Ruiz-Morales v. American Airlines, Inc.

Cross MOTION for Partial Summary Judgment and in Opposition to American Airlines Motion for Summary Judgment and Memorandum of Law as to All Plaintiffs

D.P.R.March 18, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ROXANNE RUIZ MORALES Plaintiff v. AMERICAN AIRLINES, INC., Defendant CIVIL NO. 16-2837 (ADC) Re: Wrongful Termination ROXANNE RUIZ CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO AMERICAN AIRLINES MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW TO THE HONORABLE COURT: NOW COMES THE PLAINTIFF, through the undersigned attorney and, pursuant to Fed. R. Civ. P. 56, respectfully requests that this court grant partial summary judgment in her favor, determining that American Airlines (AA) wrongfully discharged her from her employment of thirty two (32) years, entitling her to payment of mesada under Law 80 of 1976, and that it deny AA’s Motion for Summary Judgment. I. Introduction Plaintiff, Roxanne Ruiz (“Ruiz”) a former AA employee, was terminated from her employment after thirty two (32) years working for the defendant, and some six (6) months prior to achieving retirement age. Ms. Ruiz claims that she was wrongfully discharged from her job in violation of Law 80 of 1976, and entitling her to mesada. Ms. Ruiz claims that AA waived its right to present any factual averrment to justify her dismissal due to its violation of the statutory pleading standard included in article 11 of Law 80. See, Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 1 of 19 Motion to Strike, Docket#35. As a result thereof, this court should grant the partial summary judgment in Ms. Ruiz favor determining that her dismissal from AA was unjust entitling her to the mesada. In the alternative Ms. Ruiz claims that AA has failed to provide evidence of its justification for the dismissal and that it has failed to show their compliance with the seniority requirements related to dismissals included in article 3 of Law 80. AA has specifically been unable to show that the plaintiff’s dismissal resulted form a legitimate business need or that it was not capricious or arbitrary. AA has also failed to show that Customer Service Managers and Ms. Ruiz occupied different occupation classifications. It is undisputed, that Ms. Ruiz held a position classified by AA as “0004 Mgt Ops” with a paygrade of a Front Line Supervisor. Front Line Supervisors are managerial employees who have contact with customers and supervise employees that provide customer service. AA has tried to justify plaintiff’s dismissal by denying that this was the occupation classification and has tried to lead this court to conclude that the title of her position and the employees supervised during part of a work shift are the determinative criteria to be applied in its analysis. AA’s position is contrary to the applicable case law on this matter, and the court must therefore determine that the defendant has failed to meet its burden of proving that plaintiffs dismissal was justified under the law. II. Factural Backgroud Roxanne Ruiz started working at American Airlines in 1983 as a Ticket Sales Agent, moving her way up through the ranks within the Company. Roxanne Ruiz Statement of Uncontested Facts, being submitted herewith (hereinafter referred to as P’SoUF) at ¶¶ 1, and 4. From 1999 until 2 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 2 of 19 December 31, 2015, Ms. Ruiz was the manager in charge of the Admiral’s Club in San Juan, until December 2015 when her employment was terminated by the Company, six months before she was eligible for retirement. P’SoUF at ¶¶ 1,2 and 5. The Admiral’s Club, was located within the Luis Muñoz Marin San Juan Aiport, providing services to AA passengers. Id., at ¶6. The title of the position held by Ms. Ruiz was Premium Service Manager (“PSM”). Id., at ¶5. At the time of her discharge Ms. Ruiz’s position was classified within AA as “0004 Mgt Ops”, with a payscale of frontline supervisor. Id, at ¶¶ 12 to 15. Her authorization level was “03". At that time, there were three other employees, Ilsa Martinez, Sally Perez and Felipe Otero, within the same work classification of that had less seniority than her. Id, at ¶17. As a matter of fact, Felipe Otero started working for AA in February 2015, some ten (10) months prior to Ms. Ruiz’ discharge. Id. These three employees held a position titled Customer Service Manager (“CSM”). Id, at ¶9. All three employees were classified as as “0004 Mgt Ops”with a payscale of “FRTLNSUPV”. Ms. Martinez and Mr. Otero had authorization level of “03", the same as the one held by Ms. Ruiz. Id, at ¶14. The three CSM and Ms. Ruiz were supervised by the General Manager, Jose Rucabado. Id, at ¶¶59, and 60.. Moreover, the position of CSM had practically the same duties and responsibilities as the position held by Ms. Ruiz, to wit, supervision of employees applying company policies, and providing customer service to passengers. Id. At ¶¶ 28, 30, 31, 32, and 33. With respect to supervision of employees, Ms. Ruiz and the CSM’s had