VARGAS v. PUERTO RICAN-AMERICAN INS. CO.

No. Civ.A 98-1204(HL)

52 F. Supp.2d 305 (1999) | Cited 0 times | D. Puerto Rico | June 16, 1999

OPINION AND ORDER

Before the Court is a motion for summary judgment by DefendantPuerto Rican-American Insurance Company ("PRAICO"). PRAICO is aPuerto Rico corporation engaged in the insurance business.Plaintiff Luis Ferreira Vargas ("Ferreira") was a PRAICO employeefrom 1963 until he resigned in 1998. He claims that he was thevictim of age discrimination, and he seeks damages under the AgeDiscrimination in Employment Act of 1967 ("ADEA")1 and PuertoRico Law 100.2 He also claims damages under Article 1802 ofthe Puerto Rico Civil Code3 for an alleged defamation.

The Court reviews the record in the light most favorable toFerreira and draws all reasonable inferences in his favor. SeeLeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). Ferreira began working for PRAICO in 1963.4 Over theyears, his evaluations and reviews have been generallyexcellent.5 In 1996, he was a deputy manager in the company'sclaims department.6 His supervisor was Francisco Arroyo.Francisco Ramos and Patricia Pérez also worked under Arroyo.Ramos was a supervisor in the injuries and public liabilitydepartment; Pérez was a supervisor in the legal department.7Ferreira claims that he had many more years experiencein the insurance business than either Ramos or Pérez.

Arroyo and Ramos had an amiable working relationship. Theirfriendship dated back to a time before both men worked at PRAICO.They had previously worked together at another company for fiveyears. Ramos ran errands to take care of Arroyo's personalmatters, including going to the bank. According to Ferreira,Ramos treated Arroyo obsequiously.8 Pérez was also on goodterms with Arroyo. She joked around with him often, and he oncemade a piece of furniture for her as a gift. He entrusted herwith many chores which required knowledge of English. There wasan affinity between the two of them, and she spent a great dealof time visiting him in his office. They often went to lunchtogether.9 Arroyo discussed personal matters with Ramos andPérez that he did not discuss with Ferreira.10

In November 1996, Arroyo promoted both Ramos and Pérez. Ramoswas a supervisor in the injuries and public liability department;Arroyo named him manager of the same department. Pérez was asupervisor in the legal department; Arroyo named her manager ofher department as well. Arroyo created the position of managerfor each of them. Their job duties were essentially the same aswhen they were supervisors, although they did receive raises andbetter company cars than the ones they had previously beengiven.11 Ferreira, who was only a deputy manager, had a greatdeal more experience than either Ramos or Pérez, and in yearspast he had held both of the positions to which each of them werepromoted.12 When Ramos and Pérez were promoted, they wereboth at least twenty years younger than Ferreira, who was 66 atthe time.

Ferreira told Arroyo that he too would like to be named amanager.13 Ferreira wrote Arroyo a letter complaining thatRamos and Pérez had been promoted over him; stating that he hadmore experience than they did; claiming that their promotionsconstituted an injustice to him which violated his rights andcaused him humiliation; and requesting that he too bepromoted.14 Arroyo did not respond to this request. Ferreirathen took his grievance to another forum: on November 22, 1996,he filed an administrative complaint with Puerto Rico'sAnti-Discrimination Unit ("ADU"), alleging that the promotions ofRamos and Pérez over him constituted age discrimination.15In June 1997, PRAICO was notified that a hearing would be held onFerreira's complaint in September 1997.16

Around the time that the hearing was scheduled to take place,Ferreira was involved in two incidents which he claims weremeasures directed at him in retaliation for his ADU claim. In thefirst, on August 26, 1997, Ileana Vallecillo, a PRAICO employee,complained to Maritza Rivera, PRAICO's human resources director,that while she was waiting for the elevator to go up to theoffice, Ferreira approached her, kissed her on the cheek close toher mouth, and whispered in her ear, "You are beautiful today."In a handwritten memorandum, Vallecillo complained that for yearsFerreira had been harassing her with comments that she found tobe unpleasant such as "You are the prettiest woman in PRAICO" or"You are more beautiful today than ever."17 Two dayslater she sent Rivera another memorandum complaining thatFerreira had made additional remarks to her that "You areirresistible today" and "You are beautiful." She complained thatthese comments bothered her and that her relationship withFerreira was not sufficiently close to warrant them.18Vallecillo was unaware that Ferreira had filed an agediscrimination claim against PRAICO.19

Rivera called Ferreira into her office to discuss the matter.She was upset, and told him that there had been complaintsbecause he was greeting female co-workers with a kiss on thecheek. Ferreira acknowledged that he had that custom withco-workers who had been with the company a long time and withwhom he had a friendly relationship, but that he considered it tobe a sign of respect or chivalry.20 Rivera conducted aninvestigation and on November 3, 1997, she sent a confidentialmemorandum to Ferreira on the incident. She concluded thatFerreira had "apparently inadvertently, caused a hostileenvironment, which is considered as one of the aspects of sexualharassment." She requested that he immediately cease this conductand that he take no reprisals against the persons who hadcomplained about his conduct. In the memorandum she also warnedhim that any violation by him of the company's sexual harassmentpolicy could result in other disciplinary measures, including hisdismissal.21 Rivera also sent a memorandum to Vallecilloinforming her of the conclusions of her investigation.22 Theinvestigation and its outcome were maintained confidential.23

The second incident involved Ferreira's alleged offering ofmedical assistance at PRAICO. In her sworn statement, Riveraalleges that in August 1997, a PRAICO employee had reported tothe infirmary complaining of abdominal pains and that Ferreirawanted to examine her.24 She sent him a memorandum datedOctober 1, 1997, requesting that he immediately stop his practiceof offering medical assistance, medical advice, or physicalexaminations to his co-workers.25 Ferreira denies that he didphysical examinations and that he would only take a person'svital signs.26 He has not received any formal medicaltraining.27 He responded to Rivera with a memorandum in whichhe replied that he had given first-aid to co-workers whenpersonnel from the human resources department had asked him to doso.28 In a memorandum dated October 21, 1997, Riveraclarified that she was requesting that he stop any practice ofoffering physical examinations or medical advice or assistance.She was not referring to his offer of providing first-aidassistance.29

In January 1998, Ferreira submitted his letter of resignation.In it he stated that the promotions of Ramos and Pérez over himcreated an intolerable work environment. He also complained thathe had been the subject of investigations within the companywhich created a hostile work environment.30 One month later,Ferreira filed this complaint. In it he alleges that he was thevictim of age discrimination when Ramos and Pérez were promotedinstead of him; that the incidents regarding the sexualharassment investigation and his alleged offer of medicalserviceswere retaliatory measures taken against him in response to hisADU claim; that together all of this made his work environmentintolerable, that he was forced to resign, and that he was thusconstructively discharged; and that he was defamed when Riveraprovided Vallecillo with her memorandum concluding that he hadcommitted sexual harassment. In its motion for summary judgment,PRAICO contests all of these allegations. Ferreira has opposedthe motion. For the reasons set forth below, the Court grantsPRAICO's motion.

DISCUSSION

Summary judgment is appropriate if "there is no genuine issueas to any material fact and . . . the moving party is entitled toa judgment as a matter of law." See Fed.R.Civ.P. 56(c). Theparty moving for summary judgment bears the initialresponsibility of demonstrating the absence of a genuine issue ofmaterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving partyhas satisfied this requirement, the nonmoving party has theburden of presenting any facts that demonstrate a genuine issuefor trial. Fed.R.Civ.P. 56(e); LeBlanc, 6 F.3d at 841. Thenonmovant must do more than show "some metaphysical doubt as tothe material facts." Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d538 (1986). An issue is genuine when, based on the evidence, areasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of ascintilla of evidence in support of the plaintiff's position willbe insufficient; there must be evidence on which the jury couldreasonably find for the plaintiff." Id. at 252, 106 S.Ct. at2512.

1. Claim for the failure to promote

The ADEA makes it unlawful for an employer to take an adverseemployment action against an employee because of his age.29 U.S.C.A. § 623(a)(1); Alvarez-Fonseca v. Pepsi Cola of PuertoRico, 152 F.3d 17, 24 (1st Cir. 1998); Serrano-Cruz v. DFIPuerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997). An employermay take an adverse action for any reason — fair or unfair — solong as the action is not motivated by an age-baseddiscriminatory animus. Hidalgo v. Overseas Condado Ins.Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997). At all timesthe plaintiff has the burden of proving that his employerdiscriminated against him because of his age. Shorette v. RiteAid of Maine, Inc., 155 F.3d 8, 12 (1st Cir. 1998); Hidalgo,120 F.3d at 332. To survive a motion for summary judgment, anADEA plaintiff must either adduce direct evidence ofdiscrimination or present circumstantial or indirect evidence tomake out a prima facie case of discrimination under theburden-shifting standard of McDonnell Douglas Corp. v. Green,411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668(1973). See Bramble v. Amer. Postal Workers Union, 135 F.3d 21,24 (1st Cir. 1998).

