SOTO v. CORP. OF BISHOP OF CHURCH OF JESUS CHRIST

No. CIV. 95-2299 (RLA)

73 F. Supp.2d 116 (1999) | Cited 0 times | D. Puerto Rico | September 23, 1999

ORDER DISMISSING COMPLAINT

Pending before the Court is defendant Corporation of the PresidingBishop of the Church of Jesus Christ of Latter-Day Saints' (CPB), motionfor summary judgment (docket No. 29), to which plaintiff, Eladio SedaSoto (Seda) has filed an opposition (docket No. 30).1 For the reasonsset forth below, defendant's Motion for Summary Judgment is herebyGRANTED in its entirety.

I. BACKGROUND

This is an action originally filed by Seda before the Commonwealth ofPuerto Rico, Court of First Instance, San Juan Part, against CPB, foralleged age discrimination and wrongful discharge. Plaintiff requests inexcess of $200,000 in damages, back pay, front pay, costs and attorney'sfees.

The complaint alleges that in May, 1995, defendant discharged Sedabecause of his age, in violation of the Age Discrimination in EmploymentAct of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Commonwealthof Puerto Rico Law No. 100 of June 30, 1959, as amended, ("Law No.100"), 29 L.P.R.A. § 146, et seq. Plaintiff also alleges thedismissal was without just cause, in violation of the Commonwealth ofPuerto Rico's wrongful discharge statute, Law No. 80 of May 30, 1976, asamended ("Law No. 80"), 29 L.P.R.A. § 185a, et seq.

The case was timely removed by CPB to this Court pursuant to theprovisions of Section 1441 of Title 28, United States Code. Jurisdictionis predicated on a federal question, pursuant to 28 U.S.C. § 1331.Supplemental jurisdiction over the state claims arises under28 U.S.C. § 1446(d).

Defendant's motion for summary judgment contains a Statement ofUncontested Material Facts ("Statement"), supported by the appropriatereferences to the specific evidence on file, pursuant to Local Rule311.12.

Based on the facts asserted in the Statement, defendant's motion forsummary judgment requests dismissal of the complaint for the followingreasons: (1) plaintiff failed to file a charge with the Equal EmploymentOpportunity Commission("EEOC")as required by the ADEA as a prerequisite for a judicial claim;(2) plaintiff has failed to present a prima facie case under the ADEA,since he did not meet CPB's legitimate job performance expectations, andafter his dismissal was not replaced by a new employee; (3) defendantdismissed Seda for just cause and legitimate, non discriminatory businessreasons, specifically the elimination of his position as missionaccountant; (4) CPB provided plaintiff with a voluntary terminationpayment in excess of any amount which could be due if the dismissal waswithout just cause, as required by Law No. 80, thereby barring anysubsequent Law No. 80 claim.

Plaintiff, on the other hand, did not file a separate statement ofmaterial facts as to which he contends exists a genuine issue to betried, properly supported by specific reference to the record, asmandated by Local Rule 311.12.

Plaintiff's opposition and surreply simply argue that material factualdisputes exist because: (1) plaintiff's prior demotion from distributioncenter manager to mission accountant in April 1994, was unjustified andhe was used as a "scapegoat" to cover-up defendant's inefficientoperations and/or Seda's supervisor's negligent performance; (2) the April1994 demotion was part of a scheme to induce him to resign and/orsubsequently dismiss him upon the elimination of the mission accountantposition; (3) the real reason defendant wanted to terminate plaintiff'semployment was to save approximately $30,000 per year (Seda's salary);and (4) the fact that defendant provided Seda with a "voluntary"termination payment which exceeds Law No. 80, is irrelevant toplaintiff's entitlement to a Law No. 80 indemnity payment, if thedismissal was without just cause.

Plaintiff also requests that, pursuant to Fed.R.Civ.P. 56(f), if theCourt is "inclined" to grant summary judgment, that he be permitted toconduct additional discovery to unveil the evidence which will supporthis factual contentions. We begin by addressing this request, which wefind has no merit.

II. FED. R. CIV. P. 56(f)

First, we must assume that at the time plaintiff filed his complaint hehad a reason able factual basis on which to support his claim. Further,plaintiff was forewarned as to defendant's affirmative defenses andtheories as soon as he received CPB's answer to the complaint. In theJoint Initial Scheduling Memorandum, plaintiff represented that he wouldnotify defendant with interrogatories and a request for production ofdocuments, which he never did. At the Initial Scheduling Conference heldeleven (11) months after the complaint was filed, further discovery wasstayed pending defendant's filing of its announced motion for summaryjudgment. See Minutes of Initial Scheduling Conference, docket No. 16.

It was only when defendant's summary judgment motion was notifiedpursuant to the undersigned's Standing order that plaintiff belatedlypleaded that he was under a disadvantage because of his lack of access tocompany records. See Opposition at p.3.

Rule 56(f) of the Federal Rules of Civil Procedure states thefollowing:

"(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

"Fed.R.Civ.P. 56(f) provides a method of tolling time for a party who,when confronted by a summary judgment motion, can demonstrate anauthentic need for, and an entitlement to, an additional interval inwhich to marshal facts essential to mount an opposition." ResolutionTrust v. North Bridge Assoc., 22 F.3d 1198, 1203(1st Cir. 1994). This does not mean, however, that Rule 56(f) has noeffect or that it is available to rescue a litigant who actslackadaisically. Use of the rule requires meeting several benchmarks, aswell as due diligence in pursuing discovery.

Ordinarily, a party who wishes to conduct discovery before the courtacts on a summary judgment motion should present timely affidavits underRule 56(f); something plaintiff failed to do in this case. See Humphreysv. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir.1993) (plaintiff was not entitled to discovery before court ruled onmotion for summary judgment where plaintiff failed to file any affidavitspecifying what facts further discovery might unveil, its relevance toissues pleaded, or how discovery might unveil its relevance to issuespleaded. or how it might overcome facially time barred complaint);Resolution Trust, 22 F.3d at 1204 (while an attorney may provide theaffidavit, he must provide first hand knowledge of the facts asserted);Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10thCir. 1992) (unverified assertion by counsel which simply constitutesadvocacy, does not suffice for evidence or facts required to grantcontinuance).

Furthermore, to satisfy Rule 56(f), a party must meet two additionalrequirements: (1) articulate a plausible basis for the belief thatdiscoverable materials exist which would raise a trial-worthy issue and(2) demonstrate good cause for failure to have conducted discoveryearlier. Mass. School of Law at Andorer v. American Bar, 142 F.3d 26,43-45 (1st Cir. 1998); Fennell v. First Step Desigus, Ltd., 83 F.3d 526,531 (1st Cir. 1996) (movant must articulate plausible basis for beliefthat discoverable materials exist which would raise a trial-worthyissue.); R.W. Intern. Corp. v. Welch Food, Inc., 13 F.3d 478 (1st Cir.1994), appeal after remand, 88 F.3d 49 (1st Cir. 1996) (the party seekingadditional time for discovery must show that the facts sought will, ifobtained, suffice to engender an issue both genuine and material); Birdv. Centennial Ins. Co., 11 F.3d 228, 235 (1st Cir. 1993); Price v.General Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991).

In this case, Seda failed to identify any facts he would expect todiscover. Further, he did not specify what information he had reasonablegrounds to expect would be disclosed which would generate genuine andmaterial disputes of fact.

Plaintiff has not provided minimal supporting factual allegations, andhas not supplemented that deficiency. Thus, he has not made the slightestshowing that his opposition is meritorious. See NéstorColón Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 39(1st Cir. 1992) ("Mere conclusory allegations, standing alone, are notenough; and it is only after stating a valid claim that a plaintiff caninsist upon a right to discovery. If this were not so, a party entirelylacking in a cause of action could sue first and then `fish' to see if hecould discover a cause of action") Id. at 39 (internal citationsomitted).

Finally, plaintiff has not shown cause for his failure to advance hisquest for discovery. Undoubtedly, plaintiff had ample opportunity foradequate discovery but failed to engage in same. We are not inclined toreward such lack of diligence. C.B. Trucking, Inc. v. Waste Management,Inc., 137 F.3d 41, 44-45 (1st Cir. 1998). Therefore, we deny plaintiff'srequest to conduct further discovery.

III. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56, summary judgment must be granted where therecord shows no genuine issue of material fact and the moving party isentitled to judgment as a matter of law. As repeatedly stated, thefunction of summary judgment is "to pierce the boilerplate of thepleadings and examine the parties' proof to determine whether a trial isactually necessary." Vega-Rodríguez v. Puerto RicoTel. Co., 110 F.3d 174, 178 (1st Cir. 1997) (citing Wynne v. Tufts Univ.Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It allows courts andlitigants to avoid full-blown trials in unwinnable cases, thus conservingthe parties' time and money and permitting courts to husband scarcejudicial resources. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313,315 (1st Cir. 1995).

Summary judgment may be appropriate "if the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact." Fed.R.Civ.P. 56(c). "To defeat a motion for summaryjudgment, the nonmoving party must demonstrate the existence or a trial— worthy issue as to some material fact." Cortes Irizarry v.Corporacion Insular, 111 F.3d 184, 187 (1st Cir. 1997). "In applying thisformulation, a fact is `material' if it potentially affects the outcomeof the case," Vega-Rodriguez, 110 F.3d at 178, and "`genuine' if areasonable factfinder, examining the evidence and drawing all reasonableinferences helpful to the party resisting summary judgment, could resolvethe dispute in that party's favor." Cortes-Irizarry, 111 F.3d at 187."Speculation and surmise, even when coupled with effervescent optimismthat something definite will materialize further down the line, areimpuissant in the face of a properly documented summary judgment motion"Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).

Here, the emphasis of plaintiffs arguments has been primarily to castdoubt as to the reasonableness of Seda's demotion in April 1994, whichoccurred more than a year before his dismissal. He attempts to do so byquestioning the amount of complaints received pertaining to thedistribution center's operations under Seda's supervisor and imputingresponsibility to his own supervisor for poorly supervising him. Fromthis, plaintiff urges the court to find there are material factualcontroversies as to the legitimate non-discriminatory reasons for Seda'sdischarge. To plaintiff's misfortune, the record does not support anyreasonable inference of age discrimination in connection with CPB'sactions.

In a wrongful discharge case such as this one, Seda bears the ultimateburden of proving that he would not have been terminated but for hisage. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125L.Ed.2d 407 (1993); Jiménez v. Bancomercio de Puerto Rico,174 F.3d 36 (1st Cir. 1999); Alrarez-Fonseca v. Pepsi Cola of PuertoRico, 152 F.3d 17 (1st Cir. 1998).

"On issues where the nonmovant bears the ultimate burden of proof attrial, he may not defeat a motion for summary judgment by relying onevidence that is `merely colorable' or `not significantly probative.'"Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993) (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d202, (1986)). The nonmovant must "present definite, competent evidence torebut the motion." Mesnick v. General Electric Co., 950 F.2d 816, 822(1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d586 (1992. Thus, "[s]ummary judgment may be appropriate if the nonmovingparty rests merely upon conclusory allegations, improbable inferences, andunsupported speculation." Medina-Muñoz v. R.J. Reynolds TobaccoCo., 896 F.2d 5, 8 (1st Cir. 1990).

Even in cases where elusive concepts such as motive or intent are atissue, summary judgment is appropriate if the nonmoving party restsmerely upon unsupported allegations. Ayala-Gerena, 95 F.3d at 95. In suchcases, courts in this circuit found summary judgment an appropriatemechanism to dispose of age discrimination cases on the merits. See,Shorette v. Rite Aid of Maine. Inc., 155 F.3d 8 (1st Cir. 1998); AmericanAirlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998); Ruizv. Posadas de San Juan Assocs., 124 F.3d 243 (1st Cir. 1997); Hidalgo v.Overseas Condado Ins. Agencies, Inc., 120 F.3d 328 (1st Cir. 1997);Pages-Cahuev. Iberia Líneas Aéreas de España, 82 F.3d 533 (1stCir. 1996); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,8-10 (1st Cir. 1990); Vega v. Kodak Caribbean, Ltd., 807 F. Supp. 872(D.P.R. 1992), aff'd. 3 F.3d 476, 480-481 (1st Cir. 1993);Domíuguez v. Eli Lilly & Co., 958 F. Supp. 721 (D.P.R. 1997)aff'd 141 F.3d 1149 (1st Cir. 1998); De Arteaga v. Pall UltrafineFiltration Corp., 673 F. Supp. 650 (D.P.R. 1987), aff'd 862 F.2d 940 (1stCir. 1988); Menzel v. Western Auto Supply, 662 F. Supp. 731, 745 (D.P.R.1987) aff'd, 848 F.2d 327 (1st Cir. 1988).

