Rivera-Rodríguez v. Frito Lay Snacks Caribbean, a Division of Pepsico Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit
No. 01-1023

VÍCTOR F. RIVERA-RODRÍGUEZ,
SANDRA BELTRÁN-MCENTEE,
CONJUGAL PARTNERSHIP RODRÍGUEZ-MCENTEE,

Plaintiffs, Appellants,

v.

FRITO LAY SNACKS CARIBBEAN,
A DIVISION OF PEPSICO PUERTO RICO, INC.
JOSÉ LUIS PRADO, ROSA ELENA ACEVEDO,
CONJUGAL PARTNERSHIP PRADO-ACEVEDO,
ENRIQUE NIÑO, LAURA ANDRADE,
CONJUGAL PARTNERSHIP NIÑO-ANDRADE,
ABC INSURANCE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Tauro,* District Judge.

Roberto Busó-Aboy, for appellants.
Jeffrey A. Van Detta, with whom Lespier & Muñoz-Noya, Roberto
Ariel Fernández, Kilpatrick Stockton, LLP and Carolyn Sawyer, were on
brief, for appellees.

* Of the District of Massachusetts, sitting by designation.
September 10, 2001

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 TAURO, District Judge. Plaintiff Victor F. Rivera-Rodriguez

("Rivera") sued his former employer Frito Lay Snacks Caribbean, Inc.

("Frito Lay"); Jose Luis Prado ("Prado"), Frito Lay’s President; and

Enrique Niño ("Niño"), Frito Lay’s Director of Human Resources. Rivera

claims that Defendants violated Title VII of the Civil Rights Act

(Title VII), 42 U.S.C. §§ 2000e-2000e-17 (2000); the Age Discrimination

in Employment Act (ADEA),29 U.S.C. §§ 621-634; and the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, when they created a

hostile work environment and terminated him based on his age,

disability, and national origin.

The district court granted Defendants’ Motion for Summary

Judgment, and Rivera appeals. For the following reasons, the district

court’s decision is affirmed in part and reversed in part.

I. BACKGROUND

Rivera is fifty years-old, and suffers from chronic asthma

and malignant lymphoma. In 1984, he began working for Frito Lay, a

division of Pepsico, Puerto Rico, Inc. In September 1985, Rivera

became Frito Lay’s Director of Human Resources for the Caribbean, where

his chief responsibility was communicating with the company’s sales

force. Throughout his tenure, Rivera was supervised by Don McFarlane,

Regional Human Resources Vice President for Frito Lay’s Latin American

Region. Rivera consistently received high marks in his performance

reviews.

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 In March 1993, Frito Lay’s Puerto Rican operations moved

under Pepsico’s Latin American Region operations, headquartered in

Mexico City. The reorganization resulted in a number of Mexican

nationals assuming high-ranking positions, including that of president

filled by Defendant Prado. Prado supervised McFarlane, and both Prado

and MacFarlane reported to another Mexican national, Rogelio Rebolledo

- Latin American Region President.

In the spring of 1995, Frito Lay’s sales employees filed a

petition with the National Labor Relations Board for representation by

the Seafarers’ International Union. Rivera worked with MacFarlane and

Prado to discourage the employees from electing to unionize. But

despite their efforts, the union prevailed by a close margin in

September 1995.

After the election, Frito Lay brought in Defendant Niño,

allegedly for his experience dealing with unions. Frito Lay

immediately reassigned many of Rivera’s tasks to Niño, a Mexican

national who is seven years younger than Rivera. Soon thereafter, in

March 1996, MacFarlane told Rivera that his position was being

eliminated and gave Rivera three employment options: transfer to the

Dominican Republic; transfer to Brazil; or become a human-resources

consultant to Frito Lay. Rivera opted to transfer to the Dominican

Republic.

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 Rivera had worked in the Dominican Republic for eight months

when MacFarlane informed him that Frito Lay was eliminating his

position because of a significant financial downturn in the company’s

Dominican Republic operations. Rivera met with Prado on November 6,

1996 to discuss employment alternatives. Prado suggested that Rivera

consider becoming a human-resources consultant to Frito Lay. Rivera

rejected this proposal, asking instead to be reinstated to his prior

position in Puerto Rico.

