United States Court of Appeals
For the First Circuit
No. 10-1372
JAYNE MARTINEZ-BURGOS; JOSE COLON-MARTINEZ and the
CONJUGAL PARTNERSHIP,
Plaintiffs, Appellants,
v.
GUAYAMA CORP., a/k/a BAXTER; BAXTER HEALTHCARE;
BAXTER PHARMACEUTICAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
William Nadal Colon on brief for appellants.
Diana M. Espinosa-Nuñez, Juan J. Casillas-Ayala and Fiddler
González & Rodríguez, PSC on brief for appellee.
August 26, 2011
HOWARD, Circuit Judge. In this case involving a claim of
employment discrimination based on pregnancy, plaintiffs Jayne
Martinez-Burgos (“Martinez”) and her spouse Jose Colon-Martinez
appeal from an order granting summary judgment in favor of
Martinez’s former employer, defendant Baxter Healthcare S.A., d/b/a
Baxter Healthcare of Puerto Rico (“Baxter”).1 We affirm.
I. BACKGROUND
Before we sketch the relevant factual background, there
is a threshold issue about which record facts are properly before
us. Baxter filed a motion for summary judgment in December 2008.
Martinez filed a timely opposition, complete with exhibits, in
support of her factual assertions. In connection with her
opposition, Martinez was granted leave to file the exhibits first
in Spanish and to later provide the required English translations.2
The summary judgment motion was subsequently referred to a
magistrate judge, who issued a report and recommendation in
November 2009. The magistrate judge refused to consider Martinez’s
still-untranslated exhibits and found that Martinez had not
provided a proper counter-statement of material facts, as required
by Local Rule 56(c). As a result of these failings, the magistrate
1
Martinez's husband’s claims and the claims resulting from
their shared conjugal relationship are derivative of her individual
claims. In the interest of clarity and conciseness, we will refer
only to Martinez’s claims in this opinion.
2
See D.P.R. L.Civ.R. 10(b)(now codified as D.P.R. L.Civ.R.
5(g)).
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judge ruled that Baxter’s statement of material facts would be
deemed as admitted. The magistrate judge recommended that summary
judgment be granted on the plaintiffs Title VII pregnancy claims
and that remaining state law claims be dismissed without prejudice.
Martinez eventually filed the translations with her
objection to the report and recommendation -- approximately eleven
months after she had originally filed the exhibits. The district
court, however, declined to consider any documents or other facts
not first presented to the magistrate judge, and granted summary
judgment to Baxter.
Ordinarily, we would review the district court’s decision
regarding Martinez’s local rules violations for abuse of
discretion. See Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st
Cir. 2004). Here, however, Martinez has waived the issue. Her
appellate argument on this point is only that she "complied with
the District Court Local Rules" when she filed her opposition to
summary judgment. Such a bare contradiction is plainly
insufficient as an argument. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argument, are
deemed waived.”).3 Martinez's attempt to revive this issue in her
3
See also, Monty Python's Flying Circus: The Argument Clinic
(Episode 29; Nov. 2, 1972) (observing that "an argument is a
collective series of statements to establish a definite
proposition. . . . Argument is an intellectual process.
Contradiction is just the automatic gainsaying of anything the
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reply brief is also deficient. See United States v. Vanvliet, 542
F.3d 259, 265 n.3 (1st Cir. 2008) (“Arguments raised for the first
time in a reply brief are waived.”). Accordingly, we set forth the
facts of this case as culled from the record and from the
uncontested facts proffered by Baxter and deemed admitted by
appellants.
Martinez was employed by Kelly Services, Inc. (“KS”),
which provided temporary staffing to Baxter’s pharmaceutical plant
in Guayama, Puerto Rico. Through KS, Martinez was assigned to work
at the Guayama plant as a “Fill & Pack Operator.” Her temporary
work assignment commenced in September 2003, and consisted of
packing, capping, labeling and inspecting sterile bottles of
anesthesia. She worked as an assembly line employee and was
responsible for making sure that the bottles to be filled with
anesthesia were “clean.” Baxter generally renewed Martinez’s
temporary assignment through KS on a monthly basis.
