Roberto Lugo-Velázquez v. Stiefel Laboratories, Inc.; Stiefel Laboratories Puerto Rico, Inc.

Of the Southern District of New York, sitting by *
designation.
United States Court of Appeals
For the First Circuit
No. 07-2138
ROBERTO LUGO-VELÁZQUEZ,
Plaintiff, Appellant,
v.
STIEFEL LABORATORIES, INC.;
STIEFEL LABORATORIES PUERTO RICO, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Torruella and Lynch, Circuit Judges,
Keenan, Senior District Judge.*
Luis Vivaldi Oliver for appellant.
Roberto Feliberti with whom Arturo Díaz-Angueira and
Cancio, Nadal, Rivera & Díaz, P.S.C. were on brief for appellees.
April 4, 2008

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LYNCH, Circuit Judge. Roberto Lugo-Velázquez was an
employee of Stiefel Laboratories Puerto Rico, Inc. until his
employment was terminated when that company substantially reduced
its operations to one person in Puerto Rico in January 2003. While
employed, Lugo was a participant in an employee stock bonus plan of
the parent company, Stiefel Laboratories, Inc. He was not,
however, a participant in the Stiefel Laboratories § 401(k)
retirement plan; Puerto Rican residents, like Lugo, did not qualify
to be participants because of federal tax rules.
After his employment was terminated, Lugo brought a
number of claims in federal court in Puerto Rico against Stiefel
Laboratories and Stiefel Laboratories Puerto Rico. By order dated
February 8, 2005, the district court assigned all further
proceedings in the case to a magistrate judge. Summary judgment
was entered against Lugo on all claims in two successive rounds of
summary judgment motions. The motions resulted in two opinions and
orders, dated July 31, 2006, and May 30, 2007. The nature and
disposition of most of the claims need not be described for
purposes of this appeal.
The present appeal is from the dismissal of all of Lugo's
ERISA claims in the second summary judgment order. His appeal
appears to present three major ERISA-related arguments: (1) under
ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), Lugo claims that
he was denied disability benefits to which he was entitled; (2)

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Lugo also briefly makes the argument that his employment 1
was terminated in retaliation for his "opposition to the improper
administration and management of his benefits," in violation of
ERISA § 510, 29 U.S.C. § 1140. As the magistrate judge pointed
out, this argument is foreclosed by the court's determination in
the first summary judgment motion that his employment was
terminated because Stiefel substantially reduced its Puerto Rican
operations.
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under ERISA § 502(a)(1)(A), (a)(3), and (c), 29 U.S.C. § 1132
(a)(1)(A), (a)(3), and (c), he claims that he was denied access to
documents and descriptions relating to the disability plan and the
employee stock bonus plan; and (3) he claims that Stiefel's
improper plan administration and failure to provide certain
benefits to him as a resident of Puerto Rico amounted to national
origin discrimination in violation of Title VII. None of the
arguments have merit.1
The first two claims are largely related. Lugo's brief,
with commendable candor, admits that there is no evidence in the
record that he met the eligibility requirements or applied for
disability benefits. He nonetheless attempts to survive summary
judgment by arguing he should be excused from producing evidence of
application, eligibility, and denial because he claims he never
received plan documents. As he puts it: "Plaintiff has not
presented enough evidence to sustain it[s] disability claim because
defendants . . . ha[ve] not provided it . . . ."
Even on its own terms, this house-of-cards type of
argument fails. Lugo admits in his brief that he was given an

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Similarly, to the extent that Lugo's claim that Stiefel 2
did not furnish documents relates to the employee stock benefit
plan in which he was participating, he relies on bald assertions
that information was withheld and has provided no evidence to
support his claim, including any evidence that he actually
requested the information.
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"informative" brochure by the company containing plan provisions,
which contained sufficiently specific information to allow him to
calculate the amount of benefits to which he claims he is entitled.
In response to Stiefel's argument that he was not entitled to
disability benefits because he did not apply for short-term
disability benefits under SINOT (a Puerto Rican government-
sponsored insurance program), as the company required, Lugo
acknowledges that this requirement existed but argues that he would
not have been eligible for SINOT coverage. But whether Lugo would
have qualified is beside the point. Stiefel required him to apply
to SINOT because its short-term disability program was managed by
SINOT, and qualifying under the short-term program was a
prerequisite to qualifying for Stiefel's long-term disability
program. Moreover, as the magistrate judge noted, Lugo did not
request plan-related documents during discovery, nor did he file an
affidavit under Fed. R. Civ. P. 56(f) that summary judgment should
not enter because such documents had not been produced.2
Lugo further argues that the magistrate judge did not
consider his disability benefits claim. That is true, but
explained by the fact that the magistrate judge did not think that

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The record does show Lugo had a degenerative back 3
condition while employed at Stiefel, that accommodations were made
by his employer, and that he performed his duties on the job. On
March 5, 2004, he sought Social Security benefits, stating that he
was unable to work as of the date his employment with Stiefel
terminated. After benefits were denied, he appealed and asserted
he was "totally disabled." He later voluntarily dismissed the
appeal. The issue here is not whether he had a disability but
whether he was improperly denied disability benefits.
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Lugo was making a claim for disability benefits. Even reading ¶ 22
of his complaint as making such a claim, and putting aside the
obscurity of the claim (if, indeed, the claim was not abandoned) at
the summary judgment stage, it is still true that there is no
evidence in the record supporting either his disability benefits
claim or his document request claim. Summary judgment can be 3
affirmed on any ground fairly demonstrated by the record. T-Peg,
Inc. v. Vt. Timber Works, Inc., 459 F.3d 97, 111 (1st Cir. 2006).
Lugo's final argument with respect to these two claims is
that the defendants had waived any defense to these claims, and he
filed nothing because he understood that the court had so held in
its July 31, 2006 order. The court held no such thing. It merely
noted that the defendants had not, in the first round of summary
judgment filings, sought summary judgment on the ERISA-related
claims. That does not amount to a ruling by the court that
defendants had waived any defenses. Further, Lugo did not make
this argument to the magistrate judge; if there has been any waiver
of a claim, it is by Lugo.

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We turn to Lugo's final claim, that he was discriminated
against in violation of Title VII on the basis of his national
origin because Stifel improperly administered its benefit plans and
excluded him from participation in its § 401(k) plan. This claim
is also without merit. First, since Lugo has not demonstrated that
Stiefel improperly administered its benefit plans, such an argument
of selective administration based on national origin cannot serve
as the basis of a discrimination claim.
Additionally, Lugo has presented no argument calling into
question the magistrate judge's conclusion that the provider of
Stiefel's § 401(k) plan, Fidelity Investments, excluded employees
residing in Puerto Rico from being plan participants for federal
tax reasons. The magistrate judge noted that under a qualified
§ 401(k) plan, an employee contributes pre-tax income to the plan,
thus deferring the employee's federal income tax payments. But
residents of Puerto Rico with only local income do not pay federal
income tax. See 26 U.S.C. § 933.
Even were we to assume that Lugo made out a prima facie
case of national origin discrimination, it is his burden to
establish that the explanation offered by Stiefel is mere pretext.
Quiñones v. Buick, 436 F.3d 284, 289-90 (1st Cir. 2006). He has
not met that burden. The decision not to define § 401(k) plan
participants to include Puerto Rican residents is a rational
distinction and does not constitute national origin discrimination.

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The entry of summary judgment for defendants is affirmed.
Costs are awarded to defendants.

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