Rivera Rodríguez v. Sears Roebuck De Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 05-1951

JOSEFINA RIVERA RODRÍGUEZ; JORGE APONTE RODRÍGUEZ;
CONJUGAL PARTNERSHIP APONTE RIVERA,

Plaintiffs, Appellants,

v.

SEARS ROEBUCK DE PUERTO RICO, INC.,

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
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Juan Rafael González Muñoz, with whom González Muñoz &
Vicéns Sánchez, Carlos M. Vergne, and Law Offices of Carlos M.
Vergne were on brief, for appellants.
Rafael E. Aguiló-Vélez, with whom Anabel Rodríguez-Alonso
and Schuster Usera & Aguiló LLP were on brief, for appellees.

December 23, 2005
 LYNCH, Circuit Judge. Josefina Rivera Rodríguez and her

husband appeal from entry of summary judgment in favor of her

former employer, Sears Roebuck de Puerto Rico, Inc. ("Sears"), on

her age discrimination claims under federal and Puerto Rican law.

See Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621

et seq.; P.R. Laws Ann. tit. 29, § 146; P.R. Laws Ann. tit. 29,

§ 194a(a).1

Rivera worked for Sears from 1964 until her voluntary

retirement in 1998. She had been promoted in Puerto Rico from

Sales Manager to District Merchant in 1993, when she was 50 years

old. Rivera voluntarily left Sears after she was not hired into a

Buyer position she had sought in 1997. When Rivera announced her

decision to retire, various Sears personnel tried to talk her out

of it. These included her supervisor and the human resources

manager.

This is not the usual claim by a former employee that her

employment was terminated due to discrimination. The claim is

rather that when Rivera sought reemployment with Sears, she was not

hired for two positions, a District Merchant position in late 2000

and a Buyer position in the summer of 2002. We affirm, taking all

1
Rivera's husband and the conjugal partnership brought
derivative claims under Puerto Rican law. As the parties agree
and the district court held, if Rivera's claims of discrimination
and retaliation fail, these derivative claims must fail as well.
See Marcano-Rivera v. Pueblo Int'l Inc., 232 F.3d 245, 257-58 & n.7
(1st Cir. 2000).

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facts and inferences in plaintiff's favor and engaging in de novo

review. Nadherny v. Roseland Prop. Co., 390 F.3d 44, 48 (1st Cir.

2004).

The standards of persuasion and proof which plaintiff

must meet are the subject of skirmishing in the briefs. Defendants

say the standard model of inferential proof set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), governs. The

plaintiffs argue that in their opposition to summary judgment, they

chose to have the case treated as a mixed motive case. See Desert

Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003); Price Waterhouse

v. Hopkins, 490 U.S. 228, 244 (1989).

In the end, the question is whether a rational trier of

fact could conclude that the reason, in whole or in part, that

Rivera was not hired for either position was age discrimination, or

that she was not hired for the second position due to retaliation

for having filed an age discrimination claim. See Hillstrom v.

Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003) ("[E]ven in

mixed-motive cases, plaintiffs must present enough evidence to

permit a finding that there was differential treatment in an

employment action and that the adverse employment decision was

caused at least in part by a forbidden type of bias."). In a

thoughtful opinion, the district court did consider both the mixed

motive and the McDonnell Douglas claims and concluded that Sears

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would be entitled to summary judgment under either theory. A brief

recitation of the undisputed facts quickly shows why.

A. District Merchant Position -- Fall 2000

In August of 2000 Rivera, then aged 57, learned through

a former Sears co-worker that Rebecca Ayala would be leaving her

post as District Merchant at Sears. Rivera called José Burgos, the

vice president of merchandising and marketing at the Sears store,

to ask about taking over this position. Rivera says that Burgos

responded: "Well, I have to talk to [James] Denny [then President

of Sears] and call you back." Rivera never heard back from Burgos

regarding this position. As was its policy, when Sears announced

on October 16, 2000 that Ayala was leaving, it posted the position

internally. Sears hired an internal candidate, Luis Fernández, on

November 30, 2000.

It was only after the District Merchant position was

filled in November of 2000 that Rivera sent a letter requesting

consideration for hiring, on December 12, 2000, to James Denny,

then President of Sears. Thus, the job opening she claims to have

been discriminatorily denied did not exist at the time of her

August conversation with Burgos and was filled by the time of her

letter of December 12 to Denny.

Rivera, as a former employee of Sears, confirmed that the

company did in fact post positions internally as a matter of

course. A document in evidence, entitled "The Employment Process

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for Salaried Positions," describes the first step as "Post[ing] job

internally." Under the policy, the company looks for external

candidates only if a decision is made that such recruitment is

needed, in which case both internal and external candidates are

considered. Thus, Rivera would have to show that Sears addressed

the question of whether external candidates were needed and that

the decision they were not needed was motivated by age

discrimination against her. Rivera offered no evidence to prove

either point.

Rivera suggests that as a former employee she was

entitled to treatment as though she were an internal candidate.

However, Sears' Human Resources Guide for Managers (which did not

purport to give rights to employees in any event) merely says:

"Retirees and other former associates may be reemployed if their

prior work record was satisfactory." The language disqualifies

former employees with unsatisfactory work records from reemployment

and does no more. It certainly does not say former employees are

to be treated as internal candidates.