responsibility for matters such as prepare documentation related to employees and customers, evaluate team performance through corporate quality control measurements, monitor lost time and administer the Attendance Control Policy, coach and counsel personnel and provide guidance to team on customer service and performance issues, 3 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 3 of 19 conduct performance reviews for team members on a regular basis, document employee performance using Peak Performance through Commitment, encourage employee teamwork to generate and implement individual and team's best ideas, respond to employees' professional and personal issues, dismiss employees for performance or attendance issues, communicate with managers, peers and team members, both within their immediate department, as well as with other departments, administer company policies and procedures, provide team with necessary tools, resources and training to meet operational performance goals, supervise and coordinate operation including scheduling, hiring, training, and inventory. Id, at ¶¶18, 36, 40, 41, 45 and 46. In the area of customer service, Ms. Ruiz and CSM’s were responsible for achieving superior customer satisfaction, resolving customer service and operational problems during tour of duty, spend majority of time in the operation, interacting with customers and employees, preparing customer correspondence, use cross functional teams to generate and implement quality improvement ideas, quality control measurements, and manage customer complaints and compliments. P’SoUF at ¶¶ 23 to 26 and 40, 41, 45 and 46. CSM’s carried out functions above and below the wing. The functions above the wing enatiled supervising the area of gates and counters, and supervising employees below the wing entailed the supervision of ramp employees. Id, at ¶47. At the time of plaintiff’s termination the three CSM’s carried out tasks above and below the wing. Id. The tasks and repsonsibilities above and below the wing were basically the same. Id., at ¶48. As a matter of fact, Ms. Ruiz and the CSM’s took many of the same trainings with respect to customer service, supervision and ramp services. Id., at ¶¶ 50 to 52. Ms. Ruiz was even required to take trainings in the areas of customer service, ramp services, limitations in ramp service, and 4 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 4 of 19 passenger and crew customer services and ramp services. Id. In addition, Ms. Ruiz provided feedback for the evaluation of employees who were supervised by CSM’s, such as Customer Service Agents that would fill in at the Admiral’s Club when needed. Id., at ¶¶ 53 and 54. Ms. Ruiz would also cover the position of CSM, when there was no other CSM on duty, having to supervise customer service agents and ramp employees, such as Fleet Service Clerks. Id., at ¶¶ 55 and 56. Ms. Ruiz also complied with all of the Job Requirements for the CSM position, having had to fulfill the same requirements for the PSM position. Id., at ¶¶ 57 and 58. III. Summary Judgment Standard Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment is to pierce the pleadings and assess the proof in order for the court to determine if there is a need for for trial. Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir. 1991). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "An issue is genuine if 'it may reasonably be resolved in favor of either party' at trial, . . . and material if it 'possess[es] the capacity to sway the outcome of the litigation under the applicable law.'" Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support 5 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 5 of 19 the non-moving party's case. Celotex, 477 U.S. at 325. "The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). If the Court finds that a genuine issue of material fact remains, the resolution of which could affect the outcome of the case, then the Court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the Court cannot make credibility determinations or weigh the evidence as such. Id. IV. Argument A. Law 80 Law 80 of 1976, P.R. Laws Ann. tit. 29 § 185a et seq, in effect at the time of plaintiff’s employment termination , imposes a monetary penalty on employers who wrongfully discharge an1 employee. 29.P.R.Laws Ann, §185a. This monetary penalty is known as the “mesada”. Law 80 was amended by Law 4 of January 2017. The 2017 amendments do not apply in this1 case, as plaintiff was dismissed and the claim was filed before the amendments came into effect. See, Ramos v. Atento, 2018 PR App. LEXIS 1854, KLAN201800596 (PR Cir 2018)(Law 4-2017 cannot be applied retroactively to employees who were dismissed prior to the amendments to Law 80.) 