Wilbur L. Hoffman-García v. METROHEALTH, INC., d/b/a HOSPITAL METROPOLITANO

United States Court of Appeals
For the First Circuit
No. 17-1544
WILBUR L. HOFFMAN-GARCÍA,
Plaintiff, Appellant,
ZORAIDA I. RODRÍGUEZ-DÍAZ;
CONJUGAL PARTNERSHIP HOFFMAN-RODRÍGUEZ
Plaintiffs,
v.
METROHEALTH, INC., d/b/a HOSPITAL METROPOLITANO
Defendant, Appellee,
KAREN ARTAU-FELICIANO; FACILITIES SERVICES MANAGEMENT &
MAINTENANCE, INC.; IAN RODRÍGUEZ-ALVARADO; XYZ INSURANCE CORP.;
AMERICAN INTERNATIONAL INSURANCE GROUP, INC. (AIG),
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Boudin, Circuit Judges.
Erick Morales-Perez on brief for appellant.
José R. González-Nogueras, Lloyd Isgut-Rivera, and Pizarro &
González, on brief for appellee.

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March 19, 2019

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BOUDIN, Circuit Judge. Wilbur Hoffman-García ("Hoffman")
was employed by Hospital Metropolitano in San Juan, Puerto Rico,
from 1995 until 2012, when he was laid off. At the time of his
termination he served as Physical Plant Director, and his duties
included handling maintenance issues, managing the Physical Plant
Department's budget, overseeing utilities management and repairs,
attending meetings with other senior personnel at the hospital,
procuring supplies to keep the hospital in good physical condition,
hiring contractors to perform larger projects, and maintaining
premises safety and security.
The hospital explained Hoffman's dismissal as part of an
effort to cut costs, as it subsequently hired an outside contractor
to perform maintenance services. Along with Hoffman, the hospital
laid off all of the staff employed in the Physical Plant
Department, including Hoffman's deputy, Giovanni Martínez.
However, Martínez was rehired some months later for the newly
created position of Safety Officer. Hoffman calls the rehiring of
Martínez instead of him discriminatory based on age, but Hoffman
did not apply for the position of Safety Officer when it became
available. Martínez was thirty-six years old at the time he was
rehired, while Hoffman was sixty-two.
Hoffman sued the hospital under the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and Puerto Rico
antidiscrimination and tort law. Following discovery, the

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district court granted in part the hospital's summary judgment
motion, Fed. R. Civ. P. 56, finding that the hospital had facially
legitimate, non-discriminatory grounds to close the Physical Plant
Department and to terminate Hoffman's position; but absent trial,
the court declined to decide whether the hospital treated age
neutrally when it rehired Martínez rather than Hoffman. Hoffman-
Garcia v. Metrohealth, Inc., No. 14-CV-1162, 2016 WL 4146098
(D.P.R. Aug. 3, 2016). 1
A jury trial then ensued, but at the close of evidence
the district court granted the hospital's motion for judgment as
a matter of law, Fed. R. Civ. P. 50(a). In that ruling, see
Hoffman-Garcia v. Metrohealth, Inc., No. 14-CV-1162, 2018 WL
671200 (D.P.R. Jan. 31, 2018), the district court rejected
Hoffman's two separate though overlapping theories of age
discrimination, the first predicated on Hoffman's initial
termination and his claim that a younger employee (Martínez) was
retained to perform his same job function, and the second
predicated on the hospital's failure to hire Hoffman as Safety
Officer and to instead hire Martínez for that position.
The court found as to both theories that the position of
Safety Officer varied significantly in its duties and requirements
1 The court granted summary judgment to the hospital with
respect to Hoffman's claim under Puerto Rico's general tort
statute, P.R. Laws Ann. tit. 31, § 5141, for reasons not pertinent
here.

