Decisions by the Supreme Court of PR 2000
2000 DTS 115 V. HERNANDEZ TRANS OCEANIC 2000TSPR115
IN THE SUPREME COURT OF PUERTO RICO
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Mirtha Hernandez, Galo Beltran and Conjugal Society
appealed
v.
Trans Oceanic Life Insurance Company
petitioner
certiorari
2000 TSPR 115
Case Number: CC-1997-0695
Date: 30/06/2000
Circuit Court of Appeals: Regional Circuit I
Judge Speaker: Hon . Jeannette Ramos Buonomo
Lawyers of the requesting party:
Nevares, Sanchez-Alvarez & Gonzalez-Nieto
I lcdo. Jose A. Sanchez Alvarez
I lcdo. Edgar A. Lee Navas
Counsel Respondent:
I lcdo. Harry Anduze Montaño
I lcdo. Guillermo Ramos Luiña
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Materia: Wrongful Termination
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WARNING
This document is an official document of the Supreme Court which is subject to changes and corrections of the compilation process and official publication of the Court 's decisions. Electronic distribution is made as a public service to the community.
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The Court 's opinion issued by the Associate Judge Mrs. NAVEIRA Rodon.
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San Juan, Puerto Rico, June 30, 2000
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The Trans Oceanic Life Insurance Company (TOLIC), respondent and petitioner, is a company dedicated to issue insurance policies through insurance agents and general agents. In 1985, Ms. Mirtha Hernandez, plaintiff and respondent was hired to work as an insurance agent in the aforementioned company.
Subsequently, in May 1986, TOLIC and Mrs. Hernandez signed a contract whereby the latter was appointed general agent. The contract stated that Ms. Hernandez would be an independent contractor, not an employee of TOLIC. Moreover, it provided that this company would not be responsible for the costs of the agency Mrs. Hernandez, such as rent, transportation facilities, attorney fees, secretary, advertising, licenses and taxes.
The agency contract also provided that Ms. Hernandez would have authority to recruit and recommend TOLIC insurance agents to work under their supervision. However, hiring people recommended would be subject to approval by the company and would directly with it. TOLIC is also reserved the right to terminate the employment contract of insurance agents for any reason.
Once the agency agreement was signed by the parties, Mrs. Hernandez rented a space in Building Vick Center, where he established his office. Expenses for the establishment and maintenance of it were covered by it. After establishing his office, insurance agents recruited and prepared them for the licensing exam. Mrs. Hernandez also oversaw and guided the agents about marketing techniques TOLIC products.
In TOLIC there were two general agencies who dedicated themselves to market the same products 1: One was Mrs. Hernandez and the other was in charge of Mr. Nicholas Touma and Ms. Carmen Taveras, married to each other..
In April 1988 a reorganization took place in TOLIC. As a result of this, Mr. Touma came to occupy a new position called Director of Agencies. This post was attached to the headquarters of TOLIC. The wife of Mr. Touma, Ms. Taveras, remained in the direction of the general agency.
According to the findings of fact on the forum instance, from the date on which Mr. Touma began serving as Director of Agencies, he began to intervene in internal administrative affairs of the agency Mrs. Hernandez. He was training agents and dictate guidelines about how to market the products. Even chaired monthly meetings with agents, work that until then had made Mrs. Hernandez.
It is noteworthy that since Mr. Touma began to play as Director of Agencies, expressions were made to the effect that Mrs. Hernandez, in view of his age, sixty (60) years, was associated with a younger person. In addition, employees and officers TOLIC began making comments and jokes about the age of this and what do after his retirement.
In mid-1988, Mr. Touma told him Mrs. Hernandez to appoint as coordinators sales two insurance agents working in the general agency run by his wife. The sales coordinator position was an intermediate or supervisory among the general agent and insurance agents. When Mrs. Hernandez received such instructions, he said Mr. Touma that, in his opinion, these agents were not necessary to pursue qualifications supervisory duties. However, Mr. and Mrs. Touma insisted Hernandez He obeyed his instructions.
Sales Coordinators appointed on the recommendation of Mr. Touma resigned their posts in late 1988. When he came into knowledge of the resignations, he met alone with them. After the meeting, coordinating sales agents commented that there would be changes in the general agency Mrs. Hernandez.
Without Mrs. Hernandez had knowledge of it, in November 1988, Mr. Touma and Mr. Roberto Tirado, vice president of TOLIC, met with all insurance agents working under the supervision of the applicant. The meeting of these complaints concerning the operation of the general agency were discussed. Days later, Mr. Touma and Mr. Tirado met with Mrs. Hernandez to communicate complaints from agents and look for solutions.