In the present case, there is no direct evidence ofdiscrimination, and both parties invoke the McDonnell Douglasframework in their briefs. Under this well-established standard,a plaintiff must first make out a prima facie case of agediscrimination. Id. PRAICO concedes that, for purposes of thefailure to promote claim, Ferreira has established a prima faciecase. Once a prima facie case has been established, a presumptionarises that the employer was motivated by a discriminatoryanimus. Shorette, 155 F.3d at 12. The burden then shifts to thedefendant to produce evidence showing a legitimate,nondiscriminatory reason for terminating the plaintiff. Ramos v.Davis & Geck, Inc., 167 F.3d 727, 734 (1st Cir. 1999);Hidalgo, 120 F.3d at 334. This is a burden of production, notof persuasion; the plaintiff always has the task of provingdiscrimination. Dichner v. Liberty Travel,141 F.3d 24, 30 (1st Cir. 1998). The burden is a relatively lightone. Barbour v. Dynamics Research Corp., 63 F.3d 32, 38 (1stCir. 1995). The employer need only produce competent evidencewhich, taken as true, would enable the factfinder to concludethat there was a nondiscriminatory reason for the plaintiff'stermination. Ruiz v. Posadas de San Juan Assoc., 124 F.3d 243,248 (1st Cir. 1997).

In the present case, PRAICO attempts to meet its burden with anaffidavit by Rivera in which she states that Arroyo told her thatRamos and Pérez were named managers because they had experiencesupervising other employees. Ferreira objects to this statementon the grounds that it is inadmissible as hearsay and it is notbased on Rivera's personal knowledge. The Court need not passjudgment on the admissibility of Rivera's statement because thereis other evidence in the record which allows PRAICO to meet itsburden. Ferreira himself testified that Arroyo had been friendsfor years with Ramos; that he trusted Pérez to do work for himthat required a knowledge of the English language; and thatArroyo had a rapport and good personal relations with both Ramosand Pérez.31 This testimony is evidence of a legitimatenondiscriminatory reason for the promotions of Ramos and Pérez.The fact that Arroyo promoted them because of his personalrelations with them may not be fair or even a wise businessdecision, but it is a reason that is nondiscriminatory. At thisstage, that is all that PRAICO need produce to meet its burden.

Once an employer meets this burden, the presumption ofdiscrimination generated by the prima facie case disappears.Davis & Geck, 167 F.3d at 734; Ruiz, 124 F.3d at 248. It isinsufficient for a plaintiff to merely undermine the veracity ofthe reason proffered by the employer. Dichner, 141 F.3d at 30.The plaintiff must adduce evidence to show that the employer'sproffered reason is a pretext and that the employer was inreality motivated by age-based discrimination. Mullin v.Raytheon Co., 164 F.3d 696, 699 (1st Cir. 1999); Ruiz, 124F.3d at 248; Hidalgo, 120 F.3d at 335, 337. The evidence as awhole must allow a reasonable factfinder to infer that theemployer's decision was motivated by a discriminatory animus.Ruiz, 124 F.3d at 248.

In the case before the Court, Ferreira testified that he wasvastly more experienced than either Ramos or Pérez and thattherefore he should have been promoted instead of them.32 Itmay be that Ferreira was in fact more qualified to be namedmanager. An employer, however, is free to select less qualifiedcandidates. Courtney v. Biosound, Inc., 42 F.3d 414, 423 (7thCir. 1994); Brown v. Trustees of Boston University,891 F.2d 337, 346 (1st Cir. 1989); Mandavilli v. Maldonado, 38 F. Supp.2d 180,195 (D.P.R. 1999). Absent clear evidence of irrationality,courts should be slow to second guess management decisions onsuch issues. Lehman v. Prudential Ins. Co. of America,74 F.3d 323, 329 (1st Cir. 1996). Judges should not act as superpersonnel departments to assess the merits or rationality of anemployer's nondiscriminatory decision. Ruiz, 124 F.3d at 250;Hidalgo, 120 F.3d at 337. Even though Ferreira may be eminentlymore qualified than Ramos and Pérez, that fact by itself isinsufficient to create a genuine issue as to whether PRAICO'sproffered reason was a pretext.

More fatal to Ferreira's claim is his lack of evidence of anydiscriminatory animus on PRAICO's part. To establish this animus,Ferreira in a sworn declaration states that "The reason why Ms.Patricia Pérez and Mr. Francisco Ramos were promoted over me wasbecause of my age." He also states that Arroyo's favoritismtowards Ramos and Pérez "was motivated,at least in part, on the fact that they were younger thanme."33 In his ADU claim he alleged that he had "been thevictim of a pattern of discriminatory conduct by reason of age"in the workplace. He further alleged that he was discriminatedagainst by not being promoted when Ramos and Pérez werepromoted.34 An affidavit used to oppose a motion for summaryjudgment must set forth facts that would be admissible inevidence. Fed.R.Civ.P. 56(e); Casas Office Machines v. MitaCopystar America, 42 F.3d 668, 681 (1st Cir. 1994). Theaffidavit must be made on personal knowledge and must show thatthe affiant is competent to testify as to the matters averred.Fed.R.Civ.P. 56(e); Casas, 42 F.3d at 682; Murphy v. FordMotor Co., 170 F.R.D. 82, 84-85 (D.Mass. 1997). Generally, acourt may not accept a nonmovant's statements regarding themovant's thoughts. Simas v. First Citizens' Federal CreditUnion, 170 F.3d 37, 50-51 (1st Cir. 1999). Nor may the courtaccept the nonmovant's conclusory allegations regardingdiscriminatory intent. Santiago v. Canon U.S.A., Inc.,138 F.3d 1, 6 (1st Cir. 1998). A plaintiffs subjective perception is notevidence of an employer's discriminatory intent. Pilgrim v.Trustees of Tufts College, 118 F.3d 864, 871 (1st Cir. 1997);Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430(5th Cir. 1996) (en banc) ("It is more than well-settled that anemployee's subjective belief that he suffered an adverseemployment action as a result of discrimination, without more, isnot enough to survive a summary judgment motion, in the face ofproof showing an adequate nondiscriminatory reason."). Anemployee's affidavit regarding the motive or intent of anemployer must contain a foundation to indicate the basis of theaffiant's information. Connell v. Bank of Boston,924 F.2d 1169, 1177-78 (1st Cir. 1991); see also Ruiz, 124 F.3d at249-50 (Plaintiff failed to provide an evidentiary foundationupon which it could reasonably be inferred that the employer'sactions were discriminatory or age-based). Even in cases wherethe elusive concept of intent is at issue, summary judgment maybe appropriate if the nonmovant rests only upon conclusoryallegations and unsupported speculation. Hodgens v. GeneralDynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998).

In the case before the Court, Ferreira in his sworn declarationand ADU complaint avers that Ramos and Pérez were promoted overhim because of his age and that Arroyo favored these two becausethey were younger than Ferreira. Nowhere does Ferreira explain,however, what is his basis or foundation for these conclusorystatements. Arroyo's motive or alleged discriminatory bias wasnot something of which Ferreira normally would have had personalknowledge. There is no evidentiary foundation to indicate how heknew what exactly were Arroyo's reasons for deciding to promoteRamos and Pérez and for favoring these two over Ferreira.Without a proper foundation, Ferreira's own subjective perceptionof Arroyo's motive is not evidence of discrimination. SeeFed.R.Civ.P. 56(e); Simas, 170 F.3d at 50-51; Santiago, 138F.3d at 6; Pilgrim, 118 F.3d at 871. In his ADU complaint healso alleged that he had been the victim of a pattern of agediscrimination. The only example of age discrimination to whichhe cites in his ADU claim is the promotions of Ramos and Pérez.It may have been unfair to promote these two employees whenFerreira had substantially more experience than them. PRAICO,however, is free to make this decision provided it was notmotivated by an age-based discriminatory animus. See Hidalgo,120 F.3d at 337. The Court is not a super personnel departmentwhich may assess the merits of the decision to promote these twoemployees. See Ruiz, 124 F.3d at 250; Hidalgo, 120 F.3d at337. Absent any other evidence of a discriminatory animus, themere fact that Ramos and Pérez may havereceived undeserved promotions is insufficient to establish apattern of age discrimination. Ferreira has thus failed to adducecompetent evidence to show that Arroyo or PRAICO failed topromote him because of his age. Because he has failed to adduceevidence to create a genuine issue as to whether PRAICO'sproffered reason was a pretext and to whether the real reason wasage-based discrimination, Ferreira's claim regarding the failureto promote him must be dismissed.

2. Retaliation claim

Ferreira also claims that he was the victim of illegalretaliation. Specifically, he alleges that the memoranda fromRivera ordering him to stop practicing medicine at work and theinvestigation of Vallecillo's complaint that Ferreira wassexually harassing her were reprisals taken against him for hishaving filed a claim with the ADU. When, in a claim ofretaliation, there is no direct evidence of an improper motive,the record should be analyzed with the McDonnell Douglasburden-shifting test. McMillan v. Mass. Soc'y for the Preventionof Cruelty to Animals, 140 F.3d 288, 309 (1st Cir. 1998). Tomake out a prima facie retaliation claim, a plaintiff must showthat he engaged in protected conduct, that he was subject to anadverse employment action, and that there was a causal connectionbetween the adverse action and his protected conduct. Id.;Champagne v. Servistar Corp., 138 F.3d 7, 12 n. 5 (1st Cir.1998). Once the plaintiff meets his burden at this stage, theemployer has the burden of production to articulate a legitimate,non-retaliatory reason for the employment action. Provencher v.CVS Pharmacy, 145 F.3d 5, 10 (1st Cir. 1998); McMillan, 140F.3d at 309. The burden then shifts back to the plaintiff whomust show by a preponderance of the evidence that the profferedreason is merely a pretext and that the real reason was theemployer's retaliatory animus. McMillan, 140 F.3d at 309;Champagne, 138 F.3d at 12-13.

