 145 (1987); Ibanez v. Molinos de P.R., Inc., 114 P.R. Dec. 42 (1983), and the interpretations thereof by the federal courts, such as Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27-9 (1st Cir. 1998); De Arteaga v. Pall Ultrafine Filtration Corp., 862 F.2d 940, 941-44 (1st Cir. 1988); Meuzel v. Western Auto Supply Co., 848 F.2d 327, 330-31 (1st Cir. 1988); Dominguez v. Eli Lilly and Co., 958 F. Supp. 721, 741-45 (D.P.R. 1997)."
Ruiz, 54 F. Supp.2d at 119. Like in a Title VII action, under Law 100Plaintiff "bears the initial burden of presenting sufficient, probativeevidence that she was discharged without just cause, this entails showing(a) that she was actively or constructively discharged and (b) thedischarge was without `just cause.'"14 Ruiz, 54 F. Supp.2d at 119.See Landrau Romero v. Caribbean Restaurants, Inc., 14 F. Supp.2d 185, 193(D.P.R. 1998) (citing Dominguez v. Eli Lilly and Co., 958 F. Supp. 721,741 (D.P.R. 1997); Borrero-Rentero v. Western Auto Supply Co.,2 F. Supp.2d 197 (D.P.R. 1998); Arthur Young & Co. v. Virgilio Vega III,94 J.T.S. 75 at 11962, 11972 (1994)). Once Plaintiff proves her primafacie case, a rebuttable presumption is established. See P.R. Laws Ann.,tit. 29 § 148 (1985);15 see alsoAlvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 27.
As previously mentioned, "once a Plaintiff establishes a prima faciecase under Title VII, the burden of production shifts to the Defendantbut the Plaintiff retains the burden of persuasion throughout the entireproceedings." Ruiz, 54 F. Supp.2d 97 at 119. See e.g. St. Mary's HonorCtr. v. Hicks, 509 U.S. at 507-12, 113 S.Ct. at 2747-750. "Under Law100, however, upon satisfactory showing of a prima facie case byPlaintiff not only does the burden of production shift to the Defendantbut also the burden of persuasion. Ruiz, 54 F. Supp.2d at 116,Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 27(citing Ibanez v. Molinos de P.R., Inc., 114 P.R. Dec. 42, 52 (1983))."Thus, in order to rebut the Law 100 presumption, the employer mustprove, by a preponderance of the evidence, that the challenged action wasnot motivated by discriminatory animus." Ruiz; 54 F. Supp.2d at 119-120(citing Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at27-28). "As the Ibanez Court pointed out, Law 100 is much moreplaintiff-friendly than its federal counterpart."16 Id. at 120 (citingDominguez v. Eli Lilly and Co., 958 F. Supp. at 744).
Plaintiff has shown she was discharged. Now, Defendant must "prove, bya preponderance of the evidence, that the challenged action was notmotivated by discriminatory animus." Alvarez-Fonseca, 152 F.3d at 27-28.The Court extrapolates from the analysis previously stated of Title VIIpregnancy discrimination cause of action. Defendant claims that they haveeffectively rebutted the presumption of discrimination by providing avalid "just cause" reason for Plaintiff's discharge.17 However, theCourt concludes that a genuine issue of fact exists as to BBII's rebuttalof the presumption of showing "just cause" for the adverse employmentactions taken against Plaintiff. Defendant has thus failed to carry theburden of persuasion that the termination was not motivated bydiscriminatory animus. Consequently, because Plaintiff has established agenuine issue of fact concerning BBII's valid nondiscriminatory reasonsbeing but a pretext for sexual discrimination, an issue of fact remainswith reference to the employer's showing of "just cause" discharge.
The same conclusion must be reached as to the claims asserted byPlaintiff under Puerto Rico Laws No. 3 and 69. Laws No. 3 and 69 causesof action are almost identical to EEOC's guidelines for Title VIIdiscrimination causes of action, that is gender/pregnancy discriminationcauses of action. See P.R. Laws Ann. 29 § 467 et seq., 20 § 185et seq. These local statutes prohibit discrimination, among otherfactors, on the basis of sex and also require that an employer show thattermination was based on a valid nondiscriminatory reason. P.R. LawsAnn. tit. 29 § 146, 20 § 185. The Court has held above that agenuine issue of facts exists as to Plaintiff's claim for pregnancydiscrimination. Therefore, the Court holds likewise, summary judgment isinappropriate as to thealleged violations of Puerto Rico Law Nos. 3 and 69. P.R. Laws Ann. tit.29 § 146, 20 § 185. Defendants' Motion for Summary Judgment as tothese issues is hereby DENIED.
