Even imperfect employees, we are reminded, are protected by anti-discrimination laws. The First Circuit holds that the district court too quickly credited the employer's reliance on the plaintiff's disciplinary history when it fired him, without looking behind the record to see if the hotel genuinely believed that the offenses were serious enough to warrant termination.
Soto-Feliciano v. Villa Cofresi Hotels, Inc., No. 13-2296 (1st Cir. Feb. 20, 2015): An employee who worked himself up from a resort's kitchen staff to head chef claims that he was fired for age and retaliation for opposing discrimination.
"The record shows that Soto became head chef after working in the hotel's kitchen for a number of years. The record then shows that Soto held his job as head chef for at least a number of months. And, finally, the record shows that prior to his suspension, Soto had never received a formal written complaint from hotel management about his performance during his seven years of employment at the hotel."
What supposedly triggered Soto's termination, just two months after his promotion, was a string of events that - on their face - look pretty damning:
"Specifically, the defendants contend the record shows that Soto used profanity to such an extent that it generated complaints from co-workers and possibly also customers; that he expressed a bad attitude toward his supervisors; that he was insubordinate to managers or supervisors on at least a handful of occasions; that he frequently arrived late for work; that he made at least one threatening remark to a supervisor; and that he disrespected a fellow staff member's religion."
The employer went so far as to argue that Soto's offenses were not merely the reason for his termination, but were so serious as to defeat even a prima facie showing that he was qualified for his job.
The First Circuit, while reversing summary judgment, notes that the district court correctly held that Soto made out a prima facie case on his qualifications under federal and Puerto Rican law: "Our precedents make clear, however, that we may not credit the same evidence that an employer puts forth to show its legitimate, nondiscriminatory reason for firing an employee to defeat that same employee's prima facie showing that he was qualified."
Moving on to the ultimate question, the panel observes that both sides agreed that Soto experienced performance problems. But Soto challenged whether it was this history, rather than his age and protected activities, that caused his termination. On Soto's side of the ledger, There was an alleged admission by the human resources executive that the resort saw him as to "old":
"Specifically, [HR head] Caro told Soto: 'I understand that you are old to work at the cooking line and that your co-workers are also saying that you are old to work at the cooking line.' Soto further testified that Sandra Caro said to him at that meeting: 'You are no longer capable to work at the line because you are old. I am going to bring in a new chef. Maybe I can let you work only in banquets. You need some long vacations because you are old and slow at the line. We at the Hotel Villa Cofresí are moving up, not down."
The kitchen manager also regularly hectored him, according to the summary judgment record, saying "[f]ool you are too old" and "[f]ool, you are too slow."
The panel finds that the comments, if credited by a fact-finder, are highly probative of age bias: the comments were specific to the plaintiff, made close to the time of the termination, and issued from the mouths of "the key decision maker regarding his termination," who was also a defendant, and "the plaintiff's direct supervisor."
It also holds that There was a genuine dispute of material fact about whether the report genuinely believed that termination was a fitting response to Soto's misconduct.
The pivot-point was a March 2, 2010, letter that the hotel sent to Soto suspending him from work. "In giving the reasons for the suspension, the letter expressly referenced Soto's misconduct, including ... two incidents of alleged insubordination (telling ... Caro he had nothing to say to her and telling [a fellow co-worker] to peel the fish himself) and ... one supposedly threatening remark [to the same co-worker]."
Soto disputed that the resort ever cited these reasons to him before:
"[T]he record shows that complaints about Soto's conduct were never documented in writing or placed in Soto's personnel file. And that was the case even though the District Court found that it was hotel policy to follow that course for lodging such complaints. The record further indicates that, with respect to complaints about Soto, the hotel did not follow its acknowledged policy of 'progressive discipline,' in which verbal warnings are followed by written ones. Instead, Soto was suspended for two incidents of alleged insubordination and one alleged threat without first having been warned about those instances at all."
There was also a meeting with hotel management on February 28, 2010, which Soto also testified was likewise silent on the same alleged infractions. "In context, the hotel's failure to raise the incidents of alleged misconduct either through the established disciplinary processes or at the meeting on February 28 permits a jury to doubt the likelihood that the cited incidents truly were the basis for the decision to suspend and fire Soto."
Moreover, the same evidence of evasions and inconsistency supported Soto's retaliation claims.
"Soto points out that he directly informed hotel management of his concerns about age discrimination on a number of occasions in the days prior to his suspension. And thus Soto argues not only that There was a temporal connection between his independent actions to protect his rights and the suspension and firing that followed, but also that the defendants knew that he had taken such steps and were concerned that he had done so."
In particular, Soto presented evidence that "the hotel manager who signed the March 2 suspension letter had inquired about Soto's visit to the Department of Labor" just days before, thus supporting temporal proximity.