United States Court of Appeals
For the First Circuit
No. 07-1659
CHRISTIAN LUPU; AMY LUPU; CONJUGAL PARTNERSHIP LUPU-LUPU,
Plaintiffs, Appellants,
v.
WYNDHAM EL CONQUISTADOR RESORT & GOLDEN DOOR SPA; EL
CONQUISTADOR LUXURY RESORT; INSURANCE COMPANY ABC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Keenan,* Senior District Judge.
Juan M. Frontera-Suau for appellant.
Edwin J. Seda-Fernandez with whom Patricia R. Limeres-Vargas
and Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. were on brief for
appellee.
April 30, 2008
*
Of the Southern District of New York, sitting by
designation.
LYNCH, Circuit Judge. Christian Lupu, whose career has
been in the hotel industry, worked for three years for the Caribe
Hilton Hotel in San Juan, Puerto Rico. He started work at his next
job at the Wyndham El Conquistador Resort in Puerto Rico on
November 29, 2004 as Director of Engineering. Wyndham's written
offer of employment was explicit that he was a probationary
employee during the period starting November 29, 2004 and ending on
February 26, 2005. On February 24, 2005, his superiors informed
him his employment would end at the conclusion of the probationary
period due to inadequacies in his performance. He worked
thereafter at the Waldorf Astoria Hotel in New York.
He (and his wife and their conjugal partnership) filed
suit in federal court in Puerto Rico over the termination of his
employment by the Conquistador. His suit was dismissed. This
appeal concerns only two of the several claims he made, under
diversity jurisdiction, both of which the court disposed of on
defendants' motion for summary judgment. Both are claims of
violations of Puerto Rico statutes: Act No. 115, P.R. Laws Ann.
tit. 29, § 194a, prohibiting retaliation against certain defined
whistleblowers, and Article 1802, P.R. Laws Ann. tit. 31 § 5141,
for negligence. We affirm.
-2-
I.
A. Act No. 115: Prohibiting Retaliation Against
Whistleblowers
The first statute at issue, Act No. 115, P.R. Laws Ann.
tit. 29, § 194a, provides in relevant part:
(a) No employer may discharge, threaten, or
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
legislative, administrative or judicial forum
in Puerto Rico, when such expressions are not
of a defamatory character nor constitute
disclosure of privileged information
established by law.
(Emphasis added.) The statute also imposes an obligation on the
employee to establish, "through direct or circumstantial evidence,"
a prima facie case that he or she (a) "participated in an activity
protected by §§ 194 et seq." and (b) "was subsequently discharged."
Id. § 194a(c). See generally Hoyos v. Telecorp Commc'ns, Inc., 405
F. Supp. 2d 199, 207 (D.P.R. 2005); Rivera Rodriguez v. Sears
Roebuck de P.R., Inc., 367 F. Supp. 2d 216, 230 (D.P.R. 2005).
The undisputed facts, as the district court held,
demonstrate that plaintiff never participated in an activity
protected by section 194a. That is, he did not "offer or attempt
to offer, verbally or in writing, any testimony, expression or
information before a legislative, administrative or judicial forum
in Puerto Rico." P.R. Laws Ann. tit. 29, § 194a(a).
-3-
At Lupu's deposition, he admitted that he never offered
or attempted to offer any information to the Puerto Rico
governmental authorities listed in the statute; nor had he
threatened to go to such authorities with any report of perceived
irregularities in the operations at the hotel.1
Despite his deposition testimony, Lupu, in an effort to
stave off summary judgment, argued that the statutory requirement
was met by (1) a conversation he had with a supervisor during an
internal meeting and (2) a document Lupu had written and
inadvertently left on the desk of the supervisor. The internal
meeting took place between Lupu and John Paul Oliver, Wyndham's
Area Vice President of Offshore Resorts. Lupu sought out Oliver
for the conversation on February 24, 2005 after he was told his
position was being terminated on February 25. Lupu asserts, and we
take the evidence in his favor for summary judgment purposes, that
he discussed with Oliver his concerns about hotel mismanagement and
lack of proper maintenance that might lead to non-compliance with
government regulations. He does not assert he had discussions with
the entities listed in the statute or told Oliver that he intended
to go to the authorities.