6 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 6 of 19 Law 80, was enacted pursuant to the state’s urgent interest in protecting employees from unjust dismissal and its clear intent to protect the rights of employees. Diaz Fontanez v. Wyndham, 154 D.P.R. 364, 374 (2001). The law provides for payment of the “mesada in order to provide dismissed employees a baseline level of economic protection from the consequences of arbitrary dismissals. The legislation's Statement of Motives “asserts the right of Puerto Rican workers to more effective protection of their employment through a law which ‘affords more just remedies commensurate with the damages caused by an unjustified discharge and at the same time discourages the incidence of this sort of discharge.’ ” Rodriguez v. E. Air Lines, Inc., 816 F.2d 24, 27 (1st Cir.1987). Pursuan to the state’s interest in preserving employee rights, the Supreme Court has unequivocally stated that Law 80 must always be interpreted in a liberal and favorable manner to the employee. Belk Arce v. Martinez, 146 D.P.R. 215,232 (1998). B. Pleadings Standard under Law 80 Article 11 of Law 80 provides that in every action filed by an employee for unjust dismissal, the employer is bound to plead in his answer to the complaint, the facts that led to the dismissal, and prove that it was justified …" (emphasis supplied) P.R. Laws Ann. tit. 29 § 185k(a). Otherwise, the employer waives its defenses and judgment shall be rendered in favor of the employee. Id. Law 80, also establishes a presumption of unjust dismissal against employers. Diaz Fontanez v. Wyndham, 155 D.P.R. 364 (2001); Belk Arce, supra, at 230-31; Delgado Zayas v. Hosp. Interamericano, 137 D.P.R. 643, 1994 Juris P.R. 149 (1994). Thus, and employer has the duty of proving by preponderance of the evidence that the dismissal of the employee was justified. 7 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 7 of 19 In this case, American Airlines, has miserably failed to adequately plead it’s justifications for the dismissal, and therefore it has waived its right to justify the employment termination. In the Answer to the Complaint, American Airlines, the party with the burden of proving that the termination was justified, limited its allegation to one reason , “[...] Plaintiff’s position was2 eliminated because of the partial closing and reduction in operations in San Juan, and the (sic) because of reorganizational changes” See, Answer to Complaint, Docket 20, at page 6, Third Affirmative Defense. Moreover, in its answer to the specific allegation made by plaintiff in the Complaint, America alleged no facts whatsoever, to justify its reasons for the termination. It failed to alleged any facts with respect to its denial of allegations included by plaintiff as to how the CSM position had practically the same tasks and responsibility as the PSM position. See, Docket #20 at page 4, ¶3.11. It failed to allege any facts to justify its denial of the allegation that the CSM and PSM positions had the same classification of “004 Mgt Ops”and were in the same group in the salary scale (FRLNSUPV), or that they were part of the same occupational classification, Docket #20 at page 4, ¶¶3.12 and 3.13. AA even failed to state in its pleading the occupational classification of Plainitff and/or of the CSM’s. See Motion to Strike, Docket #35. In the Answer to the Complaint, AA had alleged another justification for the dismissal, which2 reads as follows: “Plaintiff’s position in San Juan was eliminated because of economic conditions. Specifically, her position was eliminated because of reductions in employment that were necessary due to the reduction in volume of production, sales and profits, that were actual or anticipated, at the time of discharge”. See, Answer to Complaint, Second Affirmative Defense. This defense was later abandoned by American Airlines, who refused to provide the information on the alleged economic conditions or reduction in sales which had allegedly led to plaintiffs’s termination. See Exhibit 1C, to Roxanne Ruiz’s Statement of Uncontested Facts and Response to American Airlines Statement of Material Facts as to which there are no Genuine Issues to Be Tried, at pages 4 and 5, ¶¶13 to 15(sic). 8 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 8 of 19 It also failed to state any facts whatsoever to support its defense of “partial closing and reduction in operations in San Juan, and because of reorganizational changes”, despite the clear requirement of factual allegations as stated in Article 11 of Law 80. See Motion to Strike, Docket #35. In light of the above, and of the clear language in Article 11 of Law 80, which required an employer to plead in his answer to the complaint, the facts that led to the dismissal, at the risk of waiving its ability to present facts in support thereof, it is clear that AA has waived its right to present any facts in support of its purported justification for plaintiff’s dismissal. Therefore, this court must render a partial judgment determining that defendant waived its right to present facts to justify plaintiff’s dismissal and shall determine that plaintiff was wrongfully discharged from AA, entitling her to the mesada. In the alternative, and in the event that the court decides that the defendant complied with the pleading requirements of the law and did not waive its right to raise facts in support of it just cause defense, and without waiving her position with respect thereto, plaintiff sets forth below the reasons why defendant’s summary judgment should be denied and her motion for partial summary judgment should be granted. C. Burden of Proof under Law 80 and Just Cause Pursuant to the state’s policy of protecting employee’s rights at the workplace and discourage wrongful discharges, article 11 of Law 80, creates a presumption that an employee’s dismissal from employment is unjustified. The employer, therefore has the burden of proving that the dismissal was justified. Diaz Fontanez, supra. 