IV. LOCAL RULE 311.12

A. Standard

In this district, Local Rule 311.12 was promulgated to assist the Courtin dealing with summary judgment mechanics. It requires the moving partyto file a separate statement, with specific references to the record, ofmaterial facts that it alleges are not at issue. The nonmoving party mustalso file a separate statement stating the material facts that areallegedly at issue. On repeated occasions this Court has stated thatcompliance with Rule 311.12 is critical, since the Court will onlyconsider the facts alleged in the above-mentioned statements whenentertaining the movant's arguments. Rivera de Torres v.Telefónica de Puerto Rico, 913 F. Supp. 81 (D.P.R. 1995).

This Court has frequently required compliance with Local Rule 311.12,even when failure to comply has resulted in the dismissal of plaintiffsemployment discrimination complaint. Ortiz Rodríguez v. BancoPopular de Puerto Rico, 27 F. Supp.2d 309 (D.P.R. 1998).

Without such a rule, the Court would have to search through the record, with or without the assistance of counsel, for lurking evidence of a genuine issue of material fact. Local Rule 311.12 prevents the recurrent problem of ferreting through the record and the specter of district judges being unfairly sandbagged by the unadvertised factual issues.

Dominguez v. Eli Lilly & Co., 958 F. Supp. 721, 727 (D.P.R. 1997)(quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922,930-31 (1st Cir. 1983)) (internal citations omitted); Rivera Rosario v.Granada Mills Inc., 142 F.R.D. 50 (D.P.R. 1992). Insistence on compliancewith the rule and enforcement of the consequences for noncompliance hasconsistently been endorsed by our Circuit. Ayala-Gerena v. BristolMyers-Squibb Co., 95 F.3d 86 (1st Cir. 1996); Rivas v. Federaciónde Asociaciones Pecuarias, 929 F.2d 814, 816 n. 2 (1st Cir. 1991);Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 19 (1st Cir. 1989);Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 615 (1st Cir.1988).

Moreover, "[w]ithout specific references to the Record, the list ofuncontested and contested facts does not serve its purpose. The courtwould have to continue to ferret through the record, read all the answersto the interrogatories, study all the attached documents, and carefullyscrutinize all the depositions for lurking genuine issues of materialfact." Id.

Accordingly, failure to comply with the "anti-ferret rule" has severeconsequences. Indeed, as Stepanichen warns, "the failure to make specificreferences to the Record would, where appropriate, be grounds forjudgment against the party." Dominguez, 958 F. Supp. at 727 (quotingStepanischen, 722 F.2d at 931).

B. Noncompliance by Plaintiff

We have searched through plaintiffs opposition to defendant's motionfor summary judgment, as well as his surreply, and nowhere is there anyindication of plaintiff's effort to comply with Local Rule 311.12.Rather, plaintiff simply attempts to address defendant's legal argumentsand cast doubt, through a series of allegations, as to the veracity ofthe reasons proffered to explain Seda's initial demotionand his subsequent dismissal, approximately a year later.

Accordingly, the Court hereby admits the properly supported statementsof uncontested facts presented by defendant. Such facts as are pertinentto the disposition of the case follow.

V. FACTS

CPB is a corporation organized to perform activities on behalf of TheChurch of Jesus Christ of Latter-Day Saints. CPB has a local office inPuerto Rico. All of the administrative matters related to the Church'sactivities in the Caribbean Area are coordinated from the central officein Puerto Rico.

Seda was hired to work as an accountant for CPB on August 23, 1982,when he was 35 years of age. During the period of his employment withCPB, Seda held several positions. In November of 1989, Seda wastransferred to the position of distribution center manager responsiblefor the operation and organization of the inventory in the warehouse andthe distribution and shipment of CPB's materials throughout theCaribbean.

In March and April of 1994, Seda's supervisor, Angel M. Negrón("Negrón"), received several complaints from various churchaffiliates from the Caribbean islands, related to the inefficientoperation of the distribution center managed by Seda. The complaints wereparticularly related to the tardiness of the shipments of materials andproblems with back orders.

Also in April, 1994, Mr. Kris Christensen, manager of the Salt Lakedistribution center came to Puerto Rico to evaluate the localdistribution center's problems and identify actions to be taken toimprove its operations. His visit resulted in a report, which identifiedvarious problems associated with the malfunctioning of the distributioncenter managed by Seda. According to the report, the principal problemswith the center were the following: slow and late shipments; failure tofollow-up on complaints from other offices; accounting problems caused bythe billing of back orders with the rest of the original order; delay inthe processing of orders; paying for a two-day freight service which CPBwas not getting; problems with the ordering process from the DominicanRepublic to Puerto Rico as outlined by a prior audit; delay in the inputof orders into the computer system; the frustration of employees in theirefforts to try to work with Seda and in Seda's lack of effort in tryingto resolve their issues and concerns. The report was submitted to DonaldL. Clark ("Clark"), the Director of Temporal Affairs for CPB in PuertoRico and the Caribbean.

Thereafter, since Seda could not comply with the requirements of thedistribution center manager position and had failed to properly managethe inventory in the warehouse, Seda was demoted to the position ofmission accountant in accordance with Clark's and Negrón'srecommendations.2 Rubén Pomales, the finance manager, becameSeda's immediate supervisor as mission accountant. Even though Seda wasdemoted, his salary of $3,568 per month was not reduced.

A mission accountant was in charge of the mission accountingtransactions and was also responsible for the mission finances. Duringthe time Seda was mission accountant, there were eight missions in theCaribbean area: Puerto Rico (1);Dominican Republic (3); Jamaica (1); Haiti (1); Trinidad-Tobago (1); andWest Indies (1).

There was also a project accountant position in CPB. The projectaccountant was responsible for keeping accounting records of allconstruction and real property projects in the Caribbean according toCPB's policies and procedures. There were approximately twelve (12) tofourteen (14) projects in the Dominican Republic and two (2) to three (3)in the rest of the Caribbean.

Rafael Pedrosa had been the project accountant in Puerto Rico sinceJune of 1988. As project accountant, Pedrosa was in charge of all theprojects in the Caribbean and in Puerto Rico. He also was subject tosupervision by the finance manager, Pomales.

In September of 1994, CPB's comptroller, Miguel A. Tenorio, began toconsider the alternative of transferring all of the accountingresponsibilities of the missions and projects located in the DominicanRepublic to the finance department of the Dominican Republic servicecenter, since they were being handled from the office in Puerto Rico.

In the week of September 26-30, 1994, H. Larry Hutchinson, theInternational Comptroller for CPB, visited the Dominican Republic andPuerto Rico administration offices and prepared a "Caribbean Area TripReport." After reviewing, considering, and adopting the recommendationsof this report, Clark and Tenorio concluded that the mission and projectaccounting responsibilities would be transferred to the DominicanRepublic service center and that only one full-time employee would beneeded in Puerto Rico to carry out the remaining accountingresponsibilities for both the missions and projects for Puerto Rico andthe rest of the Caribbean, excluding the Dominican Republic.

As a result of this reorganization, the new job position in Puerto Ricowas designated as "senior accountant". The newly created positionconsolidated the mission and the project accountant positions. The senioraccountant would be responsible for the management of the finances of themissions and projects in Puerto Rico and the rest of the Caribbean,excluding the Dominican Republic.

As part of the reorganization, a determination was made with respect tothe person who was to occupy the senior accountant position. Tenorio andPomales decided that Pedrosa was the most qualified person to occupy theposition because (1) Pedrosa had vast knowledge of the project accountingresponsibilities; (2) on numerous occasions, Pedrosa had also worked withthe financing responsibilities of the missions while Seda, in contrast,had held the mission accountant position for only one year and was notfamiliar with project accounting functions; and (3) Pedrosa had receivedsubstantially better performance evaluations than Seda.3

On May 8, 1995, Pomales and Tenorio met with Seda and informed him ofCPB's decision to reorganize and consolidate operations, create thesenior accountant position, and terminate his employment. During thatmeeting, Pomales and Tenorio also informed Seda that he could continueworking for CPB during a transitional period until he could find anotherjob. However, the day after the meeting, that is, on May 9, 1995, Sedainformed Pomales of his decision to leave immediately.

Notwithstanding Seda's decision to leave immediately, Clark decided togrant him a voluntary termination payment. Accordingly, on May 9, 1995,Seda received apayment of $17,560.12. At the time of Secla's termination, there were atleast four other CPB employees with salaries higher than Seda's. At thetime of his termination, Seda and Pedrosa were 48 and 46 years of age,respectively. Finally, the record contains uncontroverted swornstatements by Clark, Pomales and Tenorio, the persons involved in thedecision to choose Pedrosa over Seda for the senior accountant position,affirming they did not take into consideration the age of either of theemployees in the decision-making process.

Seda never filed an age discrimination charge with the EEOC nor withthe Antidiscrimination Unit of Puerto Rico Department of Labor and HumanResources. Yet it is uncontroverted, that at least since September of1993, EEOC notices had been posted in the employees' lounge, informingemployees of the illegality of age discrimination and advising them tocontact the EEOC if they thought they were victims of discrimination.Notwithstanding this notice of the ADEA rights, Seda's first and onlyeffort to challenge the dismissal was the filing of the present complainton September 18, 1995.

VI. DISCUSSION

A. ADEA CLAIM

1. Filing Requirements

In deferral states (states which have enacted employment discriminationlaws), such as Puerto Rico, employees must file a charge of unlawful agediscrimination in employment with the EEOC within 300 days "after thealleged unlawful practice occurred." 29 U.S.C. § 626(d); AmericanAirlines, Inc., 133 F.3d at 122. That is, as a prerequisite to thecommencement of a civil action under the ADEA, an aggrieved employee mustfile an administrative charge with the EEOC and with the parallel stateagency designated by law in deferral states. 29 U.S.C. § 626 (d) and633(b); Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990).

It is undisputed that Seda never filed a claim with theAntidiscrimination Unit of the Department of Labor nor with the EEOC.Plaintiff argues that CPB waived its right to challenge plaintiff'sfailure to comply with the filing requirements of a charge at the EEOC byremoving the case from local court to a federal district court. Theexercise of defendant's right to remove the case to the federal districtcourt, however, is no basis to hold that defendant waived its right toraise this appropriate defense under federal law.

We also reject as inapplicable to the case the doctrines of equitableestoppel and equitable tolling.

Equitable estoppel may be invoked when an employee is aware of his ADEArights, but does not make a timely filing of a charge due to hisreasonable reliance on his employer's deceptive conduct. AmericanAirlines, 133 F.3d at 124, Mercado-Garcío v. Ponce Federal Bank,979 F.2d 890, 895 (1st Cir. 1992); Kale v. Combined Ins. Co. of America,861 F.2d 746, 752 (1st Cir. 1988). Plaintiff has failed to allege suchconduct here. Moreover, in this case, plaintiff has failed to file at anymoment a charge with the EEOC and/or with the Antidiscrimination Unit ofthe Department of Labor and Human Resources.

Equitable tolling is appropriate when the plaintiff demonstrates"excusable ignorance" of his statutory rights. American Airlines, Inc.,133 F.3d at 124; Mercado-García, 979 F.2d at 896, Kale, 861 F.2dat 752. In this case, plaintiff at least had coastructive knowledge of astatute outlawing age discrimination. Defendant posted EEOC notices atSeda's place of employment. The posting informed employees of theillegality of age discrimination and provided plaintiff constructiveknowledge of his ADEA rights. Therefore, equitable tolling cannot excuseplaintiff's failure to file a charge with the EEOC. Kale, 861 F.2d at752.

