Mustelier et al v. Equifax, Inc. et al, No. 3:2008cv01008 - Document 65 (D.P.R. 2009)
Court Description: OPINION AND ORDER DENYING 40 Plaintiffs' MOTION for Reconsideration re 32 Opinion and Order; GRANTING 33 Plaintiffs' MOTION for Partial Summary Judgment, finding Defendant liable for breach of contract; GRANTING IN PART 36 Defendant 's MOTION for Summary Judgment, DISMISSING Plaintiff's disparate treatment and Law 80 claims. The parties are encouraged to settle this case before trial, thereby saving costs and attorney's fees. Signed by Chief Judge Jose A Fuste on 3/25/09.(mrj)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO JOSà MUSTELIER, et al., Plaintiffs, Civil No. 08-1008 (JAF) v. EQUIFAX, Inc., Defendant. OPINION AND ORDER 10 11 Plaintiffs José Mustelier ( José ), Roxana Mustelier ( Roxana ), 12 and their conjugal partnership bring this action against Defendant 13 Equifax, Inc., alleging wrongful termination in violation of the Age 14 Discrimination in Employment Act ( ADEA ), 29 U.S.C. §§ 621-34, as 15 well as Puerto Rico Law No. 100, of June 30, 1959, 29 L.P.R.A. § 146 16 (2001) ( Law 100"), and Law No. 80, of May 30, 1976, 29 L.P.R.A. 17 § 185a (2006) ( Law 80"), and seeking spousal damages under Article 18 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141 (1990) 19 ( Article 1802"). Docket No. 1. 20 Plaintiffs move for partial summary judgment, Docket No. 33, and 21 Defendant opposes, 22 judgment, Docket No. 36, Plaintiffs oppose, Docket No. 45, and 23 Defendant 24 reconsideration 25 No. 40, Defendant opposes, Docket No. 47, and Plaintiffs reply, 26 Docket No. 54. replies, of Docket Docket our No. 42. No. order 55. Defendant moves Plaintiffs dismissing spousal for also summary move claims, for Docket Civil No. 08-1008 (JAF) -2- 1 I. 2 Factual and Procedural Synopsis 3 Unless otherwise indicated, we derive the following factual 4 summary from the parties motions, statements of material facts, and 5 exhibits, Docket Nos. 33, 34, 35, 36, 40, 42, 43, 45, 46, 47, 54, 55, 6 56. 7 José and Roxana are married and both are citizens of Puerto 8 Rico. José was born on October 10, 1940, and was sixty-six years old 9 when he was fired by Defendant. Defendant is a Georgia corporation 10 that has been doing business in Puerto Rico since 1988. It provides 11 consumer and business credit intelligence, portfolio management, 12 fraud detection, and marketing tools. 13 José was the president of the General Credit Bureau of Puerto 14 Rico ( GCB ) from 1984 until 1988, when Defendant acquired the 15 operations of GCB. At that point, José continued to perform the same 16 duties, but was given the title of Regional Vice President. José and 17 Defendant entered into an employment contract on August 15, 1988. 18 Docket No. 33-4. The employment contract stated that [t]he term of 19 employment . . . shall commence on [August 15, 1988] and continue 20 into the future three years unless such employment is terminated 21 prior to the expiration of such period . . . . The Agreement is 22 automatically renewed each year on its anniversary to include the 23 following three years. Id. The contract further stated that the 24 parties could terminate the relationship by mutual agreement, and Civil No. 08-1008 (JAF) -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 [Defendant] shall have the right to terminate the employment relationship hereunder, for good cause, by serving written notice upon [José]. For purposes hereof, good cause for termination by the employer shall only exist upon one or more of the following occurrences: 1. theft or the commission by [José] of any other crime involving moral turpitude; 2. the gross negligence of [José] in the performance of his duties hereunder; 3. the unreasonable refusal by [José] to perform his duties hereunder; 4. The failure by [José] to perform in any material respect his duties hereunder and such failure has a material and adverse effect on the operations of [Defendant]. 17 Id. José remained in that position until December 14, 2006, when he 18 was fired. During his tenure, José never received any discipline, and 19 he received an overall rating of meets expectations or exceeds 20 expectations in his performance evaluations for the years 2001 21 through 2005. Docket Nos. 33-8 to 33-14. As Regional Vice President, 22 José was responsible for, inter alia, designing and executing a sales 23 plan to achieve revenue targets in Puerto Rico; supervising and 24 managing sales representatives, service representatives, and office 25 personnel; implementing Defendant s human resources policies; and 26 maintaining consumer relationships with Defendant s clients. 