9 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 9 of 19 In order to meet this burden, the employer must be able to prove by a preponderance of the evidence that the dismissal was motivated or related to its need to maintain its operations working in an orderly fashion and that it was not an arbitrary or capricious decision. Rivera Figueroa v. The Fuller Brush Co., 180 D.P.R. 894, 904-905 (2011) To that effect, article 2 of Law 80, P.R. Laws Ann. tit. 29 § 185b, includes a list of circumstances which justify an employee’s dismissal. Of these circumstances listed, subparts (d), (e) and (f) are reasons attributable to the employer, as opposed to conduct displayed by the employee. The reasons listed in the law which are attributable to the employer are the following: (d) “Full, temporarily or partial closing of the operations of the establishment”; (e) “technological or reorganization changes as well as changes of style, design or the nature of the product made or handled by the establishment, and changes in the services rendered to the public”; and (f) “reductions in employment made necessary by a reduction in the anticipated or prevailing volume of production, sales or profits at the time of the discharge”. 29 P.R. Laws Ann. tit. 29 § 185b (d)(e) and (e). These three circumstances must be related to the administration of the enterprise, specifically to economic reasons that occur pursuant to the daily business operations. Díaz v. Wyndham Hotel Corp., supra, page. 376. These circumstances contemplate scenarios that are inexorably linked to the viability of a position or of the enterprise at a particular time. Zapata Berríos v. J. F. Montalvo, 189 D.P.R. 414 (2013). Therefore, dismissals based on the previously mentioned subsections (d), (e) and (f), must be supported by Company documents which show that the reorganization resulted from business needs, and must include financial documents and/or other evidence considered by the Company in its decision and from which the court can corroborate the business need for the changes that led to the 10 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 10 of 19 decision to dismiss an employee. Ortiz v. General Electric, 2018 PR App. LEXIS 1516,KLAN201800136 (PR Ct Ap. 2018), page 16. The employer must also establish by preponderance of the evidence a causal relationship between the alleged reasons for the dismissal and the employee’s discharge. Zapata Berrios, supra. Otherwise the dismissal will be considered arbitrary and capricious. Id., at page 427. In this case, AA has alleged that plaintiff’s discharge resulted from the closing of the Admiral’s Club. The reasons provided by AA for the closing of the Club have been (1) that the Club had to be moved to a different terminal where the new AA flights were now being hosted; (2) that Aerostar, the airport operator, was not willing to pay for a rebuild of the Club to the specifications required by AA; (3) that AA would have to pay a large portion of the construction costs; and (4) that they did not have the budget for the reconstruction. See, defendants Statement of Facts, Docket #28, at ¶¶ 21 to 23. In support of these reasons, AA has failed to present any evidence with respect to what Aerostar was willing to contribute in the reconstruction of the Club. It has not presented any evidence whatsoever related to the construction costs associated to the rebuilding of the Club, or to the alleged “budget” . AA has utterly failed to provide any justification or concrete proof that the decision to close the Admiral’s Club and therefore the dismissal of Ms. Ruiz was not arbitrary or capricious. D. Seniority and order of retention The Law also provides that when the employee is terminated for one of the reasons in subsection (d), (e) and (f) of article 2, the employer must follow an order of retention in order for the dismissal to be justified. 