Since plaintiff did not comply with the statutory requirements forinitiating a civil action under ADEA, defendant's motion for summaryjudgment dismissing plaintiff's ADEA claim is hereby GRANTED. Castro v.United States, 775 F.2d 399, 403 (1st Cir. 1985).

Having dismissed plaintiff's ADEA claim for his failure to file acharge, we nonetheless address his claim on the merits.

2. Merits of the Claim

In relevant part, the ADEA prohibits an employer from discharging anemployee because of his age. As previously stated, in a case such as thisone, Seda bears the ultimate burden of proving that he would not havebeen terminated but for his age. Cardona Jiménez v. BancomercioPuerto Rico, 174 F.3d 36 (1st Cir. 1999); Alvarez-Fonseca v. Pepsi Colaof Puerto Rico, 152 F.3d 17, 24 (1st Cir. 1998), Serrano-Cruz v. DFIPuerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997). When the plaintiffhas direct evidence of discriminatory animus, the case must be put to thejury without further ado. Cardona Jiménez, 74 F.3d at 40;Alvarez-Fonseca, 152 F.3d at 24.

Absent direct evidence of discriminatory intent, the familiar McDonnellDouglas burden-shifting framework governs. Cardona Jiménez, 174F.3d at 40-41; Shorette, 155 F.3d at 12: Alvarez-Fonseca, 152 F.3d at24; Ruiz, 124 F.3d at 247; Serrano-Cruz, 109 F.3d at 25; Pages-Cahue, 82F.3d at 536; Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Civ.1995); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805,93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under McDonnell Douglas, Seda must present a prima facie case ofdiscrimination, that is, that he (1) was at least forty years of age; (2)met the employer's legitimate job expectations; (3) was fired; and (4)was replaced by a person with roughly equivalent job qualifications.Cardona Jiménez, 174 F.3d at 41; Shorette, 155 F.3d at 12;Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124 F.3d at 247-248; Hidalgo, 120F.3d at 332; Pages-Cahue, 82 F.3d at 536; Vega v. Kodak Caribbean, Ltd.,3 F.3d 476 (1st Civ. 1993).

Once plaintiff meets this burden, a presumption of discriminationattaches, and CPB must articulate a legitimate nondiscriminatory reasonfor his termination. Cardona Jiménez, 174 F.3d at 41; Shorette,155 F.3d at 12, Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124 F.3d at 248;Hidalgo, 120 F.3d at 334; Pages-Cahue, 82 F.3d at 536.

Once defendant articulates a legitimate non-discriminatory reason, thepresumption of discrimination vanishes and Seda must show by apreponderance of evidence both that CPB's reason was a pretext and thatthe real reason was age-based animus. Cardona Jiménez, 174 F.3d at41; Shorette, 155 F.3d at 13, Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124F.3d at 248; Hidalgo, 120 F.3d at 335; Medina-Muñoz, 896 F.2d at8. In this summary judgment context, Seda, as the nonmovant, must showevidence sufficient for a fact finder to reasonably conclude that CPB'sdecision to terminate him was driven by a discriminatory animus. Le Blancv. Great American Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993).

a. Direct Evidence of Discriminatory Animus.

Seda failed to present any facts which would amount to direct evidenceof CPB's age-based animus. In fact, Seda failed to present any affidavitsand other probative and admissible evidence setting forth a genuine issueas to any material fact. The responses to the motion for summary judgmentfiled by plaintiff are conclusory allegations, improbable inferences,speculations and conjectures that are not duly and properly supported byadmissible evidence. The nonmovant bears the burden of setting forth"specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e).

The record in this case lacks any direct evidence demonstrating thatSeda was a victim of age discrimination. Seda has failed to submit even asworn affidavit presenting facts attesting to age discrimination.Rather, he appears to rely wholly on the general conclusory allegationscontained in his complaint and in the responses to defendant's motion forsummary judgment. Such evidence cannot withstand a motion for summaryjudgment. See Fed.R.Civ.P. 56(c); see also Mesnick, 950 F.2d at 822;LeBlanc, supra, 6 F.3d at 842.

b. Indirect Evidence of Discriminatory Animus.

Absent direct evidence of discriminatory animus, our analysis isgoverned by the familiar framework enunciated in McDonnell Douglas.

(i) Prima Facie case

This court finds that Seda failed to make out a prima facie case of agediscrimination since he did not meet the second and fourth elements. Theevidence presented by defendant demonstrates that Seda's performance as amission accountant was poor. Moreover, in his previous job position, as adistribution center manager, Seda's performance created problems with theoperation and management of the distribution center. As a result, on April1994, he was demoted from distribution center manager to the missionaccountant position.

Since Seda performed his job duties as a mission accountant in a poormanner, undoubtedly he was not going to be able to perform the senioraccountant duties in a satisfactory way since the new positionconsolidated the mission accountant and the project accountantpositions. The evidence on record shows that the project accountant,Rafael Pedrosa, had a better evaluation and had knowledge of the missionaccounting responsibilities. Seda was not qualified for the position heheld, much less for the senior accountant position. Seda failed toprovide any evidence that his job performance was up to CPB's legitimatejob expectations.

The fourth requirement is not met in the present case since Seda wasnot replaced by another person. Instead, Seda's job position waseliminated as well as the project accountant position.

No person was hired or reassigned to perform plaintiffs duties.Instead, Pedrosa was assigned to perform Seda's duties in addition to hisown duties. CPB had no duty to transfer or relocate Seda to anotherposition within the organization. Pages-Cahue, 82 F.3d at 538-539;LeBlanc, 6 F.3d at 846; Holt v. Gamewell Corp., 797 F.2d 36, 38 (1stCir. 1986). Moreover, the record in this case is devoid of evidence thatdemonstrates that Seda met defendant's legitimate job performanceexpectation for the position of senior accountant, that defendant had acontinuing need for the same services and that they subsequently wereperformed by a person with the same or similar qualifications asplaintiff. See Brennan v. GTE Government Systems Corp., 150 F.3d 21, 26(1st Cir. 1998).

The mere fact that some of Seda's duties were assumed by Pedrosa inaddition to Pedrosa's other duties is insufficient to demonstrate thatSeda was replaced after his termination. Accordingly, plaintiff hasfailed to meet the fourth element of the McDonnell Douglas framework. LeBlanc v. Great American Insurance Co., 6 F.3d 836, 844 (1st Cir. 1993);Fabregas v. I.T.T. Intermedia, Inc., 13 F. Supp.2d 225 (D.P.R. 1998).

Thus, plaintiff has failed to establish a prima facie case of agediscrimination.

This court grants defendant's summary judgment dismissing Plaintiff'sADEA claim for his failure to establish a prima facie case. However, thiscourt also grants defendant's motion for summary judgment dismissingplaintiff's ADEA claim because plaintiff has failed to presentsufficient evidence from which a rational fact finder could have inferredboth that defendant's legitimate business reason for Seda's terminationwas a pretext, and that the real reason for his termination was anage-based animus.

(ii). Pretext

In this case, CPB articulated a legitimate nondiscriminatory reason forterminating Seda: the elimination of the mission accountant positionwhich plaintiff held.

The evidence shows that CPB reorganized the management and operation ofthe missions and projects located in Puerto Rico and the Caribbean. Asenior accountant position was created in the Dominican Republic servicecenter responsible for the finances of the missions and projects locatedthere. Similarly, a senior accountant position was created in Puerto Ricoto manage the finances of the missions and projects in Puerto Rico andthe rest of the Caribbean, excluding the Dominican Republic.

As a result of its reorganization and the creation of a new senioraccountant position, the mission accountant and the project accountantpositions were both eliminated. Undoubtedly, the creation of the newsenior accountant position was related to CPB's normal operations.

We find that CPB was able to articulate a legitimate nondiscriminatoryreason for Seda's discharge. See, Ruiz, 124 F.3d at 248; Hidalgo, 120F.3d at 334-335. We therefore turn to the final step of the McDonnellDouglas framework.

In pursuing this inquiry, Seda must have done more than cast doubt onthe rationale proffered by CPB. Instead, the evidence must be of suchstrength and quality as to permit a reasonable finding that theemployer's decision to terminate the employee was motivated by age.Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir.1993); Connell v. Bank of Boston, 924 F.2d 1169, 1172 n. 3 (1st Cir.1991); Le Blanc, supra, 6 F.3d at 843. We find that Seda failed toproduce evidence sufficient to meet his ultimate burden of persuasion ofdemonstrating pretext, let alone discriminatory intent. While we findthat Seda has failed to meet his ultimate evidentiary burden, we presenthis evidence in detail in our responsibility to consider the facts in thelight most favorable to him.

Plaintiff alleges that discriminatory intent existed since April 1994,when Seda was demoted. He also contends that the demotion was motivatedby a desire to use him as a "scapegoat" and to cover up the inefficientoperation of the distribution center, and his supervisor's (Negrón)negligent supervision. Plaintiff further alleges that his dismissal,twelve (12) months after his demotion, was motivated by a desire to savemoney due to his alleged high salary.

Apart from the speculative nature of these allegations, none canreasonably justify an inference of age discrimination. An employer'ssignaling an employee as responsible for the operational deficiencies ofothers is not by itself evidence of discrimination based on age. CardonaJiménez, 174 F.3d 41-42. See also Phipps v. Gary Drilling Co.,Inc., 722 F. Supp. 615 (E.D.Cal. 1989); Murre v. A.B. Dick Co.,625 F. Supp. 158 (N.D.Ill. 1985) (Age discrimination claimant cannotraise triable issue of discrimination by arguing about fairness ofemployer's evaluation of work performance, even with testimony ofco-workers or other employees of the defendant's employer); Schultz v.General Elec. Capital Corp., 37 F.3d 329 (7th Cir. 1994) (In agediscrimination action, employee failed to show that employer's profferednondiscriminatory reason for his termination, i.e., poor performance, waspretextual; employee's self-serving statements were insufficient to showthat manager lied about his belief that employee was poor performer,manager's treatment of other poor performers did not indicate agediscrimination or that proffered reason fortermination was a lie.) See also, Rodríguez-Cuevas v. Wal-MartStores, Inc., 181 F.3d 15 (1st Cir. 1999) (The questioning of theaccuracy of the evaluations or the timing of same is insufficient to showthat the legitimate proffered reason for demoting an employee wasactually a pretext for unlawful discrimination. The courts may not sit assuper personnel departments assessing the merits — or even therationality — of employers' non discriminatory businessdecisions).

Further, the mere allegation that an employer terminated an employeefor economic reasons, i.e. to save money on salary, is an insufficientbasis to infer discrimination on the basis of age. See Hazen. Paper Co.v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (Age andyears of service are analytically distinct, so that employer could takeaccount of one while ignoring the other, and decision based on years ofservice is thus not necessarily age-based; firing employee in order toprevent pension benefits from vesting does not, without more, violateADEA); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir. 1995)(Fact that employee's high salary or fast — approaching eligibilityfor retirement benefits motivated termination decision would not besufficient alone to support finding of age discrimination, as ADEAprohibits discrimination on basis of age, not on the basis of salary orseniority); Woroski v. Nashua Corp., 31 F.3d 105 (2nd Cir. 1994) (ADEAdoes not prohibit employer from acting out of concern for excessivecosts, even if they arise from age-related facts, such as fact thatemployees with long seniority command higher salary and benefits than newhire); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994)(Firing employee solely to reduce salary costs is not agediscrimination; compensation is typically correlated with age, butrelation is not perfect).

Thus, Seda's argument is speculative in its nature and consequentlymeritless. The oldest employee of an employer does not necessarily earnthe highest salary in the company. It is axiomatic that more is requiredthan mere conclusory allegations and unsupported conjecture. SeeLeBlanc, 6 F.3d at 841; Goldman, 985 F.2d at 1116. Moreover, CPBpresented uncontroverted evidence that at least four other employees hadhigher salaries than Seda. According to plaintiff's own testimony, thisfact is the only evidence he has to support his age discriminationclaim. However, that fact in itself is insufficient to support a findingor inference of age discrimination. Moreover, such evidence does notsuggest that there was an age-related reason for plaintiff'stermination.

