United States Court of Appeals
For the First Circuit
________________
No. 05-1854
CARLOS FONTÁNEZ-NÚÑEZ,
NORA RIVERA-CARDENALES,
CONJUGAL PARTNERSHIP FONTÁNEZ-RIVERA,
Plaintiffs, Appellants,
v.
JANSSEN ORTHO LLC;
JOHNSON & JOHNSON, INC.;
ANGEL NATAL, IN HIS OFFICIAL AND PERSONAL CAPACITY;
JORGE ROS, IN HIS OFFICIAL AND PERSONAL CAPACITY;
CARLOS OTERO, IN HIS OFFICIAL AND PERSONAL CAPACITY;
AIXA BERRÍOS, IN HER OFFICIAL AND PERSONAL CAPACITY;
XYZ INSURANCE COMPANY,
Defendants, Appellees.
________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]
_______________
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Hansen, Senior Circuit Judge.*
______________
Carmen Eva García-Cárdenas on brief for appellants.
Carl Schuster, María Santiago-Ramos, and Lourdes C. Hernández-
Venegas, of Schuster Usera & Aguiló LLP, on brief for appellees.
May 8, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
HANSEN, Senior Circuit Judge. Carlos Fontánez-Núñez, his wife
Nora Rivera-Cardenales, and the Conjugal Partnership Fontánez-
Rivera (collectively "Fontánez") brought suit under Title VII of
the Civil Rights Act, 42 U.S.C. §§ 2000e-2000h-6, and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634,
claiming gender and age discrimination in employment as well as a
hostile environment. The district court dismissed the claims
against the individual defendants and granted summary judgment to
the corporate defendants, Janssen Ortho LLC and Johnson & Johnson,
Inc. (collectively "Janssen"). Fontánez appeals the grant of
summary judgment, arguing that the existence of material issues of
fact make summary judgment inappropriate. We affirm.
I.
We ordinarily state the facts in a summary judgment context in
the light most favorable to the nonmoving party. See Cordero-Soto
v. Island Finance, Inc., 418 F.3d 114, 119 (1st Cir. 2005). In
this case, however, the district court accepted as true all of
Janssen's uncontested facts because Fontánez had failed to oppose
Janssen's statement of uncontested facts as required by Local Civil
Rule (L.Cv.R.) 56(c) (requiring a party opposing a summary judgment
motion to "admit, deny, or qualify the facts by reference to each
numbered paragraph of the moving party's statement" and to "support
each denial or qualification by a record citation"). See L.Cv.R.
56(e) (stating that facts supported by record citations "shall be
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deemed admitted unless properly controverted"). We recite an
abbreviated version of the facts accepted as true by the district
court, and we view other facts gleaned from the record in the light
most favorable to Fontánez, unless they are inconsistent with the
uncontested facts stated by Janssen.
Carlos Fontánez-Núñez worked for Janssen Ortho LLC from July
1996 until his termination in 2001. Throughout those years, he was
promoted and received several salary increases. Two of his early
positions with the company were in the Quicksolv Department. He
reported to Angel Natal who he alleges created a discriminatory and
hostile work environment. Specifically, Fontánez said that Natal
used foul language and often made sexual and gender-based harassing
comments to him or in his presence. He said Natal would call him
"gray haired" or would tell him he looked like a certain co-worker
who was considered to be slow and incompetent. Fontánez states
that co-workers would call him "la cacatua" (the cockatoo) behind
his back because of his gray hair. According to Fontánez, Natal
also made offensive comments referencing homosexual activity, once
noting that Fontánez was a pharmacist and expressing an opinion, in
vulgar terms, that all pharmacists are homosexuals. Fontánez
stated that co-workers would then call him (Fontánez) gay or would
ask him whether he was gay. Fontánez admitted that these incidents
occurred in 1997.
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In October 1998, Fontánez performed well and was promoted to
the position of Quicksolv Project Leader, which gave him
supervisory responsibility and a new supervisor, Quicksolv and
Engineering Director Luis Guillermo Pérez. Meanwhile, Natal had
been transferred to the Packaging Department as Packaging Manager.
