United States Court of Appeals
For the First Circuit
No.05-2721
GLADEN VELEZ,
Plaintiff, Appellant,
v.
JANSSEN ORTHO, LLC,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Selya, Lipez, and Howard, Circuit Judges.
Carlos M. Vergne for appellant.
Carl Schuster, with whom Mariela Rexach and Schuster & Aguiló
LLP were on brief, for appellee.
November 3, 2006
LIPEZ, Circuit Judge. In this unusual employment
discrimination case, we must decide what prima facie showing is
necessary to establish an adverse employment action, within the
meaning of Title VII, when a plaintiff alleges a retaliatory
failure-to-hire. Claims of retaliation in the failure-to-hire
context are sufficiently rare that this question is one of first
impression for this court. When a plaintiff makes such a claim, we
conclude that the establishment of an "adverse employment action"
requires a showing that (1) she applied for a particular position
(2) which was vacant and (3) for which she was qualified. In
addition, of course, she must show that she was not hired for that
position.
Appellant Gladden Velez claims that her former employer,
appellee Janssen Ortho, refused to consider her for re-employment
in retaliation for a previous lawsuit she filed against the company
in the Puerto Rico Court of First Instance alleging sexual
harassment by her supervisor. She brought this employment
discrimination lawsuit, in the federal district court of Puerto
Rico, under Title VII and Puerto Rico commonwealth statutes. The
district court granted summary judgment for Janssen on all claims,
finding that Velez failed to make a prima facie showing of
retaliation. We affirm the district court's judgment, although on
narrower grounds.
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I.
A. Factual Background
We recount the facts of this case with the summary
judgment standard in mind, drawing all reasonable inferences and
viewing the record in favor of Velez, the non-moving party. See,
e.g., Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).
Velez was first hired to work for Janssen in August 1989,
and she remained at Janssen's Gurabo chemical plant until December
1998. While working at the Gurabo plant, Velez claimed that she
was sexually harassed by her supervisor; she also alleged that her
boss retaliated against her for reports of manufacturing
irregularities she submitted to the Food and Drug Administration.
In response to the alleged harassment and retaliation, Velez filed
a commonwealth law claim in the Court of First Instance of Puerto
Rico (the "Caguas court") on June 23, 1997. After the Caguas case
was filed, Velez remained a Janssen employee and continued to
perform her duties satisfactorily for over a year.
In November 1998, Velez applied for a promotion to the
position of Senior Packaging Engineer. Janssen denied her request
because she was not qualified for the position. Shortly
thereafter, in December 1998, Janssen closed the Gurabo chemical
plant and Velez lost her job; Velez received a standard severance
package totaling $12,704.86. Two weeks later, Velez amended her
original Caguas case to include an additional allegation of
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retaliation, based on Janssen's failure to transfer her to a new
position after the closing of the Gurabo plant.
In February 1999, Velez sent a letter and resume to
Janssen requesting that she be considered for a Manufacturing
Supervisor position. Janssen did not respond. In May 1999, Velez
sent another letter and resume applying for the Senior Packaging
Engineer job, for which she had been rejected prior to the closing
of the Gurabo plant. Again, Janssen sent no reply to Velez.1
About two years later, on August 8, 2001, Velez again
contacted Janssen seeking employment. She sent a general cover
letter and resume to Janssen's human resources department via
certified mail, requesting consideration for employment. Her
letter expressed interest in "any position available." Velez
mentioned a variety of general job categories (such as
manufacturing supervisor, warehouse supervisor, and utilities
supervisor) and asked to be considered for any position for which
the human resources department considered her qualified. One week
later, on August 15, Velez sent an identical letter and resume to
the human resources department, this time via facsimile.
In response to Velez's August 2001 letters and resumes,
Janssen's director of human resources, Carlos Otero, sent a letter
stating that she would not be considered for an interview or
1
Velez filed a Second Amended Complaint in the Caguas court in
December 2001, alleging that Janssen was continuing to retaliate
against her by failing to respond to her 1999 job applications.
