USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1418

DIGNA SERRANO-CRUZ, HECTOR IRIZARRY,

AND THE CONJUGAL SOCIETY COMPRISED BETWEEN THEM,

Plaintiffs - Appellants,

v.

DFI PUERTO RICO, INC., ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and DiClerico,* District Judge.

______________

_____________________

Javier A. Morales-Ramos for appellants.

_______________________
Vicente J. Antonetti, with
_____________________

whom Ilsa Y. Figueroa-Ar s and

______________________

Goldman Antonetti & C rdova were on brief for appellees.

___________________________

____________________

March 19, 1997

____________________

____________________

Of the District of New Hampshire, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Plaintiff-appellant Digna

Serrano-Cruz

("Serrano") formally

defendant-appellee DFI

1994.

the

Puerto Rico,

Four months later,

Age Discrimination in

amended,

29 U.S.C.A.

damages

resulting

from

of 1967

(1985 & Supp.

allegedly

her job

with

August 22,

husband filed suit under

Employment Act

621-634

from

Inc. ("DFI") on

she and her

employment actions resulting in

and

resigned

("ADEA"), as

1996), claiming

discriminatory,

adverse

her constructive dismissal.

She

her husband now appeal the district court's grant of summary

judgment

for her employer, DFI.

We affirm, finding that Serrano

failed to establish a prima facie case under the ADEA.

BACKGROUND
BACKGROUND

In the summary judgment

context we relate all material

facts in genuine dispute in the light most favorable to the party

resisting summary

judgment, here Serrano.

101 F.3d 223, 225 n.1 (1st Cir. 1996).

S nchez v. Alvarado,
_______
________

Serrano

worked for DFI's

predecessor firm, Aeroboutiques, from 1984 until it was purchased

by

DFI in September 1992.

and

operated several

merchandise

Juan.

at Luis

At the time of

the "assistant

Aeroboutiques, and

stores

Mu oz

selling gifts

the

and other

Mar n International

consumer

Airport in

San

the change in ownership, Serrano served as

general manager"

position, assisted the general

of

later DFI, owned

airport stores,

of Aeroboutiques, and,

in that

manager, supervised the operation

oversaw

their

physical upkeep

lighting, cleanliness) and their security systems,

-2-

(e.g.,

and performed

some

accounting

Serrano

was

offered,

"comptroller."2

previous

maintaining

functions.1

and

As comptroller

managerial

the

When

duties,

security

DFI took

accepted,

over

the

the stores,

position

of

Serrano continued to perform her

with

system

regular

for

the

duties

airport

including:

stores,

supervising store employees and arranging employee vacation time,

having responsibility for the

keys to the stores,

and attending

security

and employee

assumed accounting

management

meetings.

responsibilities such as

In addition,

she

preparing quarterly

reports and keeping the payroll accounts.

The events

giving rise to

her suit began

1994,

when the general manager (Manny

(Luis

Bared) of

DFI,

responsibilities.

system

for the

Lozano) and the president

Serrano's superiors,

She lost

stores,

as

in February

began reducing

her

managerial control over the security

well

as

control

over

the

keys.

Serrano's role in personnel selection was also decreased, and she

was excluded from meetings she had previously attended.

Through a letter

Bared

indicated that

effective that day.

Serrano's "negligent"

to Serrano dated June

Serrano was on

The

a 90-day

21, 1994, Luis

probation period

letter cited DFI's dissatisfaction with

handling of certain rent

payments for the

____________________

Prior to being assistant general manager, Serrano had occupied

the position of "comptroller" at Aeroboutiques, in which she

was

responsible for all of the accounting functions of the company as

well

as for

general

supervision.

When

she became

assistant

general manager, her accounting responsibilities were reduced.

The

record contains inconsistent references to

this position

as either "comptroller" or "controller."

-3-

airport stores.

Bared indicated that during

the 90-day period,

he

and

Manny Lozano

comptroller.

would

be

evaluating her

performance

as

Serrano denies that she made mistakes in the course

of discharging her accounting duties as comptroller.

On July

had

ended,

transfer

18, 1994,

Lozano

her

to

before the 90-day

informed Serrano

newly

created

that

probation period

DFI

position

had

decided to

entitled

"retail

manager."

Serrano refused the new position, stating that being

fired would

be preferable to the

Serrano

dated July 21,

receive the same salary

new position.