On January 29, 1997, MacFarlane offered Rivera a four-year

consulting contract that Rivera rejected. On February 28, 1997, Niño

gave Rivera a termination letter signed by Prado. Rivera’s termination

was effective March 3, 1997. He was forty-six-years old.

Rivera filed an administrative charge with the Equal

Opportunity Employment Commission (EEOC) on March 10, 1997, and the

EEOC issued a right-to-sue letter on May 19, 1997.

II. DISCUSSION

Rivera alleges that Defendants’ discriminatory acts created

both a hostile work environment and resulted in his unlawful

termination. We review the district court’s decision to grant Summary

Judgment de novo, with all reasonable doubts and issues of credibility

resolved in the non-movant’s favor. Landrau-Romero v. Banco Popular De

Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000); Hernandez-Loring v.

Universidad Metropolitana, 233 F.3d 49, 51 (1st Cir. 2000).

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A. Hostile Work Environment

Rivera claims that he was subjected to a hostile work

environment at Frito Lay. In granting Summary Judgment, the district

court first concluded that all alleged discriminatory events occurring

before May 10, 1996 were time-barred and could not be considered in its

hostile-work-environment analysis. The court then determined that only

Rivera’s termination from Frito Lay occurred after that date.

Under Title VII, the ADEA, and the ADA, a plaintiff must file

an employment-discrimination charge with the EEOC within 300 days of

the alleged discrimination. 42 U.S.C. § 2000e-5(e)(1) (2000) (noting

Title VII’s charge-filing requirement); 29 U.S.C. § 626(d)(2) (stating

ADEA’s charge-filing requirement); Bonilla v. Muebles J.J. Alvarez,

Inc., 194 F.3d 275, 277-78 (1st Cir. 1999) (stating that Title VII’s

charge-filing requirement applies to the ADA). A plaintiff generally

cannot litigate claims based on conduct falling outside of this period.

Provencher v. CVS Pharmacy, 145 F.3d 5, 13-14 (1st Cir. 1998). But

where the violation is "of a continuing nature, the charge of

discrimination filed . . . may be timely as to all discriminatory acts

encompassed by the violation so long as the charge is filed during the

life of the violation or within the statutory period . . . ." Pilgrim

v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997)

(internal quotations omitted).

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 Continuing violations can be systemic or serial. Id. at 869.

Systemic violations occur where an employer maintains a discriminatory

policy, responsible for multiple discriminatory acts that may fall

outside of the limitations period. Id. If the policy or practice

continues into the limitations period, the complaint is considered

timely. Sabree v. United Bhd. of Carpenters and Joiners Local No. 33,

921 F.2d 396, 400-02 (1st Cir. 1990) (citations omitted).

Serial violations, however, occur where the plaintiff

experiences a number of similar discriminatory acts arising from the

same discriminatory animus. Id. at 400. Such acts are timely if at

least one discriminatory event occurs within the statutory period that

anchors the earlier claims. Id. This anchor violation is only timely

if it is part of and exposes a pattern of actionable discrimination.

Provencher, 145 F.3d at 14.

In O’Rourke v. City of Providence, this court set forth three

factors to assess the sufficiency of a serial-continuing-violation

claim: (1) whether the subject matter of the discriminatory acts is

sufficiently similar to render the otherwise untimely acts

substantially related to the timely acts; (2) whether the acts occur

frequently, repetitively, or continuously or are isolated and discrete;

and (3) whether the acts are sufficiently permanent to make the

plaintiff aware of the need to assert his or her rights. 235 F.3d 713,

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731 (1st Cir. 2001) (internal citations omitted); see Sabree, 921 F.2d

at 402.