27 The parties dispute the issue of who was José s immediate 28 supervisor. Defendant states that Brenda St. Pe Bruno, the Regional 29 Vice 30 supervisor, while Plaintiffs maintain that both José and St. Pe 31 Bruno reported to Andrew Nathan, Senior Vice President of Sales. St. President for the South East Region, was José s direct Civil No. 08-1008 (JAF) -4- 1 Pe Bruno was born on June 22, 1957, and was forty-nine at the time 2 that José was fired. 3 In early 2006, Defendant retained an outside consulting firm, 4 Bain & Co., to conduct an analysis of its sales structure and assist 5 in developing a new sales strategy. Bain & Co. developed the Growth 6 Playbook strategy. The Growth Playbook strategy was designed to 7 flatten the organization of Equifax and increase the spans of 8 control and decision-making authority of sales managers. A span of 9 control is a manager and the number of people whom they manage. In 10 August 2006, Defendant announced the Growth Playbook strategy to its 11 employees. In late August and early September 2006, Defendant began 12 a reorganization process to implement the Growth Playbook strategy. 13 The record is unclear as to exactly how the decision to 14 terminate José was made. At one point, Defendant states that Nathan 15 did the analysis with respect to José s termination in September 2006 16 and informed St. Pe Bruno of the decision to eliminate José s 17 position in late October or early November of 2006. Docket No. 35-1 18 At another point, Defendant states that Nathan made the ultimate 19 decision in mid-November 2006. Docket No. 46-8. Nathan testified that 20 he did not consult with St. Pe Bruno regarding which positions would 21 be eliminated. Docket No. 35-7. However, St. Pe Bruno testified that 22 she was consulted and, in fact, that she was asked to determine which 23 positions were redundant, at some point in November 2006. Docket 24 No. 46-4. Civil No. 08-1008 (JAF) -5- 1 On December 14, 2006, St. Pe Bruno informed José that his 2 position had been eliminated and that he was no longer employed by 3 Defendant. 4 termination was the reorganization, but that it also had concerns 5 about his performance prior to the termination. Defendant also stated 6 that after the termination, further performance concerns came to 7 light, which, if known prior to the reorganization, would have 8 resulted in his being fired. 9 Defendant later stated that the reason for José s A total of eight employees in the Regional Sales unit lost their 10 jobs. 11 reorganization, 12 employees were over forty. After the termination, Plaintiff s job 13 duties were assumed by St. Pe Bruno, Marilyn Newell, who was fifty- 14 three at the time, and Richard Stinnett, who was forty-three at the 15 time. 16 Of On the March eight, seven eighty-nine 6, on 2007, the were out José basis of of over 124 forty. of filed a age with the charge the Prior to regional the sales of employment Equal Employment 17 discrimination 18 Opportunity Commission ( EEOC ). On January 3, 2008, Plaintiffs filed 19 the present action in federal district court, alleging breach of 20 contract and age discrimination under the ADEA and Puerto Rico law, 21 and seeking compensation for damages suffered by both José and 22 Roxana. Docket No. 1. On January 23, 2009, we dismissed Roxana s 23 claims as time-barred. Docket No. 32. Plaintiffs moved for partial 24 summary judgment on January 28, 2009. Docket No. 33. Defendant Civil No. 08-1008 (JAF) -6- 1 opposed on February 11, 2009. Docket No. 42. Defendant moved for 2 summary judgment on January 28, 2009. Docket No. 36. Plaintiffs 3 opposed on February 23, 2008, Docket No. 45, and Defendant replied on 4 March 11, 2009, Docket No. 55. On February 6, 2009, Plaintiffs moved 5 for reconsideration of our dismissal of Roxana s claims. Docket 6 No. 40. Defendant opposed on February 23, 2009, Docket No. 47, and 7 Plaintiffs replied on March 9, 2009, Docket No. 54. 8 II. 9 Summary Judgment Standard under Rule 56(c) 10 We grant a motion for summary judgment if the pleadings, the 11 discovery and disclosure materials on file, and any affidavits show 12 that there is no genuine issue as to any material fact and the movant 13 is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 14 A factual dispute is genuine if it could be resolved in favor of 15 either party, and material if it potentially affects the outcome of 16 the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st 17 Cir. 2004). The moving party carries the burden of establishing that 18 there is no genuine issue as to any material fact; however, the 19 burden may be discharged by showing that there is an absence of 20 evidence to support the nonmoving party s case. Celotex Corp. v. 21 Catrett, 22 components: (1) an initial burden of production, which shifts to the 23 nonmoving party if satisfied by the moving party; and (2) an ultimate 477 U.S. 317, 325, 331 (1986). The burden has two Civil No. 08-1008 (JAF) -7- 1 burden of persuasion, which always remains on the moving party. Id. 2 at 331. 