United States Court of Appeals
For the First Circuit
No. 09-2027
SYLVIO BALTODANO,
Plaintiff, Appellant,
v.
MERCK, SHARP & DOHME (I.A.) CORP.; NILDA VAZQUEZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez, Leval,* and Thompson, Circuit Judges.
Jane Becker Whitaker for appellant.
Yassmin González-Vélez, with whom Edward Hill-Tolinche and
Pirillo Hill Gonzalez & Sanchez, PSC were on brief, for appellees.
March 3, 2011
*
Of the Second Circuit, sitting by designation.
THOMPSON, Circuit Judge. Sylvio Baltodano says he was
unjustly fired for minor infractions as a pretense for his
supervisor's discriminatory attitude toward non-Puerto Ricans. He
also claims he was discharged without just cause and in breach of
contract, even if discriminatory animus toward non-Puerto Ricans
did not motivate his termination. On an incomplete record, the
district court disagreed, granting summary judgment in favor of
defendants Merck, Sharp, and Dohme Corporation and Nilda Vazquez,
the allegedly discriminatory supervisor. Baltodano asks that we
find the district court’s grant of summary judgment premature due
to Merck's failure to participate fully in the discovery process.
After sifting through arguments and evidence, we agree that the
case was not ripe for summary judgment and remand.
The evidence, viewed in the light most favorable to
Baltodano, could support the following facts. See Galera v.
Johanns, 612 F.3d 8, 10 n.2 (1st Cir. 2010).
Employment with Merck
Baltodano is not from Puerto Rico. After completing his
studies at the University of California, in 1996 he began working
for Merck as a sales representative in Nicaragua. The following
year he was promoted to a position in Costa Rica; next came a
transfer to Miami, Florida; and then in 2003 he was promoted again,
this time to the position of Sales Administration and Compliance
Manager in a suburb of San Juan, Puerto Rico.
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Merck divides its business into regions, and Baltodano's
departure from Costa Rica entailed a move from the CANDEAN Region1
to the Caribbean Region. These regions maintain different policies
and standards – in particular, the CANDEAN Region is not FDA-
regulated, but the Caribbean Region is. With unclear motivations,
a Merck supervisor specifically told Baltodano and another non-
Puerto Rican then-employee of Merck, Francene Matheus, that they
would have to work harder than their Puerto Rican co-workers in
order to advance. Nevertheless, Baltodano thrived at first in the
Caribbean Region, earning another promotion in 2005.
At the outset of the 2005 promotion, Baltodano met with
his supervisor, Wendy Perry; they agreed that he would complete
product certifications for the drugs Vytorin, Zetia, and Fosamax by
the end of June 2005. But the certifications proved very time-
consuming. By September 26, 2005, Baltodano had completed only two
of the three he had agreed to do; he completed the final
certification a few days later. In December 2005, Perry issued him
a "Final Warning" as a result of the late certifications. At the
same time, Baltodano learned that employees from Puerto Rico were
given time off to complete the certification exams. He received no
similar accommodation from Merck.
1
The record does not explicitly mention what countries form
the CANDEAN Region, but it is clear that Nicaragua is included, as
are other countries in Central and South America.
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In early 2006, a new problem arose, this time regarding
Baltodano's failure to submit timely expense reports. The details
of this problem are spotty, but it is clear that in March 2006 he
was suspended for three days. Nonetheless, he earned a merit-based
raise that very month. In June 2006, his supervisor, Vincent
Caballaro, issued a "Second Final Warning" as a follow-up to the
suspension.
In fall 2006, defendant Vazquez became Baltodano's
supervisor. Baltodano's court filings paint Vazquez as having
lurked in the background up to this point, waiting all the time for
a chance to exercise her xenophobic animus against him. As
evidence of this animus Baltodano points to a couple of
interactions between the two of them.2 Around this time Baltodano
began seeking a transfer to Merck's Miami office for "personal-
family" reasons. These plans fell through after Baltodano again
submitted late expense reports – September's in late October 2006,
and October's in late November. This time, he was fired. A
subsequent interview with a firm in Miami – Stiefel Laboratories –
resulted in a job offer, which was revoked after a bad reference
from Merck.
