Acevedo-Parrilla v. Novartis Ex-Lax, No. 10-2276 (1st Cir. Oct. 10, 2012)

By Paul Mollica

An employee with a 31-year history is fired at age 56 for allegedly failing to maintain sanitary conditions in a pharmaceutical plant, and sues for age discrimination under the ADEA in Puerto Rico law. Reversing summary judgment, the First Circuit finds relevant events that occurred after the employee was fired, particularly that his 34-year-old replacement was not fired after similar violations – including “a string of incidents occurred in which animals, including numerous insects, a lizard, and rats, entered the plant.”

Acevedo-Parrilla v. Novartis Ex-Lax, No. 10-2276 (1st Cir. Oct. 10, 2012): Acevedo served in the position of Maintenance and Engineering Manager at the company’s plant in Puerto Rico. His “main responsibility . . . consisted of keeping the plant’s facilities in optimum condition, including facilities associated with the company’s production machinery, treatment plant, landscaping, and building services.” For most of his career, he drew good reviews and merit raises. 

In 2003, he was placed under the management of a Site Leader named Ceinos, who (according to the summary judgment record) sought to replace some of the older employees:

“[U]pon assuming the role of Site Leader, Ceinos asked [HR executive] Rodríguez to investigate ‘the inclinations’ of employees ‘who had reached retirement age’ to determine ‘what their wishes were regarding leaving the company.’ Rodríguez testified that this request was part of Ceinos’s new ‘recruitment plan,’ instituted for the purpose of ‘proceed[ing] to substitute the persons who were of retirement age.'”

Indeed, “after 2003 — the year in which Ceinos became Site Leader — the company hired approximately 140 employees, 114 of whom were less than forty years of age. In the same period, Ex-Lax fired only 17 employees, 15 of whom were older than forty.” Acevedo said that in 2006, “Ceinos commented to him that ‘the main problem at the [Ex-Lax] plant[] were the persons who had been in the company for a long time,’ because those persons ‘were not performing.'”

Immediately upon Ceinos’s elevation to Site Leader, he began writing Acevedo  up for a variety of sanitation violations; Ceinos eventually placed Acevedo on a Performance Improvement Plan (“PIP”), in 2004. In 2005, though, Acevedo complied with the terms of the PIP and received a “fully met expectations” review.

Still, in 2006, Acevedo got written up again by Ceinos for several incidents that eventually lead to his termination. (1) He was charged with making “a change in equipment that resulted in Total Organic Carbon (‘TOC’) levels above the acceptable limit in the purified water used for production.” Acevedo contended that he was on vacation at the time that this contamination occurred. (2) He was supposedly “involved the potential contamination of a chocolate batch after a fumigation (or ‘fogging’) procedure was performed in the chocolate manufacturing area.” Acevedo claimed that the “employee who applied the insecticide may not have been given clear instructions due to an inadequate written procedure.” (3) Ceinos found during two inspections that “there was a general lack of cleanliness and organization in the spare parts room, the machine shop, and the purified water room.”

In 2007, Acevedo was terminated, allegedly for the above violations, without prior notice and effective immediately.

While the district court granted summary judgment to the employer on Acevedo’s ADE and Puerto Rico law claims, the First Circuit reversed. The panel found significant the background evidence of suspicious, age discriminatory remarks and the pattern of terminations and hiring. It also noted the significantly different treatment that Acevedo’s 34-year-old successor in the job (Ms. Rivera) received when she allegedly committed similar violations in 2007-08:

“Because Rivera replaced Acevedo as Maintenance and Engineering Manager, it is clear that the two were similarly situated at the company. That is, it is undisputed that Rivera came into the same responsibilities that Acevedo had prior to his termination. Despite this, Rivera was not reprimanded or disciplined for incidents that Acevedo contends were similar to the problems that arose during his tenure. For instance, in 2007, after Rivera took charge of the Maintenance and Engineering Department, an internal audit of the department revealed persistent violations of the company’s SOPs [Standard Operating Procedures] and good manufacturing practices. These included departmental failures to follow procedures involving the purified water system, complete cleaning and sanitation adequately, and execute pest control procedures with the required frequency. A July 2007 unplanned deviation report also indicated that an increase in mold and yeast counts had been detected in the packaging area due to ‘improper area cleaning and sanitation,’ and unplanned deviation reports from 2008 reflected various instances in which pests, such as insects, a lizard, and rats, entered the plant. Despite admitting his knowledge of these events at the time they occurred, Ceinos did not hold Riveraccountable for them in her performance evaluations, nor were any other employees reprimanded for the same.”

While employers, such as the defendant here, often attempt to deflect events that occurred after the employee was terminated as irrelevant, the First Circuit affirmed that the treatment of a younger successor may be quite material to the dispute. “[T]hese are issues of fact and credibility, and Acevedo has presented sufficient evidence to allow a jury to decide whether the incidents were similar enough to support his allegation of disparate treatment. A reasonable factfinder could infer that the difference in Ceinos’s treatment of Acevedo and Rivera, who was a much younger replacement, tends to prove the employer’s discriminatory animus toward Acevedo.”