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from those of Physical Plant Director and that the two were not
"situated similarly in all relevant aspects," Cardona Jimenez v.
Bancomercio de Puerto Rico, 174 F.3d 36, 42 (1st Cir. 1999).
Further, Hoffman never applied for the position of Safety Officer,
which undercut his argument that he had experienced an adverse
employment action. Cf. Velez v. Janssen Ortho, LLC, 467 F.3d 802,
807-08 (1st Cir. 2006). The court therefore dismissed the ADEA
claim as a matter of law. See, e.g., Del Valle-Santana v.
Servicios Legales de Puerto Rico, Inc., 804 F.3d 127, 131-32 (1st
Cir. 2015) (affirming dismissal for failure to establish prima
facie case of discrimination).
The court also granted judgment as a matter of law to
the hospital on Hoffman's two surviving Puerto Rico law claims,
one of which alleged age discrimination, P.R. Laws Ann. tit. 29,
§ 146 et seq., and the other of which alleged unjust discharge
from employment, P.R. Laws Ann. tit. 29, § 185a et seq. As to
these two claims, the court found that the closure of the
hospital's Physical Plant Department for business reasons
constituted just cause, that nobody was hired to perform the duties
or job earlier held by Hoffman, and that given the similarities
between the burden-shifting framework governing ADEA claims and
the test for the Puerto Rico Law claims, Caraballo-Cecilio v.
Marina PDR Tallyman LLC, 14-CV-1454, 2016 WL 6068117, at *2-3
(D.P.R. Oct. 13, 2016), the same analysis governed.

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Hoffman now appeals, claiming that the court erred in
granting judgment as a matter of law to the hospital and that a
jury question existed as to the hospital's motivations in rehiring
Martínez rather than Hoffman for the position of Safety Officer.
Such claims are reviewed de novo, Delgado v. Pawtucket Police
Dep't, 668 F.3d 42, 50 (1st Cir. 2012), taking the evidence in the
light most favorable to the non-moving party, Malone v. Lockheed
Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010). This court asks
whether in the trial record a rational jury could find in favor of
Hoffman. Wilson v. Moreau, 492 F.3d 50, 52 (1st Cir. 2007).
Hoffman's brief principally seizes on language from the
district court's oral announcement and subsequent written order of
its decision which mentions the uncontradicted testimony from José
Samuel Rosado, the hospital's director, that age did not factor in
his decision to rehire Martínez and that because the safety officer
position was inferior in authority and salary to Hoffman's prior
position, he did not believe that Hoffman would have been
interested. Hoffman ties this in with various cases noting the
traditional rule that in the Rule 50 context it is improper to
consider the credibility of witnesses, see, e.g., Barkan v. Dunkin'
Donuts, Inc., 627 F.3d 34, 39 (1st Cir. 2010), such matters being
the province of the jury.
The problem for Hoffman is that much of Rosado's
testimony and the district court's mention of it were beside the

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point: here, Hoffman plainly failed to meet his burden of showing
that his previous position of Physical Plant Director, or a
position involving comparable duties and responsibilities at the
hospital, was subsequently filled by a younger person, or that he
applied for a position and did not get the job because the employer
preferred a younger candidate. Under the burden shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), there
were fatal and uncontradicted defects in Hoffman's prima facie
theory of liability as established by the evidence at trial.
The Physical Plant Director position at the hospital was
eliminated entirely; Martínez was rehired for the position of
Safety Officer, which came with a monthly salary of $2,183 (Hoffman
had been earning $7,432 a month at the time his position was
terminated). Hoffman never himself applied for the position, which
we have noted is a fatal defect in the similar context of Title
VII failure-to-rehire retaliation cases. See Velez, 467 F.3d at
807 (noting the requirement that "plaintiffs asserting
discriminatory retaliation must show that they applied for a
specific vacant position for which they were qualified, and that
they did not get the job").
Hoffman's duties as Physical Plant Director at best
minimally overlapped with Martínez's duties as Safety Officer.
Martínez in his new role had no director-level, decision-making
responsibility. He did not attend meetings with other directors,

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supervise contractors, oversee the budget, or otherwise manage the
physical plant.
That Martínez in his new position inherited Hoffman's
responsibility for safety issues is not sufficient, for this was
but a small portion of Hoffman's duties. See LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836, 846 (1st Cir. 1993). Nor can discriminatory
animus be inferred solely from the subsequent hiring of a younger
employee for a position plainly inferior to the plaintiff's
previous position. Pagues-Cahue v. Iberia Lineas Aereas de España,
82 F.3d 533, 538 (1st Cir. 1996).
Affirmed.

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