29 P.R. Laws Ann. tit. 29 § 185c. Under Article 3 of Law 80, the employer 11 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 11 of 19 is required “to retain those employees of greater seniority on their job with preference, provided there are positions vacant or filled by employees of less seniority in the job within their occupational classification which may be held by them ....” Tit. 29, § 185c. Thus, an employer must bump employees who are within the same occupational classification to assure that seniority is followed. Reyes Sánchez v. Eaton Electrical, 189 P.R. Dec. 586 (2013). In light of the above, an employer who alleges one of the reasons in subsection (d), (e) and (f) of article 2 to justify an employee’s termination, must also prove that the dismissed employees occupational classification was eliminated, or that the dismissed employee had less seniority than the employees who remained in such classification. Perez Pérez v. Western Aviation Services, 2016 PR App LEXIS, 1347, page 31, KLAN201500143 (PR Cir. Ct March 31, 2016). To calculate the employee’s seniority, the employer must take into account all of the years that an employee has worked with the Company, independently of how much time he has occupied a particular position. Reyes Sánchez v. Eaton Electrical, supra. The term “occupational classification” is not defined by the Law. However, the Puerto Rico Supreme Court has adopted a series of criteria that must be considered by the courts to assess which employees belong to the same occupational classification for the seniority analysis required by article 3 of Law 80. Diaz Fontanez, supra, at fn 12. These are the following: (i) the tasks and responsibilities of the position; (ii) the job requirement for the position, including the necessary knowledge and dexterities required to carry out the position, as well as the academic preparation required; (iii) level of compensation; and (iv) the manner in which the work is carried out. Id. The most important factor to consider is not whether the employees carry out identical responsibilities, but rather whether they can be performed by the dismissed employee. Santiago v. Kraft Foods, 2011 12 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 12 of 19 PR App. LEXIS 2872, KLAN200901410 (PR Cir Ct. 2011). An employee’s job title, number of the position, or the job unit to which the position is assigned is not determinative in this analysis. Luis Pi Colón v. Sucn., 2017 PR App. LEXIS 1505, at page 29 (P.R. Cir. Ct. April 28, 2017). The task of establishing occupational classifications in an enterprise and determining in which of these an employee works constitutes a managerial prerrogative that ordinarily warrants great deference from the court”. Díaz Fontanez, supra, n.12. Particularly, because ordinarily there is no controversy as to occupational classifications. However, in cases where there is controversy, the courts must look at the tasks and responsibilities included within job descriptions as a more reliable source of information with respect to the duties and reponsibilities of positions that were not eliminated. Ramos Ortiz v. MCS, 2016 Pr App LEXIS 5144, KLCE201601685, (PR Cir Ct. November 30, 2016) at page 41. In this case AA, Company records suggest that plaintiff’s occupational classification was “004 Mgt Ops” with the pay grade corresponding to Front Line Supervisor. P’SoUF at ¶ 12 and 13. Despite the clear evidence with respect to the occupational classification of these employees, AA denied in its Answer to the Complaint that this was the occupational classification and/or pay grade. See, Docket #20, at page 4, ¶3.12. Even after denying what its own documents reflect, AA has not even articulated an occupational classification for the position of PSM and/or CSM. It has limited its analysis to the title of both positions and the individual tasks carried out by the employees supervised by the PSM and CSM position. Moreover, even if this court finds that “004 Mgt Ops” and/ or Front Line Supervisor is not the occupational classification given by the employer to the PSM and CSM positions, AA has failed to make the analysis required by the courts, despite its burden to do so, with respect to the analysis 13 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 13 of 19 of what positions are within an occupational classification, to wit, (i) the functions and duties of the positions, (ii) the requirements to occupy the position, (iii) the form of compensation; and (iv) the manner in which the work is carried out. Diaz Fontanez, supra. AA has limited itself to arguing mere generalities as to the tasks carried out by Ms Ruiz and the CSM and has conveniently omitted discussing the specific resonsibilities of Ms. Ruiz and of the Csm position. It has also completely ignored the analysis required with respect to the requirements to occupy the CSM position and the form of compensation factors. The three elements will be discussed below. (i) Comparators of the functions and duties of the positions of PSM and CSM In its analysis, the court must consider the functions and responsibilities of the PSM and the CSM positions. The facts in the case at bar, reflect that Ms. Ruiz’ main responsibilities were to supervise employee and provide customer service. These were also the main tasks and responsibilities of the CSM’s. With respect to the supervisory functions Ms. Ruiz was had to prepare documentation related to employees and customers, evaluate team performance through corporate quality control measurements, monitor lost time and administer the Attendance Control Policy, coach