In 1999, when the company closed its Quicksolv Department, Natal
recommended Fontánez for a newly created Packaging Manager
position, and the company offered Fontánez the position.
Fontánez's performance as Packaging Manager, however, only
marginally met the company's expectations. Fontánez lacked the
ability to make prompt decisions and lacked certain basic
administrative skills required for the position. During his tenure
as Packaging Manager, deficiencies in his performance caused
untimely product packaging, in turn resulting in unfulfilled
product orders. Additionally, he failed to implement certain
measures required for FDA compliance. Natal provided him some
informal counseling in areas in which he needed to improve his job
performance.
Fontánez asserts that Natal's harassment continued through
February 2001, though he was not always Fontánez's direct
supervisor. Specifically, sometime in early 2001, Natal allegedly
remarked in quite vulgar terms to Fontánez that he (Natal) was
looking for a homosexual to engage in sexual relations with him.
Fontánez complained that Natal would straighten the front of
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Natal's pants or touch his own buttocks in Fontánez's presence and
that Natal continued to use foul and vulgar language in the
workplace. Fontánez stated that these actions made him feel
nervous, made him put forth a greater effort than others to gain
acknowledgment, and made him feel he must speak succinctly at
meetings or be told to shut up.
In March 2000, Fontánez's then-supervisor, Aixa Berríos,
Packaging and Materials Manager, met with Fontánez to discuss
several performance-related issues. She documented his performance
deficiencies in writing and advised him that improved performance
on his part was necessary to avoid further disciplinary action.
In February 2001, the company eliminated Fontánez's Packaging
Manager position as part of its implementation of a plan known as
the Lean Manufacturing Process. Rather than terminate Fontánez,
the company assigned him to the position of Senior Packaging
Process Facilitator, with supervisory authority over approximately
thirty-two employees. Berríos remained his supervisor. Due to
several deficiencies in Fontánez's job performance, Berríos
concluded that Fontánez was not performing the job at an acceptable
level of competence. She recommended his termination in March
2001. Carlos Otero, Human Resources Director, reviewed that
recommendation, and Jorge Ros, Plant Manager, made the ultimate
decision to terminate Fontánez on April 23, 2001. Natal was not
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involved in the termination decision and was no longer Fontánez's
supervisor at the time of his termination.
At all relevant times, Janssen had well-established policies
designed to prevent discriminatory conduct and sexual harassment in
the workplace. These policies included a complaint mechanism for
employees. Fontánez received a copy of this policy. Although
aware of the company's antidiscrimination policies and procedures,
Fontánez complained of harassing conduct to a supervisor only once.
Fontánez states that he told Pérez of the harassing conduct in
1997. Pérez did not play a role in the decision to terminate
Fontánez, and Fontánez did not thereafter use Janssen's sexual
harassment policies or its established complaint mechanism.
On May 2, 2001, Fontánez filed a charge of discrimination with
the Anti-Discrimination Unit of the Puerto Rico Department of
Labor. Fontánez then filed suit in federal court, alleging that he
suffered a hostile work environment due to sexual harassment by his
supervisor, Angel Natal, and that he was terminated on the basis of
his gender and age in violation of Title VII, the ADEA, and Puerto
Rico law. The district court granted the plaintiffs' request for
voluntary dismissal of the Puerto Rico law claims and issued a
partial summary judgment dismissing with prejudice the Title VII
and ADEA claims against the individual defendants – Natal, Ros,
Otero, and Berríos. Janssen sought summary judgment on the
remaining claims. The district court granted Janssen's summary
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judgment motion, concluding that many of the acts complained of
were time-barred, that Fontánez had not established a prima facie
case of age discrimination, and that there was no evidence of
actionable sexual harassment or a hostile environment. Fontánez
appeals.
II.