Co-defendants Motion for Summary Judgment is hereby DENIED IN PART,GRANTED IN PART. The cause of action brought by Plaintiffs forgender/pregnancy discrimination against Defendants remains before theCourt to be adjudicated by a jury. Plaintiff's claims for individualTitle VII liability against Defendants are DISMISSED WITH PREJUDICE forfailure to state a cause of action. Plaintiffs claims for individualPuerto Rico Anti-discrimination laws liability against Defendants areDISMISSED WITH PREJUDICE only as to: 1) Iraida Granell and the conjugalpartnership formed with David López Ramos; and 2) Elba Ruiz and theconjugal partnership formed with Jose A. Toro. Defendants' request todismiss the local claims under Law 100, Law No. 3, Law No. 69 and LawNo. 80 are hereby DENIED. Plaintiffs claims under the Commonwealth'sConstitution are hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
2. Under Puerto Rican law payment of severance may constitute anindication of acceptance that the employer lacked just cause fortermination. 29 L.P.R.A. § 285(a). The severance payment maypotentially impede the employer's defense of a valid or legitimatebusiness reason for the termination.
3. It has been established that an employer, consistent with itsbusiness judgment, may eliminate position during a company's downsizingwithout necessarily violating Title VII, even if the persons is suchpositions are members of a protected group. Smith, 76 F.3d at 422. SeeGoldman v. First National Bank, 985 F.2d 1113, 1118-19 (1st Cir. 1993).In addition "insofar as Title VII is concerned, an employer can hire orfire one employee instead of another for any reason, fair or unfair,provided that the employer's choice is not driven by race, gender,pregnancy or some other protected characteristic." Id. See Foster v.Dalton, 71 F.3d 52, 56 (1st Cir. 1995). Since Plaintiff has not offeredany direct evidence or proof that she was a victim of gender or pregnancydiscrimination, the Court must engage in the burden shifting frameworkdelineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.1817, 36 L.Ed.2d 668 (1973).
4. According to Defendants' Statement of Uncontested Material Facts.Plaintiff "had the experience in the Department, good performancethroughout the years, and the preparation necessary to do any work withinaccounting." (Docket No. 17).
5. Defendants filed a motion to Strike on March 15, 2000, alleging"that the documents attached to Plaintiffs' statement of factsparticularly the statement under penalty of perjury, fail procedurally andsubstantively to create triable issues of material facts." (Docket No.23). In addition, Defendants argue that "Mejias' statement is mainlypredicated on inadmissible hearsay, speculative and conclusory allegationsand Plaintiffs' opposition documents are replete of inadmissibleconclusions and counsel's arguments, plus inaccurate legal contentions."(Docket No. 23). The Court rules as follows:
(1) Paragraph II(1 1): Denied in Part and Granted in Part. Plaintiffs statements are not supported by the proposed exhibit, however, determinations of credibility pertaining to the statements found in the deposition of Julio González and Mayra Mejias are best for the jury to decide.
(2) Paragraph II (14): Denied.
(3) Paragraph II (15): The Court finds that this statement is argumentative. According to Mayra Mejias' deposition of August 6, 1998
Q Did you know that at the time Neptune Packing shut operations in Mayaguez, he was also the treasurer of the Puerto Rico corporation?
A I did not know that. I knew nothing about Neptune Packing. I worked for Bumble Bee.
Q And since you didn't know anything about Neptune Packing, you really didn't know anything the scope of his [Emigdio Delestre's] duties in Neptune Packing, isn't that right?
A Exactly, it is the same industry, but two completely difference types of companies.
(4) Paragraph III (1): Granted. The record does not support the conclusion that Plaintiff was in charge of the whole Accounting Department.
(5) Paragraph III (3, 4, 5): Denied. These are issues involving credibility that are best for the jury to decide.
(6) Paragraph III (6): Denied. The questions of credibility are best for the jury to decide.
(7) Paragraph III (8, 9): Granted. These assertions are overbroad. For example, Plaintiff in her deposition describes the number of times she took over Emigdio Delestre's job as sporadic. (Docket No. 23, exhibit 3, p. 49).
(8): Paragraph III (10, 12, 13): Granted. The statements are unsupported by the record.
6. Ms. Mejias had the responsibility of evaluating the work of thefollowing employees: Iris Sánchez (Accountant on Raw FishInventory). Carmen Vega (Accountant on Accounts Payable) and MilagrosSoto (Accountant on Accounts Receivable). (Docket No. 23; Exh. 3, p.70-71).
7. Defendant's Motion to Strike alleges that since there in evidenceon the record that Nitza Colon and Mayra Mejias were not similarlysituated, the statement should be stricken. (Docket No. 23). The Courtfinds that they were similarly situated. Plaintiff meets the "samesupervisor test's enunciated in Mitchell v. Toledo Hospital, 964 F.2d 577,583 (6th Cir. 1992) ("[T]o be deemed `similarly situated', theindividuals with whom the plaintiff seeks to compare his/her treatmentmust have dealt with the same supervisor, have been subject to the samestandards and engaged in the same conduct without such differentiating ormitigating circumstances that would distinguish their conduct or theemployer's treatment of them for it."). Both women were given supervisoryresponsibilities, were Senior Accountants, had the same training andexperience and reported to the same Accounting Manager at the time, ElsiePastor. (Docket No. 30, exhibit 3, pages 25, 26, 32, 33, 37, 51, 53).Therefore, Defendants Motion to Strike as to Plaintiff's Statement ofFact Paragraph II(17) is Denied.