On 21 November 1988 another meeting attended by Mr. Touma, Mr. Tirado, Mrs. Hernandez and all agents was held. Before it began, it was suggested to Mrs. Hernandez raised to agents that those they were not interested in continuing to work with her, were free to leave. The applicant acceded to that recommendation. Mr. Touma and Mr. Tirado blank papers distributed for agents, by secret ballot, expresasen if they wanted to continue or not in the agency Mrs. Hernandez. The idea of the secret ballot had not been previously discussed with it.
As a result of the vote, Ms. Hernandez was left with three officers. Those who expressed his desire to leave, mostly, were transferred to the agency Mrs. Taveras.
The volume of sales agents who remained with Mrs. Hernández was not enough to cover the costs of the local that she had rented. Consequently, he decided to move operations of the agency to his residence. There he continued to operate until December 31, 1989, the day he canceled a subsidy of two thousand US dollars ($ 2,000) monthly that TOLIC gave him an advance of commissions. Contracts of insurance agents who worked with her were also canceled.
After these incidents, Ms. Hernandez suffered from depression and received psychiatric treatment. From then until the time of conclusion of the hearing, he was unable to work, according to expert testimony uncontroversial.
On October 16, 1990, Ms. Hernandez and her husband, Galo Beltran itself and on behalf of the conjugal partnership composed of both, filed suit under Act. No. 75 of June 29, 1969, as amended, 10 LPRA sec. 278 et seq 2; No.. 80 Act of May 30, 1976, as amended, 29 LPRA sec. 185 et seq; No.. 100 of Law 1959, as amended, 29 LPRA sec. 146 et seq (hereinafter Act 100) and the Age Discrimination in Employment Act (ADEA), 29 USC sec. 621. On February 7, 1996 forum Instance upheld the demand.
Nonconformist, TOLIC filed an appeal to the Circuit Court of Appeals, San Juan Regional Circuit (Circuit Court) 3. That court, in a ruling filed in the record on Aug. 7, 1997 confirmed the opinion of the forum instance.
Fittingly, TOLIC presented before us a writ of certiorari with signs following error:
FIRST ERROR: Erró Circuit Court of Appeals in concluding that between the applicant [Mrs. Hernandez] and TOLIC there was an employer-employee relationship and not an independent main-contractor.
SECOND ERROR: Erró Circuit Court of Appeals ruling that the "test" applicable to the present case is the degree of control and not the economic reality.
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THIRD ERROR: Erró Circuit Court of Appeals in the assessment of the evidence that allegedly [sic] showed that Ms. Mirtha Hernandez was an employee of TOLIC and the latter discriminated against because of age first..
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FOURTH ERROR: Erró Circuit Court of Appeals failure to consider or disponer- and even make mention- of [e] committed by the High Court and that he pointed out in the letter of appeal sometídole fixes.
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I
Being closely related, jointly discuss the accusations error one and two. TOLIC indicates that Mrs. Hernandez was an independent contractor and not an employee of that company. It also alleges that the Insurance Code, 26 LPRA sec. 101 et seq expressly provides that the general agent will be an independent contractor. To resolve disputes before our consideration is necessary to examine and interpret the provisions of the Insurance Code regarding general agents and our jurisprudence regarding the distinction between an independent contractor and an employee.
Art. 3.340 of the Insurance Code, supra, 26 LPRA sec. 334, defines the general agent as:
a named person or hired by an insurance company as an independent contractor or commission, whole or in part, with powers or general duties to inspect the granting and service operations policyholders of the insurer, appoint agents for the insurer and perform other functions that general agents are conferred by custom class or classes of insurance facts or type of insurance represented. (Our emphasis.)
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We have repeatedly stated that in interpreting the text of a law, the courts must respect the legislative will and a sense attributing the result to ensure that the legislature intended originally obtained. Pinero v. AAA, res. on October 23, 1998, 98 TSPR 141; Col. Optical PR v. Pearle Vision Center, res. of January 10, 1997, 142 DPR ___, 97 JTS 1. It is recognized standard, moreover, that the different sections, articles and paragraphs of a law should not be interpreted in isolation but together, seeking the legislative intent. Mun. San Juan v. Banco Gub. Development, res. on May 21, 1996, 140 DPR __; 96 JTS 73; Ojeda v The Speaker, 137 DPR 315 (1994)..
According to the definition of the Insurance Code, supra, the post of general agent can be performed by an independent contractor. Other provisions of the Code suggests, in turn, that that position can be filled by a manager. See, as an example, Art. 3.340 of the Insurance Code, supra, 26 LPRA sec. 334 (2), which follows:
The insurer appoints a person as a general agent or manager to represent it as such in Puerto Rico shall give written notice of the appointment to the Commissioner in the prescribed form and supply it. (Our emphasis.)