During her time at the plant, Martinez was notified and
received training about various Standard Operating Procedures
(“SOPs”) and Good Manufacturing Practices (“GMPs”) relevant to her
work. GMP violations could subject Baxter to serious consequences,
including fines, plant shutdowns, permit revocations and product
recalls. Martinez was also specifically trained at least twice on
Baxter’s relevant "Personal Attire and Hygiene" policy.
other person says.").
-4-
On several occasions, Martinez was cited for failing to
comply with company regulations or GMPs. In October 2003, for
example, not long after she began working at Baxter, Martinez was
orally reprimanded for violating Baxter’s dress code. She was
given an Employee Counseling Report (“ECR”) in connection with the
reprimand, and signed the report without disputing its contents.
In December 2004, Martinez was reprimanded for chewing gum in
violation of Baxter’s GMPs, as well as the Personal Attire and
Hygiene policy. The ECR in connection with this incident observed
that Martinez had on several occasions been admonished for chewing
gum in the workplace and that if she were to repeat such conduct,
Baxter would terminate her employment immediately. Martinez signed
this ECR as well without disputing its contents. In addition to
these incidents, Martinez was also verbally reprimanded on a few
occasions for wearing jewelry at work.
Baxter also provided evaluations of Martinez’s
performance to KS. One such evaluation noted several instances of
noncompliance with GMPs and violation of Baxter’s Personal Attire
and Hygiene Policy. Specifically, the evaluation observed that
Martinez had been reprimanded for chewing gum, wearing jewelry and
not wearing eye protection. Another evaluation pointed out that
Martinez had a persistent tardiness problem.
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In her final evaluation, completed on or around February
28, 2005, Martinez’s supervisor pointed out that Martinez could
improve her attendance, punctuality, professionalism and attitude.
Earlier in February 2005, an increase in production needs
prompted Baxter to create five new, full-time Fill & Pack Operator
positions. Martinez applied for one of these newly created
positions. Among the requirements for the position was the demand
that candidates have strong GMP knowledge and safety awareness.
Martinez and the other candidates for the positions were
interviewed on February 25, 2005. All of the interviews were
conducted by the same four-member panel using the same
questionnaire. There were ten categories, known as competence
standards, under which each applicant was evaluated. The five
highest-scoring interviewees would be considered to fill the new
openings. Martinez did not rank among the top five candidates. In
addition, she did not achieve the minimum score to qualify for the
position in eight of the ten competence standards. The successful
candidates were hired in May and July 2005; Martinez was not among
them.
At the time that Martinez sought the full-time position,
she was approximately seven months pregnant. She began her
maternity leave on March 15, 2005, and gave birth on March 26,
2005. Martinez’s last temporary contract had a term of March 7 to
April 15, 2005. It was the eighth contract renewal for Martinez
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after she informed Baxter of her pregnancy in August 2004. KS paid
Martinez’s maternity leave benefits until about May 10, 2005.
Although she applied for temporary employment, Martinez was not
rehired by Baxter after her leave ended. She subsequently obtained
other work through KS.
In her complaint, Martinez asserted two distinct
discrimination claims. First, she contended that Baxter
discriminated against her because of her pregnancy when it refused
to hire her for the full-time Fill & Pack Operator position.
Second, she claimed that Baxter discriminated against her because
of her pregnancy when it refused to renew her temporary services
contract after her maternity leave.
As previously noted, the magistrate judge recommended
granting Baxter's summary judgment motion with respect to the Title
VII pregnancy discrimination claims and recommended dismissing
Martinez's supplemental state law claims without prejudice. The
district court adopted the report and recommendation with only
minor modifications. This appeal followed.
II. DISCUSSION
We review the district court’s grant of summary judgment
de novo. Fontanez-Nuñez v. Janssen Ortho LLC, 447 F.3d 50, 54 (1st
Cir. 2006). Summary judgment is appropriate where “there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P.