"We review the grant of summary judgment de novo, based on the
record as it stood before the district court." Cordero-Soto, 418
F.3d at 118. Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Once
the moving party avers the absence of genuine issues of material
fact, the nonmovant must show that a factual dispute does exist,
but summary judgment cannot be defeated by relying on improbable
inferences, conclusory allegations, or rank speculation." Ingram
v. Brink's, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005).
Fontánez attempts to argue on appeal that factual disputes
exist to preclude summary judgment, but his argument wholly ignores
the district court's decision to deem Janssen's statement of
uncontroverted facts as true pursuant to Local Rule 56(e). "This
court has held repeatedly that the district court in Puerto Rico is
justified in holding one party's submitted uncontested facts to be
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admitted when the other party fails to file oppositions in
compliance with local rules." Torres-Rosado v. Rotger-Sabat, 335
F.3d 1, 4 (1st Cir. 2003). "This, of course, does not mean the
unopposed party wins on summary judgment; that party's uncontested
facts and other evidentiary facts of record must still show that
the party is entitled to summary judgment." Id. Because Fontánez
does not argue that the district court erred in deeming Janssen's
uncontested facts as true, he has waived the issue. See id. at 5.
We thus consider the record as it existed before the district
court, deeming Janssen's uncontested facts admitted. Id.
Fontánez first asserts that the district court erred in
concluding that most of the discrete acts of discrimination alleged
are time-barred. We find no error. The district court correctly
noted that the administrative charge was filed on May 2, 2001, and
consequently held that all discrete actions of harassment or
discriminatory conduct occurring before July 25, 2000 (300 days
before the claim was filed), are time-barred. See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("[D]iscrete
discriminatory acts are not actionable if time barred," and "[e]ach
discrete discriminatory act starts a new clock for filing charges
. . . within the 180- or 300-day time period after the discrete
discriminatory act occurred."); see also 42 U.S.C. § 2000e-5(e)(1)
and 29 U.S.C. § 626(d).
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Our review of the record convinces us that the district court
properly granted summary judgment to Janssen on Fontánez's claims
of gender and age discrimination in his termination. Fontánez has
presented no direct evidence of age or gender discrimination and
must therefore raise an inference of discrimination through the
familiar McDonnell Douglas burden-shifting framework. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Rivera-
Aponte v. Restaurant Metropol # 3, Inc., 338 F.3d 9, 11 (1st Cir.
2003). Under this framework, to raise an inference of either age
or gender discrimination sufficient to withstand summary judgment,
it is necessary for a plaintiff to demonstrate, inter alia, that
his or her job performance met the employer's legitimate
expectations. See, e.g., Hoffman v. Applicators Sales and Serv.,
Inc., 439 F.3d 9, 17 (1st Cir. 2006)(stating the elements for a
prima facie case of age discrimination); Smith v. Stratus Computer,
Inc., 40 F.3d 11, 15 (1st Cir. 1994)(stating the elements for a
prima facie case of sex discrimination), cert. denied, 514 U.S.
1108 (1995). Fontánez cannot make this showing. The undisputed
evidence establishes that Fontánez's job performance was not
meeting his employer's legitimate expectations at the time of his
termination.
Fontánez attempts to justify his job performance by asserting
disputed facts in his argument to this court. The facts of
Janssen's statement of uncontested facts, however, are deemed
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admitted and may not now be controverted. The record demonstrates
that Fontánez held five different positions with Janssen, each with
a higher salary than the last, but he did not perform well in the
last two positions. Janssen appointed Fontánez to the Process
Facilitator position rather than fire him when his prior position
was eliminated, Fontánez was aware of the responsibilities of the
job when he accepted the position, and Janssen terminated Fontánez
for unacceptable performance of those responsibilities in several
respects. Accordingly, the district court properly granted summary
judgment on Fontánez's age and gender discrimination claims.
Even putting aside the prima facie case, as we have often
done, and turning "instead, to whether there is evidence that,
notwithstanding the employer's stated reasons for the termination,
the real reason, at least in part, was age and gender
discrimination," Hillstrom v. Best Western TLC Hotel, 354 F.3d 27,
31 (1st Cir. 2003), we conclude that summary judgment was proper.