In the present case, Ferreira's filing of a claim with the ADUis a protected activity. See 29 U.S.C.A. § 623(d). He claimsthat the adverse employment actions to which lie was subjectedwere the memoranda regarding his alleged practice of medicine andthe investigation of the sexual harassment claim. Thedetermination of whether an employer's conduct constitutes anadverse employment action is an objective one. The mere fact thatthe employee may be displeased by his employer's act will notelevate the act to an adverse employment action. Simas, 170F.3d at 49-50;35 Blackie v. State of Maine, 75 F.3d 716,725 (1st Cir. 1996). For an act to be an adverse employmentaction, the employer must have either (1) taken something ofconsequence from the employee by, for example, demoting him,reducing his salary, or divesting him of significant duties, or(2) withheld an accouterment of the employment relationship.Blackie, 75 F.3d at 725. Not every unpleasant matter willcreate a cause of action; a case-by-case review is necessary.Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994).

In the present case, the investigation of Vallecillo'scomplaint regarding Ferreira's conduct culminated in a memorandumto him from the director of the human resources department inwhich she concluded that he had inadvertently created a hostileenvironment, requested that he immediately stop this behavior,and warned him that he could be fired if he engaged in suchconduct again. The conclusion that he had committed sexualharassment and the warning that he could be fired if he did notchange his conduct was a sufficiently severe disciplinary measureto constitute an adverse employment action.

The incident regarding Ferreira's alleged practice of medicineon the job is less clear. In her memoranda, Rivera merelyrequested that Ferreira not engage in any conduct that could beconsidered giving medical advice, offering physical examinations,or providing prescription medicines. She clarified that Ferreirawould be allowed to offer first aid assistance, provided he wascertified to do so.36 It does not appear that Rivera deprivedFerreira of anything of consequence. He was asked to stopperforming certain acts, but it is undisputed that Ferreira wasnot authorized to practice medicine. Thus, it cannot be said thathe was relieved of any legitimate work-related duties. In hercommunications with Ferreira over this issue, Rivera did notthreaten or discipline him. It is unclear what adverseconsequences he may have suffered as a result of this matter.However, because a plaintiff's burden of establishing a primafacie case is not onerous, Simas, 170 F.3d at 44, the Courtwill assume dubitante that Rivera's memoranda to Ferreirainstructing him not to engage in the practice of medicineconstituted an adverse employment action. For the same reason,the Court will also assume that the fact that the sexualharassment and practice of medicine controversies occurred aroundthe same time as Ferreira's hearing before the ADU is sufficientto establish a causal connection between the protected conductand the adverse action.

Once a plaintiff establishes a prima facie retaliation claim,the employer has the burden of producing a nondiscriminatorymotive for its actions. Simas, 170 F.3d at 44; Provencher,145 F.3d at 10. PRAICO easily meets its burden at this stage.There is evidence that in August 1997 Ferreira wanted to performan examination of a co-worker who felt ill and that he once gaveRivera medicine for her mother which required aprescription.37 There is also evidence that Vallecillocomplained to Rivera because Ferreira kissed her near the mouthand because he often made remarks to her about her appearancewhich made her feel uncomfortable.38 This evidence allowsPRAICO to meet its burden of producing legitimatenondiscriminatory reasons for its actions.

Once an employer meets its burden of production, the plaintiffhas the burden of showing that the employer's proffered reasonwas merely a pretext and that the real reason was a retaliatoryanimus. Simas, 170 F.3d at 44; McMillan, 140 F.3d at 309.Ferreira makes much of the temporal proximity between his ADUhearing and the sexual harassment and medical practice incidents.His ADU hearing was scheduled for September 1997. Vallecillocomplained about Ferreira's alleged sexual harassment at the endof August 1997; Rivera then conducted an investigation and sentFerreira a memorandum informing him of her conclusions inNovember. Rivera sent her memoranda asking Ferreira not topractice medicine in October. Close temporal proximity betweenprotected conduct and an adverse employment action may give riseto a permissible inference of retaliation. Hodgens, 144 F.3d at168. Such evidence, however, is not conclusive. Id. at 170. Acourt should consider the actions taken against the employeewithin the overall context and sequence of events. Champagne,138 F.3d at 13; Soileau v. Guilford of Maine, Inc.,105 F.3d 12, 16-17 (1st Cir. 1997). Other factors that a court shouldexamine include the historical background of the decision, anydepartures from normal procedure, and contemporary statements bythe employer'sdecision makers. Hodgens, 144 F.3d at 168-69.

In the present case it is undisputed that Vallecillo complainedabout the way that Ferreira was treating her. He has adduced noevidence that would indicate that she was making up her concerns.In fact, Ferreira himself has adduced evidence which indicatesnot only that Vallecillo indeed felt uncomfortable by Ferreira'sconduct but also that she had no idea that Ferreira had filed anADU complaint accusing PRAICO of age discrimination.39 Thereis nothing to indicate that Vallecillo's sexual harassmentcomplaint itself was a sham or pretext. Ferreira appears to arguethat PRAICO reacted too harshly to Vallecillo's complaint. In themodern workplace, it is a foolhardy employer who does not affordan employee's complaints of sexual harassment total gravity andwho does not respond to them immediately with all availableresources. The Supreme Court has recently held that an employermay be liable for negligently causing sexual harassment if itknew or should have known about harassing conduct but failed tostop it. See Burlington Industries, Inc. v. Ellerth,524 U.S. 742, ___, 118 S.Ct. 2257, 2267, 141 L.Ed.2d 633 (1998). Theemployer has an affirmative duty to prevent sexual harassment andto make reasonable efforts to comply with this duty. Faragher v.City of Boca Raton, 524 U.S. 775, ___, 118 S.Ct. 2275, 2292, 141L.Ed.2d 662 (1998). Also, an employer has an affirmative defenseto vicarious liability for sexual harassment if the employerexercised reasonable care to prevent and promptly correctsexually harassing behavior and the complaining employee failedto reasonably take advantage of any corrective opportunitiesprovided by the employer. Id. at ___, 118 S.Ct. at 2293.

In the present case, the evidence as a whole indicates thatPRAICO made reasonable efforts to investigate and to promptlycomply with its duty to correct the situation of which Vallecillocomplained. Rivera interviewed all parties concerned and notifiedthese parties through confidential memoranda of the results ofher investigation. The fact that Ferreira may have found theoutcome to be unpleasant did not affect PRAICO's duty to take theactions that it did. For PRAICO to do nothing or to not reactvigorously to Vallecillo's complaint could expose it to furtherliability. The record as a whole indicates that PRAICO waspresented with an employee who sincerely felt uncomfortable byFerreira's conduct; that PRAICO promptly investigated the manner;that PRAICO concluded that Ferreira had inadvertently created ahostile work environment; and that PRAICO informed Ferreira ofits conclusion and warned him to stop. The proceedings were keptconfidential. It appears that PRAICO complied with its duty torespond to Vallecillo's complaint.

Ferreira argues that greeting with a kiss or complimenting aco-worker on her appearance does not rise to the level of sexualharassment, as defined by PRAICO's own policy on the subject.This argument is unavailing. Sexual harassment is defined not bya company's own policy or employee manual, but by statute andcase law. Additionally, PRAICO's policy forbids creating ahostile work environment and does specify that all personnelshould avoid comments or excessive familiarity which could resultin misunderstandings.40 Thus, Ferreira's comments and conductarguably fall within the type of behavior prohibited by PRAICO'spolicy. At any rate, the question of whether Ferreira actuallyviolated PRAICO's policy on sexual harassment is too far afieldof the controversy before the Court: whether the sexualharassment incident constituted retaliation by PRAICO againstFerreira. There is no evidence that Vallecillo's complaint orRivera's investigation of it was a sham intended to hide anulterior retaliatorymotive. This incident did arise around the same time that ahearing on Ferreira's ADU complaint was scheduled. However, thereis no evidence that Vallecillo was making up her complaint. Asexual harassment complaint is a serious matter, and an employershould react to it as soon as possible. Here it appears thatPRAICO did so. Other than temporal proximity between the ADUhearing and Vallecillo's complaint, there is no evidence tosupport a claim of retaliation.

With regard to the medical practice incident, there is also alack of evidence that this was a sham or otherwise tinged bymendacity. It is undisputed that Ferreira offered at least firstaid services to his co-workers. In her memoranda on this subject,Rivera only told him that he should limit his services to firstaid and that he should not engage in any conduct that might bethe practice of medicine. Other than the timing of this incident,there is nothing to indicate that PRAICO sent Ferreira thesememoranda as a means of retaliating against him for his ADUclaim. Thus, because Ferreira has failed to adduce evidence todemonstrate that PRAICO's proffered reasons for its actions weremerely a pretext and that the real reason was a retaliatoryanimus, his claim of retaliation must be dismissed.