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For its part, art. 3,340 (3), supra, in pertinent part provides:
Said general agent or manager will have authority, consistent with this title, which is conferred by the insurer. (Our emphasis.)
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When analyzing these provisions together emerges with clarity that the Insurance Code, supra, does not impose the requirement that the post of general agent have to be performed by an independent contractor. That is, the position of general agent can be occupied both by an independent contractor as an employee of the insurance company that performs in capacity manager.
Moreover, in the United States it defined the general agent as follows:
"[T] he overall agent is a form of sales executive or manager, or Perhaps a distributor, WHO stands Between the insurer and the salesman to the ultimate customer Either as an employee or contracting representative." (Our emphasis.) Bertram Harnatt, Responsibilities of Insurance Agents and Brokers, New York, Matthew Bender & Company, 1989, Vol. I, p. 2-6 and 2-7.
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Furthermore, it has stated that when a manager also serves as general agent, is an alter ego of the company. Even it noted that the manager of a central office of the insurer, in most cases, will be considered a general agent. Lee R. Russ; Thomas F. Segalla, Couch on Insurance 3D, 3rd ed., Minnesota, Ed. West Publishing Co., Vol. III, 1997. From the foregoing emerges clearly that in America the position of general agent can be occupied both by an employee of the insurance company as an independent contractor.
We come, therefore, to analyze what has our jurisprudence on the independent contractor.
We have repeatedly examined the figure of the independent contractor, specifically in the field of tort and labor. We have resolved that to determine whether there is a relationship between employer and employee or independent contractor, "Characterization or designation made by the parties regarding the nature of their relationship is not decisive". Bengochea v Ruiz Torres, 68 DPR 103, 71 (1974). Nazario v Velez, 97 DPR 458, 463 (1969).. In other words, provisions in the labor contract is not conclusive or decisive at the time of defining the relationship between the parties.
To determine whether there is an independent contractor is necessary to examine the facts of the dispute taking into account, in turn, a number of factors identified by our jurisprudence. This is because, usually, in this type of disputes gather characteristics of both employee and independent contractor. Consequently, rarely find situations where a sharp distinction between the two exists. Fernandez v. ATPR , 104 DPR 464, 465 (1975); Nazario v. Gonzalez , 101 DPR 569, 572 (1973); Perez v. Hato Rey Co. Bldg. , 100 DPR 882, 888 (1972); Landrón v. JRT , 87 DPR 94, 102 (1963).
Forum instance used the retention factor control as a guiding criterion for determining the nature of the relationship between the parties. TOLIC, on the other hand claims that, according to our decision Avon Products, Inc. v. Srio. Labour , 105 DPR 803 (1977), the appropriate test for this is the economic reality. He did not attend reason. Let's see.
In Nazario v. Velez , 97 DPR 458 (1969), we express that must be addressed primarily to the factor of economic reality, when recourse to technical classifications that may prevail in other areas of law, leads to an unjust solution to interpret repairers statutes as the Employment Security Act of Puerto Rico, 29 LPRA sec. 702 et seq and the Minimum Wage Act, 29 LPRA sec. 245 et seq. Subsequently, Avon Products, Inc. v. Srio. Labour , 105 DPR 803 (1977), indicate that this factor helps to achieve protection for a larger number of employees and, in specific cases, to achieve consistent with the purposes of repairers statutes solutions. We also note that the factor of economic reality requires consideration, in turn, several criteria such as the degree of control, lost opportunities and investment in facilities, but none of these is, by itself, decisive. Consequently, our decision Avon Products, Inc. v. Srio. Labour , 105 DPR 803 (1977), does not have the scope TOLIC intended to impose the standard of economic reality as the guiding criterion for determining whether there is an independent contractor or an employee. 4
On the other hand, v in Mariani. Christy, 73 DPR 782 (1952), were ready that the degree of control that you can book the principal on the implementation of the work is the governing criterion to determine whether the employment relationship between the litigants is used and employer or principal and independent contractor. It must be noted, however, that it was a case of damages, not employment - related 5. We have also been emphatic and consistent in stating that the determination of who is an independent contractor does not depend on any single factor, but we have to examine the set of circumstances in which the employment relationship unfolds. Fernandez v. ATPR, 104 DPR 464, 465 (1975). We have also expressed such determination that there is no absolute rule, but depends on the importance it gives to each of the factors. Nazario v. Velez, 97 DPR 458, 465 (1969).