Accordingly, plaintiff has failed to present probative evidence to showthat defendant's articulated reason for his termination, i.e. theelimination of his job position, was a pretext to cover up the realreason of age discrimination. In fact, the admissible evidence presentedby defendant demonstrates that the mission accountant and the projectaccountant positions were both eliminated, that the new senior accountantpositions were created in Puerto Rico and in the Dominican Republicrespectively; and that based on the performance evaluations, Pedrosa wasa better qualified person to occupy the senior accountant position.

Finally, the Court finds the fact that at the time of Seda'stermination, Pedrosa, who became the senior accountant, was forty six(46) years old, while Seda was forty eight (48) years old, is ofinsufficient probative value to justify an inference by a reasonablefactfinder of pretext for discriminatory age animus. O'Connor v.Consolidated Coin Caterers, 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433(1996) (age discrimination inference cannot be drawn from replacement ofone worker with another worker insignificantly younger).

The evidence adduced by plaintiff could not convince a trier of factthat defendant unlawfully discriminated on the basis of age. Thecircumstances of this case, based on the evidence of record, are notreasonably susceptible to an inference that defendant discharged Sedabecause of unlawful age discriminatory animus.

Therefore, this Court GRANTS defendant's motion for summary judgmentand hereby DISMISSES plaintiff's ADEA claim.

B. Puerto Rico Law No. 100

The Court, in the exercise of its discretion, has retained supplementaljurisdiction over the pendent state law claims.

Law No. 100 is the Puerto Rico equivalent of the federal ADEA.4 Itprovides a cause of action in favor of those persons who sufferdiscrimination in their employment, among others, because of their age.Similar in several respect, the two statutes differ somewhat with regardto the burden of proof that they impose upon the parties.

With regard to Law No. 100 claims and the accompanying burden —shifting standard thereunder, this Court is guided by the Supreme Courtof Puerto Rico cases such as Narvaez v. Chase Manhattan Bank, 120P.R.Dec. 731 (1988); Báez Garcia v. Cooper Lab., 120 P.R.Dec.145, 1987 WL 448243 (1987); Ibánez Benitez v. Molinos de PuertoRico, Inc., 114 P.R. Dec. 42, 1983 WL 204221 (1983), and theinterpretations thereof by the federal courts, such as Alcarez-Fonsecav. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27-9 (1st Cir. 1998);Menzel 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);Maldonado-Maldonado v. Pantasia Mfg. Corp., 983 F. Supp. 58, 65-66(D.P.R. 1997).

Much like a Title VII action, under Law No. 100 the employee bears theinitial burden of presenting sufficient, probative evidence that he wasdischarged without "just cause," this entails showing (a) that he wasactively or constructively discharged and (b) the discharge was without"just cause". Landrau Romero v. Caribbean Restaurants, Inc.,14 F. Supp.2d 185, 193 (D.P.R. 1998) (citing Dominguez v. Eli Lilly andCo., 958 F. Supp. 721, 743 (D.P.R. 1997); Borrero-Rentero v. Western AutoSupply 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)). Provided theplaintiff proffers sufficient evidence to sustain a prima facie case, arebuttable presumption of discrimination is established; 5 see also,Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 27.

The most important difference between Law No. 100 and the ADEA is thatwhen the Law No. 100 presumption has been triggered, it shifts not onlythe burden of production, but also the burden of persuasion, from theemployee to the employer. See Ibáñez Benitez v. Molinos dePuerto Rico, Inc., 114 P.R. Dec. 42, 52, 1983 WL 204221 (1983). Thus, inorder to rebut the Law No. 100 presumption, the employer must prove, by apreponderance of the evidence, that the challenged action was notmotivated by discriminatory age animus. Id. at 53, 1983 WL 204221.

As noted above, the Law No. 100 presumption of discrimination istriggered only when the employee shows that the employer lacked "justcause" to discharge or take other adverse action with regard to theemployee. In Báez Garcia v. Cooper Lab, Inc., 120 P.R. Dec. 145,155, 1987 WL 448243 (1987), the Supreme Court of the Commonwealth ofPuerto Rico has determined that, because Law No. 100 did not define theterm "just cause," the term's definition would be sought in an analogousstatute — Law No. 80. Law No. 80 defines a dismissal without justcause as "[a] discharge made by mere whim or fancy of the employer orwithout cause related to the proper and normal operation of theestablishment." 29 L.P.R.A. § 185b.

Law No. 80 further provides an illustrative list of reasons that aredeemed to constitute "just cause" for a dismissal. With regard to acts oromissions imputable to the employee, the reasons include the employee'simproper or disorderly conduct; negligent attitude towards his work orpoor performance; violations of the employer's rules and regulations, 29L.P.R.A. § 185b(a), (b) and (c).

With regard to circumstances not directly attributable to theemployee, Law No. 80 considers as just cause for discharge the full,temporary or partial closing of the operations of the establishment;technological or reorganization changes as well as changes of style,design or the nature of the product made or handled by theestablishment; and reductions in employment made necessary by a reductionin the anticipated or prevailing volume of production, sales or profitsat the time of the discharge. 29 L.P.R.A. § 185b(d), (e) and (f). LawNo. 80 further provides that in cases of discharges or lay-offs undersubsections (d)(e) and (D, the employer should follow seniority (meaningseniority with the employer) within the occupational classificationsubject to the lay-off. However, if there is a clear and conclusivedifference in favor of the efficiency or capacity of the workerscompared, these efficiency or capacity factors shall prevail in thedecision. 29 L.P.R.A. § 185c.

Applying the preceding rules, once the plaintiff has proven that he wasdischarged for unjust reasons, the burden of proof would shift to theemployer to show that the discharge was based on nondiscriminatoryreasons.

Conversely, if the employer proves that the discharge was justified,then the Law No. 100 presumption is not activated. Consequently, theburden of proof on the ultimate issue of discrimination remains with theplaintiff, as in any other civil case. The plaintiff must prove that, evenif the dismissal was justified the defendant nevertheless violated LawNo. 100, because the dismissal was motivated by discriminatory animusinstead of or in addition to the legitimate reasons for dismissal. TheLaw No. 100 plaintiff is then in same situation as an ADEA plaintiffafter the defendant has articulated a legitimate, nondiscriminatoryreason for its actions. Cardona Jiménez, 174 F.3d at 42-43;Alvarez-;Fonseca, 152 F.3d at 27-28.

As we have discussed above with regard to the ADEA claim, CPB was ableto meet it's burden under Law No. 80 by proving that Seda's discharge wasjustified. The evidence is clear. The reorganization of the financedepartments in the Puerto Rico and the Dominican Republic offices, theconsequent elimination of the mission and project accountant positions,the creation of the senior accountant position, and Seda's poorperformance as a mission accountant, were all reasons for Seda'stermination. Undoubtedly, any one of these reasons constitutes just causeunder Law No. 80.

Moreover, the elimination of the mission accountant position due to thecreation of a new senior accountant position was a legitimate businessdecision related to the proper and efficient operation of defendant'sactivities. This is also related to the normal functioning of defendant'soperations.

Given this evidence, no reasonable jury could find that CPB did nothave just cause to dismiss Seda, regardless of the allocation of theburden of persuasion. Also, as we have discussed above with regard to hisADEA claim, no reasonable jury could find that Seda carried his burden ofproof on the ultimate issue of discrimination.

Seda's own admissions demonstrate that the only basis for hisallegation of age discrimination is the fact that he was the oldestemployee working for CPB and therefore was earning the highest salary.The uncontroverted facts demonstrate that Seda's allegation isunfounded. However, even if the allegation is correct, it is insufficientto support an inference of age discrimination.

Therefore, defendant's motion for summary judgment dismissingplaintiffs Law No. 100 claim is hereby GRANTED.

C. Law No. 80

As discussed above with respect to plaintiff's Law No. 80 claim,defendant proved that plaintiff's discharge was with just cause.Plaintiff was dismissed as a result of the elimination of his position asmission accountant. This would appear to constitute just cause under LawNo. 80. Even if we assume that the occupational classification inquestion should be read more broadly and include all "accountants,"Pedrosa's uncontroverted superior performance justified his retentionover Seda. 29 L.P.R.A. § 185c.

An additional basis exists to dismiss Seda's Law No. 80 claim.

Law No. 80 provides an employee who has been terminated without justcause with the exclusive remedy of a discharge indemnity payment,calculated on the basis of the employee's salary and years of service. Atthe time of Seda's discharge, Law No. 80 provided that the indemnitypayment for a wrongful discharge would be equivalent to one month's pay,plus an additional progressive indemnity equivalent to one week's pay foreach complete year of service. In Seda's case, the Law No. 80 paymentwould have amounted to $13,445.81.6

The uncontroverted evidence presented by defendant shows that plaintiffaccepted a voluntary termination payment of $17,560.12, an amount inexcess of what he would have been entitled to under Law No. 80. ThisCourt has previously held that a wrongful discharge claim under Law No.80 must be dismissed when an employer pays an employee a termination payequal or greater than the Law No. 80 indemnity. See Hopgood v. MerrillLynch, Pierce, Fenner & Smith, 839 F. Supp. 98, 110 (D.P.R. 1993).7

Accordingly, defendant's motion for summary judgment dismissingplaintiff's Law No. 80 claim is GRANTED.

IV. CONCLUSION

In view of the above, defendant's motion for summary judgment (docketNo. 29) is hereby GRANTED as to all of plaintiff's claims.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

1. See also defendant's reply to plaintiff's opposition (docket No.31) and plaintiff's surreply thereto (docket No. 32).

2. Contrary to the allegations made in plaintiff's opposition to thedefendant's motion for summary judgment and his surreply, plaintiffspecifically stated in his deposition that he did not consider that thisdemotion was motivated by his age. See Statement, lines 20-24 at page 71of Seda's deposition. Moreover, Section II-A of plaintiff's legaltheories in the Joint Initial Scheduling Memorandum (docket No. 14) lacksany assertion that the demotion was based on age discrimination animus.These admissions are fatal to plaintiff's attorney's advocacy in opposingthe summary judgment motion. At any rate, any claim that the April, 1994demotion was based on age discrimination reasons would be clearlytime-barred.

3. In fact. Seda had received a very poor performance evaluation asmission accountant. On a scale of 1 through 4, 4 being the lowest scoreand indicating a very poor performance, Seda had obtained an overallperformance rating of 3.5. while Pedrosa's overall appraisal was 2.5.Indeed, as mission accountant. Seda never received a merit salaryincrease.

4. Law No. 100, in pertinent part, provides:

Any employer who discharges, lays off OF discriminates against an employee regarding his salary, wage, pay or remuneration, terms, rank, conditions or privileges of his work, or who fails or refuses to hire or rehire a person, or who limits or classifies his employment opportunities, or to affect his status as employee, on the basis of . . . age . . . shall incur civil liability . . . and [] he shall also he guilty of a misdemeanor.

29 L.P.R.A. § 146.

5. Law No. 100 provides that "[A]ny of the acts mentioned in thepreceding sections shall be presumed to have been committed in violationof sections 146-151 of this title, whenever the same shall have beenperformed without good cause. This presumption shall be of acontrovertible character." 29 L.P.R.A. § 148. The acts referred toinclude dismissals, lay-offs and other disparate treatment regardingterms, rank or conditions of employment.

6. This is determined as follows:

$3,568.00 x 12 months = $42,816.00$42.816.00 ÷ 52 weeks =$823.38 weekly pay$823.38 x 4.33 = $3,565.25 ("mesada" — one month pay under Law No. 80)$823.38 x 12 weeks = $9,880.56 ("progressive" indemnity under Law No. 80) $3,565.25 + $9,880.56 $13,445.81 Law No. 80 payment

7. See also, Selgas v. American Airlines, Inc., 852 F. Supp. 316, 326(D.P.R.1994) and Loubrido v, Hull Dobbs Co. of Puerto Rico, Inc.,526 F. Supp. 1055, 1061 (D,P.R. 1981), which held that Law No. 80 paymentis not due when a remedy granted in damages or back-pay is greater thanthe Law No. 80 indemnity.