3 In evaluating a motion for summary judgment, we must view the 4 record in the light most favorable to the non-moving party. Adickes 5 v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non- 6 moving party may not rely merely on allegations or denials in its 7 own pleading; rather, its response must . . . set out specific facts 8 showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). 9 III. 10 Analysis 11 We address (1) Defendant s motion to dismiss José s ADEA and Law 12 100 claims; (2) the parties cross motions for summary judgment with 13 respect to José s Commonwealth breach of contract and wrongful 14 termination claims; and (3) Plaintiffs motion for reconsideration of 15 our order dismissing Roxana s spousal claim. 16 A. ADEA and Law No. 100 17 Plaintiff asserts both disparate treatment and disparate impact 18 claims under the ADEA, and a claim under Law 100, Puerto Rico s age 19 discrimination statute. Docket Nos. 1, 45. Defendant argues that we 20 must grant summary judgment on José s ADEA claim because Plaintiffs 21 have failed to demonstrate that Defendant s neutral explanation for 22 firing José was a pretext for age discrimination. Docket No. 36. 23 Defendant further argues that we must dismiss the Law 100 claims for 24 the same reasons as the ADEA claims. Id. Civil No. 08-1008 (JAF) -8- 1 The ADEA provides that it is unlawful for an employer to fail 2 or refuse to hire or to discharge any individual . . . because of 3 such individual s age. 29 U.S.C. § 623(a)(1). Plaintiffs may allege 4 violations of the ADEA under either a disparate treatment or a 5 disparate impact theory. 6 1. 7 In Disparate Treatment evaluating an employment discrimination case alleging 8 disparate treatment, we follow the three-step process outlined in 9 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the 10 plaintiff must establish a prima-facie case of discrimination. 11 Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir. 2008). 12 To establish a prima-facie case of disparate treatment under the 13 ADEA, a plaintiff must show (1) that he was at least forty years old 14 at the time of the adverse employment action; (2) that his job 15 performance met the employer s legitimate expectations; (3) that he 16 was actually or constructively discharged; and (4) that his employer 17 continued to need the services he had been performing. Id. 18 Next, the defendant has the burden of presenting a legitimate, 19 nondiscriminatory reason for the employment decision. Id. It need do 20 no more than articulate a reason which, on its face, would justify a 21 conclusion that the plaintiff was let go for a nondiscriminatory 22 motive. Id. (citing Dávila v. Corporación de P.R. Para La Difusión 23 Pública, 498 F.3d 9, 16 (1st Cir. 2007). Civil No. 08-1008 (JAF) -9- 1 The burden then shifts to the plaintiff to demonstrate that the 2 defendant s asserted reason is a pretext for age discrimination. Id. 3 This burden may be satisfied through either direct or circumstantial 4 evidence, including statistics, derogatory comments, differential 5 treatment in the workplace, and the use of younger replacement. 6 Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) (citing 7 cases). 8 that the plaintiff had sufficiently demonstrated pretext where the 9 statistical evidence showed that the plaintiff s termination was but 10 one in a series of personnel changes . . . designed to accomplish a 11 facially neutral reorganization by systematically eliminating older 12 workers from the workforce. 872 F.2d at 1114. In that case, the 13 evidence showed that the defendant fired thirteen of the seventeen 14 employees in the protected class. Id. For example, in Hebert v. Mohawk Rubber Co., the court found 15 Here, Defendant concedes for summary judgment purposes that 16 Plaintiffs have stated a prima-facie case of age discrimination, but 17 argues 18 nondiscriminatory explanation for José s discharge. Docket No. 36. 