Rivera also attacks Sears' explanation that there was a

hiring freeze during this period as to external hires. She says

that Sears never informed her of this hiring freeze when she did

not get the District Merchant job. She relies on the failure of

Sears to produce any written documentation to substantiate its

claim of a hiring freeze. Sears instead relied solely on the

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deposition testimony of its employees to support the hiring freeze

claim. This was a risky strategy for Sears, a national company

with documented personnel policies, and could well have raised a

disputed issue of fact. See McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1123 (9th Cir. 2004) ("[T]he fact that a company the size of

GTE does not have a memorandum, meeting notes, or other evidence of

this hiring freeze or the financial difficulties that allegedly

spurred the hiring freeze provides circumstantial evidence that the

hiring freeze did not in fact exist."). Here, though, even if the

existence of a hiring freeze on external candidates were disputed,

the issue is not material. No dispute is raised about the fact

that the vacancy was posted internally and a qualified internal

candidate had been selected before receipt of plaintiff's December

letter. There is no evidence of discrimination in the hiring for

the District Merchant job that could raise any possibility of

inference of prohibited age discrimination under these

circumstances.

B. Buyer Position -- Summer 2002

The second position Rivera sought was a Buyer position

which came open in the summer of 2002, when the incumbent, Lissette

Beltran, gave notice of her resignation. Rivera had been found to

be unqualified to fill the same position in 1997. By the time of

her application for the Buyer position, Rivera had filed a

complaint against Sears in 2001 alleging age discrimination for the

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failure to hire her for the District Merchant position. Rivera did

not receive the Buyer position; on August 15, 2002, Frieda Morales

was hired instead.

Rivera claims that the failure to hire her for the Buyer

position in the summer of 2002 was motivated by both age

discrimination and retaliation against her for bringing suit

against Sears. Rivera does not argue that she was as qualified or

more qualified than Morales for the position; nor would the

evidence support such an argument. Rather, her argument is that

but for the company's conclusion that she was not qualified for the

Buyer position (which was motivated by age discrimination or

retaliation), she would have gotten the Buyer position and Morales'

application would never have been considered. The factual

underpinning for that argument is simply missing. Plaintiff

applied for the job on June 30, 2002. Morales applied for the job

the next day. The job application period was open until July 29.

Both applicants were considered for the position. So Morales would

have been considered in any event. Further, Sears considered

Rivera to be unqualified, just as she had been in 1997. Sears

concluded that five years later she was no more qualified for the

Buyer position, having had no relevant experience in the interim

which would have improved her qualifications.

Against this very strong evidence that it was not

discriminatory for the company to conclude that since she was not

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qualified in 1997, then she was not qualified in 2002, plaintiff

offers only two arguments. Neither suffices to forestall summary

judgment. The first is that Fernández, who hired Morales in the

summer of 2002, was notified by the HR department that Rivera had

filed a discrimination complaint. Since Sears put on no evidence

as to why this was so, Rivera argues that this notice to Fernández

is sufficient to permit an inference of retaliation against her.

Even taking reasonable inferences in her favor, the evidence Rivera

points to, the deposition testimony of Fernández, does not support

her contention:

Q: When [Bob Molina, Sears' District Operations Manager]
mentioned [Rivera] for the first time, uh, did he ask you
whether you knew her or . . .?

A [Fernández]: The first time that he mentioned Rivera
was in, because of the lawsuit. [W]e were in the process
of finding a buyer . . . for my soft lines areas. I lost
my buyer. [I] believe [Rivera] ha[d] sent some papers
and some resume or something to the company . . . and he
had mentioned . . . that I should consider her as part of
the process.

Fernández also testified that he, in fact, did consider Rivera, but

found her unqualified for the Buyer position. Nothing suggests

that the lawsuit played a role in Fernández' hiring decision.

Rivera does not contest that Morales is better qualified, and the

evidence is clear she was in competition with Morales for the job.

In the end, Rivera's claim of discrimination rests almost

entirely on a purported opinion expressed by the vice president of

merchandising and marketing, Burgos, that Denny, who was Sears'

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president until the summer of 2002, preferred to work with younger

people. Burgos' view was not based on any statement from Denny and

no grounds have been offered as to admissibility. More tellingly,

by the time of the hiring for the Buyer position, Denny was no

longer the company president and was not involved in the hiring

decision. The final interview of Morales was conducted by Gary

Salvatore, who was Denny's replacement. No evidence of

discriminatory motive is offered against Salvatore.

Under these circumstances, no reasonable jury could have

found that either hiring decision was motivated, even in part, by

age discrimination; nor could it have found that the decision on

the Buyer position in the summer of 2002 was motivated by

retaliation against plaintiff for having filed an age

discrimination complaint.2 Summary judgment was properly awarded

to Sears.

Affirmed. Costs are awarded to Sears.

2
Rivera's claims under P.R. Laws Ann. tit. 29, § 146, also
known as "Law 100," and P.R. Laws Ann. tit. 29, § 194a, also known
as "Law 115," were also properly dismissed. While Law 100 and the
ADEA allocate the burdens of proof in different ways, see Alvarez-
Fonseca v. Pepsi-Cola of P.R. Bottling Co., 152 F.3d 17, 27 (1st
Cir. 1998), "the burden of proof on the ultimate issue of
discrimination remains with the plaintiff" in both causes of
action, id. at 28. See also Gonzales v. El Dia, Inc., 304 F.3d 63,
73 n.7 (1st Cir. 2002) ("[T]he merits of the age-discrimination
claims asserted under the ADEA and Law 100 are coterminous."
(citation omitted)). As to Law 115, once the employer has provided
a legitimate non-discriminatory reason, the ultimate burden of
showing pretext still falls on the plaintiff. Compare P.R. Laws
Ann. tit. 29, § 194a(c), with Ramírez Rodríguez v. Boehringer
Ingelheim Pharms., Inc., 425 F.3d 67, 84 (1st Cir. 2005).

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