3. Constructive discharge claim

Ferreira also alleges that the failure to promote him, combinedwith the sexual harassment and medical practice incidents, madehis working conditions so intolerable that he was compelled toresign. He claims therefore that he was constructivelydischarged. Ferreira must first make out a prima facie caseestablishing that he was constructively discharged. SeeSerrano-Cruz, 109 F.3d at 25; Vega v. Kodak Caribbean, Ltd.,3 F.3d 476, 479 (1st Cir. 1993). PRAICO contends that Ferreira hasfailed to establish this element. A person has beenconstructively discharged when his employer's actions have madework so unappealing, arduous, or intolerable that a reasonableperson would feel compelled to resign. Greenberg v. Union CampCorp., 48 F.3d 22, 27 (1st Cir. 1995); Sanchez v. Puerto RicoOil Co., 37 F.3d 712, 719 (1st Cir. 1994); Calhoun v. AcmeCleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986). Thisdetermination is an objective one. Davis & Geck, 167 F.3d at731; Serrano-Cruz, 109 F.3d at 26. Thus, the employee'ssubjective perceptions do not govern the issue. Davis & Geck,167 F.3d at 731. An employee may not be unreasonably sensitive tohis working conditions. Serrano-Cruz, 109 F.3d at 26;Greenberg, 48 F.3d at 27. Salary conditions are an importantfactor, but they are not dispositive. Serrano-Cruz, 109 F.3d at26; Ortiz Rodriguez v. Banco Popular de Puerto Rico,27 F. Supp.2d 309, 314 (D.P.R. 1998). A demotion from a supervisoryposition or a placement in demeaning or humiliating conditionsare also valid indicators. Ortiz Rodriguez, 27 F. Supp.2d at314-15. Overall, a court should consider a variety ofcase-specific factors. Davis & Geck, 167 F.3d at 731;Serrano-Cruz, 109 F.3d at 26.

In the present case, Ferreira does not claim that he wasdemoted, forced to take a pay cut, or given unpleasant duties. Hecomplains that he was passed over for a promotion. In his sworndeclaration he states that he was substantially more qualifiedthan either Ramos or Pérez. In his letter of resignation hestated that their promotion created for him an intolerable workenvironment. It may be a source of embarrassment to a reasonableemployee that other, less experienced co-workers are promotedover him, but that situation by itself should not make work sointolerable that he feel compelled to resign. Ferreira alsoclaims that he was forced to resign because of the sexualharassment investigation and the medical practice incident. Thereis no evidence that these actions by PRAICO were unreasonable.Ferreira claims that they made him feel humiliated andunappreciated. His subjective perceptions are not sufficient toestablish that hisworking conditions were intolerable. See Davis & Geck, 167 F.3dat 731. It is understandable that Ferreira would be upset that hewas investigated because a co-worker accused him of sexuallyharassed and that he was told that his offers of medicalassistance should be limited to first aid. It is notunderstandable, however, that a reasonable employee would feelcompelled to resign because of these two incidents and becauseless qualified co-workers were promoted instead of him. Anunreasonable sensitivity to such situations will not constitute aconstructive discharge. See Serrano-Cruz, 109 F.3d at 26;Greenberg, 48 F.3d at 27. Taken as a whole, the failure topromote, the medical practice incident, and the sexual harassmentinvestigation are not sufficient to show that Ferreira's workingconditions were so arduous or intolerable that a reasonableemployee would have felt compelled to resign. Thus, Ferreira hasnot made a prima facie showing that he was constructivelydischarged.

Even if Ferreira had made a prima facie showing, this claimwould still fail. Once a plaintiff makes out a prima facie caseof a constructive discharge, the employer has the burden ofproducing legitimate nondiscriminatory reasons for its actions.Serrano-Cruz, 109 F.3d at 25; Vega, 3 F.3d at 479. Asdiscussed in the two previous sections of this opinion, PRAICOhas met its burden of producing legitimate reasons for itsfailure to promote Ferreira, for the sexual harassmentinvestigation, and for the medical practice incident. Thus,Ferreira now has the burden of showing that PRAICO's reasons arepretextual and that its real reason is discriminatory.Serrano-Cruz, 109 F.3d at 25-26; Vega, 3 F.3d at 479. As theCourt discussed in the earlier sections of this opinion, therecord is devoid of evidence of a retaliatory or age-baseddiscriminatory animus. There is also no evidence that PRAICO'sreasons are a sham or pretext. For all of the above reasons,Ferreira's constructive discharge claim must also be dismissed.

4. Puerto Rico law claims

Lastly, Ferreira brings claims under Puerto Rico law. Theassertion of supplemental jurisdiction over state law claims iswithin a federal court's discretion. United Mine Workers ofAmer. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16L.Ed.2d 218 (1966). If federal law claims are dismissed beforetrial, however, the state law claims should also be dismissed.Id. at 726, 86 S.Ct. at 1139; Figueroa Ruiz v. Alegria,896 F.2d 645, 650 (1st Cir. 1990); Soto v. Carrasquillo,878 F. Supp. 324, 332 (D.P.R. 1995), aff'd sub nom. Soto v. Flores,103 F.3d 1056 (1st Cir. 1997). Because the Court has dismissedFerreira's ADEA claims, the Court hereby dismisses withoutprejudice his Puerto Rico law claims.41

WHEREFORE, the Court grants PRAICO's motion for summaryjudgment (docket no. 12). Judgment shall be entered accordingly.

IT IS SO ORDERED.

1. 29 U.S.C.A. §§ 621-634 (West 1999 & Supp. 1999).

2. 29 L.P.R.A. §§ 146-151 (1995 & Supp. 1998).

3. P.R. Laws Ann. tit. 31, § 5141 (1991).

4. Docket no. 12, exhibit I, at 10.

5. Docket no. 18, exhibit XXXII.

6. Docket no. 12, exhibit II, at 14. The English translationsfor the exhibits filed by PRAICO in Spanish appear at docket no.14.

7. Docket no. 12, exhibit II, at 46-47.

8. Docket no. 12, exhibit II, at 66-69.

9. Docket no. 12, exhibit II, at 70-72.

10. Docket no. 12, exhibit II, at 64.

11. Docket no. 12, exhibit II, at 44, 46-48.

12. Docket no. 12, exhibit II, at 39-40, 44, 63.

13. Docket no. 12, exhibit II, at 74.

14. Docket no. 12, exhibit V.

15. Docket no. 12, exhibit VI.

16. Docket no. 18, exhibit V.

17. Docket no. 12, exhibit III, addendum E; docket no. 18,exhibit VIII, at 29.

18. Docket no. 12, exhibit III, addendum F.

19. Docket no. 18, exhibit VIII, at 29.

20. Docket no. 12, exhibit II, at 95-96.

21. Docket no. 12, exhibit III, addendum G.

22. Docket no. 12, exhibit III, addendum H.

23. Docket no. 12, exhibit III.

24. Docket no. 12, exhibit III.

25. Docket no. 12, exhibit III, addendum B.

26. Docket no. 12, exhibit II, at 90.

27. Docket no. 12, exhibit I, at 11-12.

28. Docket no. 12, exhibit III, addendum C.

29. Docket no. 12, exhibit III, addendum D.

30. Docket no. 12, exhibit VIII.

31. Docket no. 12, exhibit II, at 64, 66-73.

32. Docket no. 12, exhibit II, at 39-40, 44, 63.

33. Docket no. 18, exhibit I.

34. Docket no. 12, exhibit VI.

35. The plaintiff in Simas brought his claim of retaliationunder the Federal Credit Union Act, 12 U.S.C. § 1790b. Themeaning of the phrase "adverse employment action" should remainconstant regardless of the statute under which the retaliationclaim is being brought. LaRou v. Ridlon, 98 F.3d 659, 662 n. 6(1st Cir. 1996). Thus, the Court will consider decisions fromnon-ADEA cases as to what constitutes an adverse employmentaction.

36. Docket no. 12, exhibit III, addenda B & D.

37. Docket no. 12, exhibit III; docket no. 18, exhibit IV, at67-70.

38. Docket no. 12, exhibit III, addenda E & F; docket no. 18,exhibit VIII.

39. Docket no. 18, exhibit VIII, at 29.

40. Docket no. 12, exhibit VII.

41. One of Ferreira's local law claims is for an allegeddefamation arising out of Rivera's investigation of the sexualharassment claim. The only person besides Ferreira to whom Riverasent a memorandum on this subject was Vallecillo. Ferreira claimsthat the memorandum to Vallecillo constituted a defamatorystatement.

An intracorporation communication is protected by a conditionalprivilege if it was made in good faith and the communicator wascomplying with a duty towards others. See Porto y Siurano v.Bentley P.R., Inc., 132 P.R.Dec. 331, 353-54 (1992). WhetherRivera had a duty to communicate to Vallecillo the results of herinvestigation and whether the communication is therefore aprotected one are novel questions of Puerto Rico law. Thus, theCourt has an additional reason to decline to exercisesupplemental jurisdiction over the defamation claim. See28 U.S.C.A. § 1367(c)(1) (West 1993); Penobscot Indian Nation v.Key Bank of Maine, 112 F.3d 538, 564 (1st Cir. 1997).