Rivera alleges that Defendants’ actions constitute serial-

continuing violations of age, disability, and national-origin

discrimination. Particularly, he states that the following incidents

establish a clear discriminatory pattern:

(1) At an April 1994 staff meeting, Rebolledo told Rivera

to "be quiet, you’re stale" (Rivera Dec. 5, 1998 Dep. at 24.);

(2) At an April 28, 1995 human-resources-plan meeting in

Mexico, Prado and Rebolledo referred to Puerto Ricans as monkeys. When

talking about the Frito Lay administration, for example, Rebolledo

stated that "those monkeys [don’t] know what they [are] doing" ( Id. at

46.);

(3) At an October 10, 1995 meeting with a recruiting firm,

Prado expressed a preference for employees with "youth and

intelligence" and voiced concern that "some of the candidates referred

to him were over forty years old" (Id. at 34-37.);

(4) On October 23, 1995, Prado and Niño told labor

consultant Ray Micus that the decisive factor in terminating

supervisory-sales employees was age (Id. at 41-44.);

(5) During a November 1995 lunch meeting, Rivera commented

that he was not feeling well, to which Niño responded that Rivera’s

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health problems were due to "ansia", meaning antiquity or old age ( Id.

at 40-41.);

(6) On January 24, 1996, Niño told labor lawyer Dwayne

Aldrich that Rivera’s gray hair must mean he’s sixty years old ( Id. at

39.); and

(7) On January 18, 1997, Prado and Niño stated that Rivera’s

health condition was due to "La bola de años", which translates to ball

of years (Id. at 31-33.).

Rivera argues that the subject matter of the alleged acts

always related to his age, medical condition, and nationality; that

there were numerous incidents; and that until February 1997, he had no

reason to believe that he was being discriminated against and did not

have a future with the company. Defendants counter that Rivera merely

advances discrete, isolated events - unrelated to his ultimate

termination. Counting back 300 days from March 10, 1997, the date

Rivera filed his EEOC charge, only Prado’s and Niño’s comments that

Rivera’s health condition was due to "la bola de años" are timely.1

1. Disability-Based Hostile Work Environment

Rivera argues that because this anchoring violation

refers to Rivera’s health, the comments demonstrate disability

discrimination, thus rendering timely all similar incidents. Rivera,

1 Although the district court only considered Rivera’s termination
timely, Rivera alleges that Prado’s and Niño’s comments, not the
termination itself, are the anchoring violation.

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however, overlooks the fact that he has not shown that he is

statutorily disabled.

The ADA proscribes employers from discriminating against a

qualified individual with a disability. 42 U.S.C. § 12112(a). A

"qualified individual" is "an individual with a disability who, with or

without reasonable accommodation, can perform the essential functions

of the employment position that such individual holds or desires." Id.

§ 12111(8). A "disability" includes "a physical or mental impairment

that substantially limits one or more major life activities." Id. §

12102(2)(A). "Substantially limits" means that the person cannot

perform a major life function or is "significantly [limited in] the

condition, manner or duration under which [the] individual can perform

a particular major life activity, as compared to the average person in

the general population . . . ." 29 C.F.R. § 1630.2(j)(ii).

We apply a three-step analysis when considering statutory

disability. Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, we

determine whether Rivera’s asthma and lymphoma are physical

impairments. Second, we determine whether Rivera’s work -- the life

activity he claims was affected -- meets the ADA definition of a major

life activity. Id. Third, "tying the statutory phrases together, we

ask whether the impairment substantially limits the activity found to

be a major life activity." Lebron-Torres v. Whitehall Labs., 251 F.3d

236, 239-40 (1st Cir. 2001).

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 Rivera’s conditions -- asthma and lymphoma -- meet the EEOC

definition of impairment, and the EEOC recognizes working as a "major

life activity." Id. But Rivera has not presented any evidence that

either condition substantially limits his ability to work. In fact,

Rivera argues that he was capable of performing all tasks required of

him by Frito Lay without assistance. Absent evidence that Rivera

suffered from a substantially limiting impairment, he has not

demonstrated that he is disabled. The district court correctly granted

Defendants’ Summary Judgment Motion on Rivera’s disability-based,

hostile-work-environment claim.

2. National-Origin Hostile Work Environment

As stated above, the anchoring violation concerning

Prado’s and Niño’s "la bola de años" comments references only Rivera’s

age and health. Any prior incidents allegedly supporting a national-

origin-based, hostile-work-environment claim are time-barred. Hence,

the district court correctly granted Summary Judgment on this claim.