Among the factors to be taken into consideration to determine whether a person works as an independent contractor are the following: (i) the nature, extent and degree of control by the principal; (ii) the degree of initiative and judgment displayed by the employee; (iii) ownership of equipment; (iv) the power to use and the right to dismiss; (v) the form of compensation; (vi) the opportunity to benefit and risk of loss and (vii) withholding contributions. Martinez v. UCB, res. on June 11, 1997, 143 DPR __ (1997); 97 JTS 98, p. 1225; Fernández v ATPR, 104 DPR 464, 465 (1975). Bengochea v Ruiz Torres, 103 DPR 68, 71 (1974). Admor, FSE v Industrial Commission, 101 DPR 6, 8 (1973);.. Nazario v. Velez, 97 DPR 458, 460 (1969).
We proceed to examine the set of circumstances present in the working relationship between Mrs. Hernandez and TOLIC, weighing each of the factors listed above, to determine whether there was a relationship between these employee and employer or principal and independent contractor. As we stated, the contract between the parties expressly provided that Mrs. Hernandez was an independent contractor, 6 however, this classification does not have the dispute before us.
Regarding the factor nature, extent and degree of control, we have stated that:
it is natural that all service contract, they are well surrender as an independent contractor, the employer is always some degree of control reserve to ensure that the service is carried out properly and in coordination with other activities of the employer . Fernandez v. ATPR, 104 DPR 464, 467 (1975).
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That is, the fact that the main exercise some degree of control over the work of the independent contractor to ensure that services are provided efficiently, does not, by itself, that we are facing a relationship between employer and employee.
In considering the degree of control exercised TOLIC on the work of Mrs. Hernandez, the instance forum paid special attention to two (2) contractual clauses: the third, related to the authority of Mrs. Hernandez on insurance agents, and the seventeenth. First examine the clause seventeen. This was about the termination of the contract signed by the parties and provides in relevant part as follows:
TERMINATION: Powers of General Agent, Shall cease upon termination of Contract esta Which May be terminated at any time upon written by Either party notice to the other, mailed to the last Known address, the date Stating Such termination When Shall be effective. Not withstanding anything to the Contrary Contained HEREIN, esta Either party May Terminate Contract forthwith, for cause, in the event the other party That you failed to Comply with the Provisions of esta Contract. (Emphasis mine .)
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Reading of the clause is clear that this is not decisive to conclude that the relationship between the parties was of employer and employee, nor has the controversy before our consideration. In the same states that although TOLIC the right to terminate the agency contract at any time reserved, Mrs. Hernandez had the same prerogative.
We examine the control factors, initiative or judgment. Mrs. Hernandez had an independent office TOLIC and narrative exposure arises that had exclusive authority over the handling of it. It covered all the costs entailed the establishment of his office. In addition, at the beginning of its relations with TOLIC, he was training agents as to how to market products TOLIC and preparing for the licensing exam. Mrs. Hernandez could not alter the terms, fees and conditions of insurance policies and could not run ads without prior approval of TOLIC. This, however, was a reserve reasonable control, through which the company claimed that the sales and marketing of its products realizasen orderly and uniform manner. Furthermore, pursuant to the agency agreement, Ms. Hernandez could devote himself to sell items that did not compete with those of TOLIC.
After evaluating the evidence that was presented, the forum court found proven that once Mr. Touma began as Director of Agencies, there were substantial changes in the relationship between the parties. This began to increasingly intervene in the internal affairs of the agency Mrs. Hernandez. He began to train the agents, marketing guidelines dictate and preside over monthly meetings with agents. As Director of Agencies was assigned to TOLIC, therefore, the intervention of Mr. Touma with the agency Mrs. Hernandez and work it constituted an exercise greater control by the company.
Another factor identified by the case law is the power to hire and the right to dismiss that has the independent contractor, which by their nature criterion It is intertwined with the degree of control exercised over TOLIC Mrs. Hernandez. TOLIC both prerogatives reserved in the agency contract: the power to hire and fire insurance agents who were under the supervision of Mrs. Hernandez 7. This was only empowered to recruit and recommend TOLIC.
On this particular TOLIC argues, in essence, that this power was reserved for so provides the Insurance Code, supra. According to his interpretation, agents can not be hired directly by the general agent and the insurer has delegated responsibility for the actions of these. He did not attend reason.
Art. 9.010 of the Insurance Code, supra, 26 LPRA sec. 901 provides that an insurance agent is "the person, firm or corporation appointed by an insurer to handle insurance claims on their behalf." However, Art. 3.334, supra, indicates that the general agent shall have power to "appoint agents for the insurer." (Emphasis supplied.) From the above it can be inferred that the Insurance Code does not prohibit the general agent insurance agents name, or impose the requirement that they be appointed by the insurer. That is, a general agent may have or not the prerogative.