OPINION AND ORDER

Before the Court is a motion for summary judgment by DefendantPuerto Rican-American Insurance Company ("PRAICO"). PRAICO is aPuerto Rico corporation engaged in the insurance business.Plaintiff Luis Ferreira Vargas ("Ferreira") was a PRAICO employeefrom 1963 until he resigned in 1998. He claims that he was thevictim of age discrimination, and he seeks damages under the AgeDiscrimination in Employment Act of 1967 ("ADEA")1 and PuertoRico Law 100.2 He also claims damages under Article 1802 ofthe Puerto Rico Civil Code3 for an alleged defamation.

The Court reviews the record in the light most favorable toFerreira and draws all reasonable inferences in his favor. SeeLeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). Ferreira began working for PRAICO in 1963.4 Over theyears, his evaluations and reviews have been generallyexcellent.5 In 1996, he was a deputy manager in the company'sclaims department.6 His supervisor was Francisco Arroyo.Francisco Ramos and Patricia Pérez also worked under Arroyo.Ramos was a supervisor in the injuries and public liabilitydepartment; Pérez was a supervisor in the legal department.7Ferreira claims that he had many more years experiencein the insurance business than either Ramos or Pérez.

Arroyo and Ramos had an amiable working relationship. Theirfriendship dated back to a time before both men worked at PRAICO.They had previously worked together at another company for fiveyears. Ramos ran errands to take care of Arroyo's personalmatters, including going to the bank. According to Ferreira,Ramos treated Arroyo obsequiously.8 Pérez was also on goodterms with Arroyo. She joked around with him often, and he oncemade a piece of furniture for her as a gift. He entrusted herwith many chores which required knowledge of English. There wasan affinity between the two of them, and she spent a great dealof time visiting him in his office. They often went to lunchtogether.9 Arroyo discussed personal matters with Ramos andPérez that he did not discuss with Ferreira.10

In November 1996, Arroyo promoted both Ramos and Pérez. Ramoswas a supervisor in the injuries and public liability department;Arroyo named him manager of the same department. Pérez was asupervisor in the legal department; Arroyo named her manager ofher department as well. Arroyo created the position of managerfor each of them. Their job duties were essentially the same aswhen they were supervisors, although they did receive raises andbetter company cars than the ones they had previously beengiven.11 Ferreira, who was only a deputy manager, had a greatdeal more experience than either Ramos or Pérez, and in yearspast he had held both of the positions to which each of them werepromoted.12 When Ramos and Pérez were promoted, they wereboth at least twenty years younger than Ferreira, who was 66 atthe time.

Ferreira told Arroyo that he too would like to be named amanager.13 Ferreira wrote Arroyo a letter complaining thatRamos and Pérez had been promoted over him; stating that he hadmore experience than they did; claiming that their promotionsconstituted an injustice to him which violated his rights andcaused him humiliation; and requesting that he too bepromoted.14 Arroyo did not respond to this request. Ferreirathen took his grievance to another forum: on November 22, 1996,he filed an administrative complaint with Puerto Rico'sAnti-Discrimination Unit ("ADU"), alleging that the promotions ofRamos and Pérez over him constituted age discrimination.15In June 1997, PRAICO was notified that a hearing would be held onFerreira's complaint in September 1997.16

Around the time that the hearing was scheduled to take place,Ferreira was involved in two incidents which he claims weremeasures directed at him in retaliation for his ADU claim. In thefirst, on August 26, 1997, Ileana Vallecillo, a PRAICO employee,complained to Maritza Rivera, PRAICO's human resources director,that while she was waiting for the elevator to go up to theoffice, Ferreira approached her, kissed her on the cheek close toher mouth, and whispered in her ear, "You are beautiful today."In a handwritten memorandum, Vallecillo complained that for yearsFerreira had been harassing her with comments that she found tobe unpleasant such as "You are the prettiest woman in PRAICO" or"You are more beautiful today than ever."17 Two dayslater she sent Rivera another memorandum complaining thatFerreira had made additional remarks to her that "You areirresistible today" and "You are beautiful." She complained thatthese comments bothered her and that her relationship withFerreira was not sufficiently close to warrant them.18Vallecillo was unaware that Ferreira had filed an agediscrimination claim against PRAICO.19

Rivera called Ferreira into her office to discuss the matter.She was upset, and told him that there had been complaintsbecause he was greeting female co-workers with a kiss on thecheek. Ferreira acknowledged that he had that custom withco-workers who had been with the company a long time and withwhom he had a friendly relationship, but that he considered it tobe a sign of respect or chivalry.20 Rivera conducted aninvestigation and on November 3, 1997, she sent a confidentialmemorandum to Ferreira on the incident. She concluded thatFerreira had "apparently inadvertently, caused a hostileenvironment, which is considered as one of the aspects of sexualharassment." She requested that he immediately cease this conductand that he take no reprisals against the persons who hadcomplained about his conduct. In the memorandum she also warnedhim that any violation by him of the company's sexual harassmentpolicy could result in other disciplinary measures, including hisdismissal.21 Rivera also sent a memorandum to Vallecilloinforming her of the conclusions of her investigation.22 Theinvestigation and its outcome were maintained confidential.23

The second incident involved Ferreira's alleged offering ofmedical assistance at PRAICO. In her sworn statement, Riveraalleges that in August 1997, a PRAICO employee had reported tothe infirmary complaining of abdominal pains and that Ferreirawanted to examine her.24 She sent him a memorandum datedOctober 1, 1997, requesting that he immediately stop his practiceof offering medical assistance, medical advice, or physicalexaminations to his co-workers.25 Ferreira denies that he didphysical examinations and that he would only take a person'svital signs.26 He has not received any formal medicaltraining.27 He responded to Rivera with a memorandum in whichhe replied that he had given first-aid to co-workers whenpersonnel from the human resources department had asked him to doso.28 In a memorandum dated October 21, 1997, Riveraclarified that she was requesting that he stop any practice ofoffering physical examinations or medical advice or assistance.She was not referring to his offer of providing first-aidassistance.29

In January 1998, Ferreira submitted his letter of resignation.In it he stated that the promotions of Ramos and Pérez over himcreated an intolerable work environment. He also complained thathe had been the subject of investigations within the companywhich created a hostile work environment.30 One month later,Ferreira filed this complaint. In it he alleges that he was thevictim of age discrimination when Ramos and Pérez were promotedinstead of him; that the incidents regarding the sexualharassment investigation and his alleged offer of medicalserviceswere retaliatory measures taken against him in response to hisADU claim; that together all of this made his work environmentintolerable, that he was forced to resign, and that he was thusconstructively discharged; and that he was defamed when Riveraprovided Vallecillo with her memorandum concluding that he hadcommitted sexual harassment. In its motion for summary judgment,PRAICO contests all of these allegations. Ferreira has opposedthe motion. For the reasons set forth below, the Court grantsPRAICO's motion.

DISCUSSION

Summary judgment is appropriate if "there is no genuine issueas to any material fact and . . . the moving party is entitled toa judgment as a matter of law." See Fed.R.Civ.P. 56(c). Theparty moving for summary judgment bears the initialresponsibility of demonstrating the absence of a genuine issue ofmaterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving partyhas satisfied this requirement, the nonmoving party has theburden of presenting any facts that demonstrate a genuine issuefor trial. Fed.R.Civ.P. 56(e); LeBlanc, 6 F.3d at 841. Thenonmovant must do more than show "some metaphysical doubt as tothe material facts." Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d538 (1986). An issue is genuine when, based on the evidence, areasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of ascintilla of evidence in support of the plaintiff's position willbe insufficient; there must be evidence on which the jury couldreasonably find for the plaintiff." Id. at 252, 106 S.Ct. at2512.

1. Claim for the failure to promote

The ADEA makes it unlawful for an employer to take an adverseemployment action against an employee because of his age.29 U.S.C.A. § 623(a)(1); Alvarez-Fonseca v. Pepsi Cola of PuertoRico, 152 F.3d 17, 24 (1st Cir. 1998); Serrano-Cruz v. DFIPuerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997). An employermay take an adverse action for any reason — fair or unfair — solong as the action is not motivated by an age-baseddiscriminatory animus. Hidalgo v. Overseas Condado Ins.Agencies, Inc., 120 F.3d 328, 337 (1st Cir. 1997). At all timesthe plaintiff has the burden of proving that his employerdiscriminated against him because of his age. Shorette v. RiteAid of Maine, Inc., 155 F.3d 8, 12 (1st Cir. 1998); Hidalgo,120 F.3d at 332. To survive a motion for summary judgment, anADEA plaintiff must either adduce direct evidence ofdiscrimination or present circumstantial or indirect evidence tomake out a prima facie case of discrimination under theburden-shifting standard of McDonnell Douglas Corp. v. Green,411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668(1973). See Bramble v. Amer. Postal Workers Union, 135 F.3d 21,24 (1st Cir. 1998).