3. Age-Based Hostile Work Environment

As stated above, the anchoring violation refers to

Rivera’s age. As a threshold matter, we find that the seven-year age

difference between Rivera and Niño, who allegedly took over Rivera’s

job duties, is sufficient to support a prima-facie case of age

discrimination. See Williams v. Raytheon Co., 220 F.3d 16, 21 (1st

Cir. 2000) (collecting cases holding that age difference of less than

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five years is insufficient for a prima-facie showing). Of the seven

allegedly discriminatory incidents, all but one -- Rebolledo’s

reference to Puerto Ricans as monkeys -- refers to Rivera’s age. The

subject matter of these six incidents is sufficiently similar to the

anchoring violation to meet the first O’Rourke criterion of whether the

subject matter of the discriminatory acts is sufficiently similar to

render the otherwise untimely acts substantially related to the timely

acts. O’Rourke, 235 F.3d at 731.

The second O’Rourke criterion requires that the acts occur

frequently, repetitively, or continuously, and are not isolated and

discrete. The six age-related comments occurred within a two-year

period, sufficiently numerous to be considered continuous. Id.

We next are faced with the most difficult of the O’Rourke

criteria: whether the volume of discriminatory acts, as a matter of

law, should have alerted Rivera of the need to file a discrimination

claim. Id. at 732. The issue is difficult because "[a] plaintiff may

be unable to appreciate that he is being discriminated against until he

has lived through a series of acts and is thereby able to perceive the

overall discriminatory pattern." Id. (quoting Sabree, 921 F.2d at

402). Although in certain circumstances, notice may be resolved as a

matter of law, the question is often better determined by juries, who

can reflect on their own experiences. Id.

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 Rivera argues that he did not realize Defendants’

discriminatory animus or that he had an actionable claim until February

1997, when his position in the Dominican Republic was eliminated. In

support, Rivera points to MacFarlane’s testimony, stating that Rivera

was told the company wanted him to remain a part of the team. Rivera

also notes that Prado testified at his deposition that Rivera did not

express any uneasiness with Niño’s presence in the Puerto Rican

operations. Such reassurance and lack of complaint lends support to

Rivera’s contention that he could not have perceived an overall

discriminatory pattern any earlier.

Because a jury could find that all O’Rourke criteria were met

on the six age-related incidents, the district court erred by ruling

that they were time-barred. From these incidents, we next consider

whether a reasonable jury could find that Rivera was subjected to a

hostile work environment.

Hostile-work-environment claims were first recognized in the

sex-discrimination context, but have since been recognized for members

of any protected class. Lattimore v. Polaroid Corp., 99 F.3d 456, 463

(1st Cir. 1996). To prove a hostile-work-environment claim, a

plaintiff must provide sufficient evidence from which a reasonable jury

could conclude that the offensive conduct "is severe and pervasive

enough to create an objectively hostile or abusive work environment and

is subjectively perceived by the victim as abusive." Landrau-Romero,

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212 F.3d at 613. When assessing whether a workplace is a hostile

environment, courts look to the totality of the circumstances,

including the frequency of the discriminatory conduct; its severity;

whether it is threatening or humiliating, or merely an offensive

utterance; and whether it unreasonably interferes with the employee’s

work performance. Id. (quoting Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993).

The district court concluded that no reasonable jury could

find that Rivera was subjected to a hostile work environment because

even if timely, the incidents were inadmissible because Rivera failed

to show personal knowledge. Our review of the record reveals

otherwise.

Neither Party disputes that Rivera is competent to testify

to those allegedly discriminatory statements made directly to him.

These include Rebolledo’s statement to Rivera that he was "stale",

Niño’s comment to Rivera that his health problems were due to "ansia",

and Prado’s and Niño’s statements that Rivera’s health problems were

due to "la bola de años".

The remaining allegations include Prado’s statements to a

recruiting firm that Frito Lay needed employees with youth and

intelligence and should discourage candidates over forty, Prado’s and

Niño’s discussions with Micus that the decisive factor in terminating

supervisory-sales employees was age, and Niño’s comment to Aldrich that

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Rivera’s gray hair must mean he’s sixty years old. The record

indicates that Rivera was present on all three occasions.