1994, Lozano

stated that

In

a letter to

Serrano would

and benefits in the new position

as she

had received as comptroller, and that she would be given two days

of

paid

position.

leave

to reconsider

her

decision

to

turn down

the

Lozano's July 21 letter further states that, as retail

manager,

Serrano "would

retail operation

supervise

of our San Juan

and be

responsible for

the

International Airport stores."

After taking a month of leave, Serrano formally resigned from DFI

on August

22, 1994, and now

claims she was forced

to resign by

DFI's unacceptable job transfer.

Serrano

December

1994.

was 53 at the

There is

were taken because

facts

her age.

These are:

with roughly

that

no direct evidence

of Serrano's

that might suggest

the same

she was treated

time her suit

age.

was initiated in

that DFI's actions

Appellant

alleges a

discriminatory animus on

that she was

replaced by a

few

the basis of

woman aged 25

qualifications and with

less experience;

differently from younger

employees by DFI

-4-

management by

not receiving free lipstick samples

and not being

thrown a birthday party.

The

district

motion, ruling

that

dismissal as part of

because she

court

granted

Serrano failed

to

DFI's

establish

her prima facie case of

did not show that

summary

constructive

age discrimination

there was a problem

with the new

position that would compel a reasonable person to resign.

us on appeal

judgment

is Serrano's ADEA claim against DFI,

Before

her state law

claims having been dismissed without prejudice.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

judgment

review

de novo.
__ ____

(1st Cir. 1996).

pleadings,

the

district

Mulero-Rodr guez
________________

grant

v. Ponte, 98
_____

of

summary

F.3d 670, 672

Summary judgment is properly granted where "the

depositions,

answers

admissions on file, together

there is

court's

no genuine issue as

to

interrogatories,

and

with affidavits, if any, show

that

to any material fact

and that the

moving party is entitled to a judgment as a matter of law."

Fed.

R. Civ. P. 56(c).

Under Rule 56, once the moving party has pointed to the

absence of adequate evidence

supporting its opponent's case, the

onus is on the party resisting the motion for summary judgment to

respond

issue

by presenting facts that

for trial."

477

successfully,

U.S.

the

is a "genuine

LeBlanc v. Great American Ins. Co.,

_______
________________________

836, 841-42 (1st Cir.

Inc.,
____

show that there

242,

6 F.3d

1993) (quoting Anderson v. Liberty Lobby,

________
_______________

256

nonmoving

(1986)).

party

-5-

To

"may

oppose

not

rest

the

upon

motion

mere

allegations or denials of

his pleading."

Anderson, 477
________

U.S. at

256. "The nonmoving party must

establish a trial-worthy issue by

presenting

evidence

'enough

favorable

to

competent

the nonmoving

party.'"

to

enable

LeBlanc,
_______

6 F.3d

finding

at 842

(quoting Anderson, 477 U.S. at 249).

________

DISCUSSION
DISCUSSION

The

ADEA

"discharge any

makes

it

unlawful

an

employer

individual or otherwise discriminate

individual with

respect to his compensation,

or privileges

of employment, because of

29 U.S.C.A.

623(a)(1) (1985).

under the

for

ADEA,

the

plaintiff

In

to

against any

terms, conditions,

such individual's age."

a wrongful

bears the

discharge case

ultimate

burden

of

proving that

"he would

not have

been fired

v.

1988).

Where, as here, there is no direct evidence showing that

employer's

actions

were

F.2d

motivated by

McDonnell Douglas framework governs.

_________________

v.

Green, 411 U.S. 792,

_____

802-05 (1973); Greenberg

_________

Douglas framework, the employee

_______

discrimination.

is

over forty

sufficient to

to

Here,

years

age,

the

(1st Cir.

familiar

See McDonnell Douglas Corp.

___ _______________________

Corp., 48 F.3d 22, 26-27 (1st Cir. 1995).

_____

sufficient evidence

1331, 1335

age."

Freeman
_______

the

Package Mach. Co., 865

__________________

but for his

Under

v. Union Camp
__________

the

McDonnell
_________

must initially come forward with

establish

prima facie
_____ _____

case

of

age

Serrano needed to establish that: (i) she

of

age;

(ii)

her

meet DFI's legitimate job

job

performance

was

expectations; (iii) she

was constructively discharged; and

with

roughly similar

skills or

(iv) DFI sought a replacement

qualifications.