8. The only man in the Accounting Department that was terminated wasthe buyer of the Purchase section, and the decision to eliminate hisposition was taken the first time a determination was made to lay offemployees. (Docket No. 38; Exh. 3, p. 95; Exh. 4, p. 18).
9. The Parties are reminded that "the court must review the record asa whole." Reeves, 120 S.Ct. at 2110. Further, "the court must draw allreasonable inferences in favor of the nonmoving party, and it may notmake credibility determinations or weigh the evidence." Id. "Credibilitydeterminations, the weighing of the evidence, and the drawing oflegitimate inferences from the facts are jury functions, not those of ajudge." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, based on the abovementioned criteria and the four facts enumerated above, the Court findsthat Defendants' motion for summary judgment must be denied.
10. A pertinent section of the legislative history of the FMLA, statesthat:
Examples of serious health conditions include but are not limited to heart attacks, heart conditions requiring heart bypass or valve operations, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, on going pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth. H.R.Rep. No. 8(I), 103d Cong., 1st Sess., (1993) (emphasis ours).
11. Plaintiffs assert that Mejias "knows" that she was terminated fromher employment because of her pregnancy. (Docket No. 28, paragraphVII(2)). Defendants in their Motion to Strike request the Court to strikePlaintiffs' statement of material facts paragraph VII(2). The Courtgrants such request. The Court finds that these are credibility issuesfor the jury to decide. Since there is no evidence corroborating suchknowledge, therefore, it is speculative. In addition, Defendants seek tostrike Plaintiffs statement of material facts paragraphs VII(3-8) andVIII(1-7; 9-12). The Court finds that Defendants' Motion to Strike as toParagraphs VII(3-8) and VIII(1-7; 9-12) is hereby Denied.
12. Pursuant to the Maternity Leave Act, en employer is prohibitedfrom terminating her employment without just cause. P.R. Laws Ann. tit.29 § 467.
13. Pursuant to Puerto Rico Law 100, P.R. Laws Ann., tit. 29 §148 (1985):
"Any employer who discharges, lays off or discriminates against an employee regarding [her] salary, wage, pay or remuneration, terms, rank conditions, or privileges of [her] work, or who fails or refuses to hire or rehire a person, or who limits or classifies [her] employment opportunities, or to affect his status as employee, on the basis of . . . sex, . . . shall incur civil liability . . . and  he shall be guilty of a misdemeanor.".
14. Law 100 does not provide a definition of "just cause," therefore,Puerto Rico courts have adopted the guidelines for justifiable dismissalsfound in Law 80. Baez Garcia v. Cooper Labs., 120 P.R. Dcc. 145, 155(1987); see also P.R. Laws Ann., tit. 29 § 185b (Supp. 1991). Title29, § 185b:
"Just cause for the discharge of an employee form an establishment shall be understood to be:
(a) That the worker indulges in a pattern of improper or disorderly conduct.
(b) The attitude of the employee of not performing his work in an efficient manner; or of doing it belatedly and negligently or in violation of the standards of quality of the product produced or handled by the establishment.
(c) The employee's repeated violations of the reasonable rules and regulations established for the operation of the establishment, provided a written copy thereof has been opportunely furnished to the employee.
(d) Full, temporary or partial closing of the operations of the establishment.
(e) Technological or reorganization changes as well as changes of style, design or the nature of the product made or handled by the establishment, and changes in the services rendered to the public.
(f) Reductions in employment made necessary by a reduction in the anticipated or prevailing volume of production, sales or profits at the time of the discharge."
15. "Any of the acts mentioned in the preceding sections shall bepresumed to have been committed in violation of sections 146-151 of thistitle, whenever the same shall have been performed without good cause.This presumption shall be of a controvertible character." P.R. LawsAnn., tit. 29 § 148 (1985).
16. "Consequently, the burden of proof on the ultimate issue ofdiscrimination remains with with plaintiff, as in any other civil case.The plaintiff must prove that, even if the dismissal was justified, thedefendant nevertheless violated Law 100 because the dismissal wasmotivated by discriminatory animus instead of or in addition to thelegitimate reasons for dismissal. The Law 100 plaintiff is then in [the]same situation as an ADEA plaintiff after the defendant has articulated alegitimate, nondiscriminatory reason for its actions." Alvarez-Finsecav. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 28.
17. Defendant has articulated a "just cause reason for terminationasserting that because "Bumble Bee underwent financial hardship prior toreducing its force and laying off Mejias. During 1997, the Company filedfor bankruptcy and International Home Foods bought its operations. Inorder to save BBII from its financial difficulties, the managementdecided that all its plants would undergo a cost containment andreduction in force strategy at all levels." (Docket No. 17).