1
These alleged irregularities, according to plaintiff,
included internal management issues, such as misreporting of time
worked by other employees, as well as perceived violations of
regulations, such as inappropriate maintenance of the hotel's
wastewater treatment plant.
-4-
The document involved is one which Lupu unintentionally
left on Oliver's desk after the February 24, 2005 meeting, entitled
"Questions to Discuss With Attorney." Lupu says he had intended to
seek advice from an attorney with the list of questions, which
covered what rights Lupu would have if he went to the authorities
and discussed whether he could file a complaint against the hotel
without that affecting his employment opportunities. Lupu agrees
Oliver handed the document back to him when Lupu realized he left
the document behind and returned for it.
Lupu argues there are contested facts precluding summary
judgment as to (1) whether his employment was actually terminated
before or after his meeting with Oliver2 and (2) whether Oliver
read the "Questions to Discuss With Attorney" before Oliver handed
the document back. These disputes, which go to causation, are not
material. Even assuming these two facts were resolved in Lupu's
favor, he still has not put forward evidence that he "offered or
attempted to offer" testimony or information to a "legislative,
administrative or judicial forum in Puerto Rico," as required by
the statute.3
2
Lupu alleges that several minutes after leaving the
meeting with Oliver, he received a phone call from one of his
superiors informing him that his employment was officially
terminated and telling him to stop "going around" to Wyndham's vice
presidents.
3
Lupu makes a secondary argument that Oliver may have
thought that Lupu was going to report the hotel to the authorities
and it is that perception that is important under Act 115, not
-5-
Indeed, his argument stretches the statutory language
well beyond any fair reading. The district court was correct to
reject it.
B. Article 1802: Negligence
Lupu's claim for negligence is one of fraudulent
inducement by the hotel to entice him to work for it, never
intending to employ him past his probationary employment date. He
makes his claim under Article 1802, P.R. Laws Ann. tit. 31, § 5141,
which provides in part that a "person who by an act or omission
causes damage to another through fault or negligence shall be
obliged to repair the damage so done." He alleges that the Puerto
Rico Supreme Court recognized an implied private right of action
for damages claims in employment actions under Article 1802 in
Montalvo v. Ceramic Enterprises, 7 P.R. Offic. Trans. 773 (1978).
Puerto Rico law expressly provides for probationary
periods of employment under P.R. Laws Ann., tit. 29, § 185h. These
periods exempt employers from the requirements of Puerto Rico Law
80, id. § 185a, a statute ordinarily requiring that a discharge be
for just cause. We will bypass the question of whether, in light
whether Lupu actually did go or attempt to go to the authorities.
He cites a Puerto Rico Supreme Court case, Irizarry v. Johnson &
Johnson Consumer Products Co. (P.R.), 150 D.P.R. 155 (2000), but an
English version is unavailable in the bound volumes of the court's
reporter and the plaintiff has not provided a translation as
required by this court's rules. See 1st Cir. Loc. R. 30(d). He
may not use the case to support his proposition. See Hoyos v.
Telecorp Commc'ns, Inc., 488 F.3d 1, 6 n.4 (1st Cir. 2007).
-6-
of these two statutes, a claim can lie under Puerto Rico law for
negligence for inducement into a probationary job.
On the undisputed facts, Lupu cannot make out a factually
supportable claim, and we need not address the hypothetical outer
reaches of the statute. The district court found it was undisputed
that defendants regarded Lupu's work as unsatisfactory; there are
documents in evidence supporting this. The court noted and
rejected Lupu's argument that fraudulent intent by the hotel in
hiring him for a probationary job is shown by the fact that the
accounting office had not budgeted Lupu's position for the coming
year. That allegation, even if true, is entirely consistent with
the explanation that he was terminated for unsatisfactory
performance. Even if the hotel also decided it did not need the
position, that does not show the three-month probationary job offer
to Lupu was a sham when it was offered. Much less does it show
that it was a sham intended to lure Lupu away from another job. In
fact, there is no evidence of luring at all. Lupu concedes that
the responsibilities in his prior job at the Caribe Hilton were
considerably diminished and that the offer from defendants was an
attractive alternative to his limited opportunities with the Hilton
organization. There is no evidence of any false statement by
defendants in the course of offering him the probationary job. He
was offered a probationary job and that is what he received.
We have considered Lupu's other arguments against summary
judgment; they are without merit.
-7-
Affirmed.
-8-