Professional Documents
Culture Documents
Cuello-Suarez v. Puerto Rico Electric, 1st Cir. (1993)
Cuello-Suarez v. Puerto Rico Electric, 1st Cir. (1993)
Cuello-Suarez v. Puerto Rico Electric, 1st Cir. (1993)
______________________
____________________
March 10, 1993
____________________
30, 1959
29,
occasions because of
Rights Act
United States
promotion on many
She brought
Plaintiff, a
of 1964, 42 U.S.C.
that she
her national
Puerto Rico
of the Civil
100 of June
After
a bench
trial,
the district
court gave
We affirm.
out a prima facie case and its allegedly improper shifting of the
burden
of proof.
10(b)(2).
check our
the
We
it,2 have
reviewed it to
facts as
set forth
by the
district court,
which in
turn
in management and,
litigation,
obtained
her
shortly after
license
PREPA, has
as
commencement of
a
Certified
this
Public
____________________
2
The transcript, filed in the district court on October
13, 1992, was sent to us at our request on February 18, 1993.
Accountant.
ten
different
required
for
temporary employee.
promotion
and
always
had
Prior to
this lawsuit,
to supervisory
filing of
Supervisor
native
positions, with no
success.3
Subsequent
of Consumer Services.
to the
the position of
filled by a
some
10,700
employees
the United
persons
of
PREPA,
100
were
in managerial positions.
in
States;
Dominican
in
executive
All employees
in the
latter
origin
group, there
occupying
what
were
the
in
parts
five
court
positions in the
field.
____________________
3
This figure is used by the district court.
In her
testimony, plaintiff listed 92 separate applications between 1980
and 1989.
PREPA's regulations governing appointment to managerial
level positions state:
The interested supervisor selects the one that he/she
considers to be the best candidate in accordance to
the effective norms and in accordance to the following
priority order:
...
a) Regular and temporary managerial employees with one or
more
years of service with the authority.
b) Non-Regular employees.
c) Candidates from the Registry of Eligibles.
-3-
Puerto Rico
and held
jobs
ranging from
Executive Director
to
Auditor.
The
district court
PREPA's contention
under
disparate
began its
legal analysis
principles
-- i.e.,
by rejecting
to be assessed
as
proof
that a
applicants
for promotion
who
were of
Dominican
origin as
claiming that
allegedly
less
qualified
persons
by placing
them
permanently based
further argues
on
their temporary
that plaintiff
experience.
failed to sustain
PREPA
this challenge
pool of eligibles,
as
52 (1989).
There is
argument but on
U.S. 977,
990
(1988), "grooming"
was
merely one
of
the
justifications
plaintiff's
its actions.
try as hard
as she
The gist of
persons --
-4-
for
performance
motivated
data,
but
or
qualifications.
It
was
the
discriminatorily
to be a
distillation and
summary of
her analysis
of the
is
disparate
well
recognized,
either
disparate
be applied to
impact
or
This
____________________
4
Plaintiff's
following:
testimony
on
her
methodology
was
the
Q
So you did not
study the general
population of all the persons that were
competing with you in all the positions that
you requested in PREPA during the years in
controversy?
A
No because what I did was conduct a study
of the persons to whom positions were awarded
not the persons who were competing, that
would be another study. (Trans., Vol. IV, at
153-154.)
...
Q Do you have any evidence that any of these
persons that are born outside Puerto Rico or
that are not U.S. citizens were discriminated
against by PREPA?
A
On that list there is only, as far as I
know I am the
only one that has been
discriminated against as to the others I
don't know. (Trans., Vol. IV, at 159.)
-5-
forward
with
some
non-discriminatory
justification,
the
was discriminatory.
and
the real
(1973).
This
being the
case, the
sophisticated
statistical comparisons
victim
and that
class
on
between the
non-victim
class
impact
eligibles in
on a
the
case,
In reviewing
we give
to its
plenary review
this genre of
conclusion as
to whether
plaintiff has made out a prima facie case and "clearly erroneous"
review to any ultimate finding of discriminatory intent.
Metal Service Co.,
__________________
892 F.2d
conclude
district
that
the
341,
345
court
(3rd Cir.
correctly
EEOC v.
____
1990).
identified
We
and
first found
facie case.
Republic
origin was
established.