ORDER DISMISSING COMPLAINT

Pending before the Court is defendant Corporation of the PresidingBishop of the Church of Jesus Christ of Latter-Day Saints' (CPB), motionfor summary judgment (docket No. 29), to which plaintiff, Eladio SedaSoto (Seda) has filed an opposition (docket No. 30).1 For the reasonsset forth below, defendant's Motion for Summary Judgment is herebyGRANTED in its entirety.

I. BACKGROUND

This is an action originally filed by Seda before the Commonwealth ofPuerto Rico, Court of First Instance, San Juan Part, against CPB, foralleged age discrimination and wrongful discharge. Plaintiff requests inexcess of $200,000 in damages, back pay, front pay, costs and attorney'sfees.

The complaint alleges that in May, 1995, defendant discharged Sedabecause of his age, in violation of the Age Discrimination in EmploymentAct of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Commonwealthof Puerto Rico Law No. 100 of June 30, 1959, as amended, ("Law No.100"), 29 L.P.R.A. § 146, et seq. Plaintiff also alleges thedismissal was without just cause, in violation of the Commonwealth ofPuerto Rico's wrongful discharge statute, Law No. 80 of May 30, 1976, asamended ("Law No. 80"), 29 L.P.R.A. § 185a, et seq.

The case was timely removed by CPB to this Court pursuant to theprovisions of Section 1441 of Title 28, United States Code. Jurisdictionis predicated on a federal question, pursuant to 28 U.S.C. § 1331.Supplemental jurisdiction over the state claims arises under28 U.S.C. § 1446(d).

Defendant's motion for summary judgment contains a Statement ofUncontested Material Facts ("Statement"), supported by the appropriatereferences to the specific evidence on file, pursuant to Local Rule311.12.

Based on the facts asserted in the Statement, defendant's motion forsummary judgment requests dismissal of the complaint for the followingreasons: (1) plaintiff failed to file a charge with the Equal EmploymentOpportunity Commission("EEOC")as required by the ADEA as a prerequisite for a judicial claim;(2) plaintiff has failed to present a prima facie case under the ADEA,since he did not meet CPB's legitimate job performance expectations, andafter his dismissal was not replaced by a new employee; (3) defendantdismissed Seda for just cause and legitimate, non discriminatory businessreasons, specifically the elimination of his position as missionaccountant; (4) CPB provided plaintiff with a voluntary terminationpayment in excess of any amount which could be due if the dismissal waswithout just cause, as required by Law No. 80, thereby barring anysubsequent Law No. 80 claim.

Plaintiff, on the other hand, did not file a separate statement ofmaterial facts as to which he contends exists a genuine issue to betried, properly supported by specific reference to the record, asmandated by Local Rule 311.12.

Plaintiff's opposition and surreply simply argue that material factualdisputes exist because: (1) plaintiff's prior demotion from distributioncenter manager to mission accountant in April 1994, was unjustified andhe was used as a "scapegoat" to cover-up defendant's inefficientoperations and/or Seda's supervisor's negligent performance; (2) the April1994 demotion was part of a scheme to induce him to resign and/orsubsequently dismiss him upon the elimination of the mission accountantposition; (3) the real reason defendant wanted to terminate plaintiff'semployment was to save approximately $30,000 per year (Seda's salary);and (4) the fact that defendant provided Seda with a "voluntary"termination payment which exceeds Law No. 80, is irrelevant toplaintiff's entitlement to a Law No. 80 indemnity payment, if thedismissal was without just cause.

Plaintiff also requests that, pursuant to Fed.R.Civ.P. 56(f), if theCourt is "inclined" to grant summary judgment, that he be permitted toconduct additional discovery to unveil the evidence which will supporthis factual contentions. We begin by addressing this request, which wefind has no merit.

II. FED. R. CIV. P. 56(f)

First, we must assume that at the time plaintiff filed his complaint hehad a reason able factual basis on which to support his claim. Further,plaintiff was forewarned as to defendant's affirmative defenses andtheories as soon as he received CPB's answer to the complaint. In theJoint Initial Scheduling Memorandum, plaintiff represented that he wouldnotify defendant with interrogatories and a request for production ofdocuments, which he never did. At the Initial Scheduling Conference heldeleven (11) months after the complaint was filed, further discovery wasstayed pending defendant's filing of its announced motion for summaryjudgment. See Minutes of Initial Scheduling Conference, docket No. 16.

It was only when defendant's summary judgment motion was notifiedpursuant to the undersigned's Standing order that plaintiff belatedlypleaded that he was under a disadvantage because of his lack of access tocompany records. See Opposition at p.3.

Rule 56(f) of the Federal Rules of Civil Procedure states thefollowing:

"(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

"Fed.R.Civ.P. 56(f) provides a method of tolling time for a party who,when confronted by a summary judgment motion, can demonstrate anauthentic need for, and an entitlement to, an additional interval inwhich to marshal facts essential to mount an opposition." ResolutionTrust v. North Bridge Assoc., 22 F.3d 1198, 1203(1st Cir. 1994). This does not mean, however, that Rule 56(f) has noeffect or that it is available to rescue a litigant who actslackadaisically. Use of the rule requires meeting several benchmarks, aswell as due diligence in pursuing discovery.

Ordinarily, a party who wishes to conduct discovery before the courtacts on a summary judgment motion should present timely affidavits underRule 56(f); something plaintiff failed to do in this case. See Humphreysv. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir.1993) (plaintiff was not entitled to discovery before court ruled onmotion for summary judgment where plaintiff failed to file any affidavitspecifying what facts further discovery might unveil, its relevance toissues pleaded, or how discovery might unveil its relevance to issuespleaded. or how it might overcome facially time barred complaint);Resolution Trust, 22 F.3d at 1204 (while an attorney may provide theaffidavit, he must provide first hand knowledge of the facts asserted);Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10thCir. 1992) (unverified assertion by counsel which simply constitutesadvocacy, does not suffice for evidence or facts required to grantcontinuance).

Furthermore, to satisfy Rule 56(f), a party must meet two additionalrequirements: (1) articulate a plausible basis for the belief thatdiscoverable materials exist which would raise a trial-worthy issue and(2) demonstrate good cause for failure to have conducted discoveryearlier. Mass. School of Law at Andorer v. American Bar, 142 F.3d 26,43-45 (1st Cir. 1998); Fennell v. First Step Desigus, Ltd., 83 F.3d 526,531 (1st Cir. 1996) (movant must articulate plausible basis for beliefthat discoverable materials exist which would raise a trial-worthyissue.); R.W. Intern. Corp. v. Welch Food, Inc., 13 F.3d 478 (1st Cir.1994), appeal after remand, 88 F.3d 49 (1st Cir. 1996) (the party seekingadditional time for discovery must show that the facts sought will, ifobtained, suffice to engender an issue both genuine and material); Birdv. Centennial Ins. Co., 11 F.3d 228, 235 (1st Cir. 1993); Price v.General Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991).

In this case, Seda failed to identify any facts he would expect todiscover. Further, he did not specify what information he had reasonablegrounds to expect would be disclosed which would generate genuine andmaterial disputes of fact.

Plaintiff has not provided minimal supporting factual allegations, andhas not supplemented that deficiency. Thus, he has not made the slightestshowing that his opposition is meritorious. See NéstorColón Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 39(1st Cir. 1992) ("Mere conclusory allegations, standing alone, are notenough; and it is only after stating a valid claim that a plaintiff caninsist upon a right to discovery. If this were not so, a party entirelylacking in a cause of action could sue first and then `fish' to see if hecould discover a cause of action") Id. at 39 (internal citationsomitted).

Finally, plaintiff has not shown cause for his failure to advance hisquest for discovery. Undoubtedly, plaintiff had ample opportunity foradequate discovery but failed to engage in same. We are not inclined toreward such lack of diligence. C.B. Trucking, Inc. v. Waste Management,Inc., 137 F.3d 41, 44-45 (1st Cir. 1998). Therefore, we deny plaintiff'srequest to conduct further discovery.

III. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56, summary judgment must be granted where therecord shows no genuine issue of material fact and the moving party isentitled to judgment as a matter of law. As repeatedly stated, thefunction of summary judgment is "to pierce the boilerplate of thepleadings and examine the parties' proof to determine whether a trial isactually necessary." Vega-Rodríguez v. Puerto RicoTel. Co., 110 F.3d 174, 178 (1st Cir. 1997) (citing Wynne v. Tufts Univ.Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). It allows courts andlitigants to avoid full-blown trials in unwinnable cases, thus conservingthe parties' time and money and permitting courts to husband scarcejudicial resources. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313,315 (1st Cir. 1995).

Summary judgment may be appropriate "if the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact." Fed.R.Civ.P. 56(c). "To defeat a motion for summaryjudgment, the nonmoving party must demonstrate the existence or a trial— worthy issue as to some material fact." Cortes Irizarry v.Corporacion Insular, 111 F.3d 184, 187 (1st Cir. 1997). "In applying thisformulation, a fact is `material' if it potentially affects the outcomeof the case," Vega-Rodriguez, 110 F.3d at 178, and "`genuine' if areasonable factfinder, examining the evidence and drawing all reasonableinferences helpful to the party resisting summary judgment, could resolvethe dispute in that party's favor." Cortes-Irizarry, 111 F.3d at 187."Speculation and surmise, even when coupled with effervescent optimismthat something definite will materialize further down the line, areimpuissant in the face of a properly documented summary judgment motion"Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).

Here, the emphasis of plaintiffs arguments has been primarily to castdoubt as to the reasonableness of Seda's demotion in April 1994, whichoccurred more than a year before his dismissal. He attempts to do so byquestioning the amount of complaints received pertaining to thedistribution center's operations under Seda's supervisor and imputingresponsibility to his own supervisor for poorly supervising him. Fromthis, plaintiff urges the court to find there are material factualcontroversies as to the legitimate non-discriminatory reasons for Seda'sdischarge. To plaintiff's misfortune, the record does not support anyreasonable inference of age discrimination in connection with CPB'sactions.

In a wrongful discharge case such as this one, Seda bears the ultimateburden of proving that he would not have been terminated but for hisage. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125L.Ed.2d 407 (1993); Jiménez v. Bancomercio de Puerto Rico,174 F.3d 36 (1st Cir. 1999); Alrarez-Fonseca v. Pepsi Cola of PuertoRico, 152 F.3d 17 (1st Cir. 1998).

"On issues where the nonmovant bears the ultimate burden of proof attrial, he may not defeat a motion for summary judgment by relying onevidence that is `merely colorable' or `not significantly probative.'"Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993) (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d202, (1986)). The nonmovant must "present definite, competent evidence torebut the motion." Mesnick v. General Electric Co., 950 F.2d 816, 822(1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d586 (1992. Thus, "[s]ummary judgment may be appropriate if the nonmovingparty rests merely upon conclusory allegations, improbable inferences, andunsupported speculation." Medina-Muñoz v. R.J. Reynolds TobaccoCo., 896 F.2d 5, 8 (1st Cir. 1990).

Even in cases where elusive concepts such as motive or intent are atissue, summary judgment is appropriate if the nonmoving party restsmerely upon unsupported allegations. Ayala-Gerena, 95 F.3d at 95. In suchcases, courts in this circuit found summary judgment an appropriatemechanism to dispose of age discrimination cases on the merits. See,Shorette v. Rite Aid of Maine. Inc., 155 F.3d 8 (1st Cir. 1998); AmericanAirlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998); Ruizv. Posadas de San Juan Assocs., 124 F.3d 243 (1st Cir. 1997); Hidalgo v.Overseas Condado Ins. Agencies, Inc., 120 F.3d 328 (1st Cir. 1997);Pages-Cahuev. Iberia Líneas Aéreas de España, 82 F.3d 533 (1stCir. 1996); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,8-10 (1st Cir. 1990); Vega v. Kodak Caribbean, Ltd., 807 F. Supp. 872(D.P.R. 1992), aff'd. 3 F.3d 476, 480-481 (1st Cir. 1993);Domíuguez v. Eli Lilly & Co., 958 F. Supp. 721 (D.P.R. 1997)aff'd 141 F.3d 1149 (1st Cir. 1998); De Arteaga v. Pall UltrafineFiltration Corp., 673 F. Supp. 650 (D.P.R. 1987), aff'd 862 F.2d 940 (1stCir. 1988); Menzel v. Western Auto Supply, 662 F. Supp. 731, 745 (D.P.R.1987) aff'd, 848 F.2d 327 (1st Cir. 1988).