and counsel personnel and provide guidance to team on customer service and performance issues, conduct performance reviews for team members on a regular basis, document employee performance using Peak Performance through Commitment, encourage employee teamwork to generate and implement individual and team's best ideas, respond to employees' professional and personal issues, dismiss employees for performance or attendance issues, communicate with managers, peers and team members, both within their immediate department, as well as with other departments, administer company policies and procedures, provide team with necessary tools, resources and training to meet 14 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 14 of 19 operational performance goals, supervise and coordinate operation including scheduling, hiring, and training. P’SoUF at ¶18 to 22. These responsibilities were also part of the same responsibilities that CSM’s had in the supervisory function. CSM had the same responsibilities with respect to the supervision of employees, as they had were required to coach and counsel personnel and provide guidance to team and customer service and performacnce issues, conduct performance reviews for team members on a regular basis, and document employee performance using Peak Performance through Commitment, encourage employee teamwork, respond to employees professional and personal issues, and conduct investigations and board of inquiry and when necessary dismiss employees for performance, administer employee company policies and procedures, provide team with necessary tools and resources and training to meet operational performance goals, involve all team members in determination of operational improvements, and coordinate operation including scheduling, hiring, training and inventory. P’SoUF at ¶42 to 45. With respct to providing customer service, both PSM and CSM were responsible for In achieveing superior customer satisfaction, resolving customer service and operational problems during tour of duty, spend majority of time in the operation, interacting with customers and employees, prepare customer correspondence, use cross functional teams to generate and implement quality improvement ideas, quality control measurements, and manage customer complaints and compliments. P’SoUF at ¶¶ 22 to 26 and 40, 41, 45 and 46. Moreover, the plaintiff carried out the duties and responsibilities of CSM’s when the company required her to do so. At those times she had to cover all responsibilities of the position, including the supervision of Customer Service Agents and supervise ramp employees such as Fleet Service 15 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 15 of 19 Clerks to make sure customer service was provided. P’SoUF at ¶¶ 53 to 56 . AA has concentrated its argument on the fact that the three CSM had responsibilities over Fleet Service Clerks, at the ramp (“below the wing”). They have tried to distinguish Ms. Ruiz’ responsibilities from the ones carried out by the three CSM’s on the basis of what some of the employees supervised by the CSM’s (ramp employees) did. They have, however, completely ignored that the supervisory tasks were the same, and that Ms. Ruiz has, at times, supervised these very same employees. AA has also ignored the importance of the application of company policies in the supervisory task a responsibility which goes to the core of the CSM position. So much so, that it has completely omitted to mention that Mr. Otero, an employee who had worked at AA for all of ten (10) months at the time of plaintiff’s discharge, in 2017 was still being called to task for not controlling overtime costs, for his lack leadership skills or not being able to drive positive results with employee conflicts, responsibilities which are essential to the CSM functions. See Exhibit 12, 2016 Performance Conversation for Felipe Otero; P’SoUF at ¶¶34, 36, 40 and 43. AA has tried to show that the supervisory responsibilities were the same with respect to other managers within the operation. It has posited that for example managers that supervised airplane mechanics also had the same supervisory functions and yet they were not comparables with respect to occupational classification. This comparison, however, cannot be made in a void. Mechanics have very specific technical skills which are completely unrelated to customer service as a front line supervisor who supervises employees in contact with customers, such as CSM’s. Moreover, AA has not show an iota of evidence that the classification of supervisors for mechanics within the enterprise were covered by the “0004 Mgt Ops”and/or of Front line Supervisor classification. In conclusion, and as stated by former AA employees, CSM and PM’s carried out 90% of the 16 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 16 of 19 same responsibilities independently of whether they were above or below the wing. Their main responsibilities were to supervise employees and provide customer service, with the only difference that the PSM was limited