Rivera’s December 5, 1998 deposition reveals that he was

present when Prado made the statement to the recruiting firm.

Specifically, Rivera testified that "[o]ne time that we were with a

company, a group of head hunters, [Prado] mentioned that the

company...needed...young and intelligent blood...." (Rivera’s Dec. 5,

1998 Dep. at 34, 36 (emphasis added).)

As for Prado’s and Niño’s discussions with Micus that the

decisive factor in terminating supervisory-sales employees was age,

Rivera’s testimony again reveals his presence. Rivera stated that

"[t]here was one time we were in the big conference room, when we were

discussing with a consultant called Ray Micus, post-election strategies

in sales. And we were, in fact, looking into who we could retire, who

were over 50-something years old. . . [Prado] wanted to retire anybody

that was over 50 years old in the company." ( Id. at 41, 44 (emphasis

added).)

Rivera also was present when Niño commented to Aldrich that

Rivera’s gray hair must mean he’s sixty years old. Rivera testified

in his deposition that "[t]here was one time when we were with the

attorney[] Duane Aldridge...[who] asked where I was from. And I said

Vieques. And he said, ah, they must grow tall people with grey hair

there. And [Niño] said yes, yes, yes, also 60 year[] old[s]. . .."

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(Id. at 39.) Because Rivera was present when each of these statements

were made, the district court erred in disregarding his testimony.

Considering the totality of the circumstances, a reasonable

jury could find that Rivera was subjected to a hostile work environment

based on his age. On six separate occasions, Frito Lay’s president,

its Latin American Region President, and/or the Director Human

Resources for the Caribbean made seemingly derogatory, age-related

statements about Rivera. Because a question of fact exists over

whether these comments created a hostile work environment, the district

court erred in granting Summary Judgment on Rivera’s age-based,

hostile-work-environment claim.

B. Termination

We turn now to Rivera’s wrongful-termination claim. Where

a plaintiff has no direct evidence of discrimination and must prove his

or her case circumstantially, this court looks to the totality of the

evidence, guided by the familiar McDonnell Douglas-Burdine-Hicks

framework. Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430

(1st Cir. 2000). Under this burden-shifting test, the plaintiff first

must prove a prima-facie case of discrimination. An employee alleging

discrimination must show that: (1) he was a member of a protected

class; (2) he was qualified for the position; (3) he was discharged;

and (4) other similarly situated employees who were not members of the

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protected class were treated more favorably. Mulero-Rodriguez v.

Ponte, Inc., 98 F.3d 670, 673 (1st Cir. 1996).

If the plaintiff demonstrates a prima-facie case, the burden

shifts to the defendant to articulate a legitimate, non-discriminatory

reason for its challenged actions. Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254-55 (1981). If the defendant carries this

burden of production, the plaintiff must prove that the legitimate

reasons were mere pretext for discrimination. Id. at 253.

The district court assumed that Rivera made out a prima-facie

case that he was wrongfully terminated as a result of age and national-

origin discrimination, assumptions Frito Lay does not appeal. The

burden of production then shifted to Frito Lay to demonstrate

legitimate reasons for terminating Rivera. The district court

concluded that Frito Lay met its burden by proffering that: a severe

downturn in the Dominican Republic operations during the second half of

1996 required Frito Lay to eliminate Rivera’s position; the company

refused to rehire Rivera in Puerto Rico as the Director of Human

Resources because that position no longer existed; the company was

unhappy with the fact that the sales force unionized during Rivera’s

tenure; and the company preferred Niño as Director of Human Resources.

Finding most of Rivera’s testimony time-barred, the district court

concluded that Rivera failed to produce sufficient evidence of pretext.

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 As stated above, the court correctly granted Summary Judgment

on Rivera’s disability-discrimination claim because Rivera failed to

produce any evidence of a statutory disability. We only consider

Rivera’s contention that the district court erred by disregarding

evidence from which a reasonable jury could conclude that Frito Lay’s

reasons were pretext for age and national-origin discrimination.