19 Defendant asserts that it fired José as a result of the elimination 20 of his position during a corporate reorganization. Id. Because this 21 reason, on its face, would justify a conclusion that José was fired 22 for a nondiscriminatory reason, the burden shifts to Plaintiffs to 23 prove that this reason was pretextual. See Torrech-Hernández, 519 24 F.3d at 48. that Plaintiffs have failed to rebut its legitimate, Civil No. 08-1008 (JAF) -10- 1 Plaintiffs argue that Defendant s explanation is pretextual 2 because (1) Defendant gave inconsistent explanations for José s 3 termination; and (2) statistical evidence demonstrates that age was 4 a factor in the termination. Docket No. 45. 5 Plaintiffs assert that Defendant gave inconsistent explanations 6 for the rationale for and timing of the terminations. They note that 7 at one point, Defendant states that Nathan decided to eliminate 8 José s position in September 2006 and informed St. Pe Bruno of the 9 decision in late October or early November of 2006, while at another 10 point, Defendant states that Nathan made the ultimate decision in 11 mid-November 2006. Docket Nos. 35-1, 46-8. Nathan testified that he 12 did not consult St. Pe Bruno regarding which positions would be 13 eliminated; however, St. Pe Bruno testified that she was consulted 14 and, in fact, that she was asked to determine which positions were 15 redundant, at some point in November 2006. Docket Nos. 35-7; 46-4. 16 These 17 decisionmaking process cast some doubt on Defendant s explanation 18 that José s termination was a result of a coordinated restructuring 19 process. 20 inconsistent statements regarding the nature of the Plaintiffs also note that Defendant gave conflicting evaluations 21 of José s job performance. Although José s job evaluations 22 consistently stated that he met or exceeded expectations, see Docket 23 Nos. 34-8 to 34-14, Defendant stated in an interrogatory that there 24 were some serious concerns about [José s] performance that were known Civil No. 08-1008 (JAF) -11- 1 prior to his termination, and that after the termination, Defendant 2 identified further deficiencies in José s performance, Docket No. 46- 3 8. This later explanation appears self-serving in light of José s job 4 evaluations, and renders Defendant s explanations of the termination 5 less credible. Taken together with the inconsistent statements about 6 the decisionmaking process, the implausible criticisms of José s 7 performance raise an issue of fact as to whether Defendant s stated 8 reason for the termination is pretextual. 9 Next, we turn to Plaintiffs statistical evidence that purports 10 to show that age was a factor in the termination decision. Seven of 11 the eight (87.5%) of the regional sales employees who were fired were 12 over forty. Prior to the reorganization, eighty-nine out of 124 (72%) 13 of the regional sales employees were over forty. Put another way, the 14 reorganization led to 8% of older regional sales employees losing 15 their jobs, while only 3% of younger employees lost their jobs. This 16 evidence is admittedly quite weak; however, Defendant has not offered 17 an explanation for why older employees would be overrepresented in 18 the pool of fired employees. Nor has Defendant explained how it chose 19 the 20 reorganization. other seven employees who were discharged during the 21 Finally, we note that José s duties were taken over by St. Pe 22 Bruno, who was forty-nine, Marilyn Newell, who was fifty-three, and 23 Richard Stinnett, who was forty-three. All three employees were over 24 the age of forty, but all were substantially younger than José, who Civil No. 08-1008 (JAF) -12- 1 was sixty-six at the time. The use of younger replacements, combined 2 with the statistical evidence and Defendant s lack of explanation, 3 compels us to conclude that Plaintiffs have created an issue of fact 4 as to whether, but for age bias, José would have kept his job or been 5 shifted to another position during the restructuring process. See 6 Hebert, 872 F.2d at 114-16. 7 2. Disparate Impact 8 The ADEA also authorizes recovery under a disparate impact 9 theory. Smith v. City of Jackson, 544 U.S. 228, 240 (2005). A 10 plaintiff may 11 employment practice that is facially neutral, but that falls more 12 harshly on one group than another. Id. at 239. To establish a prima- 13 facie case of disparate impact discrimination, a plaintiff must 14 identify a specific process that causes the disparate impact and 15 offer statistical evidence sufficient to show that the practice 16 caused 17 membership in a protected group. Id. at 241; Watson v. Fort Worth 18 Bank & Tr., 487 U.S. 977, 994 (1988). 