In the present case, there is no direct evidence ofdiscrimination, and both parties invoke the McDonnell Douglasframework in their briefs. Under this well-established standard,a plaintiff must first make out a prima facie case of agediscrimination. Id. PRAICO concedes that, for purposes of thefailure to promote claim, Ferreira has established a prima faciecase. Once a prima facie case has been established, a presumptionarises that the employer was motivated by a discriminatoryanimus. Shorette, 155 F.3d at 12. The burden then shifts to thedefendant to produce evidence showing a legitimate,nondiscriminatory reason for terminating the plaintiff. Ramos v.Davis & Geck, Inc., 167 F.3d 727, 734 (1st Cir. 1999);Hidalgo, 120 F.3d at 334. This is a burden of production, notof persuasion; the plaintiff always has the task of provingdiscrimination. Dichner v. Liberty Travel,141 F.3d 24, 30 (1st Cir. 1998). The burden is a relatively lightone. Barbour v. Dynamics Research Corp., 63 F.3d 32, 38 (1stCir. 1995). The employer need only produce competent evidencewhich, taken as true, would enable the factfinder to concludethat there was a nondiscriminatory reason for the plaintiff'stermination. Ruiz v. Posadas de San Juan Assoc., 124 F.3d 243,248 (1st Cir. 1997).

In the present case, PRAICO attempts to meet its burden with anaffidavit by Rivera in which she states that Arroyo told her thatRamos and Pérez were named managers because they had experiencesupervising other employees. Ferreira objects to this statementon the grounds that it is inadmissible as hearsay and it is notbased on Rivera's personal knowledge. The Court need not passjudgment on the admissibility of Rivera's statement because thereis other evidence in the record which allows PRAICO to meet itsburden. Ferreira himself testified that Arroyo had been friendsfor years with Ramos; that he trusted Pérez to do work for himthat required a knowledge of the English language; and thatArroyo had a rapport and good personal relations with both Ramosand Pérez.31 This testimony is evidence of a legitimatenondiscriminatory reason for the promotions of Ramos and Pérez.The fact that Arroyo promoted them because of his personalrelations with them may not be fair or even a wise businessdecision, but it is a reason that is nondiscriminatory. At thisstage, that is all that PRAICO need produce to meet its burden.

Once an employer meets this burden, the presumption ofdiscrimination generated by the prima facie case disappears.Davis & Geck, 167 F.3d at 734; Ruiz, 124 F.3d at 248. It isinsufficient for a plaintiff to merely undermine the veracity ofthe reason proffered by the employer. Dichner, 141 F.3d at 30.The plaintiff must adduce evidence to show that the employer'sproffered reason is a pretext and that the employer was inreality motivated by age-based discrimination. Mullin v.Raytheon Co., 164 F.3d 696, 699 (1st Cir. 1999); Ruiz, 124F.3d at 248; Hidalgo, 120 F.3d at 335, 337. The evidence as awhole must allow a reasonable factfinder to infer that theemployer's decision was motivated by a discriminatory animus.Ruiz, 124 F.3d at 248.

In the case before the Court, Ferreira testified that he wasvastly more experienced than either Ramos or Pérez and thattherefore he should have been promoted instead of them.32 Itmay be that Ferreira was in fact more qualified to be namedmanager. An employer, however, is free to select less qualifiedcandidates. Courtney v. Biosound, Inc., 42 F.3d 414, 423 (7thCir. 1994); Brown v. Trustees of Boston University,891 F.2d 337, 346 (1st Cir. 1989); Mandavilli v. Maldonado, 38 F. Supp.2d 180,195 (D.P.R. 1999). Absent clear evidence of irrationality,courts should be slow to second guess management decisions onsuch issues. Lehman v. Prudential Ins. Co. of America,74 F.3d 323, 329 (1st Cir. 1996). Judges should not act as superpersonnel departments to assess the merits or rationality of anemployer's nondiscriminatory decision. Ruiz, 124 F.3d at 250;Hidalgo, 120 F.3d at 337. Even though Ferreira may be eminentlymore qualified than Ramos and Pérez, that fact by itself isinsufficient to create a genuine issue as to whether PRAICO'sproffered reason was a pretext.

More fatal to Ferreira's claim is his lack of evidence of anydiscriminatory animus on PRAICO's part. To establish this animus,Ferreira in a sworn declaration states that "The reason why Ms.Patricia Pérez and Mr. Francisco Ramos were promoted over me wasbecause of my age." He also states that Arroyo's favoritismtowards Ramos and Pérez "was motivated,at least in part, on the fact that they were younger thanme."33 In his ADU claim he alleged that he had "been thevictim of a pattern of discriminatory conduct by reason of age"in the workplace. He further alleged that he was discriminatedagainst by not being promoted when Ramos and Pérez werepromoted.34 An affidavit used to oppose a motion for summaryjudgment must set forth facts that would be admissible inevidence. Fed.R.Civ.P. 56(e); Casas Office Machines v. MitaCopystar America, 42 F.3d 668, 681 (1st Cir. 1994). Theaffidavit must be made on personal knowledge and must show thatthe affiant is competent to testify as to the matters averred.Fed.R.Civ.P. 56(e); Casas, 42 F.3d at 682; Murphy v. FordMotor Co., 170 F.R.D. 82, 84-85 (D.Mass. 1997). Generally, acourt may not accept a nonmovant's statements regarding themovant's thoughts. Simas v. First Citizens' Federal CreditUnion, 170 F.3d 37, 50-51 (1st Cir. 1999). Nor may the courtaccept the nonmovant's conclusory allegations regardingdiscriminatory intent. Santiago v. Canon U.S.A., Inc.,138 F.3d 1, 6 (1st Cir. 1998). A plaintiffs subjective perception is notevidence of an employer's discriminatory intent. Pilgrim v.Trustees of Tufts College, 118 F.3d 864, 871 (1st Cir. 1997);Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430(5th Cir. 1996) (en banc) ("It is more than well-settled that anemployee's subjective belief that he suffered an adverseemployment action as a result of discrimination, without more, isnot enough to survive a summary judgment motion, in the face ofproof showing an adequate nondiscriminatory reason."). Anemployee's affidavit regarding the motive or intent of anemployer must contain a foundation to indicate the basis of theaffiant's information. Connell v. Bank of Boston,924 F.2d 1169, 1177-78 (1st Cir. 1991); see also Ruiz, 124 F.3d at249-50 (Plaintiff failed to provide an evidentiary foundationupon which it could reasonably be inferred that the employer'sactions were discriminatory or age-based). Even in cases wherethe elusive concept of intent is at issue, summary judgment maybe appropriate if the nonmovant rests only upon conclusoryallegations and unsupported speculation. Hodgens v. GeneralDynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998).

In the case before the Court, Ferreira in his sworn declarationand ADU complaint avers that Ramos and Pérez were promoted overhim because of his age and that Arroyo favored these two becausethey were younger than Ferreira. Nowhere does Ferreira explain,however, what is his basis or foundation for these conclusorystatements. Arroyo's motive or alleged discriminatory bias wasnot something of which Ferreira normally would have had personalknowledge. There is no evidentiary foundation to indicate how heknew what exactly were Arroyo's reasons for deciding to promoteRamos and Pérez and for favoring these two over Ferreira.Without a proper foundation, Ferreira's own subjective perceptionof Arroyo's motive is not evidence of discrimination. SeeFed.R.Civ.P. 56(e); Simas, 170 F.3d at 50-51; Santiago, 138F.3d at 6; Pilgrim, 118 F.3d at 871. In his ADU complaint healso alleged that he had been the victim of a pattern of agediscrimination. The only example of age discrimination to whichhe cites in his ADU claim is the promotions of Ramos and Pérez.It may have been unfair to promote these two employees whenFerreira had substantially more experience than them. PRAICO,however, is free to make this decision provided it was notmotivated by an age-based discriminatory animus. See Hidalgo,120 F.3d at 337. The Court is not a super personnel departmentwhich may assess the merits of the decision to promote these twoemployees. See Ruiz, 124 F.3d at 250; Hidalgo, 120 F.3d at337. Absent any other evidence of a discriminatory animus, themere fact that Ramos and Pérez may havereceived undeserved promotions is insufficient to establish apattern of age discrimination. Ferreira has thus failed to adducecompetent evidence to show that Arroyo or PRAICO failed topromote him because of his age. Because he has failed to adduceevidence to create a genuine issue as to whether PRAICO'sproffered reason was a pretext and to whether the real reason wasage-based discrimination, Ferreira's claim regarding the failureto promote him must be dismissed.

2. Retaliation claim

Ferreira also claims that he was the victim of illegalretaliation. Specifically, he alleges that the memoranda fromRivera ordering him to stop practicing medicine at work and theinvestigation of Vallecillo's complaint that Ferreira wassexually harassing her were reprisals taken against him for hishaving filed a claim with the ADU. When, in a claim ofretaliation, there is no direct evidence of an improper motive,the record should be analyzed with the McDonnell Douglasburden-shifting test. McMillan v. Mass. Soc'y for the Preventionof Cruelty to Animals, 140 F.3d 288, 309 (1st Cir. 1998). Tomake out a prima facie retaliation claim, a plaintiff must showthat he engaged in protected conduct, that he was subject to anadverse employment action, and that there was a causal connectionbetween the adverse action and his protected conduct. Id.;Champagne v. Servistar Corp., 138 F.3d 7, 12 n. 5 (1st Cir.1998). Once the plaintiff meets his burden at this stage, theemployer has the burden of production to articulate a legitimate,non-retaliatory reason for the employment action. Provencher v.CVS Pharmacy, 145 F.3d 5, 10 (1st Cir. 1998); McMillan, 140F.3d at 309. The burden then shifts back to the plaintiff whomust show by a preponderance of the evidence that the profferedreason is merely a pretext and that the real reason was theemployer's retaliatory animus. McMillan, 140 F.3d at 309;Champagne, 138 F.3d at 12-13.