mostly to a specific area, the Admiral’s Club. P’SoUF at ¶¶ 30, 48 and 49. Therefore clearly Ms. Ruiz carried out basically the same areas of responsibilities as that carried out by the CSMs. (ii) The requirements to occupy the CSM position The court must also consider the job requirements for the CSM. AA has completely ignored this factor in order to determine whether it was the same occupational classification. The facts in this case reflect that Ms. Ruiz fulfills all of the job requirements. According to Company documents, the position requirements for the CSM position were the following: (1) able to lead and motivate employees in working as a team; (2) be decisive and be able to work under demanding operational conditions and stressful environment; (3) meet public contact profile; (4) have excellent oral and written communication skills leadership, initiative and judgment; (5) demonstrate strong administrative skills and analytical abilities; (6) require rotation of shifts, days off and holidays; (7) prior airport experience; (8) knowledge of company policies and procedures, applicable SABRE and other functional automation knowledge; (9) fulfill FAA criminal background checks to qualify for unescorted privileges to airport security identification display areas; (10) able to secure appropriate airport authority and/or US Customs security badges ; (11) Pass US Department of Transportation mandated drug testing requirements; and (12) able to become certified Ground Security Coordinator, if applicable. P’SoUF at ¶57. Ms. Ruiz complied with all of these requirements, having had to do so to exercise her functions and responsibilities as an Admiral’s Club Manager. P’SoUF at ¶58. 17 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 17 of 19 (iii) the form of compensation The third factor that must be considered by the court to analyze the occupational classification is the compensation level af Ms. Ruiz vis-a-vis the compensation of the three employees with less seniority, Ms. Martinez, Ms. Perez and Mr. Otero. As reflected in Company documents, Ms. Ruiz, Mrs. Martinez and Mr. Otero all had the same compensation level listed as “03". P’SoUF at ¶14. Ms. Ruiz, Ms. Martinez, Ms Perez and Mr. Otero, all belonged to the same pay scale group which corresponded to Font Line Supervisors. Front Line Supervisors are supervisors within AA who have direct contact with the passengers. P’SoUF at ¶15. Thus, Ms. Ruiz definitely had the same form of compensation as Ms. Martinez who had less seniority than her, and as Mr. Otero, who had barely worked at AA for some 10 months at the time of Ms. Ruiz’ dismissal. In light of all of the above, AA has failed to demostrate that Ms. Ruiz was not within the same occupational classification as the three CSM who had less seniority than her. Therefore, this court must conclude that Ms. Ruiz occupational classification was the same as the one held by Ms. Martinez, Ms. Perez and Mr. Otero. It must also conclude that AA failed to prove that it complied with article 3 of Law 80, and therfore did not follow the order of seniority required by Law 80, thereby entitling Ms. Ruiz to payment of her mesada. V. Conclusion As shown above, AA has waived its right to present any facts to justify plaintiffs dismissal, and it can therefore not meet its burden of proving that Ms. Ruiz termination was justified under Law 80. In the alternative AA has failed to show that the closing of the Admiral’s Club was a decision 18 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 18 of 19 motivated by a legitimate business need, by not presenting any of the financial information that allegedly led to this decision as required by the case law, and therefore has failed to show that this was not done in an arbitrary and capricious manner. Finally, and most importantly, AA has failed to show that Ms. Ruiz responsibilities differed significantly from those held by the CSM’s, it has failed to show that Ms. Ruiz was not qualified for the position, or that her form of compensation differed from that of the CSM’s. In light of the above, the court must deny defendant’s Motion for Summary Judgment and must render partial summary judgment in favor of plaintiff with a determination that AA did not meet its burden of proof under Law 80, and therefore Ms. Ruiz is entitled to her mesada. WHEREFORE, plaintiff respectfully requests that the court deny AA’s motion for summary judgment and that it render partial judgment determining that the plaintiff was wrongfully terminated and is therefore entitled to the mesada. Respectfully submitted in San Juan, Puerto Rico this 18 day of March, 2019.th Berkan/Mendez O’Neill St. G-11 San Juan, P.R. 00918-2301 Tel. (787) 764-0814;Fax (787) 250-0986 bermen@prtc.net By: S/ Mary Jo Mendez Mary Jo Mendez USDC No.209407 mendezmaryjo@microjuris.com This is to certify that this motion is being submitted through the ECF filing system, which will automatically notify counsel of record. /s/ Mary Jo Méndez Mary Jo Mendez 19 Case 3:16-cv-02837-ADC Document 36 Filed 03/18/19 Page 19 of 19