19 allege that there is a disparate impact on workers, or point to a 20 generalized policy that leads to such an impact. Rather, the employee 21 is responsible for isolating and identifying the specific employment 22 practices that are allegedly responsible for any observed statistical 23 disparities. City of Jackson, 544 U.S. at 241 (quoting Wards Cove 24 Packing Co. v. Atonio, 490 U.S. 642, 656 (1989)). adverse state a actions disparate against impact claim individuals by alleging because of an their [It is not enough to simply Civil No. 08-1008 (JAF) 1 Here, Plaintiffs or -13have practice. not restructuring process, older workers were overrepresented among those 4 employees that were fired. However, they have not identified a 5 facially 6 accordingly, they have not established a prima-facie disparate impact 7 claim under the ADEA. See City of Jackson, 490 U.S. 642 at 656. is responsible as for a part test, 3 that that specific requirement rule allege a 2 neutral They challenged the of the disparity; 8 3. Law No. 100 9 Because we retain José s disparate treatment claim, we retain 10 his Law 100 claim. See Dávila v. Corporación De P.R. Para La Difusión 11 Pública, 498 F.3d 9, 18 (1st Cir. 2007) (stating that [o]n the 12 merits, age discrimination claims asserted under the ADEA and under 13 Law 100 are coterminous ) (citing González v. El DÃa, 304 F.3d 63, 73 14 (1st Cir. 2002)). 15 Consequently, we grant Defendant s motion for summary judgment 16 with respect to the disparate impact claim, but not with respect to 17 the disparate treatment claim or the Law 100 claim. 18 B. Breach of Contract and Law No. 80 19 Plaintiffs argue that we must grant summary judgment in their 20 favor with respect to its Commonwealth contract claims because there 21 is no genuine issue of material fact as to the content of the 22 contract. Docket No. 33. Defendant counters that Law 80 provides the 23 exclusive remedy for wrongful termination claims, so Plaintiffs 24 cannot recover on a breach of contract claim. Docket No. 36. Civil No. 08-1008 (JAF) -14- 1 Defendant further argues that we must dismiss the Law 80 claim 2 because, under Law 80, a bona-fide reorganization constitutes just 3 cause for discharge. Id. 4 The Puerto Rico Civil Code provides that [o]bligations arising 5 from contracts have legal force between the contracting parties, and 6 must be fulfilled in accordance with their stipulations. 31 L.P.R.A. 7 § 2994. Law 80 provides a remedy to employees contracted without a 8 fixed term who are discharged without just cause. 29 L.P.R.A. § 185a. 9 Under Law 80, reorganizations are considered just cause to terminate 10 an employee. 29 L.P.R.A. § 185b(e). The Puerto Rico legislature 11 intended Law 80 to provide a baseline level of economic protection 12 from wrongful dismissals. Otero-Burgos v. Inter-Am. Univ., __ F.3d 13 __, 2009 WL 416647, at *6 (1st Cir. 2009). Law 80 provides the 14 exclusive remedy for wrongful termination of at-will employees in 15 Puerto Rico. Soto-Lebrón v. Fed. Express Corp., 538 F.3d 45, 55 (1st 16 Cir. 2008) (citing cases). 17 However, where there is a binding employment contract, the 18 parties are not limited to the remedies specified in Law 80. Otero- 19 Burgos, 2009 WL 416647, at *10. For example, in Otero-Burgos, the 20 First Circuit held that Law 80 did not trump the provisions in a 21 professor s tenure contract, which provided that his appointment was 22 intended to be for the rest of his working years and that he could 23 only be terminated for adequate cause or institutional financial 24 stress. Id. at *7-*8. The First Circuit reasoned that [t]he Puerto Civil No. 08-1008 (JAF) -15- 1 Rico legislature did not intend to write a remedial statute that, 2 while purporting to provide relief for at-will employees lacking any 3 other legal recourse, would limit the remedies of a tenured professor 4 where . . . his contract guaranteed the continuation of his full- 5 time employment for the rest of his working years. Id. at *10. 6 Accordingly, although the professor s contract did not have a fixed 7 end date, it was not a contract without a fixed term such that Law 8 80 would provide the exclusive remedy for wrongful discharge. Id. 9 Defendant does not contest that José had a valid employment 10 contract. Although Defendant strenuously argues that José s contract 11 was for an indefinite period, we believe this is a red herring: José 12 was clearly not an at-will employee, cf. Soto-Lebron, 538 F.3d at 54- 13 55 (finding Law 80 to be exclusive remedy for at-will employees), nor 14 was he attempting to enforce an implied contract, cf. Weatherly v. 15 Int l Paper Co., 648 F. Supp. 872, 875 (D.P.R. 1986) (holding that 16 Law 17 lifetime contract). Rather, José s contract was akin to the contract 18 at issue in Otero-Burgos: it explicitly provided for long-term 19 employment and provided José with the assurance that he would not be 20 discharged but for good cause. See Docket No. 33-4. To the extent 21 that José s employment contract contained additional protections 22 above the baseline provided by Law 80, Law 80 does not provide an 23 exclusive remedy. See Otero-Burgos, 2009 WL 416647, at *10. 