In the present case, Ferreira's filing of a claim with the ADUis a protected activity. See 29 U.S.C.A. § 623(d). He claimsthat the adverse employment actions to which lie was subjectedwere the memoranda regarding his alleged practice of medicine andthe investigation of the sexual harassment claim. Thedetermination of whether an employer's conduct constitutes anadverse employment action is an objective one. The mere fact thatthe employee may be displeased by his employer's act will notelevate the act to an adverse employment action. Simas, 170F.3d at 49-50;35 Blackie v. State of Maine, 75 F.3d 716,725 (1st Cir. 1996). For an act to be an adverse employmentaction, the employer must have either (1) taken something ofconsequence from the employee by, for example, demoting him,reducing his salary, or divesting him of significant duties, or(2) withheld an accouterment of the employment relationship.Blackie, 75 F.3d at 725. Not every unpleasant matter willcreate a cause of action; a case-by-case review is necessary.Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994).

In the present case, the investigation of Vallecillo'scomplaint regarding Ferreira's conduct culminated in a memorandumto him from the director of the human resources department inwhich she concluded that he had inadvertently created a hostileenvironment, requested that he immediately stop this behavior,and warned him that he could be fired if he engaged in suchconduct again. The conclusion that he had committed sexualharassment and the warning that he could be fired if he did notchange his conduct was a sufficiently severe disciplinary measureto constitute an adverse employment action.

The incident regarding Ferreira's alleged practice of medicineon the job is less clear. In her memoranda, Rivera merelyrequested that Ferreira not engage in any conduct that could beconsidered giving medical advice, offering physical examinations,or providing prescription medicines. She clarified that Ferreirawould be allowed to offer first aid assistance, provided he wascertified to do so.36 It does not appear that Rivera deprivedFerreira of anything of consequence. He was asked to stopperforming certain acts, but it is undisputed that Ferreira wasnot authorized to practice medicine. Thus, it cannot be said thathe was relieved of any legitimate work-related duties. In hercommunications with Ferreira over this issue, Rivera did notthreaten or discipline him. It is unclear what adverseconsequences he may have suffered as a result of this matter.However, because a plaintiff's burden of establishing a primafacie case is not onerous, Simas, 170 F.3d at 44, the Courtwill assume dubitante that Rivera's memoranda to Ferreirainstructing him not to engage in the practice of medicineconstituted an adverse employment action. For the same reason,the Court will also assume that the fact that the sexualharassment and practice of medicine controversies occurred aroundthe same time as Ferreira's hearing before the ADU is sufficientto establish a causal connection between the protected conductand the adverse action.

Once a plaintiff establishes a prima facie retaliation claim,the employer has the burden of producing a nondiscriminatorymotive for its actions. Simas, 170 F.3d at 44; Provencher,145 F.3d at 10. PRAICO easily meets its burden at this stage.There is evidence that in August 1997 Ferreira wanted to performan examination of a co-worker who felt ill and that he once gaveRivera medicine for her mother which required aprescription.37 There is also evidence that Vallecillocomplained to Rivera because Ferreira kissed her near the mouthand because he often made remarks to her about her appearancewhich made her feel uncomfortable.38 This evidence allowsPRAICO to meet its burden of producing legitimatenondiscriminatory reasons for its actions.

Once an employer meets its burden of production, the plaintiffhas the burden of showing that the employer's proffered reasonwas merely a pretext and that the real reason was a retaliatoryanimus. Simas, 170 F.3d at 44; McMillan, 140 F.3d at 309.Ferreira makes much of the temporal proximity between his ADUhearing and the sexual harassment and medical practice incidents.His ADU hearing was scheduled for September 1997. Vallecillocomplained about Ferreira's alleged sexual harassment at the endof August 1997; Rivera then conducted an investigation and sentFerreira a memorandum informing him of her conclusions inNovember. Rivera sent her memoranda asking Ferreira not topractice medicine in October. Close temporal proximity betweenprotected conduct and an adverse employment action may give riseto a permissible inference of retaliation. Hodgens, 144 F.3d at168. Such evidence, however, is not conclusive. Id. at 170. Acourt should consider the actions taken against the employeewithin the overall context and sequence of events. Champagne,138 F.3d at 13; Soileau v. Guilford of Maine, Inc.,105 F.3d 12, 16-17 (1st Cir. 1997). Other factors that a court shouldexamine include the historical background of the decision, anydepartures from normal procedure, and contemporary statements bythe employer'sdecision makers. Hodgens, 144 F.3d at 168-69.

In the present case it is undisputed that Vallecillo complainedabout the way that Ferreira was treating her. He has adduced noevidence that would indicate that she was making up her concerns.In fact, Ferreira himself has adduced evidence which indicatesnot only that Vallecillo indeed felt uncomfortable by Ferreira'sconduct but also that she had no idea that Ferreira had filed anADU complaint accusing PRAICO of age discrimination.39 Thereis nothing to indicate that Vallecillo's sexual harassmentcomplaint itself was a sham or pretext. Ferreira appears to arguethat PRAICO reacted too harshly to Vallecillo's complaint. In themodern workplace, it is a foolhardy employer who does not affordan employee's complaints of sexual harassment total gravity andwho does not respond to them immediately with all availableresources. The Supreme Court has recently held that an employermay be liable for negligently causing sexual harassment if itknew or should have known about harassing conduct but failed tostop it. See Burlington Industries, Inc. v. Ellerth,524 U.S. 742, ___, 118 S.Ct. 2257, 2267, 141 L.Ed.2d 633 (1998). Theemployer has an affirmative duty to prevent sexual harassment andto make reasonable efforts to comply with this duty. Faragher v.City of Boca Raton, 524 U.S. 775, ___, 118 S.Ct. 2275, 2292, 141L.Ed.2d 662 (1998). Also, an employer has an affirmative defenseto vicarious liability for sexual harassment if the employerexercised reasonable care to prevent and promptly correctsexually harassing behavior and the complaining employee failedto reasonably take advantage of any corrective opportunitiesprovided by the employer. Id. at ___, 118 S.Ct. at 2293.

In the present case, the evidence as a whole indicates thatPRAICO made reasonable efforts to investigate and to promptlycomply with its duty to correct the situation of which Vallecillocomplained. Rivera interviewed all parties concerned and notifiedthese parties through confidential memoranda of the results ofher investigation. The fact that Ferreira may have found theoutcome to be unpleasant did not affect PRAICO's duty to take theactions that it did. For PRAICO to do nothing or to not reactvigorously to Vallecillo's complaint could expose it to furtherliability. The record as a whole indicates that PRAICO waspresented with an employee who sincerely felt uncomfortable byFerreira's conduct; that PRAICO promptly investigated the manner;that PRAICO concluded that Ferreira had inadvertently created ahostile work environment; and that PRAICO informed Ferreira ofits conclusion and warned him to stop. The proceedings were keptconfidential. It appears that PRAICO complied with its duty torespond to Vallecillo's complaint.

Ferreira argues that greeting with a kiss or complimenting aco-worker on her appearance does not rise to the level of sexualharassment, as defined by PRAICO's own policy on the subject.This argument is unavailing. Sexual harassment is defined not bya company's own policy or employee manual, but by statute andcase law. Additionally, PRAICO's policy forbids creating ahostile work environment and does specify that all personnelshould avoid comments or excessive familiarity which could resultin misunderstandings.40 Thus, Ferreira's comments and conductarguably fall within the type of behavior prohibited by PRAICO'spolicy. At any rate, the question of whether Ferreira actuallyviolated PRAICO's policy on sexual harassment is too far afieldof the controversy before the Court: whether the sexualharassment incident constituted retaliation by PRAICO againstFerreira. There is no evidence that Vallecillo's complaint orRivera's investigation of it was a sham intended to hide anulterior retaliatorymotive. This incident did arise around the same time that ahearing on Ferreira's ADU complaint was scheduled. However, thereis no evidence that Vallecillo was making up her complaint. Asexual harassment complaint is a serious matter, and an employershould react to it as soon as possible. Here it appears thatPRAICO did so. Other than temporal proximity between the ADUhearing and Vallecillo's complaint, there is no evidence tosupport a claim of retaliation.

With regard to the medical practice incident, there is also alack of evidence that this was a sham or otherwise tinged bymendacity. It is undisputed that Ferreira offered at least firstaid services to his co-workers. In her memoranda on this subject,Rivera only told him that he should limit his services to firstaid and that he should not engage in any conduct that might bethe practice of medicine. Other than the timing of this incident,there is nothing to indicate that PRAICO sent Ferreira thesememoranda as a means of retaliating against him for his ADUclaim. Thus, because Ferreira has failed to adduce evidence todemonstrate that PRAICO's proffered reasons for its actions weremerely a pretext and that the real reason was a retaliatoryanimus, his claim of retaliation must be dismissed.