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"rehiring." Otero's letter mentioned Velez's prior lay-off and
severance, as well as the company's "business needs" as an
explanation. Otero subsequently testified that he consulted with
one of Janssen's lawyers prior to finalizing and sending the
rejection letter. He also testified, as did other Janssen
employees, that the human resources department typically sent no
response to rejected applicants.
Three days after Otero sent Velez the rejection letter,
Janssen published an advertisement in the local newspaper for two
Manufacturing Process Facilitator ("MPF") positions.2 Janssen
interviewed at least one candidate for one of the MPF jobs sometime
in September. Janssen did not hire anyone for either position at
that time. One of the positions remained vacant until July 2002,
almost a year after Velez applied.3
2
Velez has claimed that her letters and resumes were sent in
response to newspaper ads. In her brief to this court and her
opposition to Janssen's Motion for Summary Judgment, she alleges
that Janssen advertised two MPF jobs on July 20, 2001. Velez does
not support this claim with exhibits or deposition testimony.
Elsewhere, she concedes that the newspaper advertisements for the
two MPF positions appeared on August 19, 2001. It appears that the
July 20, 2001 date is a typographical error or mistake, as the
record contains no evidence that Janssen advertised these positions
prior to her August 8 and August 15 letters. For purposes of this
appeal, therefore, we assume that Janssen advertised two MPF
positions on August 19 and not before.
3
The record is unclear as to when the first MPF position was
filled. It appears that someone was hired for that job within the
year following the advertisement, but it is not clear precisely
when that occurred.
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B. Procedural Background
Velez filed her complaint in this case on January 27,
2003, alleging federal claims under the Americans with Disabilities
Act, 42 U.S.C. §§ 12101-12213, and Title VII, 42 U.S.C. § 2000e-3.
She also asserted claims under Puerto Rico's Act No. 44, P.R. Laws
Ann. tit. 1, § 501 (disability discrimination); Act No. 100, P.R.
Laws Ann. tit. 29, § 146 (gender-based employment discrimination);
Act No. 115, P.R. Laws Ann. tit. 29, § 194a (retaliatory employment
discrimination) ("Law 115"); Articles 1802 and 1803 of the Puerto
Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42 (general tort
statute); and the privacy protections in the Puerto Rican
constitution.
Janssen subsequently moved for summary judgment, arguing
that Velez: (1) failed to meet her prima facie burden of showing
retaliation because her prior lawsuit was not protected activity
under Title VII, and (2) failed to show a causal connection between
her conduct and an "adverse employment action" by Janssen.
In granting judgment for Janssen, the district court used
the McDonnell Douglas burden-shifting framework for employment
discrimination claims. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). That is, the district court found that Velez bore
the initial burden of making a prima facie showing of three
elements: (1) she engaged in protected activity; (2) she suffered
an adverse employment action; and (3) a causal connection existed
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between her protected activity and the adverse employment action.
See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st
Cir. 2004). The court also discussed the more precise standard for
causation in failure-to-hire cases, as articulated in Ruggles v.
Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986). In
Ruggles, the Ninth Circuit held that a plaintiff claiming that a
failure-to-hire amounted to discriminatory retaliation must "show
that the position for which she applied was eliminated or not
available to her because of her protected activities." Id.
The district court first concluded that Velez's
activities were not protected under Title VII. It found that
Velez's "filing and successive amended filings of discrimination
lawsuits against Janssen [were] unreasonable," and therefore held
that Velez had not engaged in protected activity. See Hochstadt v.
Worcester Found. for Experimental Biology, 545 F.2d 222, 230-31
(1st Cir. 1976) (applying a balancing test to determine whether
specific actions are protected "opposition activity" and holding
that an employee's actions may not be protected under Title VII
where they are hostile and disruptive).