Greenberg, 48
_________

-6-

F.3d at 26.

Once the plaintiff

has met this modest burden,

presumption of discrimination arises that

employer

reason for

to

come forward

its actions.

with a

Id.
___

shifts the onus to the

legitimate, nondiscriminatory

If the

employer

does so,

the

presumption of age discrimination

vanishes and the burden shifts

back to the plaintiff

to show that the employer's

is

burden of

pretextual.

The

persuasion,

justification

as opposed

to the

burden of production, rests with the plaintiff throughout.

The district court found

a factual dispute between

that although there may exist

the parties as to whether

DFI's legitimate job expectations

Douglas),
_______

or indeed

Serrano's

duties

or

as

(the second prong of McDonnell

_________

to whether

DFI's reasons

transferring

her job

improper age discrimination, Serrano

facie case

because, on undisputed

is

a triable

issue

were

for reducing

pretexts

for

failed to establish a prima

facts, she did

constructive dismissal (prong three).

that there

Serrano met

as to

not establish

On appeal Serrano contends

constructive

dismissal,

making

summary

finding of

relief

judgment

improper,

"adverse employment actions" may

even

if

finding of

supported by the record.

I.
I.

and also

constructive

contends

that

provide grounds for

dismissal

is

not

We assess each argument in turn.

Constructive Dismissal
Constructive Dismissal

We must consider de
__

Serrano failed

discharge.

to make

We have

novo whether, as a matter

____

a prima

long

of law,

facie

showing of

constructive

applied an

"objective

standard" in

determining whether an employer's actions have forced an employee

-7-

to resign.

See, e.g., Calhoun v. Acme Cleveland Corp., 798

___ ____ _______
____________________

559, 561 (1st Cir. 1986).

deemed

a constructive

satisfied

that the

difficult

or

For the transfer proposed by DFI to be

discharge,

new working

unpleasant

employee's shoes

F.2d

would have

that

"'the trier

of fact

conditions would

reasonable

felt compelled

to

have

person

must be

been so

in

resign.'"

the

Id.
___

(quoting Alicea Rosado v. Garc a Santiago, 562 F.2d 114, 119 (1st
_____________
_______________

Cir. 1977)).

An

employee may not,

therefore, be

sensitive to a change in job responsibilities.

unreasonably

It

position of

is

undisputed

that

"retail manager," was

Serrano,

enjoyed as comptroller.

important in

determining whether

(noting

Retreat,
_______

transfer can support

See Greenberg, 48
___ _________

(collecting cases);

1023, 1027 (5th Cir.

course

salary and

F.3d at 27

no change in salary in course of finding no constructive

dismissal)

F.2d

the

Salary considerations are

a job

of constructive dismissal.

offered

promised the same

benefits she

claim

when

discharge where

reduction in

v. C.I.T. Group, 955

_____________

1992) (noting reduction

of finding constructive

702 F.2d

Stephens
________

of salary in

dismissal); Pe a
____

v. Brattleboro
___________

1983) (finding

no constructive

322 (2d Cir.

job responsibilities

pay); cf. N ez-Soto

___ __________

were

changed without

v. Alvarado,
________

918 F.2d

any

1029,

1030-31

(1st Cir.

without

salary

dismissal).

benefits

conclusive

1990) (in

cut

found

Although

have not been

factor;

political demotion

insufficient

important,

the

decreased has

courts applying

fact

case, demotion

for

that

never been

the objective

constructive

salary

held to

and

be a

standard in

-8-

ADEA

constructive dismissal

cases consider

a variety

of often

case-specific

factors.

See
___

Greenberg,
_________

48

F.3d

at

27-29

(discussing salary in addition to assessing new work conditions);

Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-62

_______
________________

(noting

no decrease in

conditions);

salary, but

see also Flaherty

________ ________

(2d Cir. 1993)

focusing mainly

on working

v. Gas Research Inst., 31 F.3d

___________________

451, 457 (7th Cir. 1994) ("[A]n employer does not insulate itself

from liability

for discrimination simply by

at the same salary and benefits.").

job transfer

without a

under certain

person

who

reduction

circumstances,

is

overqualified

offering a transfer

Common sense suggests that a

in salary

and benefits

be unacceptable

and

humiliated

to

by

may,

reasonable

an

extreme

demotion, or underqualified and essentially "set up to fail" in a

new position.