80 is exclusive remedy where plaintiff asserts an implied 24 Turning to the substance of the contract, the termination 25 provision states that the contract could be terminated in only two Civil No. 08-1008 (JAF) Docket -16- 1 ways. 2 contract 3 terminate the contract for good cause, which the contract defines as 4 theft or other commission of a crime, gross negligence, unreasonable 5 refusal to perform on contractual duties, or failure to perform 6 duties if such failure harms Defendant. Id. Plaintiffs argue that 7 José 8 received 9 expectations. was No. 33-4. First, through mutual agreement. not discharged evaluation Docket for that No. the good his 33-1; parties Id. could Second, cause, since performance see Docket terminate Defendant he met Nos. the could consistently or 34-8 exceeded to 34-14. 10 Defendant does not dispute this,1 but relies entirely on the argument 11 that José s remedy is precluded by Law 80. Docket No. 42. As we 12 determine that Law 80 does not provide the exclusive remedy in this 13 instance, we find that José is entitled to damages for breach of 14 contract. 15 summary judgment and deny Defendant s motion for summary judgment 16 with respect to the contract claim. Accordingly, we grant Plaintiffs motion for partial 17 Because Plaintiffs do not respond to Defendant s assertion that 18 the reorganization constituted just cause for José s discharge under 19 Law 80, we grant Defendant s motion for summary judgment with respect 20 to the Law 80 claim. 1 Defendant does assert, in an answer to an interrogatory, that it had concerns regarding José s performance that might have led to his termination even absent the reorganization process. Docket No. 46-8. However, Defendant neither explains the nature of these concerns nor argues that it had good cause to fire José under the employment contract. Accordingly, we find that it is undisputed that José was not discharged for good cause. Civil No. 08-1008 (JAF) 1 C. 2 3 -17- Reconsideration Plaintiffs ask us to reconsider our ruling that Roxana s Article 1802 spousal claim is time-barred. Docket No. 40. 4 Pursuant to Federal Rule of Civil Procedure 59(e), we entertain 5 motions for reconsideration to (1) correct manifest errors of law or 6 fact, (2) consider newly discovered evidence, (3) incorporate an 7 intervening change in the law, or (4) otherwise prevent manifest 8 injustice. See Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7 n.2 9 (1st Cir. 2005) (citing 11 Charles Allen Wright, Arthur R. Miller & 10 Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed. 11 1995)); see also Dr. José S. Belaval, Inc. v. Pérez-Perdomo, 465 F.3d 12 33, 37 n.4 (1st Cir. 2006); Aybar v. Crispin-Reyes, 118 F.3d 10, 16 13 (1st Cir. 1997); FDIC v. World Univ., Inc., 978 F.2d 10, 16 (1st Cir. 14 1992). Plaintiffs have not demonstrated, nor do we find, that these 15 circumstances present themselves here. 16 Plaintiffs present certified translations of two non-binding 17 Puerto Rico Court of Appeals cases that support their argument that 18 Roxana s claim is not time barred, or indeed, has not yet accrued. 19 See 20 certified translation of a Puerto Rico Court of Appeals case that 21 comes to the opposite conclusion. See Docket No. 47-2. Because there 22 is a conflict in the caselaw, Plaintiffs cannot demonstrate that we 23 made a manifest error of law. Plaintiffs further note this exact 24 issue is pending before the First Circuit, see Document No. 40-1; Docket No. 40-2, 40-3. However, Defendant responds with a Civil No. 08-1008 (JAF) -18- 1 however, this pending case does not constitute an intervening change 2 of law requiring us to reconsider our result. 3 4 Accordingly, we do not reconsider our conclusion that Roxana s claims were time-barred. 5 IV. 6 Conclusion 7 In accordance with the foregoing, we hereby GRANT Plaintiffs 8 motion 9 Defendant liable for breach of contract. We GRANT IN PART Defendant s 10 motion for summary judgment, Docket No. 36, and DISMISS Plaintiffs 11 disparate treatment and Law 80 claims. We DENY Plaintiff s motion for 12 reconsideration, Docket No. 40. 13 14 for partial summary judgment, Docket No. 33, and The parties are encouraged to settle this case before trial, thereby saving costs and attorney s fees. 15 IT IS SO ORDERED. 16 San Juan, Puerto Rico, this 25th day of March, 2009. 17 18 19 find s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge
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