Around the form of compensation, Mrs. Hernandez earned solely from commissions on sales, which, by itself, does not prevent a person is considered employed. Nazario v. Gonzalez, 101 DPR 569, 573 (1973).
Around the chance of profit and risk of loss of Mrs. Hernandez, both dependent on the volume of sales of your agency. TOLIC did not pay a salary, just ahead of him two thousand ($ 2,000) dollars monthly fees for office operations. Finally, TOLIC not effected discounts concept of income tax or social security to Mrs. Hernandez.
In the workplace, the determination of whether a person works as an independent contractor or not depends on a careful analysis of all the circumstances surrounding the relationship, taking into account the factors previously discussed. Of all the facts in this case, it appears that Mrs. Hernandez began to exert his position in TOLIC as an independent contractor, but from 1988 there was a substantial change in relations between the parties, which placed it in the category of a employee of that corporation. The presence of some characteristic factors of an independent contractor, by itself, does not determine the condition of a person as such, if a weight of the totality of the circumstances arises that it actually worked as employed. Nazario v. Gonzalez, 101 DPR 569, 574 (1973).
II
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In its third remark, TOLIC argues that the Circuit Court erred in assessing the evidence before consideration and resolve that it showed that Mrs. Hernandez was an employee of TOLIC and that the latter discriminated against her on grounds of age.
Mrs. Hernandez presented his claim discrimination because elderly under Law 100 and ADEA. The forum resolved the controversy instance based on Law 100, and concluded that Ms. Hernandez was fired because of advanced age.
Act 100 prohibits discrimination in the workplace on grounds of age, race, color, religion, sex, political or religious beliefs, national or social origin and social status. As relevant to this case, the title of Law 100 indicates that was passed to protect workers and job applicants against discrímenes of employers or labor organizations because of advanced age.
In the explanatory memorandum it was stated that the growing industrial development and economic progress that the island had experienced at that time was necessary to anticipate "the problems [,] according to the experience gained in more intensely developed in the industrial order [peoples, ] such development entails. " Was identified as one of those problems , "the practice and [began] to be observed in Puerto Rico, to discriminate in employment of persons on grounds of age alone." Mention collected in the United States statistics reflecting was made the " 40% of people requesting [ed] jobs [had] fulfilled 45 years old, only 22% of people accepted for jobs [were] older ". the law finally passed prohibiting the discrimination because elderly which was defined as the "aged between 30 and 65 years." Sandoval v. Caribe Hilton International , Op. concurrent issued by the Associate Judge Mrs. Miriam Naveira de Rodon, sentence reconsideration of October 25, 1999, 99 TSPR 161, 99 JTS 166, p. 314. As is clear from the above, the discrimination because older is just one of the modalities on grounds of age sanctioned by Law 100 .
Art. 3 of Law 100, supra, 29 LPRA sec. . 148 (. Onwards Art 3), in turn, establishes a presumption of discriminatory dismissal in August consistently have ruled that the presumption of Article 3 comes into play. In the investigation stage of the case ; that is, the presumption is active in the evidentiary hearing to be held, not before.
We believe it is important to note that Art. 3 does not alter in its entirety the probative scheme prevalent in our jurisdiction, where a complaint has been filed, it is up to the applicant at the hearing on the merits begin with the presentation of the proof of his allegations before the defendant is bound to rebut it . If the applicant does not present sufficient evidence to support its allegations, the defendant does not have to defend itself, it must dismiss the lawsuit at this stage. See Rule 39.2 (c) of Civil Procedure, 32 LPRA App. IV.
However, the intention of Art. 3 and the presumption that there is set provide the employee to prove your case, I not relieve him of the need to present any evidence to prove its allegations.
Under Art. 3, the procedural scheme regarding the presentation of proof is as follows. The burden of proof to establish the basis of your claim continues will initially corresponding to the employee. This has to start presenting evidence showing, first, there was a layoff or harmful act; second, that it was done without just cause; and third a base that locate in the form of discrimination under which he claims made. Once the employee meets this first phase the presumption of discrimination of Art arises. 3. That is, the employee does not have to prove the discriminatory act which is the subject of the presumption.
The burden of proof shifts the burden of proof then falls on the employer. If the employer has no evidence at this stage is considered that the employee has proven their case of discrimination by subtracting only the presentation of proof of the damage.
On the other hand, if the employer decides to defend, you have several alternatives. This may present evidence to rebut the presumption of discrimination triggered by the employee; or you can choose to submit proof that the dismissal was justified; or that there was no such dismissal; or despite having been unfair dismissal this was not discriminatory.