With this in mind, we turn to Serrano's situation.

In the present case,

Serrano

DFI's

would remain

second highest

airport organization

simple reason

that this

regarding the position

trying

the

out,

or

the fact that after

takes on

is one

finding

out

salaried employee

great importance,

of few

that she

concrete facts

was offered.

more

position, cannot possibly muster

her transfer

about,

newly

we have

not

created

proof that, in the course

trial, could lead a jury to find that the newly created

-9-

for the

Serrano, by

the

in

of a

position

would compel a

reasonable person with

her background to

refuse

the offer and resign.3

The precise contours of the new position, which appears

to

have been

Lozano's

1994

and

created

for Serrano,

characterization of the

are

unclear.

new position, in

In

view of

his July 21,

letter to Serrano, as one in which Serrano "would supervise

be

responsible for

the retail

International Airport stores," it

operation

of our

San Juan

is impossible to conclude that

the position would compel a

to quit.

Based on Serrano's

general supervisory

(DFI's

reasonable person in Serrano's shoes

duties

predecessor),

own sworn statements, she had

over the

and

continued

responsibilities while also assuming

in

her position as comptroller

move

from comptroller

change

would

in

arise,

the fact

for

Aeroboutiques

hold

supervisory

accounting responsibilities

Serrano considers the

manager" to be

cannot point

other than

to

for DFI.

to "retail

status, but

stores

held

a devastating

to specific

that

she is

problems that

unqualified to

____________________

Appellant's basic

contention regarding

the new

position --

that it involved sales tasks she was not qualified or experienced

enough

to carry

out --

rests on

cannot be verified, because the

not exist before it
follows that

bare allegations

that simply

position of "retail manager" did

was specially created for Serrano.

plaintiff's argument that the

It also

district court erred

by

not determining the exact nature of her duties as comptroller

are misdirected.
her

No additional precision regarding the nature of

position as comptroller could help

her, in view of the lack

of evidence regarding her proposed position.

background included

a broad variety of

strictly financial ones,

general

manager as

Serrano's

having served

well as

description

of her

nature of managerial responsibilities

makes

speculation about

managerial tasks besides

previously as

comptroller.
duties,

the position

Moreover, Serrano's

When we

we find

assistant

do consider

that

the fluid

in DFI's organization only

of "retail

manager" more

unreliable.

-10-

"push" merchandise.

She cannot prove,

however, that the

newly

created position

amount

of daily,

person in

hands-on

sales work

new position,

therefore, rests on

as well as

in a

job transfer,

finding of constructive

at 119-20 ("[A]

provide reason

involve a sufficient

compel a

speculations regarding the

to the effect

harm her dignity.

standing

discharge.

reasonable

Serrano's constructive

on her sworn statements

supervising retail sales would

prestige

to

Serrano's position to resign.

discharge claim,

that

of "retail manager" would

alone, cannot

Loss of

support a

See Alicea Rosado, 562 F.2d

___ ______________

limited blow to one's pride or prestige does not

enough to

resign during

whatever period

may be

required to seek judicial relief.").

Of course we cannot

the position offered to Serrano

state with absolute certainty that

would not have turned out to

be

strongly

objectionable

suggests.

so.

But,

to

reasonable

in the summary judgment context, we

The decisive consideration

the newly created and

possibility

conditions.

257 (to oppose

here is that,

concrete

Serrano

need not do

by not accepting

jury regarding

See Fed. R. Civ.

___

evidence, rather

the nature of

P. 56(e);

than mere

her new

Anderson,
________

working

477 U.S. at

summary judgment motion, plaintiff cannot rely on

assertions in pleadings and must come forward

a jury could

as

ambiguous position, Serrano foreclosed the

of presenting

assertions, to a

person,

consider).

We have long

with evidence that

expected that those

who

seek to initiate ADEA claims will do so while still employed, and

the

instant case reminds us

of the wisdom

-11-

of this expectation.

See, e.g., Cazzola

___ ____ _______

(1st Cir. 1984)

expected

to

("Even the victim of

seek

actually fired,

v. Codman & Shurtleff, Inc.,

________________________

legal

unlawful discrimination is

redress while

or constructively

751 F.2d 53, 55

still

employed

discharged due to

unless

a 'drastic

reduction in the quality of working conditions.'" (quoting Alicea

______

Rosado,
______

562 F.2d

drastic

reduction

at

in

119-20)).

work

Here,

conditions

with no

evidence of

sufficient

to

support

Serrano's resignation, summary judgment is appropriate.