2
Baltodano testified that in May 2004, at a cocktail party
during a three-day meeting, he told Vazquez in essence that some of
the sales representatives found her aloof and unapproachable. She
did not respond. Six months later, however, she did respond,
telling Baltodano she did not appreciate his comment and that he
should be more careful because he was not from Puerto Rico.
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Suit against Merck
Baltodano filed a diversity suit against Merck and
Vazquez in the U.S. District Court for the District of Puerto Rico.
He alleged violations of Puerto Rico Law 100 (employment
discrimination), Article II § 8 of the Puerto Rico Constitution
(essentially defamation), and Puerto Rico Law 80 (termination
without just cause), as well as violations of two Puerto Rico Civil
Code provisions – essentially, a breach of contract claim and a
defamation claim.
Procedural history is important here, so we will dwell on
it a bit longer than usual, beginning mid-discovery. On May 29,
2008, while deposing Vazquez, counsel for Baltodano asked whether
Vazquez had disciplined other managers for the same misconduct that
had been the basis for her warnings and firing of Baltodano.3
Vazquez said she could not remember. The same day, Baltodano
requested this information from Merck. Merck objected.
Only after Merck had filed a motion for summary judgment
did it agree "to describe the disciplinary actions (verbal,
written, warnings), if any, . . . taken by [Merck] as to [other]
business managers for failure to submit expense reports or follow
scheduling for product certification." Given this agreement,
3
Although the deposition transcript does not appear in the
record, we rely on Baltodano's counsel's unopposed recounting of
the deposition.
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Baltodano filed a Rule 56(f) motion, requesting only that the court
delay ruling on the summary judgment motion and that it allow
Baltodano to supplement his brief once Merck provided the promised
information. The court never acted on this motion, and Merck
repeatedly and unilaterally pushed back the date that, it said, it
would finally comply with the agreement.
Merck never provided the promised information. On August
11, 2008, Baltodano filed a motion to compel or, in the
alternative, to follow Rule 16(5) of the Puerto Rico Rules of
Evidence and hold that Merck's non-production created a presumption
adverse to Merck: that no other managers were disciplined for
misconduct comparable to Baltodano's. On August 15, Merck renewed
its objection and again refused to provide the information,
responding vaguely that "some business managers may have failed
[to] comply with certification scheduling due dates; if such were
the case, generally, each situation is managed individually."
Merck added that there was no other situation quite like
Baltodano's, and that a litany of supervisors could not recall
whether any other business managers might have committed
misconduct.
Following this non-responsive answer, Baltodano sought an
extension of time to file a sur-reply to the summary judgment
motion and, in short order, filed the sur-reply renewing his
argument under Rule 16(5). Eventually, the court denied
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Baltodano's motion to compel without comment and then granted
Merck's motion for summary judgment. Baltodano filed a motion for
reconsideration, which the court promptly denied.
Baltodano appealed, and we have jurisdiction pursuant to
28 U.S.C. § 1291.
Summary Judgment is Inappropriate
We review a district court's grant of summary judgment
de novo. Mass. Museum of Contemporary Art Found., Inc. v. Büchel,
593 F.3d 38, 52 (1st Cir. 2010). Summary judgment is appropriate
only where the record reflects no genuine issue of material fact
and where, with all reasonable inferences drawn in favor of the
non-moving party (here, Baltodano), the moving party is entitled to
judgment as a matter of law. See Collazo v. Nicholson, 535 F.3d
41, 44 (1st Cir. 2008). Our law provides plainly that where a
plaintiff's case depends on his "ability to secure evidence within
the possession of defendants, courts should not render summary
judgment because of gaps in a plaintiff's proof without first
determining that plaintiff has had a fair chance to obtain
necessary and available evidence from the other party." Carmona v.
Toledo, 215 F.3d 124, 133 (1st Cir. 2000). Any other rule would
encourage defendants "to 'stonewall' during discovery – withholding
or covering up key information that is otherwise available to them
through the exercise of reasonable diligence." Id. Against this
backdrop, we will analyze each of Baltodano's claims.