There is no evidence from which to conclude that the proffered
reason for his termination was not in fact the real reason.
Fontánez has not presented evidence from which to conclude that
Janssen's job expectations were illegitimate. Additionally, he has
not presented any evidence to demonstrate that either age or gender
discrimination was the real reason for the termination – or even a
motivating influence in the decision. See Hoffman, 439 F.3d at 17-
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18 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141
(2000)).
Fontánez also claims that he suffered sexual harassment and a
hostile work environment based on conduct by his supervisor, Natal,
and co-workers. Natal did not participate in the decision to
terminate Fontánez, and Fontánez does not claim that he was
constructively discharged due to the harassing conduct. "[When] a
supervisor's harassment did not result in a tangible employment
action against an employee, then the employee must show that the
harassment was so 'severe or pervasive' that, in essence, it
altered the terms or conditions of her [or his] employment." Lee-
Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 46 (1st
Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 752 (1998)). "The employer is then vicariously liable . . .
unless the employer can successfully assert the affirmative
defense" that it took reasonable care to promptly correct the
situation or that the plaintiff unreasonably failed to take
advantage of the corrective or preventive measures provided by the
employer. Id. (citing Ellerth, 524 U.S. at 765). "[W]here the
harassment is by a non-supervisory co-worker, the employer is
liable only if the plaintiff can show that the employer knew or
should have known of the charged . . . harassment and failed to
implement prompt and appropriate action." Arrieta-Colon v. Wal-
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Mart Puerto Rico, Inc., 434 F.3d 75, 85-86 (1st Cir. 2006)
(internal quotation marks omitted, alteration in original).
We consider all of the circumstances "in determining whether
a work environment is sufficiently hostile or abusive, including
'the frequency of the discriminatory conduct; its severity; whether
it was physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.'" Lee-Crespo, 354 F.3d at 46 (quoting
Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). A hostile work
environment claim is composed of a series of separate acts, but as
long as "an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability."
Morgan, 536 U.S. at 117.
We agree with the district court's assessment that the facts
of this case do not rise to the level of severity or pervasiveness
considered to be actionable. Natal's purported continued use of
objectionable language and vulgar remarks in Fontánez's presence
were, according to Fontánez, often directed to many employees in
the area or described Natal's own conduct. While the vulgar
language was inappropriate to the workplace and completely
unprofessional, mere offensive utterances that did not unreasonably
interfere with the employee's work performance do not amount to
harassment that in essence altered the terms or conditions of
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Fontánez's employment. See Lee-Crespo, 354 F.3d at 46-47 ("[A]
supervisor's unprofessional managerial approach . . . [is] not the
focus of the discrimination laws."). Considering the whole record,
we cannot find that "the workplace [wa]s permeated with
discriminatory intimidation, ridicule, and insult that [wa]s
sufficiently severe or pervasive to alter the conditions of
[Fontánez's] employment and create an abusive working environment."
Morgan, 536 U.S. at 116 (internal quotation marks omitted).
Additionally, the undisputed facts establish that Janssen had
well established antiharassment and antidiscrimination policies
that included procedures for employees to follow in airing
grievances and that Fontánez failed to take advantage of these
procedures. Janssen's statement of undisputed facts establishes
that Fontánez's only complaint to a manager occurred in 1997, and
he did not thereafter make use of the company's complaint
procedures. Fontánez attempts to contradict that fact, asserting
on appeal that he "sought help through the years from the superiors
regarding the discrimination he was suffering at the hands first of
Natal and then of Natal, Berríos and the others, but no one paid
attention." (Appellants' Br. at 11.) On the record before us,
including the facts deemed admitted, Fontánez cannot now assert
that he made timely complaints which were ignored. The district
court properly granted summary judgment on the sexual harassment
and hostile work environment claims.
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III.
The judgment of the district court is affirmed.
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Fontanez-Nunez v. Janssen Ortho LLC
Court: Court of Appeals for the First Circuit
Date filed: 2006-05-08
Citations: 447 F.3d 50
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