IV. LOCAL RULE 311.12

A. Standard

In this district, Local Rule 311.12 was promulgated to assist the Courtin dealing with summary judgment mechanics. It requires the moving partyto file a separate statement, with specific references to the record, ofmaterial facts that it alleges are not at issue. The nonmoving party mustalso file a separate statement stating the material facts that areallegedly at issue. On repeated occasions this Court has stated thatcompliance with Rule 311.12 is critical, since the Court will onlyconsider the facts alleged in the above-mentioned statements whenentertaining the movant's arguments. Rivera de Torres v.Telefónica de Puerto Rico, 913 F. Supp. 81 (D.P.R. 1995).

This Court has frequently required compliance with Local Rule 311.12,even when failure to comply has resulted in the dismissal of plaintiffsemployment discrimination complaint. Ortiz Rodríguez v. BancoPopular de Puerto Rico, 27 F. Supp.2d 309 (D.P.R. 1998).

Without such a rule, the Court would have to search through the record, with or without the assistance of counsel, for lurking evidence of a genuine issue of material fact. Local Rule 311.12 prevents the recurrent problem of ferreting through the record and the specter of district judges being unfairly sandbagged by the unadvertised factual issues.

Dominguez v. Eli Lilly & Co., 958 F. Supp. 721, 727 (D.P.R. 1997)(quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922,930-31 (1st Cir. 1983)) (internal citations omitted); Rivera Rosario v.Granada Mills Inc., 142 F.R.D. 50 (D.P.R. 1992). Insistence on compliancewith the rule and enforcement of the consequences for noncompliance hasconsistently been endorsed by our Circuit. Ayala-Gerena v. BristolMyers-Squibb Co., 95 F.3d 86 (1st Cir. 1996); Rivas v. Federaciónde Asociaciones Pecuarias, 929 F.2d 814, 816 n. 2 (1st Cir. 1991);Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 19 (1st Cir. 1989);Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 615 (1st Cir.1988).

Moreover, "[w]ithout specific references to the Record, the list ofuncontested and contested facts does not serve its purpose. The courtwould have to continue to ferret through the record, read all the answersto the interrogatories, study all the attached documents, and carefullyscrutinize all the depositions for lurking genuine issues of materialfact." Id.

Accordingly, failure to comply with the "anti-ferret rule" has severeconsequences. Indeed, as Stepanichen warns, "the failure to make specificreferences to the Record would, where appropriate, be grounds forjudgment against the party." Dominguez, 958 F. Supp. at 727 (quotingStepanischen, 722 F.2d at 931).

B. Noncompliance by Plaintiff

We have searched through plaintiffs opposition to defendant's motionfor summary judgment, as well as his surreply, and nowhere is there anyindication of plaintiff's effort to comply with Local Rule 311.12.Rather, plaintiff simply attempts to address defendant's legal argumentsand cast doubt, through a series of allegations, as to the veracity ofthe reasons proffered to explain Seda's initial demotionand his subsequent dismissal, approximately a year later.

Accordingly, the Court hereby admits the properly supported statementsof uncontested facts presented by defendant. Such facts as are pertinentto the disposition of the case follow.

V. FACTS

CPB is a corporation organized to perform activities on behalf of TheChurch of Jesus Christ of Latter-Day Saints. CPB has a local office inPuerto Rico. All of the administrative matters related to the Church'sactivities in the Caribbean Area are coordinated from the central officein Puerto Rico.

Seda was hired to work as an accountant for CPB on August 23, 1982,when he was 35 years of age. During the period of his employment withCPB, Seda held several positions. In November of 1989, Seda wastransferred to the position of distribution center manager responsiblefor the operation and organization of the inventory in the warehouse andthe distribution and shipment of CPB's materials throughout theCaribbean.

In March and April of 1994, Seda's supervisor, Angel M. Negrón("Negrón"), received several complaints from various churchaffiliates from the Caribbean islands, related to the inefficientoperation of the distribution center managed by Seda. The complaints wereparticularly related to the tardiness of the shipments of materials andproblems with back orders.

Also in April, 1994, Mr. Kris Christensen, manager of the Salt Lakedistribution center came to Puerto Rico to evaluate the localdistribution center's problems and identify actions to be taken toimprove its operations. His visit resulted in a report, which identifiedvarious problems associated with the malfunctioning of the distributioncenter managed by Seda. According to the report, the principal problemswith the center were the following: slow and late shipments; failure tofollow-up on complaints from other offices; accounting problems caused bythe billing of back orders with the rest of the original order; delay inthe processing of orders; paying for a two-day freight service which CPBwas not getting; problems with the ordering process from the DominicanRepublic to Puerto Rico as outlined by a prior audit; delay in the inputof orders into the computer system; the frustration of employees in theirefforts to try to work with Seda and in Seda's lack of effort in tryingto resolve their issues and concerns. The report was submitted to DonaldL. Clark ("Clark"), the Director of Temporal Affairs for CPB in PuertoRico and the Caribbean.

Thereafter, since Seda could not comply with the requirements of thedistribution center manager position and had failed to properly managethe inventory in the warehouse, Seda was demoted to the position ofmission accountant in accordance with Clark's and Negrón'srecommendations.2 Rubén Pomales, the finance manager, becameSeda's immediate supervisor as mission accountant. Even though Seda wasdemoted, his salary of $3,568 per month was not reduced.

A mission accountant was in charge of the mission accountingtransactions and was also responsible for the mission finances. Duringthe time Seda was mission accountant, there were eight missions in theCaribbean area: Puerto Rico (1);Dominican Republic (3); Jamaica (1); Haiti (1); Trinidad-Tobago (1); andWest Indies (1).

There was also a project accountant position in CPB. The projectaccountant was responsible for keeping accounting records of allconstruction and real property projects in the Caribbean according toCPB's policies and procedures. There were approximately twelve (12) tofourteen (14) projects in the Dominican Republic and two (2) to three (3)in the rest of the Caribbean.

Rafael Pedrosa had been the project accountant in Puerto Rico sinceJune of 1988. As project accountant, Pedrosa was in charge of all theprojects in the Caribbean and in Puerto Rico. He also was subject tosupervision by the finance manager, Pomales.

In September of 1994, CPB's comptroller, Miguel A. Tenorio, began toconsider the alternative of transferring all of the accountingresponsibilities of the missions and projects located in the DominicanRepublic to the finance department of the Dominican Republic servicecenter, since they were being handled from the office in Puerto Rico.

In the week of September 26-30, 1994, H. Larry Hutchinson, theInternational Comptroller for CPB, visited the Dominican Republic andPuerto Rico administration offices and prepared a "Caribbean Area TripReport." After reviewing, considering, and adopting the recommendationsof this report, Clark and Tenorio concluded that the mission and projectaccounting responsibilities would be transferred to the DominicanRepublic service center and that only one full-time employee would beneeded in Puerto Rico to carry out the remaining accountingresponsibilities for both the missions and projects for Puerto Rico andthe rest of the Caribbean, excluding the Dominican Republic.

As a result of this reorganization, the new job position in Puerto Ricowas designated as "senior accountant". The newly created positionconsolidated the mission and the project accountant positions. The senioraccountant would be responsible for the management of the finances of themissions and projects in Puerto Rico and the rest of the Caribbean,excluding the Dominican Republic.

As part of the reorganization, a determination was made with respect tothe person who was to occupy the senior accountant position. Tenorio andPomales decided that Pedrosa was the most qualified person to occupy theposition because (1) Pedrosa had vast knowledge of the project accountingresponsibilities; (2) on numerous occasions, Pedrosa had also worked withthe financing responsibilities of the missions while Seda, in contrast,had held the mission accountant position for only one year and was notfamiliar with project accounting functions; and (3) Pedrosa had receivedsubstantially better performance evaluations than Seda.3

On May 8, 1995, Pomales and Tenorio met with Seda and informed him ofCPB's decision to reorganize and consolidate operations, create thesenior accountant position, and terminate his employment. During thatmeeting, Pomales and Tenorio also informed Seda that he could continueworking for CPB during a transitional period until he could find anotherjob. However, the day after the meeting, that is, on May 9, 1995, Sedainformed Pomales of his decision to leave immediately.

Notwithstanding Seda's decision to leave immediately, Clark decided togrant him a voluntary termination payment. Accordingly, on May 9, 1995,Seda received apayment of $17,560.12. At the time of Secla's termination, there were atleast four other CPB employees with salaries higher than Seda's. At thetime of his termination, Seda and Pedrosa were 48 and 46 years of age,respectively. Finally, the record contains uncontroverted swornstatements by Clark, Pomales and Tenorio, the persons involved in thedecision to choose Pedrosa over Seda for the senior accountant position,affirming they did not take into consideration the age of either of theemployees in the decision-making process.

Seda never filed an age discrimination charge with the EEOC nor withthe Antidiscrimination Unit of Puerto Rico Department of Labor and HumanResources. Yet it is uncontroverted, that at least since September of1993, EEOC notices had been posted in the employees' lounge, informingemployees of the illegality of age discrimination and advising them tocontact the EEOC if they thought they were victims of discrimination.Notwithstanding this notice of the ADEA rights, Seda's first and onlyeffort to challenge the dismissal was the filing of the present complainton September 18, 1995.

VI. DISCUSSION

A. ADEA CLAIM

1. Filing Requirements

In deferral states (states which have enacted employment discriminationlaws), such as Puerto Rico, employees must file a charge of unlawful agediscrimination in employment with the EEOC within 300 days "after thealleged unlawful practice occurred." 29 U.S.C. § 626(d); AmericanAirlines, Inc., 133 F.3d at 122. That is, as a prerequisite to thecommencement of a civil action under the ADEA, an aggrieved employee mustfile an administrative charge with the EEOC and with the parallel stateagency designated by law in deferral states. 29 U.S.C. § 626 (d) and633(b); Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990).

It is undisputed that Seda never filed a claim with theAntidiscrimination Unit of the Department of Labor nor with the EEOC.Plaintiff argues that CPB waived its right to challenge plaintiff'sfailure to comply with the filing requirements of a charge at the EEOC byremoving the case from local court to a federal district court. Theexercise of defendant's right to remove the case to the federal districtcourt, however, is no basis to hold that defendant waived its right toraise this appropriate defense under federal law.

We also reject as inapplicable to the case the doctrines of equitableestoppel and equitable tolling.

Equitable estoppel may be invoked when an employee is aware of his ADEArights, but does not make a timely filing of a charge due to hisreasonable reliance on his employer's deceptive conduct. AmericanAirlines, 133 F.3d at 124, Mercado-Garcío v. Ponce Federal Bank,979 F.2d 890, 895 (1st Cir. 1992); Kale v. Combined Ins. Co. of America,861 F.2d 746, 752 (1st Cir. 1988). Plaintiff has failed to allege suchconduct here. Moreover, in this case, plaintiff has failed to file at anymoment a charge with the EEOC and/or with the Antidiscrimination Unit ofthe Department of Labor and Human Resources.

Equitable tolling is appropriate when the plaintiff demonstrates"excusable ignorance" of his statutory rights. American Airlines, Inc.,133 F.3d at 124; Mercado-García, 979 F.2d at 896, Kale, 861 F.2dat 752. In this case, plaintiff at least had coastructive knowledge of astatute outlawing age discrimination. Defendant posted EEOC notices atSeda's place of employment. The posting informed employees of theillegality of age discrimination and provided plaintiff constructiveknowledge of his ADEA rights. Therefore, equitable tolling cannot excuseplaintiff's failure to file a charge with the EEOC. Kale, 861 F.2d at752.