Once the employer presents its evidence rebutting the presumption of discrimination Art. 3, the employee still has another chance. You can present evidence to prove your case, that is to prove that there really was a discriminatory dismissal, but this time we will have to do without the benefit of the presumption. You will have to present evidence of incidents or facts to prove that discrimination or which may be inferred the alleged discriminatory action. This is the probative scheme established by Art. 3. 9 Its effects are with respect to the presentation of evidence at the hearing on the merits to be held in the end, no relation to the mere presentation of the allegations. 10
In other words, to activate the presumption of discrimination, the plaintiff employee must prove three (3) items: (1) there was a dismissal or prejudicial action; (2) that it was done without just cause. Belk v. Martinez, res. on June 30, 1998, 98 TSPR 109. The also used (3) must present evidence indicating the type of discrimination that is linked to his dismissal. 11 At that time is that the presumption is activated. 12
Let us now apply the rules of law previously outlined to the specific facts of this case.
III
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To resolve this dispute must determine, first, whether the evidence which can be inferred that Mrs. Hernandez was fired was presented. 13 TOLIC claims not dismissed because he never canceled his contract. He adds that the subsidy will only retired two thousand dollars ($ 2,000) a month which gave him an advance of commissions. We can not accept this interpretation of the proven facts.
No.. 80 Law of 30 May to 30 May 1976, 29 LPRA secs. 185 et seq, has at least three (3) as a dismissal conceivable situations: (i) the dismissal of the employee; (ii) the indefinite suspension be extended for a period longer than three (3) months and (iii) a waiver of employee actions motivated by the employer, such as the imposition of onerous working conditions. 14 Soc. of Conjugal v. Royal Bank, res. on April 1, 1998, 145 DPR __ (1998), 98 JTS 37.
We have, moreover, that the dismissal does not have to be expressly stated. Volunteers and unjustified from an employer aimed at forcing an employee to leave his post constitute a layoff R. acts when the only reasonable alternative left to the employee is leaving office. Vélez de Reilova v. Palmer Bros., Inc., 94 DPR 175, 178 (1967).
In applying the above statements outlined the specific facts of this case, we conclude that the plaintiff proved that Mrs. Hernandez was fired without just cause. To this, for no apparent reason, he not only withdrew the advance fee, but also canceled the contract of the three insurance agents who were under his supervision. There is no doubt that these acts were intended to force her to leave her job, therefore, constituted an unfair dismissal. 15
To determine the meaning of "just cause" we have welcomed as a reference point without being exhaustive, the provisions of Art. 2 of Act No.. 80, supra, sec. 185b. 16
To recapitulate, the forum tried Instance found that acts of TOLIC led to incapacitate Mrs. Hernandez to work constituted a layoff. There was also evidence that Ms. Hernandez performed his duties with the company in accordance with the provisions of the contract between them, so that there was just cause for his dismissal.
Now, if the employee is dismissed unjustifiably also it presents evidence that indicate the type of alleged discrimination, the presumption established by Act No. active. 100, supra. See, Menzel v. Western Auto Supply Company, 848 F. 2d 327 (1988).
In this case it was proved that Mrs. Hernandez was within the protected group as it was sixty (60) years of age at unfair dismissal. Thus, the presumption of Art. 3 was activated. In addition, the applicant submitted evidence of incidents which could reasonably infer that discriminatory ground. He presented evidence that the vice president TOLIC suggested on several occasions to be associated with one of the insurance agents, as the latter was younger than her. There was also testimony to the effect that the vice president TOLIC, at least on one occasion, made humorous comments about the age of Mrs. Hernandez. Finally, the forum court found proven that the events that arose from the resignation of the coordinators of sales that led to the exodus of insurance agents Mrs. Hernandez, occurred because she refused to accommodate it in the direction his agency to "young blood", as had been recommended in TOLIC. There is no doubt that the elements outlined above are sufficient not only to enable the presumption of discrimination on grounds of age Art. 3 in favor of the applicant, but to prove the alleged discrimination.
On the other hand, to rebut the presumption of discriminatory dismissal on grounds of old age, TOLIC argued that the actions that affected Ms. Hernandez were taken because it committed acts of disloyalty against the company by announcing that he was interested in selling products competition. However, the forum Instance did not give credit to these excuses. He found it proven that Mrs. Hernandez was only interested in selling products that did not compete with those of TOLIC, act permitted by the agency contract signed between the parties.