Moreover,

strengthen

here.

a case

other

factual

for constructive

There was no evidence, for

management

Calhoun,
_______

of DFI that Serrano

798

F.2d

circumstances

at

564

tending

dismissal were

not present

example, of suggestions by the

take an early

(jury's

retirement.4

finding

of

of repeated inquiries

early

also very little

There was

Cf.
___

constructive

discharge bolstered by evidence

retirement).

to

regarding

in the

way of

evidence showing animosity toward Serrano on account of her age.5

Cf.
___

Greenberg,
_________

48

F.3d

at

28

(finding

of

no

constructive

____________________

Serrano's

contention that DFI's grant of a

reconsider the offered job

48-hour period to

transfer -- one that she

had already

turned down -- was a "humiliating action" designed to lead her to

resign is
from

very difficult to

Lozano

to

accept.

Serrano

The

which

July 21, 1994

describes

the

letter

48-hour

reconsideration period also states, "I want to make it absolutely

clear

to you that no one in

the Company (DFI Puerto Rico, Inc.)

intends or desires to fire you as an employee of DFI."

5
she

On appeal, Serrano places great emphasis on the assertion that

was replaced, in her

woman.

Assuming this is correct,

occurred prior to
may be
finding

capacity as comptroller,

related to

she does not contend that this

her resignation.
issues

that Serrano

Therefore, while this

of pretext,

fails to

by a younger

it is

satisfy the

unrelated to

our

third (constructive

discharge) part of the McDonnell Douglas prima facie case.

_________________

-12-

fact

discharge

his

"buttressed

allegation

of

by the fact

constructive

evidence that [the employer's]

towards

age.").

conclusion that

All

that [the employee]

discharge

with

couples

virtually

no

motives stemmed from an animosity

of these

the district

considerations

lead us

court properly found

to the

that Serrano

failed to establish a prima facie case.

II.
II.

Adverse Employment Actions

Adverse Employment Actions

Serrano

failing to

case of

issue

damages

contends

that

consider whether

the district

she had

established a

"adverse employment actions," as

of constructive

in Serrano's

dismissal.

amended

court

erred

by

prima facie

distinguished from the

Based on

the recitation

complaint, however,

her suit

of

is

plainly

one seeking a remedy for improper dismissal, and not one

seeking a remedy for adverse employment actions.

regarding

damages

benefits

from the

other

consist of

date she

damages she and her

the

Her allegations

following:

was forced

lost income

to resign,

husband have incurred

and various

arising out of

the economic hardship brought about by her dismissal.

Serrano's alleged economic

harms would not

Serrano accepted the position, which

benefits.

Cir. 1991)

See
___

Shealy v. Winston, 929

______
_______

All

have come about

of

had

offered the same salary and

F.2d 1009, 1012

(finding no constructive discharge

is no further ground

and

for relief on theory of

n.2 (4th

and holding there

adverse employment

action, because "appellant would then face the barrier of proving

any damages when he clearly would have been employed . . . at the

same salary and benefits.").

For example, the removal of various

-13-

responsibilities

proposed

from

transfer,

if

Serrano

they

in

the

are seen

months

as

preceding

separable

from

the

her

resignation, cannot, even if proven to be discriminatory, support

this

suit for lost income

has framed this lawsuit,

and benefits.

Given the way Serrano

relief cannot stem from a

finding that

the

actions

of DFI,

short of

leading

to her

dismissal, were

discriminatory adverse employment actions.6

CONCLUSION
CONCLUSION

For the

reasons stated

in this opinion,

court's grant of summary judgment is affirmed.

________

the district

____________________

In fact,

to

for substantially the reasons discussed

constructive dismissal,

facie case under

basis
457;

of the

the ADEA

Serrano fails

to establish

of adverse employment

proposed job transfer.

with regard

a prima

action on

See Flaherty,
___ ________

the

31 F.3d at

Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 135_____
______________________________

36 (7th Cir.

1993) (finding failure to make prima

facie case of

adverse employment action where employee, claiming adverse change

in job responsibilities, did not accept transfer position at same

salary

and therefore

could not

substantiate claims

position).

-14-

about that