Alegre v. Schering Plough

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 97-2080 MARIO ALEGRE, ANA FUENTES, CONJUGAL PARTNERSHIP ALEGRE-FUENTES, Plaintiffs, Appellants, v. SCHERING PLOUGH DEL CARIBE, INC., Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] Before Selya, Circuit Judge, Stahl, Circuit Judge, and Fuste,* U.S. District Judge. Antonio Moreda-Toledo with whom Moreda & Moreda, Fernandez Collins & Rivero-Vergne, and Jose Luis Rivero-Vergne, were on brief, for appellants. Luis F. Antonetti-Zequeira, with whom Aida Barrios- Castellanos, and Goldman Antonetti & Cordova, were on brief, for appellee. MAY 22, 1998 _____________________ *Of the District of Puerto Rico, sitting by designation. Per curiam. Plaintiffs-appellants Mario Alegre and Ana Fuentes (individually and as a conjugal partnership) appeal from the district court's grant of summary judgment against them and in favor of defendant-appellee Schering Plough Del Caribe, Inc., on claims of age discrimination brought under federal and Commonwealth law. The district court explained its ruling in a comprehensive and cogently reasoned decision, see 975 F. Supp. 153 (D. P.R. 1997), and our review of the record persuades us that a second, full-blown opinion would serve no useful purpose, see, e.g., Sunview Condominium Assoc. v. Flexel Int'l, Ltd., 116 F.3d 962, 965 (1st Cir. 1997). We therefore affirm the judgment largely on the basis of the lower court opinion, adding a few comments and modifying the judgment in one respect. 1. Plaintiffs strive to convince us that the lower court erred in concluding that plaintiff Alegre was not "replaced" by the younger Marie Caballero because some of Alegre's job duties also were assumed by Rafael Rivera. In support of this argument, plaintiffs point to evidence which can be taken to demonstrate that Ms. Caballero, and Ms. Caballero alone, assumed Alegre's duties. Be that as it may, plaintiffs overlook the fact that before the reduction-in-force (RIF) which resulted in the elimination of Alegre's position, there had been three persons performing the duties of the Health Care Sales Manager (Alegre's position), Business Development Manager (Rivera's position), and Product Manager (Caballero's position). Yet after the RIF, there were only two persons performing the duties previously associated with these three positions. Thus, regardless of how Alegre's former duties were reallocated after the RIF, the lower court correctly concluded that there was no trialworthy issue as to whether Alegre was, in fact, replaced. See LeBlanc v. Great American Ins. Co., 6 F.3d 836, 846 (1st Cir. 1993) ("A discharged employee is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.") (citation and internal quotation marks omitted). 2. Having failed to demonstrate a trialworthy issue as to whether Alegre was replaced, and thereby having failed to establish as possibly pretextual Schering's assertion that Alegre's position was eliminated as part of an economically-driven RIF, plaintiffs were required to establish a genuine issue of material fact as to whether Schering failed treat age neutrally in implementing the RIF. See Pages-Cahue v. Iberia Lineas Aereas Espana, 82 F.3d 533, 536 (1st Cir. 1996) (describing the prima facie burden facing age discrimination plaintiffs who challenge employment actions taken pursuant to a true RIF). Plaintiffs did adduce evidence that awareness of the possibility of a lawsuit might have prompted Schering not to change Ms. Caballero's title when she assumed duties and responsibilities that had been Alegre's prior to the RIF; that the decisionmaker, Roberto Mercade, had made comments strongly suggestive of an interest in purging Schering of older employees; that the decision to terminate Alegre was Mercade's and Mercade's alone; and that Schering refused Alegre's post-termination request that he be retained in a lesser position at reduced compensation. Nonetheless, plaintiffs adduced no evidence to counter Schering's proffer that, because of the economics of the situation, either Alegre or Rivera (who is the same age as Alegre) had to go, and that Rivera was retained because he had more expansive duties and responsibilities, as well as greater seniority, than did Alegre. Absent such evidence, no rational factfinder could conclude that Alegre's age prompted the decision that is the subject of this lawsuit the elimination of Alegre's position pursuant to the RIF. 3. As we stated at the outset, in addition to their federal claim, plaintiffs brought supplemental (yet not legally parallel) Commonwealth law claims pursuant to 28 U.S.C. 1367(a). Schering's motion for summary judgment did not seek a judgment on the merits of these claims; nor did the district court make reference to them in its opinion. Nonetheless, the judgment in this case states that plaintiffs' complaint is dismissed "with prejudice." As Schering effectively concedes in its appellate brief, no intention to dismiss the Commonwealth law claims with prejudice can be inferred from this record. Rather, it is clear that, having dismissed the federal claim relatively early in the proceedings, the district court intended simply to decline to exercise supplemental jurisdiction over the remaining claims. See28 U.S.C. 1367(c)(3); see also Flynn v. City of Boston, No. 97- 1076, slip op. at 14 (1st Cir. May 12, 1998) (advising dismissal without prejudice of the state claims in circumstances such as these). We therefore modify the judgment to reflect that plaintiffs' Commonwealth law claims have been dismissed without prejudice. See 28 U.S.C. 2106. Affirmed as modified. Costs to appellee.