The district court alternatively held that Velez failed
to satisfy the causation element of her prima facie case. It found
that her allegations could not support an inference of
discriminatory retaliation because she sent her letters of
"application" without specifying a particular job opening and at a
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time when there were no positions open to external candidates. The
court therefore concluded that there was no failure-to-hire that
could have been caused by Velez's prior opposition conduct.
The court also rejected Velez's claim under the Americans
with Disabilities Act and the supplemental commonwealth law claims.
On appeal, she challenges only the dismissal of her employment
discrimination claims under Title VII and Puerto Rico law.
II.
Our review of the district court's summary judgment is de
novo. Ingram v. Brink's, Inc., 414 F.3d 222, 228 (1st Cir. 2005);
Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 30 (1st Cir. 2003).
We must examine the evidence in the light most favorable to the
non-moving party, and give that party "the benefit of any and all
reasonable inferences." Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.
2004). Summary judgment is an appropriate resolution of claims
where "there is no genuine issue as to any material fact," and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); see also Calero-Cerezo, 355 F.3d at 19.
Our evaluation of Velez's claims begins with § 704(a) of
Title VII, which prohibits an employer from "discriminat[ing]
against any of [its] employees or applicants for employment . . .
because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has . . . participated
in any manner in an investigation, proceeding, or hearing under
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this subchapter." 42 U.S.C. § 2000e-3(a). As already noted,
claims of retaliatory discrimination under this provision must
begin with a prima facie showing of three elements: (1) protected
opposition activity, (2) an adverse employment action, and (3) a
causal connection between the protected conduct and the adverse
action. Calero-Cerezo, 355 F.3d at 25. The district court focused
on the deficiencies in Velez's prima facie showing of protected
opposition activities and the causal relationship between those
activities and Janssen's failure to hire her. We focus on the
second prong of the retaliatory discrimination test, the existence
of an adverse employment action.
The district court did not explicitly address this prong.
Although the court noted Velez's failure to submit her
"application" in a form that complied with Janssen's typical hiring
procedures, and concluded that her letters "cannot reasonably be
deemed applications to be considered for [the MPF] position," it
treated these deficiencies as matters of causation. The parties
also discussed the specifics of Velez's August 2001 inquiries about
jobs at Janssen as a causation issue. We think that this focus on
causation was at best awkward on the facts of this case.
In the retaliatory failure-to-hire context, the specifics
of the job application or applications that underlie a claim of
failure-to-hire usually relate most naturally to the adverse
employment action prong of such a claim. Put most simply, in the
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absence of a job application, there cannot be a failure-to-hire.
We are not suggesting that there was a complete absence of a job
application in this case. But Velez only sent two general letters
in August 2001 expressing interest in any available job.4 Guided
by some precedents from the other circuits, we conclude that such
general letters ordinarily cannot be the predicate for the adverse
employment action prong in a retaliatory failure-to-hire case.
Instead, a plaintiff alleging such a claim must show that (1) she
applied for a particular position (2) which was vacant and (3) for
which she was qualified. In addition, she must show that she was
not hired for that position.
In Morgan v. Fed. Home Loan Mort. Corp., 328 F.3d 647,651
(D.C. Cir. 2003), the court held that the plaintiff claiming a
retaliatory failure-to-hire must show "that he applied for an
available job; and . . . that he was qualified for that position."
The court later reiterated this formulation of the required prima
facie showing in Carter v. George Washington Univ., 387 F.3d 872,
878 (D.C. Cir. 2004). In Cichon v. Exelon Generation Co., 401 F.3d
803, 812 (7th Cir. 2005), the court applied the generally-accepted
standard for retaliatory failure-to-hire claims, but also specified
that plaintiffs making such claims must show that they applied for,
4
In 1999, Velez sent two letters to Janssen requesting employment
in specific positions. Janssen's rejection of those applications
is not at issue in this case.
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and had the technical qualifications for, the position sought. Id.5
In Ruggles, the Ninth Circuit implicitly adopted the same view,
holding that a plaintiff claiming retaliatory failure-to-hire must
"show that the position for which she applied was eliminated or not
available to her because of her protected activities." 797 F.2d at
786 (emphasis added).