Since plaintiff did not comply with the statutory requirements forinitiating a civil action under ADEA, defendant's motion for summaryjudgment dismissing plaintiff's ADEA claim is hereby GRANTED. Castro v.United States, 775 F.2d 399, 403 (1st Cir. 1985).

Having dismissed plaintiff's ADEA claim for his failure to file acharge, we nonetheless address his claim on the merits.

2. Merits of the Claim

In relevant part, the ADEA prohibits an employer from discharging anemployee because of his age. As previously stated, in a case such as thisone, Seda bears the ultimate burden of proving that he would not havebeen terminated but for his age. Cardona Jiménez v. BancomercioPuerto Rico, 174 F.3d 36 (1st Cir. 1999); Alvarez-Fonseca v. Pepsi Colaof Puerto Rico, 152 F.3d 17, 24 (1st Cir. 1998), Serrano-Cruz v. DFIPuerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997). When the plaintiffhas direct evidence of discriminatory animus, the case must be put to thejury without further ado. Cardona Jiménez, 74 F.3d at 40;Alvarez-Fonseca, 152 F.3d at 24.

Absent direct evidence of discriminatory intent, the familiar McDonnellDouglas burden-shifting framework governs. Cardona Jiménez, 174F.3d at 40-41; Shorette, 155 F.3d at 12: Alvarez-Fonseca, 152 F.3d at24; Ruiz, 124 F.3d at 247; Serrano-Cruz, 109 F.3d at 25; Pages-Cahue, 82F.3d at 536; Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Civ.1995); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805,93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under McDonnell Douglas, Seda must present a prima facie case ofdiscrimination, that is, that he (1) was at least forty years of age; (2)met the employer's legitimate job expectations; (3) was fired; and (4)was replaced by a person with roughly equivalent job qualifications.Cardona Jiménez, 174 F.3d at 41; Shorette, 155 F.3d at 12;Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124 F.3d at 247-248; Hidalgo, 120F.3d at 332; Pages-Cahue, 82 F.3d at 536; Vega v. Kodak Caribbean, Ltd.,3 F.3d 476 (1st Civ. 1993).

Once plaintiff meets this burden, a presumption of discriminationattaches, and CPB must articulate a legitimate nondiscriminatory reasonfor his termination. Cardona Jiménez, 174 F.3d at 41; Shorette,155 F.3d at 12, Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124 F.3d at 248;Hidalgo, 120 F.3d at 334; Pages-Cahue, 82 F.3d at 536.

Once defendant articulates a legitimate non-discriminatory reason, thepresumption of discrimination vanishes and Seda must show by apreponderance of evidence both that CPB's reason was a pretext and thatthe real reason was age-based animus. Cardona Jiménez, 174 F.3d at41; Shorette, 155 F.3d at 13, Alvarez-Fonseca, 152 F.3d at 24; Ruiz, 124F.3d at 248; Hidalgo, 120 F.3d at 335; Medina-Muñoz, 896 F.2d at8. In this summary judgment context, Seda, as the nonmovant, must showevidence sufficient for a fact finder to reasonably conclude that CPB'sdecision to terminate him was driven by a discriminatory animus. Le Blancv. Great American Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993).

a. Direct Evidence of Discriminatory Animus.

Seda failed to present any facts which would amount to direct evidenceof CPB's age-based animus. In fact, Seda failed to present any affidavitsand other probative and admissible evidence setting forth a genuine issueas to any material fact. The responses to the motion for summary judgmentfiled by plaintiff are conclusory allegations, improbable inferences,speculations and conjectures that are not duly and properly supported byadmissible evidence. The nonmovant bears the burden of setting forth"specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e).

The record in this case lacks any direct evidence demonstrating thatSeda was a victim of age discrimination. Seda has failed to submit even asworn affidavit presenting facts attesting to age discrimination.Rather, he appears to rely wholly on the general conclusory allegationscontained in his complaint and in the responses to defendant's motion forsummary judgment. Such evidence cannot withstand a motion for summaryjudgment. See Fed.R.Civ.P. 56(c); see also Mesnick, 950 F.2d at 822;LeBlanc, supra, 6 F.3d at 842.

b. Indirect Evidence of Discriminatory Animus.

Absent direct evidence of discriminatory animus, our analysis isgoverned by the familiar framework enunciated in McDonnell Douglas.

(i) Prima Facie case

This court finds that Seda failed to make out a prima facie case of agediscrimination since he did not meet the second and fourth elements. Theevidence presented by defendant demonstrates that Seda's performance as amission accountant was poor. Moreover, in his previous job position, as adistribution center manager, Seda's performance created problems with theoperation and management of the distribution center. As a result, on April1994, he was demoted from distribution center manager to the missionaccountant position.

Since Seda performed his job duties as a mission accountant in a poormanner, undoubtedly he was not going to be able to perform the senioraccountant duties in a satisfactory way since the new positionconsolidated the mission accountant and the project accountantpositions. The evidence on record shows that the project accountant,Rafael Pedrosa, had a better evaluation and had knowledge of the missionaccounting responsibilities. Seda was not qualified for the position heheld, much less for the senior accountant position. Seda failed toprovide any evidence that his job performance was up to CPB's legitimatejob expectations.

The fourth requirement is not met in the present case since Seda wasnot replaced by another person. Instead, Seda's job position waseliminated as well as the project accountant position.

No person was hired or reassigned to perform plaintiffs duties.Instead, Pedrosa was assigned to perform Seda's duties in addition to hisown duties. CPB had no duty to transfer or relocate Seda to anotherposition within the organization. Pages-Cahue, 82 F.3d at 538-539;LeBlanc, 6 F.3d at 846; Holt v. Gamewell Corp., 797 F.2d 36, 38 (1stCir. 1986). Moreover, the record in this case is devoid of evidence thatdemonstrates that Seda met defendant's legitimate job performanceexpectation for the position of senior accountant, that defendant had acontinuing need for the same services and that they subsequently wereperformed by a person with the same or similar qualifications asplaintiff. See Brennan v. GTE Government Systems Corp., 150 F.3d 21, 26(1st Cir. 1998).

The mere fact that some of Seda's duties were assumed by Pedrosa inaddition to Pedrosa's other duties is insufficient to demonstrate thatSeda was replaced after his termination. Accordingly, plaintiff hasfailed to meet the fourth element of the McDonnell Douglas framework. LeBlanc v. Great American Insurance Co., 6 F.3d 836, 844 (1st Cir. 1993);Fabregas v. I.T.T. Intermedia, Inc., 13 F. Supp.2d 225 (D.P.R. 1998).

Thus, plaintiff has failed to establish a prima facie case of agediscrimination.

This court grants defendant's summary judgment dismissing Plaintiff'sADEA claim for his failure to establish a prima facie case. However, thiscourt also grants defendant's motion for summary judgment dismissingplaintiff's ADEA claim because plaintiff has failed to presentsufficient evidence from which a rational fact finder could have inferredboth that defendant's legitimate business reason for Seda's terminationwas a pretext, and that the real reason for his termination was anage-based animus.

(ii). Pretext

In this case, CPB articulated a legitimate nondiscriminatory reason forterminating Seda: the elimination of the mission accountant positionwhich plaintiff held.

The evidence shows that CPB reorganized the management and operation ofthe missions and projects located in Puerto Rico and the Caribbean. Asenior accountant position was created in the Dominican Republic servicecenter responsible for the finances of the missions and projects locatedthere. Similarly, a senior accountant position was created in Puerto Ricoto manage the finances of the missions and projects in Puerto Rico andthe rest of the Caribbean, excluding the Dominican Republic.

As a result of its reorganization and the creation of a new senioraccountant position, the mission accountant and the project accountantpositions were both eliminated. Undoubtedly, the creation of the newsenior accountant position was related to CPB's normal operations.

We find that CPB was able to articulate a legitimate nondiscriminatoryreason for Seda's discharge. See, Ruiz, 124 F.3d at 248; Hidalgo, 120F.3d at 334-335. We therefore turn to the final step of the McDonnellDouglas framework.

In pursuing this inquiry, Seda must have done more than cast doubt onthe rationale proffered by CPB. Instead, the evidence must be of suchstrength and quality as to permit a reasonable finding that theemployer's decision to terminate the employee was motivated by age.Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1117 (1st Cir.1993); Connell v. Bank of Boston, 924 F.2d 1169, 1172 n. 3 (1st Cir.1991); Le Blanc, supra, 6 F.3d at 843. We find that Seda failed toproduce evidence sufficient to meet his ultimate burden of persuasion ofdemonstrating pretext, let alone discriminatory intent. While we findthat Seda has failed to meet his ultimate evidentiary burden, we presenthis evidence in detail in our responsibility to consider the facts in thelight most favorable to him.

Plaintiff alleges that discriminatory intent existed since April 1994,when Seda was demoted. He also contends that the demotion was motivatedby a desire to use him as a "scapegoat" and to cover up the inefficientoperation of the distribution center, and his supervisor's (Negrón)negligent supervision. Plaintiff further alleges that his dismissal,twelve (12) months after his demotion, was motivated by a desire to savemoney due to his alleged high salary.

Apart from the speculative nature of these allegations, none canreasonably justify an inference of age discrimination. An employer'ssignaling an employee as responsible for the operational deficiencies ofothers is not by itself evidence of discrimination based on age. CardonaJiménez, 174 F.3d 41-42. See also Phipps v. Gary Drilling Co.,Inc., 722 F. Supp. 615 (E.D.Cal. 1989); Murre v. A.B. Dick Co.,625 F. Supp. 158 (N.D.Ill. 1985) (Age discrimination claimant cannotraise triable issue of discrimination by arguing about fairness ofemployer's evaluation of work performance, even with testimony ofco-workers or other employees of the defendant's employer); Schultz v.General Elec. Capital Corp., 37 F.3d 329 (7th Cir. 1994) (In agediscrimination action, employee failed to show that employer's profferednondiscriminatory reason for his termination, i.e., poor performance, waspretextual; employee's self-serving statements were insufficient to showthat manager lied about his belief that employee was poor performer,manager's treatment of other poor performers did not indicate agediscrimination or that proffered reason fortermination was a lie.) See also, Rodríguez-Cuevas v. Wal-MartStores, Inc., 181 F.3d 15 (1st Cir. 1999) (The questioning of theaccuracy of the evaluations or the timing of same is insufficient to showthat the legitimate proffered reason for demoting an employee wasactually a pretext for unlawful discrimination. The courts may not sit assuper personnel departments assessing the merits — or even therationality — of employers' non discriminatory businessdecisions).

Further, the mere allegation that an employer terminated an employeefor economic reasons, i.e. to save money on salary, is an insufficientbasis to infer discrimination on the basis of age. See Hazen. Paper Co.v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (Age andyears of service are analytically distinct, so that employer could takeaccount of one while ignoring the other, and decision based on years ofservice is thus not necessarily age-based; firing employee in order toprevent pension benefits from vesting does not, without more, violateADEA); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir. 1995)(Fact that employee's high salary or fast — approaching eligibilityfor retirement benefits motivated termination decision would not besufficient alone to support finding of age discrimination, as ADEAprohibits discrimination on basis of age, not on the basis of salary orseniority); Woroski v. Nashua Corp., 31 F.3d 105 (2nd Cir. 1994) (ADEAdoes not prohibit employer from acting out of concern for excessivecosts, even if they arise from age-related facts, such as fact thatemployees with long seniority command higher salary and benefits than newhire); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994)(Firing employee solely to reduce salary costs is not agediscrimination; compensation is typically correlated with age, butrelation is not perfect).

Thus, Seda's argument is speculative in its nature and consequentlymeritless. The oldest employee of an employer does not necessarily earnthe highest salary in the company. It is axiomatic that more is requiredthan mere conclusory allegations and unsupported conjecture. SeeLeBlanc, 6 F.3d at 841; Goldman, 985 F.2d at 1116. Moreover, CPBpresented uncontroverted evidence that at least four other employees hadhigher salaries than Seda. According to plaintiff's own testimony, thisfact is the only evidence he has to support his age discriminationclaim. However, that fact in itself is insufficient to support a findingor inference of age discrimination. Moreover, such evidence does notsuggest that there was an age-related reason for plaintiff'stermination.