In short, not only the presumption of discrimination of Art was activated. 3 but specific evidence which could infer the alleged discrimination was presented. A TOLIC corresponded contest it . It did not. He merely argued that if there was firing, it was justified because Mrs. Hernandez wanted to market competing products. This theory does not deserve credibility to the forum instance. No doubt it was proved that the dismissal was one motivated by unjustified discrimination because elderly subject to the provisions of Law 100.
For the foregoing grounds, the Court Circuit Court of Appeals confirmed, Judicial District of San Juan. 17
Miriam Naveira de Rodon
Associate Justice
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JUDGMENT
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San Juan, Puerto Rico, June 30, 2000
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For the reasons stated in the above Opinion, which forms an integral part of this part, the judgment is delivered decreeing that the dismissal was one unjustified motivated by discrimination because elderly subject to the provisions of Act. 100. It is confirmed the judgment of the Circuit Court of Appeals, San Juan Judicial Region.
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He spoke and sends the Secretary certifies Court and the Supreme Court. The Associate Judge Mr. Hernandez Denton issued an opinion of conformity. The Associate Judge Mr. Rebollo López dissented without written opinion. Associate Justices Mr. Negron Garcia and Corrada del Rio did not intervene.
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Isabel Llompart Zeno
Secretary of the Supreme Court
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Opinion of Conformity issued by the Associate Judge Mr. Hernandez Denton
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San Juan, Puerto Rico, June 30, 2000.
While we are satisfied with the Opinion of the Court, briefly we consider it appropriate to extend the decision in this one.
We agree with the Court's view that it must uphold the judgment of the Circuit Court of Appeals and declare the suit for discriminatory dismissal of Ms. Mirtha Hernandez against Trans Oceanic Life Insurance Company (TOLIC).
We believe that from 1988 there was a substantial change in relations between TOLIC and Mrs. Hernandez, who placed the latter in the category of employee of that corporation. From that moment the contractual relations between them, in which she it was an insurance agent and therefore TOLIC an independent contractor 18 , were modified.
A detailed examination of the facts shows that the contractual relationship between Mrs. Hernandez and TOLIC changed substantially once the appointment of Mr. Touma as Director of Agencies occurred. Interventions Mr. Touma in the business of Mrs. Hernandez justify that reaches the conclusion that the work circumstances changed such that altered the nature of the relationship, and that from that moment, the degree of control and interference of Trans Oceanic in managing the affairs of Mrs. Hernandez became in used, so it comes a claim under Act. No. 100 of June 30, 1959, 29 LPRA 146 ss. (hereinafter Act 100).
On the other hand, we also underwrite the pronouncements of the Court's opinion regarding the mechanism to activate the presumption of discriminatory dismissal of Law 100. We agree with the probative scheme scheduled in the opinion of the Court, which requires the employee applicant to provide any evidence . to support its claim in short, you must pass that test was a dismissal or a detrimental act; it was done without just cause; and that the employee is located within the modality under which discrimination claims.
The position assumed by the Opinion of the Court is consonant with our pronouncements McCrillis v. Aut. Shipping companies PR ., 123 DPR 113 (1989), where we stated that complaints alleging discriminatory dismissals are ordinary civil actions in which the plaintiff has the burden and primary obligation to provide proof, and it can make use of presumptions that favor. McCrillis to p. 140.
On that occasion, we also established that the applicant has to provide evidence to establish the basic facts and that the mere allegation of a basic fact, and has not been properly established, does not trigger a presumption that allow the inference of a presumed fact. McCrillis to p. 141.
However, unlike the Opinion of the Court, we estimate that the proof required the plaintiff employee for the purpose of establishing the basic facts alleged in the lawsuit can be filed in evidentiary hearing, or may be submitted to the trial court by documentary evidence: statements it sworn, employment record, letter of dismissal, etc. that is, we are of the opinion that holding an evidentiary hearing in all cases where an action for discriminatory dismissal be urged not essential. the decisive factor is that in some so, they stay demonstrated to the satisfaction of the court, the basis of the claim.
[if !supportEmptyParas][endif]
Federico Hernández Denton
Decisions by the Supreme Court of PR 2008
2008 DTS 073 V. MORALES BENGOCHOA BANCO POPULAR 2008TSPR073
IN THE SUPREME COURT OF PUERTO RICO
Heberto Morales Bengochea
Petitioner
Vs.