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Law 80
Puerto Rico Law 80 requires employers to compensate
employees who are discharged without just cause. P.R. Laws Ann.
tit. 29, § 185a. Just cause may be founded on, e.g., "repeated
violations" of the employer's published "reasonable rules and
regulations established for the operation of the establishment,"
id. § 185b(c); just cause may not be founded on "the mere whim of
the employer," id. § 185b. In any event, a discharge is without
good cause if its cause does not relate "to the proper and normal
operation" of the employer. Id.
Law 80 establishes a burden-shifting scheme. Once an
employee has shown only that he was discharged, it is up to the
employer "to prove that [the discharge] was justified." Id. §
185k(a); see also Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling
Co., 152 F.3d 17, 28 (1st Cir. 1998). Law 80's burden-shifting
then allows the employee to rebut any showing of just cause. See
Alvarez-Fonseca, 152 F.3d at 28.
There is no question that Baltodano was discharged, so it
is Merck's burden to demonstrate just cause. Merck claims the
discharge was the result of Baltodano's repeated violations of
reasonable company rules and regulations. But here Baltodano, who
contends discriminatory animus drove his discharge, cannot make
such a rebuttal because he has not "had a fair chance to obtain
necessary and available evidence from the other party." Carmona,
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215 F.3d at 133. Indeed, Merck has fought tooth and claw to keep
from disclosing certain information even after agreeing to disclose
it.
Specifically, to provide a recap (with a little
additional detail) on the question of Merck's discipline of other
business managers: on May 29, 2008, Vazquez provided a non-answer
at deposition; on the same day Baltodano requested supplemental
discovery; Merck fought back and the parties held a Rule 26
conference; on June 30 Merck agreed to produce the evidence by July
14; on July 30 Merck unilaterally pushed the date of production
back to the first week of August; by August 11 Merck still had not
produced the evidence, so Baltodano filed a motion to compel or to
establish a presumption adverse to Merck; Merck responded, seeking
the court's permission to delay production for another five days;
and on August 15 Merck produced its final non-response, making
clear that it would produce no more. At this point the motion to
compel was still pending; the court denied the motion without
comment on February 18, 2009, and granted summary judgment on March
31, 2009. Merck has never definitively said that the requested and
promised but still-unproduced evidence is unavailable - indeed,
Merck's careful documentation of Baltodano's missteps would suggest
otherwise. Instead, it has played at multiple personalities,
appearing cooperative one moment and combative the next.
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If discovery were to disclose that Merck routinely
allowed other business managers to file late expense reports and to
delay their product certifications without consequence, then
Baltodano's termination could be seen as mere whim, or else (as
Baltodano alleges) the result of discriminatory animus rather than
any discernible and defensible business motive. Merck's dilatory
tactics and failure to abide by its own agreement to produce
evidence deprived Baltodano of a fair chance to obtain evidence
detailing Merck's treatment of other, similarly situated business
managers – evidence which could rebut Merck’s claim of just cause
dismissal. Under these circumstances summary judgment was
inappropriate, so we vacate the judgment in Merck's favor on the
Law 80 claim.
Law 100
Puerto Rico Law 100 imposes liability on "[a]ny employer
who discharges . . . an employee . . . because of his/her . . .
[e.g.] national origin." P.R. Laws Ann. tit. 29, § 146. Once an
employee makes a preliminary showing that his discharge was without
just cause, "Law 100 establishes a rebuttable presumption that the
employer has discriminated illegally unless the employer can show
that the discharge was justified." Alvarez-Fonseca, 152 F.3d at
27; see also P.R. Laws Ann. tit. 29, § 148. The Puerto Rico
Supreme Court has also required Law 100 plaintiffs to produce some
evidence of the type of discrimination alleged before the
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presumption of discrimination will apply. See Díaz v. Wyndham
Hotel Corp., 155 P.R. Dec. 364, 384 (2001). As a final note, Law
80 and Law 100 employ identical standards for just cause. See
Alvarez-Fonseca, 152 F.3d at 28.