Accordingly, plaintiff has failed to present probative evidence to showthat defendant's articulated reason for his termination, i.e. theelimination of his job position, was a pretext to cover up the realreason of age discrimination. In fact, the admissible evidence presentedby defendant demonstrates that the mission accountant and the projectaccountant positions were both eliminated, that the new senior accountantpositions were created in Puerto Rico and in the Dominican Republicrespectively; and that based on the performance evaluations, Pedrosa wasa better qualified person to occupy the senior accountant position.

Finally, the Court finds the fact that at the time of Seda'stermination, Pedrosa, who became the senior accountant, was forty six(46) years old, while Seda was forty eight (48) years old, is ofinsufficient probative value to justify an inference by a reasonablefactfinder of pretext for discriminatory age animus. O'Connor v.Consolidated Coin Caterers, 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433(1996) (age discrimination inference cannot be drawn from replacement ofone worker with another worker insignificantly younger).

The evidence adduced by plaintiff could not convince a trier of factthat defendant unlawfully discriminated on the basis of age. Thecircumstances of this case, based on the evidence of record, are notreasonably susceptible to an inference that defendant discharged Sedabecause of unlawful age discriminatory animus.

Therefore, this Court GRANTS defendant's motion for summary judgmentand hereby DISMISSES plaintiff's ADEA claim.

B. Puerto Rico Law No. 100

The Court, in the exercise of its discretion, has retained supplementaljurisdiction over the pendent state law claims.

Law No. 100 is the Puerto Rico equivalent of the federal ADEA.4 Itprovides a cause of action in favor of those persons who sufferdiscrimination in their employment, among others, because of their age.Similar in several respect, the two statutes differ somewhat with regardto the burden of proof that they impose upon the parties.

With regard to Law No. 100 claims and the accompanying burden —shifting standard thereunder, this Court is guided by the Supreme Courtof Puerto Rico cases such as Narvaez v. Chase Manhattan Bank, 120P.R.Dec. 731 (1988); Báez Garcia v. Cooper Lab., 120 P.R.Dec.145, 1987 WL 448243 (1987); Ibánez Benitez v. Molinos de PuertoRico, Inc., 114 P.R. Dec. 42, 1983 WL 204221 (1983), and theinterpretations thereof by the federal courts, such as Alcarez-Fonsecav. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27-9 (1st Cir. 1998);Menzel 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);Maldonado-Maldonado v. Pantasia Mfg. Corp., 983 F. Supp. 58, 65-66(D.P.R. 1997).

Much like a Title VII action, under Law No. 100 the employee bears theinitial burden of presenting sufficient, probative evidence that he wasdischarged without "just cause," this entails showing (a) that he wasactively or constructively discharged and (b) the discharge was without"just cause". Landrau Romero v. Caribbean Restaurants, Inc.,14 F. Supp.2d 185, 193 (D.P.R. 1998) (citing Dominguez v. Eli Lilly andCo., 958 F. Supp. 721, 743 (D.P.R. 1997); Borrero-Rentero v. Western AutoSupply 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)). Provided theplaintiff proffers sufficient evidence to sustain a prima facie case, arebuttable presumption of discrimination is established; 5 see also,Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d at 27.

The most important difference between Law No. 100 and the ADEA is thatwhen the Law No. 100 presumption has been triggered, it shifts not onlythe burden of production, but also the burden of persuasion, from theemployee to the employer. See Ibáñez Benitez v. Molinos dePuerto Rico, Inc., 114 P.R. Dec. 42, 52, 1983 WL 204221 (1983). Thus, inorder to rebut the Law No. 100 presumption, the employer must prove, by apreponderance of the evidence, that the challenged action was notmotivated by discriminatory age animus. Id. at 53, 1983 WL 204221.

As noted above, the Law No. 100 presumption of discrimination istriggered only when the employee shows that the employer lacked "justcause" to discharge or take other adverse action with regard to theemployee. In Báez Garcia v. Cooper Lab, Inc., 120 P.R. Dec. 145,155, 1987 WL 448243 (1987), the Supreme Court of the Commonwealth ofPuerto Rico has determined that, because Law No. 100 did not define theterm "just cause," the term's definition would be sought in an analogousstatute — Law No. 80. Law No. 80 defines a dismissal without justcause as "[a] discharge made by mere whim or fancy of the employer orwithout cause related to the proper and normal operation of theestablishment." 29 L.P.R.A. § 185b.

Law No. 80 further provides an illustrative list of reasons that aredeemed to constitute "just cause" for a dismissal. With regard to acts oromissions imputable to the employee, the reasons include the employee'simproper or disorderly conduct; negligent attitude towards his work orpoor performance; violations of the employer's rules and regulations, 29L.P.R.A. § 185b(a), (b) and (c).

With regard to circumstances not directly attributable to theemployee, Law No. 80 considers as just cause for discharge the full,temporary or partial closing of the operations of the establishment;technological or reorganization changes as well as changes of style,design or the nature of the product made or handled by theestablishment; and reductions in employment made necessary by a reductionin the anticipated or prevailing volume of production, sales or profitsat the time of the discharge. 29 L.P.R.A. § 185b(d), (e) and (f). LawNo. 80 further provides that in cases of discharges or lay-offs undersubsections (d)(e) and (D, the employer should follow seniority (meaningseniority with the employer) within the occupational classificationsubject to the lay-off. However, if there is a clear and conclusivedifference in favor of the efficiency or capacity of the workerscompared, these efficiency or capacity factors shall prevail in thedecision. 29 L.P.R.A. § 185c.

Applying the preceding rules, once the plaintiff has proven that he wasdischarged for unjust reasons, the burden of proof would shift to theemployer to show that the discharge was based on nondiscriminatoryreasons.

Conversely, if the employer proves that the discharge was justified,then the Law No. 100 presumption is not activated. Consequently, theburden of proof on the ultimate issue of discrimination remains with theplaintiff, as in any other civil case. The plaintiff must prove that, evenif the dismissal was justified the defendant nevertheless violated LawNo. 100, because the dismissal was motivated by discriminatory animusinstead of or in addition to the legitimate reasons for dismissal. TheLaw No. 100 plaintiff is then in same situation as an ADEA plaintiffafter the defendant has articulated a legitimate, nondiscriminatoryreason for its actions. Cardona Jiménez, 174 F.3d at 42-43;Alvarez-;Fonseca, 152 F.3d at 27-28.

As we have discussed above with regard to the ADEA claim, CPB was ableto meet it's burden under Law No. 80 by proving that Seda's discharge wasjustified. The evidence is clear. The reorganization of the financedepartments in the Puerto Rico and the Dominican Republic offices, theconsequent elimination of the mission and project accountant positions,the creation of the senior accountant position, and Seda's poorperformance as a mission accountant, were all reasons for Seda'stermination. Undoubtedly, any one of these reasons constitutes just causeunder Law No. 80.

Moreover, the elimination of the mission accountant position due to thecreation of a new senior accountant position was a legitimate businessdecision related to the proper and efficient operation of defendant'sactivities. This is also related to the normal functioning of defendant'soperations.

Given this evidence, no reasonable jury could find that CPB did nothave just cause to dismiss Seda, regardless of the allocation of theburden of persuasion. Also, as we have discussed above with regard to hisADEA claim, no reasonable jury could find that Seda carried his burden ofproof on the ultimate issue of discrimination.

Seda's own admissions demonstrate that the only basis for hisallegation of age discrimination is the fact that he was the oldestemployee working for CPB and therefore was earning the highest salary.The uncontroverted facts demonstrate that Seda's allegation isunfounded. However, even if the allegation is correct, it is insufficientto support an inference of age discrimination.

Therefore, defendant's motion for summary judgment dismissingplaintiffs Law No. 100 claim is hereby GRANTED.

C. Law No. 80

As discussed above with respect to plaintiff's Law No. 80 claim,defendant proved that plaintiff's discharge was with just cause.Plaintiff was dismissed as a result of the elimination of his position asmission accountant. This would appear to constitute just cause under LawNo. 80. Even if we assume that the occupational classification inquestion should be read more broadly and include all "accountants,"Pedrosa's uncontroverted superior performance justified his retentionover Seda. 29 L.P.R.A. § 185c.

An additional basis exists to dismiss Seda's Law No. 80 claim.

Law No. 80 provides an employee who has been terminated without justcause with the exclusive remedy of a discharge indemnity payment,calculated on the basis of the employee's salary and years of service. Atthe time of Seda's discharge, Law No. 80 provided that the indemnitypayment for a wrongful discharge would be equivalent to one month's pay,plus an additional progressive indemnity equivalent to one week's pay foreach complete year of service. In Seda's case, the Law No. 80 paymentwould have amounted to $13,445.81.6

The uncontroverted evidence presented by defendant shows that plaintiffaccepted a voluntary termination payment of $17,560.12, an amount inexcess of what he would have been entitled to under Law No. 80. ThisCourt has previously held that a wrongful discharge claim under Law No.80 must be dismissed when an employer pays an employee a termination payequal or greater than the Law No. 80 indemnity. See Hopgood v. MerrillLynch, Pierce, Fenner & Smith, 839 F. Supp. 98, 110 (D.P.R. 1993).7

Accordingly, defendant's motion for summary judgment dismissingplaintiff's Law No. 80 claim is GRANTED.

IV. CONCLUSION

In view of the above, defendant's motion for summary judgment (docketNo. 29) is hereby GRANTED as to all of plaintiff's claims.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

1. See also defendant's reply to plaintiff's opposition (docket No.31) and plaintiff's surreply thereto (docket No. 32).

2. Contrary to the allegations made in plaintiff's opposition to thedefendant's motion for summary judgment and his surreply, plaintiffspecifically stated in his deposition that he did not consider that thisdemotion was motivated by his age. See Statement, lines 20-24 at page 71of Seda's deposition. Moreover, Section II-A of plaintiff's legaltheories in the Joint Initial Scheduling Memorandum (docket No. 14) lacksany assertion that the demotion was based on age discrimination animus.These admissions are fatal to plaintiff's attorney's advocacy in opposingthe summary judgment motion. At any rate, any claim that the April, 1994demotion was based on age discrimination reasons would be clearlytime-barred.

3. In fact. Seda had received a very poor performance evaluation asmission accountant. On a scale of 1 through 4, 4 being the lowest scoreand indicating a very poor performance, Seda had obtained an overallperformance rating of 3.5. while Pedrosa's overall appraisal was 2.5.Indeed, as mission accountant. Seda never received a merit salaryincrease.

4. Law No. 100, in pertinent part, provides:

Any employer who discharges, lays off OF discriminates against an employee regarding his salary, wage, pay or remuneration, terms, rank, conditions or privileges of his work, or who fails or refuses to hire or rehire a person, or who limits or classifies his employment opportunities, or to affect his status as employee, on the basis of . . . age . . . shall incur civil liability . . . and [] he shall also he guilty of a misdemeanor.

29 L.P.R.A. § 146.

5. Law No. 100 provides that "[A]ny of the acts mentioned in thepreceding sections shall be presumed to have been committed in violationof sections 146-151 of this title, whenever the same shall have beenperformed without good cause. This presumption shall be of acontrovertible character." 29 L.P.R.A. § 148. The acts referred toinclude dismissals, lay-offs and other disparate treatment regardingterms, rank or conditions of employment.

6. This is determined as follows:

$3,568.00 x 12 months = $42,816.00$42.816.00 ÷ 52 weeks =$823.38 weekly pay$823.38 x 4.33 = $3,565.25 ("mesada" — one month pay under Law No. 80)$823.38 x 12 weeks = $9,880.56 ("progressive" indemnity under Law No. 80) $3,565.25 + $9,880.56 $13,445.81 Law No. 80 payment

7. See also, Selgas v. American Airlines, Inc., 852 F. Supp. 316, 326(D.P.R.1994) and Loubrido v, Hull Dobbs Co. of Puerto Rico, Inc.,526 F. Supp. 1055, 1061 (D,P.R. 1981), which held that Law No. 80 paymentis not due when a remedy granted in damages or back-pay is greater thanthe Law No. 80 indemnity.

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