3. Constructive discharge claim

Ferreira also alleges that the failure to promote him, combinedwith the sexual harassment and medical practice incidents, madehis working conditions so intolerable that he was compelled toresign. He claims therefore that he was constructivelydischarged. Ferreira must first make out a prima facie caseestablishing that he was constructively discharged. SeeSerrano-Cruz, 109 F.3d at 25; Vega v. Kodak Caribbean, Ltd.,3 F.3d 476, 479 (1st Cir. 1993). PRAICO contends that Ferreira hasfailed to establish this element. A person has beenconstructively discharged when his employer's actions have madework so unappealing, arduous, or intolerable that a reasonableperson would feel compelled to resign. Greenberg v. Union CampCorp., 48 F.3d 22, 27 (1st Cir. 1995); Sanchez v. Puerto RicoOil Co., 37 F.3d 712, 719 (1st Cir. 1994); Calhoun v. AcmeCleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986). Thisdetermination is an objective one. Davis & Geck, 167 F.3d at731; Serrano-Cruz, 109 F.3d at 26. Thus, the employee'ssubjective perceptions do not govern the issue. Davis & Geck,167 F.3d at 731. An employee may not be unreasonably sensitive tohis working conditions. Serrano-Cruz, 109 F.3d at 26;Greenberg, 48 F.3d at 27. Salary conditions are an importantfactor, but they are not dispositive. Serrano-Cruz, 109 F.3d at26; Ortiz Rodriguez v. Banco Popular de Puerto Rico,27 F. Supp.2d 309, 314 (D.P.R. 1998). A demotion from a supervisoryposition or a placement in demeaning or humiliating conditionsare also valid indicators. Ortiz Rodriguez, 27 F. Supp.2d at314-15. Overall, a court should consider a variety ofcase-specific factors. Davis & Geck, 167 F.3d at 731;Serrano-Cruz, 109 F.3d at 26.

In the present case, Ferreira does not claim that he wasdemoted, forced to take a pay cut, or given unpleasant duties. Hecomplains that he was passed over for a promotion. In his sworndeclaration he states that he was substantially more qualifiedthan either Ramos or Pérez. In his letter of resignation hestated that their promotion created for him an intolerable workenvironment. It may be a source of embarrassment to a reasonableemployee that other, less experienced co-workers are promotedover him, but that situation by itself should not make work sointolerable that he feel compelled to resign. Ferreira alsoclaims that he was forced to resign because of the sexualharassment investigation and the medical practice incident. Thereis no evidence that these actions by PRAICO were unreasonable.Ferreira claims that they made him feel humiliated andunappreciated. His subjective perceptions are not sufficient toestablish that hisworking conditions were intolerable. See Davis & Geck, 167 F.3dat 731. It is understandable that Ferreira would be upset that hewas investigated because a co-worker accused him of sexuallyharassed and that he was told that his offers of medicalassistance should be limited to first aid. It is notunderstandable, however, that a reasonable employee would feelcompelled to resign because of these two incidents and becauseless qualified co-workers were promoted instead of him. Anunreasonable sensitivity to such situations will not constitute aconstructive discharge. See Serrano-Cruz, 109 F.3d at 26;Greenberg, 48 F.3d at 27. Taken as a whole, the failure topromote, the medical practice incident, and the sexual harassmentinvestigation are not sufficient to show that Ferreira's workingconditions were so arduous or intolerable that a reasonableemployee would have felt compelled to resign. Thus, Ferreira hasnot made a prima facie showing that he was constructivelydischarged.

Even if Ferreira had made a prima facie showing, this claimwould still fail. Once a plaintiff makes out a prima facie caseof a constructive discharge, the employer has the burden ofproducing legitimate nondiscriminatory reasons for its actions.Serrano-Cruz, 109 F.3d at 25; Vega, 3 F.3d at 479. Asdiscussed in the two previous sections of this opinion, PRAICOhas met its burden of producing legitimate reasons for itsfailure to promote Ferreira, for the sexual harassmentinvestigation, and for the medical practice incident. Thus,Ferreira now has the burden of showing that PRAICO's reasons arepretextual and that its real reason is discriminatory.Serrano-Cruz, 109 F.3d at 25-26; Vega, 3 F.3d at 479. As theCourt discussed in the earlier sections of this opinion, therecord is devoid of evidence of a retaliatory or age-baseddiscriminatory animus. There is also no evidence that PRAICO'sreasons are a sham or pretext. For all of the above reasons,Ferreira's constructive discharge claim must also be dismissed.

4. Puerto Rico law claims

Lastly, Ferreira brings claims under Puerto Rico law. Theassertion of supplemental jurisdiction over state law claims iswithin a federal court's discretion. United Mine Workers ofAmer. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16L.Ed.2d 218 (1966). If federal law claims are dismissed beforetrial, however, the state law claims should also be dismissed.Id. at 726, 86 S.Ct. at 1139; Figueroa Ruiz v. Alegria,896 F.2d 645, 650 (1st Cir. 1990); Soto v. Carrasquillo,878 F. Supp. 324, 332 (D.P.R. 1995), aff'd sub nom. Soto v. Flores,103 F.3d 1056 (1st Cir. 1997). Because the Court has dismissedFerreira's ADEA claims, the Court hereby dismisses withoutprejudice his Puerto Rico law claims.41

WHEREFORE, the Court grants PRAICO's motion for summaryjudgment (docket no. 12). Judgment shall be entered accordingly.

IT IS SO ORDERED.

1. 29 U.S.C.A. §§ 621-634 (West 1999 & Supp. 1999).

2. 29 L.P.R.A. §§ 146-151 (1995 & Supp. 1998).

3. P.R. Laws Ann. tit. 31, § 5141 (1991).

4. Docket no. 12, exhibit I, at 10.

5. Docket no. 18, exhibit XXXII.

6. Docket no. 12, exhibit II, at 14. The English translationsfor the exhibits filed by PRAICO in Spanish appear at docket no.14.

7. Docket no. 12, exhibit II, at 46-47.

8. Docket no. 12, exhibit II, at 66-69.

9. Docket no. 12, exhibit II, at 70-72.

10. Docket no. 12, exhibit II, at 64.

11. Docket no. 12, exhibit II, at 44, 46-48.

12. Docket no. 12, exhibit II, at 39-40, 44, 63.

13. Docket no. 12, exhibit II, at 74.

14. Docket no. 12, exhibit V.

15. Docket no. 12, exhibit VI.

16. Docket no. 18, exhibit V.

17. Docket no. 12, exhibit III, addendum E; docket no. 18,exhibit VIII, at 29.

18. Docket no. 12, exhibit III, addendum F.

19. Docket no. 18, exhibit VIII, at 29.

20. Docket no. 12, exhibit II, at 95-96.

21. Docket no. 12, exhibit III, addendum G.

22. Docket no. 12, exhibit III, addendum H.

23. Docket no. 12, exhibit III.

24. Docket no. 12, exhibit III.

25. Docket no. 12, exhibit III, addendum B.

26. Docket no. 12, exhibit II, at 90.

27. Docket no. 12, exhibit I, at 11-12.

28. Docket no. 12, exhibit III, addendum C.

29. Docket no. 12, exhibit III, addendum D.

30. Docket no. 12, exhibit VIII.

31. Docket no. 12, exhibit II, at 64, 66-73.

32. Docket no. 12, exhibit II, at 39-40, 44, 63.

33. Docket no. 18, exhibit I.

34. Docket no. 12, exhibit VI.

35. The plaintiff in Simas brought his claim of retaliationunder the Federal Credit Union Act, 12 U.S.C. § 1790b. Themeaning of the phrase "adverse employment action" should remainconstant regardless of the statute under which the retaliationclaim is being brought. LaRou v. Ridlon, 98 F.3d 659, 662 n. 6(1st Cir. 1996). Thus, the Court will consider decisions fromnon-ADEA cases as to what constitutes an adverse employmentaction.

36. Docket no. 12, exhibit III, addenda B & D.

37. Docket no. 12, exhibit III; docket no. 18, exhibit IV, at67-70.

38. Docket no. 12, exhibit III, addenda E & F; docket no. 18,exhibit VIII.

39. Docket no. 18, exhibit VIII, at 29.

40. Docket no. 12, exhibit VII.

41. One of Ferreira's local law claims is for an allegeddefamation arising out of Rivera's investigation of the sexualharassment claim. The only person besides Ferreira to whom Riverasent a memorandum on this subject was Vallecillo. Ferreira claimsthat the memorandum to Vallecillo constituted a defamatorystatement.

An intracorporation communication is protected by a conditionalprivilege if it was made in good faith and the communicator wascomplying with a duty towards others. See Porto y Siurano v.Bentley P.R., Inc., 132 P.R.Dec. 331, 353-54 (1992). WhetherRivera had a duty to communicate to Vallecillo the results of herinvestigation and whether the communication is therefore aprotected one are novel questions of Puerto Rico law. Thus, theCourt has an additional reason to decline to exercisesupplemental jurisdiction over the defamation claim. See28 U.S.C.A. § 1367(c)(1) (West 1993); Penobscot Indian Nation v.Key Bank of Maine, 112 F.3d 538, 564 (1st Cir. 1997).

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