We need not delve into a substantive analysis of Law 100
given the procedural posture of this case. There is no question
that Merck discharged Baltodano. Whether Merck acted with just
cause or with discriminatory animus is a disputed issue, on the
merits of which we take no position. However, as we previously
noted Baltodano has not yet been given a fair chance to develop the
record due to Merck's stonewalling. For this reason, the district
court erred in granting summary judgment on the Law 100 claim.
Accordingly, we vacate the judgment.
Defamation
Baltodano cites two distinct sources for his defamation
claims: Article II, Section 8 of the Puerto Rico Constitution and
Article 1802 of the Puerto Rico Civil Code. Article II, Section 8
protects an individual's right to be free from "abusive attacks on
his honor, reputation and private or family life." Article 1802
provides that "[a] person who by an act or omission causes damage
to another through fault or negligence shall be obligated to repair
the damage so done." P.R. Laws Ann. tit. 31, § 5141. Although the
complaint is styled such that a separate claim stems from each
source, we have previously recognized that both are proper sources
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of what is essentially a defamation action in Puerto Rico, and this
is how the briefs treat the issue. See Aponte v. Calderón, 284
F.3d 184, 197 (1st Cir. 2002) (also listing P.R. Laws Ann. tit. 32,
§§ 3141-49 as a third source). "In interpreting these various
sources of law, the Puerto Rico Supreme Court has explicitly said
that Puerto Rico law on [defamation] follows the common law
tradition." Id.; see also Villanueva v. Hernández Class, 1991 WL
735303 (P.R.), 128 P.R. Dec. 618, 646 (1991). Thus, a private
plaintiff asserting a defamation claim against a private defendant
must show that the defendant (1) made a false statement, (2) in a
negligent manner, (3) causing actual damage to the plaintiff.
Villanueva, 128 P.R. Dec. at 647-48.
Frankly, neither party has addressed the defamation claim
with much rigor; both largely assume that as the other claims go,
so goes this one. This is troubling, but the record reveals a
reason for the underdevelopment of the parties' arguments on
defamation: the district court issued summary judgment on this
claim sua sponte. Merck asked for summary judgment only on
"certain counts" and didn't list defamation as one of them4;
Baltodano specifically pointed out in his opposition brief that
4
Merck did ask for summary judgment on a generic negligence
(or "Damage") claim, to the extent one might be found in the
complaint; context, however, indicates that Baltodano's Article
1802 claim is based not generically on negligence but specifically
on defamation. As we have already mentioned, this is an
appropriate use of Article 1802.
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Merck had not attacked the defamation claim; and Merck did not
address the issue in its reply brief. The district court took up
the issue of its own accord, without any evident prior warning to
the parties, and kicked the claim to the curb as "boilerplate."
This was procedurally premature – the issue had not been briefed,
and neither party had presented evidence. See Fed. R. Civ. P.
56(f) (only "[a]fter giving notice and a reasonable time to
respond" and "identifying for the parties material facts that may
not be genuinely in dispute" may the court consider, let alone
issue, summary judgment sua sponte). As there was no motion for
summary judgment on the defamation claim, the district court should
not have granted summary judgment on that claim. We vacate that
judgment.
Breach of Contract
The parties agree that the valid employment contract
between them provides for stock options and also that it cancels
those stock options in the case of termination resulting from
"deliberate, willful or gross misconduct." If Baltodano's firing
was without just cause, then he remains contractually entitled to
his stock options. Because Baltodano did not have a fair chance to
obtain evidence supporting his claim that he was discharged without
just cause, the district court erred in granting summary judgment
to Merck on the breach of contract claim. We vacate that judgment.
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Conclusion
Because the district court granted Merck's motion for
summary judgment before Baltodano had a fair chance to obtain
discovery and develop the record (and improperly granted summary
judgment to Merck on the defamation claim when no motion had been
made), we vacate the judgment and remand for further proceedings.
Costs are taxed against Merck, Sharp & Dohme (I.A.) Corp.
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