-7-
56(c). Issues are not suitable for summary judgment if “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). We view the summary judgment record in the light
most favorable to the nonmoving party, drawing all reasonable
inferences in that party’s favor. Flowers v. Fiore, 359 F.3d 24,
29 (1st Cir. 2004).
Title VII makes it unlawful “to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.”
42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of
1978 (“PDA”) extended Title VII’s protection against discrimination
to specifically include discrimination “on the basis of pregnancy.”
42 U.S.C. § 2000e(k). “It is settled under Title VII that an
employer may not discharge an employee based on the categorical
fact of her pregnancy.” Smith v. F.W. Morse & Co., 76 F.3d 413,
424 (1st Cir. 1996). A pregnant employee may be discharged
however, if the employer “does so for legitimate reasons unrelated
to her pregnancy.” Id. Where, as here, there is no direct
evidence of discrimination, we apply the familiar burden shifting
framework to Martinez's Title VII claims. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The initial burden is on
the plaintiff to establish a prima facie case of pregnancy
discrimination. Smith, 76 F.3d at 421.
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To establish a prima facie case on her claim based on
Baxter's failure to choose her from among the candidates for the
full-time position, Martinez must show that: (1) she was pregnant
or indicated an intention to become pregnant and (2) she was
qualified for the position; but (3) she suffered an adverse
employment action when she was rejected (4) in favor of a similarly
qualified individual. See Rathbun v. Autozone, Inc., 361 F.3d 62,
71 (1st Cir. 2004). On her claim based on the failure to rehire
her for a temporary position, Martinez must show that: (1) she was
pregnant or indicated an intention to become pregnant, (2) she met
Baxter's legitimate performance expectations, but (3) Baxter
nonetheless decided not to renew her temporary work contract while
(4) continuing to have her duties performed by a comparably
qualified person. Smith, 76 F.3d at 421.
Meeting the initial prima facie requirement is “not
especially burdensome.” Greenberg v. Union Camp Corp., 48 F.3d 22,
26 (1st Cir. 1995); see also Kosereis v. Rhode Island, 331 F.3d
207, 213 (1st Cir. 2003) (describing the prima facie burden under
the McDonnell Douglas framework as “not onerous,” “easily made,”
and a “small showing”). Satisfaction of the prima facie burden
creates a rebuttable presumption that discrimination prompted the
challenged adverse employment action. Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 153 (1st Cir. 1990). Baxter may rebut this
presumption by articulating a non-discriminatory reason for the
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adverse employment action, Smith, 76 F.3d at 421, which eliminates
the presumption and shifts the burden back to Martinez to point to
sufficient evidence to demonstrate that Baxter's proffered reason
is mere pretext and that the true reason is discriminatory. Id.
We turn now to the specific facts of Martinez’s failure
to hire claim. The district court concluded that Martinez failed
to establish a prima facie case of discrimination regarding
Baxter’s failure to hire her for the regular Fill & Pack Operator
position. We do as well.
First of all, the record amply demonstrates that Martinez
was not qualified for the position. Baxter intended to hire the
five individuals with the highest scores during the interview
process; Martinez did not rank among the top five.4 Further, the
position she sought required strong GMP knowledge and safety
awareness. Yet Martinez had a documented history of violating
these important workplace rules. For example, she frequently
violated Baxter’s SOPs and GMPs by chewing gum, wearing jewelry,
neglecting to wear eye protection and being chronically tardy.
These violations, taken together, or even considered separately,
demonstrate a lack of GMP knowledge and safety awareness. In
4
Martinez claims that the district court erred in not
considering testimony by her husband about her qualifications and
test scores. As previously noted, however, these documents were
not timely submitted to the district court and, as we also
observed, the argument is waived on appeal. By contrast, Baxter’s
evidence of the candidates' interview scores confirms that Martinez
was not among the top five scorers.
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short, Baxter had ample reason to suppose that Martinez was not
qualified for the position.