Plaintiff's
clear.5
status as a
That she
constituting a
person of Dominican
was qualified
was well
not disputed.
The court,
referring to
____________________
5
Although PREPA claimed in its brief that there was no
evidence that the supervisors making the decisions on plaintiff's
applications knew she was a Dominican national, counsel for
appellee represented without contradiction at oral argument that
such knowledge was never at issue and that, in any event,
plaintiff's personnel record and the records of others were in
evidence and clearly showed the employees' places of birth.
-6-
and
to plaintiff's
Affairs
in
final
favor
education,
of
found
rejection as
someone
the
with
prima
discrimination established.
Supervisor of
less
facie
At the
job
Consumer
experience
case
of
and
intentional
conclusion of
plaintiff's
rejecting
plaintiff.
It earlier
had recognized
that the
to
more
prove
pretext
and
the
likely
"defendant
established
awarding the
did
not rebut
pretext."
motivation
legitimate
business
reasons
of
proof showing
that
for
not
The plaintiffs
those reasons
were
point that this was a bench trial and that the district court was
not
merely passing
justification but
on
the facial
adequacy
of the
employer's
and pass on
v.
Aikens,
______
460
U.S. 711,
(1983)
(footnote
omitted),
But when the defendant fails to persuade the
district court to dismiss the action for lack of a
prima facie case, and responds to the plaintiff's proof
by offering evidence of the reason for the plaintiff's
-7-
district
advanced by the
court
proceeded
to
that, among
each
reason
identify
the 77
It first noted
positions
PREPA's
applied for
by
But
remaining 69
of Consumer Services
in Training because,
she was
As
to
as Clerk of Consumer
it commented,
Another
PREPA
availability of
tasks required of
not
unfairly
justification
was
of certain employees.
court as a
rejections
of plaintiff
Another of
to
in favor
employees with
we
a supervisor.
think, that
the
Opinion at 14.
that
underutilization
awarded
Services in Training,
the
limited
uninterrupted series of
of less
qualified employees.
experience in
the
job.
The court
reasoned:
-8-
another
on one
by the
indicated that
PREPA
witness's
reason
for
of plaintiff's applications,
acting
not specifically
her acquisition of
not
a CPA license
pastures elsewhere.
This
had
and laboriously
agency's
had qualified
accounting and
experience
in a
auditing
discipline relevant
functions, was
to the
based on
one
intentional discrimination.
of
plaintiff's
average and
other
performance review
that in 17 years
words,
the
possibility that
defects
court
The
on
fact
could
this
looked upon
practice.
record
of
have
had
In
exclude
the
could
supervisors
been above
reprimands.
performance or
played
that many
evaluations
either quality
legitimately
decisions.
part
joined
personality
in
PREPA's
in
as corroborative
of some
hidden, unannounced
-9-
these
The
second factor
Action Plan
an
is
that,
although PREPA's
promotion,
expected
Affirmative
no such
that
at
statement
some
ever was
point
in
made.
We
would
this attenuated
have
history
of
frustration some supervisors would have noted the bases for their
adverse decisions.
case where "courts
collar
jobs, for
where the
or
male
This seems to
be an example of
that are
putative
in white-
unstructured and
the type of
discriminators]."
B.
Schlei
&
P.
and
district court's
the inferences
fanciful explanations
77
managerial
drawn
finding was
from
intentional discrimination
responds
on
the
and/or
[sic]
the basis
to
of
pattern
her
that from
PREPA's "silence
is that failure to
positions
Opinion at 16-17.
ultimate
of
nationality."
factors we have
from it.
In so concluding, we note that even
its burden
the trier
cross
of articulating a nondiscriminatory
of fact
examination
determination
may consider
of
defendant
of discrimination.
the prima
and arrive
business reason,
the
supportable
-10-
Our
rule as
to the necessary
discrimination
and
is no absolute
composition of sufficient
that we
look to
the
evidence of
evidence as
a whole.
66, 69-70
F.2d
1169,
1172
n.3
(1st
Cir.
1991).
More
particularly,
evidence
discrimination.
of
pretext
raise
an
inference
of
may
Samuels
_______
withstand
scrutiny
character,
and
have
or personality.
explanation of
nothing to
Nor
the rejections.
do
with
competence,
was there
any contemporaneous
We cannot
fault the
district
her
direct examination.
We
rulings in the
-12-