Precedent in the analogous context of failure-to-promote
claims also reflects the requirement that plaintiffs asserting
discriminatory retaliation must show that they applied for a
specific vacant position for which they were qualified, and that
they did not get the job. See Brown v. Coach Stores, Inc., 163
F.3d 706, 711-12 (2d Cir. 1998) (holding that a plaintiff claiming
a failure-to-promote must show that she "applied for a specific
position or positions . . . rather than merely asserting that on
5
In nearly all of the failure-to-hire cases we have examined,
causation was the dispositive issue because the court found that
the plaintiffs had applied for and been rejected for a specific
job. Thus the critical issue was the motivation for that
rejection. See, e.g., Arraleh v. County of Ramsey, 461 F.3d 967,
977-78 (8th Cir. 2006); Price v. Thompson, 380 F.3d 209, 212-13
(4th Cir. 2004); Walker v. Glickman, 241 F.3d 884, 889-90 (7th Cir.
2001); Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1179
(10th Cir. 2000); Bullington v. United Air Lines, Inc., 186 F.3d
1301, 1321 (10th Cir. 1999); Sarno v. Douglas Elliman-Gibbons &
Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999); Williams v. Nashville
Network, 132 F.3d 1123, 1131-33 (6th Cir. 1998); Fleming v. Boeing
Co., 120 F.3d 242, 248 (11th Cir. 1997). Likewise, Carter, 387
F.3d at 878-82, Cichon, 401 F.3d at 812-15, and Ruggles, 797 F.2d
at 786-88, were also decided on the causation question, as there
was no dispute about the plaintiffs having applied for the sought
position. Morgan is the only notable exception to this pattern.
328 F.3d at 651-54.
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several occasions she or he generally requested promotion");
Petrosino v. Bell Atlantic, 385 F.3d 210, 226-27 (2d Cir. 2004)
(same); Ricci v. Applebee's Ne., Inc., 297 F. Supp.2d 311, 320-22
(D. Me. 2003) (applying the Brown standard and holding that a
general expression of interest in, without formal application for,
a position is insufficient to support a legal claim of adverse
employment action). Indeed, the Brown case provides the closest
factual similarity we have found to this case. There, the
plaintiff repeatedly requested a promotion, without success, but
her claim for failure-to-promote was dismissed by the district
court because of her inability to identify any specific positions
for which she had applied. 163 F.3d at 708-09. The Second Circuit
affirmed the district court's decision on the ground that a
failure-to-promote claim necessitates a prima facie showing "that
[the plaintiff] applied for a specific position or positions." Id.
at 710. In its decision, the court explicitly articulated the
concern that, absent this showing, employees could establish a
claim without identifying a particular application that gave rise
to the alleged adverse employment action. Id.
This specificity requirement is sensible and fair. An
open-ended request for employment should not put a burden on an
employer to review an applicant's generally stated credentials any
time a position becomes available, at the risk of a Title VII
claim. If we were to find such a general request the legal
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equivalent of an application, we would require employers to answer
for their failure to hire individuals who did nothing more than
express a desire to be employed. Cf. Brown, 163 F.3d at 710
(stating that general expressions of interest cannot be sufficient
to state a Title VII claim because such a result would "unfairly
burden" employers by requiring them "to keep track of all employees
who have generally expressed an interest in promotion and consider
each of them for any opening for which they are qualified but did
not specifically apply"). A failure-to-hire claim obviously
depends on the availability of a job opening. It is not unfair or
unduly burdensome to expect a plaintiff to submit an application
for that vacancy as a prerequisite for stating a failure-to-hire
claim. In short, we do not believe an employer is obliged to
defend its decision not to hire an individual for a position for
which she has not specifically applied.6
The parties in this case dispute whether there was a
vacant position at the relevant time. Janssen argues that the MPF
position was not available to external candidates at the time it
received Velez's August 2001 letters. Velez places heavy emphasis
on Janssen's advertisement for the two MPF openings only three days
6
Like the Second Circuit, we recognize the potential for
exceptions to this general rule. See Brown, 163 F.3d at 710
("[T]he general rule . . . is subject to modification where the
facts of a particular case make an allegation of a specific
application a quixotic requirement.").