The record also reflects that Martinez failed to achieve
the minimum score for a “fitting candidate” by scoring below this
mark in eight of the ten competence standards that were evaluated
during the interviewing process. This fact by itself defeats her
contention that she was qualified for the position. See Alvarado-
Santos v. Dep’t of Health, 619 F.3d 126, 135 (1st Cir. 2010)
(noting the nonexistence of gender discrimination where chosen male
center director had a significantly better compliance record than
female physician’s); see also Texas v. Lesage, 528 U.S. 18, 21
(1999) (holding state university was entitled to summary judgment
on applicant's section 1983 race discrimination claim where it
presented evidence that plaintiff's grades, test scores, and
recommendations were not as strong as those of successful
applicants).
Because the undisputed record demonstrates that Martinez
was not qualified for the position, we need not consider whether a
similarly qualified individual was selected. Nevertheless, it is
undisputed that each of the eventual hirees had better interview
scores than Martinez achieved, thus undermining any claim that she
was passed over in favor of a similarly qualified individual.
Rathbun, 361 F.3d at 71. Accordingly, Martinez has failed to
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establish a prima facie case on this claim and the district court
acted appropriately in dismissing it on summary judgment.5
Martinez’s claim based on Baxter’s failure to rehire her
as a temporary employee after her pregnancy requires a slightly
different evaluation of the record. The district court found that
Martinez had established a prima facie case on this claim, but that
Baxter presented a legitimate, non-discriminatory reason for its
decision and Martinez failed to present evidence that this non-
discriminatory reason was pretextual.6
Baxter first argues that the district court erred in
finding that Martinez had made out a prima facie case. We will
assume without deciding that Martinez did set forth a prima facie
case. Nevertheless, given the strength of Baxter’s evidence of
non-discriminatory reasons for its decision not to rehire Martinez,
and the absence of any meaningful response from Martinez, the claim
fails. Baxter first cites Martinez’s documented instances of
noncompliance with a raft of company policies and rules as a
legitimate non-discriminatory basis for its decision, combined with
5
The district court went a step further, also concluding that
Martinez’s prima facie case failed because she was not pregnant at
the time the hiring decision was made. Because we resolve the
prima facie issue on the basis of her qualifications, we do not
reach this possible ground.
6
In so doing, the district court judge parted ways with the
magistrate judge, who found that Martinez had failed to demonstrate
that she was a qualified candidate, and thus failed to establish a
prima facie case.
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record evidence that it had determined that an individual who was
not qualified for a full-time position would not be hired for a
temporary position. Baxter also concluded that the worker provided
by KS after Martinez began her leave was performing better than
Martinez. This is sufficient for Baxter to meet its burden of
production, shifting the burden back to Martinez to provide
evidence that Baxter’s proffered reason was but a pretext for
pregnancy discrimination. See Smith, 76 F.3d at 421.
Rebutting a proffered legitimate reason for the adverse
action is more demanding than the relatively low bar at the prima
facie stage of the burden-shifting framework. See Kosereis, 331
F.3d at 213. Martinez may show pretext by establishing
“‘weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons’ such
that a factfinder could ‘infer that the employer did not act for
the asserted non-discriminatory reasons.’” Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000)
(internal citations omitted).
Ultimately, Martinez makes no such showing. The evidence
she offers in her attempted rebuttal is barely explored and refers
to materials that the district court did not permit into evidence
and are therefore not part of the record. Martinez’s sole
discernable contention is that Baxter’s hiring of the temporary
worker who held the position in her absence is evidence of
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discrimination. This argument is so undeveloped that we could
consider the issue waived, but even if we do not, Martinez offers
nothing to rebut Baxter’s asserted legitimate non-discriminatory
reason for not rehiring her; simply put, her replacement performed
the job better than she. Therefore, summary judgment was
appropriate.7
III. CONCLUSION
The judgment of the district court is affirmed.
7
Martinez hints at an argument that Baxter’s decision to
extend her temporary employment eight times while she was pregnant
is evidence of discriminatory pretext because, she claims, her
transgressions had never before been an obstacle to temporary
employment. Given the uncontradicted evidence that her failure to
qualify for the full-time position doomed her subsequent attempt at
getting rehired for the temporary position, this argument fails.
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