Rivera theorizes that Frito Lay, motivated by discriminatory

animus, conspired to force him from the company. He contends that

Frito Lay knew of the economic situation in the Dominican Republic

before transferring him, but did so to free his position for Niño, a

younger, non-Puerto Rican.

To show pretext, Rivera first points to the undisputed fact

that Frito Lay did not move his family to the Dominican Republic, while

it moved Niño’s family to Puerto Rico. This conduct, Rivera argues,

indicates that Frito Lay knew - before moving Rivera - that his

position in the Dominican Republic would be eliminated, and hired Niño

to permanently replace Rivera and prevent Rivera from later returning

to Puerto Rico.

To counter Frito Lay’s stated rationale that it did not

rehire Rivera because he was responsible for the 1994 unionization of

the sales force, Rivera argues that he successfully directed an anti-

unionization campaign for Frito Lay in 1989. As part of that campaign,

Rivera implemented procedures viewed favorably by employees. He claims

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that the 1994 unionization resulted from the Mexican management’s

violation of those procedures.

Rivera states, without dispute, that he had extensive

collective-bargaining experience with a former employer. Thus, he

claims, Frito Lay’s purported reasons for not reassigning Niño and

rehiring him -- that only Niño had collective-bargaining experience at

Frito Lay and was capable of implementing an organizational-development

strategy for dealing with the new union -- were false.

Rivera also contends that the evidence contradicts Frito

Lay’s argument that Rivera was not replaced by the younger Niño. Frito

Lay states that Rivera’s position in Puerto Rico was eliminated, and

that his duties were split between Niño and Luis Noriega, a Puerto

Rican several years Rivera’s senior. Rivera counters, however, that

Niño assumed many, if not most of his responsibilities, and was given

Rivera’s title of Director of Human Resources. From this, he argues a

jury could find that Niño replaced him.

Rivera lastly argues that Prado and Niño made discriminatory

remarks based on Rivera’s age and national origin: Rebolledo called

Rivera stale; Prado and Rebolledo referred to Puerto Ricans as monkeys;

and Prado, in discussions with a recruiting firm, expressed a

preference for young, intelligent employees and a lack of preference

for candidates in their forties. Frito Lay asserts that the court must

disregard all of these allegedly discriminatory statements because they

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were not made by the sole decision-maker regarding Rivera’s employment

-- MacFarlane.

But Rivera contends that Prado and Rebolledo approved, and

thereby influenced, MacFarlane’s decisions concerning Rivera’s

employment. Prado testified in his deposition that he participated in

some respect in Rivera’s employment decisions. (Prado Dep. at 50.)

Moreover, MacFarlane testified that he discussed his decisions about

Rivera’s employment with Prado and Rebolledo. (MacFarlane Dep. at 53.)

A plaintiff’s prima-facie case, combined with sufficient

evidence to find that an employer’s asserted justification is false,

may permit a trier of fact to conclude that the employer unlawfully

terminated the plaintiff. See Reeves v. Sanderson Plumbing, 530 U.S.

133, 148 (2000). Evidence of biased comments may support an inference

of pretext. Dominguez-Cruz, 202 F.3d at 433. And discriminatory

statements related to the decisional process may be sufficient to prove

an employer’s alleged discriminatory animus. Shorett v. Rite Aid of

Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998).

Certainly Rivera has proffered sufficient evidence to

overcome Summary Judgment on his age and national-origin-based,

wrongful-termination claims. Rivera has shown a genuine dispute over

material facts regarding whether Frito Lay knew of the financial

situation in the Dominican Republic before transferring Rivera, whether

the 1994 unionization was Frito Lay’s true reason for not rehiring

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Rivera, whether Rivera was replaced by a younger non-Puerto Rican, and

whether MacFarlane was the sole decision-maker on Rivera’s employment.

Accordingly, the district court erred by granting Frito Lay’s Summary-

Judgment Motion on Rivera’s wrongful-termination claims based on his

age and national origin.

CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment is AFFIRMED in part and REVERSED in part.

Judgment affirmed in part, and reversed in part.

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