Alan Schorr’s Employment Case of The Week ending October 12, 2012
Acevedo‑Parrilla v. Novartis Ex‑Lax, Inc., ‑‑‑ F.3d ‑‑‑‑, 2012 WL 4801318 (1st Circuit (Puerto Rico), October 10, 2012)
This week the First Circuit spelled relief for the plaintiff and reversed summary judgment in an ADEA case from Puerto Rico, Acevedo-Parrilla v. Novartic Ex-Lax, Inc. It is rare these days for a Circuit Court to engage in a careful analysis which actually gives the Plaintiff the benefit of the doubt in an employment discrimination case, as they are supposed to do on summary judgment. In fact, my research could find no such case from the Third Circuit Court of Appeals at any time in the last 12 months. This case is chock full of good law for plaintiffs in Federal Court trying to avoid summary judgment.
Hernán Acevedo-Parrilla, born in 1951, worked for Ex-Lax for 32 years. In 2007, when he was terminated at age 56 without warning or notice, he had been working as a Maintenance and Engineering Manager for 11 years. His reviews had always been positive and he received performance bonuses every year. The employer provided several reasons for the termination, including several events that occurred years earlier involving rodents getting into the production area, which the plaintiff denied were his fault. In his final year, there were a few more problem incidents, and his evaluation for the first time had areas that only “partially met expectations”.
There were some facts in the Plaintiff’s favor as well. Ex-Lax’s interrogatories showed that between 2003 and 2007, of the 140 employees they hired, 114 were under forty. Of the 17 employees they had fired, 15 were over forty. The Plaintiff’s replacement was 34 years old. In addition, there had been some negative ageist comments about employees who had “been in the company a long time”. Furthermore, in 2008, after the Plaintiff was fired, a string of incidents occurred in which animals, including numerous insects, a lizard, and rats, entered the plant, yet the replacement received a fully satisfactory review.
Nevertheless, these are the types of cases that Federal Courts routinely throw out due to lack of direct evidence of discrimination and giving undue credit to the employer’s reasons for the termination. That is exactly what happened here. The District Court in Puerto Rico dismissed all claims. Acevedo–Padilla v. Novartis Ex Lax, Inc., 740 F.Supp.2d 293 (D.P.R.2010). These are also the types of cases that Circuit Courts routinely affirm. But the First Circuit really took the time and effort to examine the evidence in the light most favorable to the Plaintiff. The Court also examined the recent case law that has made cases under the ADEA much more difficult.
In 2009, the Supreme Court, in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), created a “but for” test under the ADEA, reversing a trial verdict in that plaintiff’s favor and holding that the “mixed motive” test is never acceptable in an ADEA case, and that if there is any reason for termination but for age, then the ADEA claim must fail. The First Circuit cited the Supreme Court, but confirmed that the “but for” test merely means that the pretext test is used rather than the mixed motives test, and therefore no direct evidence is necessary in order to prove a case under the ADEA.
The Circuit Court also got it right on the issue of the second prong of the prima facie case. The District Court made the same error that is routinely made by Federal Courts in that it took the employer’s stated reason for termination and concluded that such reasons meant that the employee was not qualified for the job. The Circuit Court corrected that error, pointing out that the proper standard should be “if he presents evidence which, if believed, proves that he was doing his chores proficiently”.
With regard to pretext, the Circuit Court admonished that “courts should exercise particular caution before granting summary judgment for employers on such issues as pretext, motive, and intent.” The Court weighed virtually every contested issue in the Plaintiff’s favor, which, of course, is what courts are supposed to do. Issues involving pretext, statements by decision-makers, similarly situated employees, and temporal proximity are all explored and resolved in Plaintiff’s favor, and provided as reasons why summary judgment should have been denied.
Given the constipation of favorable Circuit Court cases on summary judgment, the Ex-Lax case provides some needed relief and lots of great cites for Plaintiffs fighting summary judgment to use.
Plaintiff’s Counsel: Vilma M. Dapena–Rodríguez
Defendant’s Counsel: Enrique R. Padró–Rodríguez, Pedro J. Manzano –Yates and Fiddler, González & Rodríguez, P.S.C.
District Court Judge: Salvador E. Casellas, U.S.D.J.
Circuit Court Judges: Lynch, Chief Judge, Torruella and Lipez, Circuit Judges. Torruella on the opinion.