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after her rejection letter stated that she would not be considered
due to "business needs." Although Janssen has offered explanations
for this seeming-contradiction, Velez has raised a sufficient
factual dispute to foreclose summary judgment on the issue of a job
vacancy when Velez submitted her August letters.
Velez has, nonetheless, failed to make a prima facie
showing of an adverse employment action. She stated only that she
was "interested in being considered for any position available such
as manufacturing supervisor, warehouse supervisor, maintenance
supervisor, utilities supervisor, quality engineer, preventive
maintenance supervisor or any other position." Such a letter
merely expresses interest in a wide range of positions. It is not
the application for a discrete, identifiable position required
under § 704(a) of Title VII. On that basis alone, the district
court properly entered summary judgment for Janssen on Velez's
Title VII claim.
III.
Velez argues that the district court erroneously granted
summary judgment for Janssen under Law 115 of the Puerto Rico code.
Title VII and Law 115 are largely symmetrical in scope. See, e.g.,
Salva v. Eagle Global Logistics, __ F. Supp.2d __, 2006 WL 2685109,
at *4 (D.P.R. Sept. 18, 2006). Velez argues, however, that even if
her Title VII claim were appropriately rejected, her Law 115 claim
should survive because the defendant-employer's burden is greater
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under that law. We do not have to address that contention here.
We have affirmed summary judgment on her Title VII claim based on
the deficiency in her prima facie showing for the adverse
employment action element of a retaliation claim. Thus, the
defendant's burden of proof is irrelevant. Neither party has
suggested that the prima facie showing for a Law 115 claim is
distinct from that required for a Title VII claim. Because Velez
has not shown that she suffered an adverse employment action under
the latter, she has likewise not made such a showing under the
former.
We note an arguable alternative ground for decision
without deciding its merits. The language of Law 115 raises the
possibility (although not mentioned by either party or the district
court) that Velez's claim is not cognizable under Law 115. The
provision under which Velez makes her claim states: "No employer
may . . . discriminate against an employee regarding the terms,
conditions, compensation, location, benefits or privileges of the
employment should the employee offer or attempt to offer, verbally
or in writing, any testimony, expression or information before a .
. . judicial forum in Puerto Rico . . . ." P.R. Laws Ann. tit. 29,
§ 194a(a). In order to prevail on a claim under Law 115, a
plaintiff-employee must show that she engaged in protected activity
and that she was thereafter "discriminated against regarding her
employment." Salva,__ F. Supp.2d __, 2006 WL 2685109, at *4.
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Title VII, however, explicitly protects both "employees
[and] applicants for employment" against retaliatory
discrimination. 42 U.S.C. § 2000e-3(a). Title VII's explicit
embrace of applicants appears, therefore, to be broader than Law
115's coverage of employees only. Nonetheless, we do not explore
this potential difference between the two statutes because Velez's
claim must be dismissed in any event. As discussed above, Law 115
requires the same prima facie showing of an "adverse employment
action" as Title VII. Thus, Velez's claim fails, as a matter of
law, because she has not applied for a specific and available
position.
IV.
We hold that a plaintiff asserting a Title VII claim of
retaliatory discrimination based on a failure-to-hire must, in
order to establish an adverse employment action, make a prima facie
showing that (1) she applied for a particular position (2) which
was vacant and (3) for which she was qualified. In addition, she
must show that she was not hired for that position. For the
reasons discussed above, Velez has not made such a showing here.
Thus, we affirm summary judgment for appellee Janssen on Velez's
Title VII and Law 115 claims.
Affirmed.
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