Banco Popular de Puerto Rico
resorted
certiorari
2008 TSPR 73
DPR 173 ____
Case Number: CC-2006-232
Date: May 7, 2008
Court of Appeals: San Juan Judicial Region
Judge Speaker: Hon. Ivonne Feliciano Acevedo
Lawyers of the requesting party: Atty. Charles Zeno Santiago
I lcdo. Victor M. Perez Bermudez
The respondent Attorney: Atty. Joseph J. Santiago Melendez
Materia: Labor Law, Illegal Dismissal, Torts. It is confirmed on law 45 and Art. 1802. E n regard to discriminatory dismissal under the No. laws. 44, and the ADA, we reverse the determination of the intermediate appellate forum and confirmed the decision of the Court of First Instance. Thus, we give the remedies available under Act. No. 100 of June 30, 1959. This is double the unpaid wages, increases and fringe benefits, after deducting any amount the worker would have received for his work in that period with other employers.
WARNING
This document is an official document of the Supreme Court which is subject to changes and corrections of the compilation process and official publication of the Court 's decisions. Electronic distribution is made as a public service to the community.
JUDGMENT
San Juan, Puerto Rico, May 7, 2008.
Through this action we are asked to review the opinion of the Court of Appeals, whereby the said forum overturned the judgment of the Court of First Instance. In that judgment, the forum Instance declared has place an action for unlawful dismissal filed by the herein petitioner, Mr. Heberto Morales Bengoechea, under Law 80 of May 30, 1976, Law no. 44 of July 2, 1985 the American with dissabilities Act, 42 USCA 12101, Act No.. 45 of April 18, 1935 and an action for damages under Article 1802 of the Civil Code of Puerto Rico.
I
The petitioner, Mr. Heberto Morales Bengoechea, hereinafter Mr. Morales, worked as an employee for an indefinite period from 1981 to 1996, in the area of payer-recipient at a branch of Banco Popular de Puerto Rico, hereinafter Banco Popular, located in Barrio Obrero.
On April 26, 1985, Mr. Morales, witnessed an incident in the area payer-recipient assault charge. From this incident, he began to suffer episodes of suffocation and anxiety. At first he attributed these symptoms to some physiological or respiratory condition, so he sought medical attention generalists. [1] However, he was not diagnosed any physical condition that caused the symptoms expressed, and finally was referred to a psychiatrist doctor.
In 1985, he was treated by Dr. John G. Soto Silva, doctor psychiatrist, who then referred him to Dr. Carlos E. Ifarragueri, hereinafter Dr. Ifarraguerri, psychiatrist, with whom Mr. Morales served until 1994. [2]
In 1986, Mr. Morales, addressed a letter to Banco Popular in which notified the condition he was suffering and in turn, asked to be moved to another branch for health reasons. Such a request was not granted.
So, Mr. Morales continued under private psychiatric treatment, which consisted mainly of therapies and medications. [3] Three years later, again he petitioned the IEAs a position change as payer-recipient and explained that medical evaluations reflected that managing money and personnel in a direct way gave him much anxiety.
On the record of Mr. Morales several medical certifications aimed at Banco Popular and issued by his attending physician, Dr. Ifarraguerri. Including an evaluation on June 30, 1994, in which Dr. Ifarraguerri, said he was suffering from acute depression with severe anxiety and panic episodes. In turn, he recommended that be absent from work for ten (10) days. [4] Later, he issued another medical certificate indicated that, as a result of his condition, Mr. Morales's ability to tolerate stress was very limited. This time, he recommended a break for two (2) weeks and it was reassigned to perform a different task to which currently served as paymaster-receptor. Finally, Dr. Ifarraguerri, recommended continuing without work temporarily until 3 October 1994. This time, he emphasized that he considered that he should not serve in areas where the risk of attacks was very high, and where the assignment was the cash management. [5]
On August 16, 1994, Mr. Morales went to the Corporation of the State Insurance Fund, hereinafter ESF, which alleged that he had been emotionally affected as a result of the assault occurred in the branch of Banco Popular where he worked. After appropriate evaluation, the ESF determined that the medical record of Mr. Morales demonstrated a causal relationship between the accident and his condition. Thus Mr. Morales granted benefits because of accident in employment and recommended Mr. Morales treatment at rest with your private physician, Dr. Ifarraguerri. [6]
During this time off granted by the ESF, Mr. Morales sent a written response to Mrs. Janet Ibern, specialist Human Resources Division of Banco Popular communication, in which he requested a change of tasks as a reasonable accommodation under the federal law known as "American with Disabilities Act , " hereinafter ADA. [7]
On November 1, 1994, the ESF authorized Mr. Morales to work but subject to continue psychiatric treatment with your doctor. Under the decision of the ESF, Mr. Morales reported to work but said it could not perform the duties of payer-receptor. So, Mrs. Chary Pineiro, recruiting officer of the Division of Human Resources of Banco Popular, addressed a letter to the Administrator of the ESF stating that it was unable to provide reasonable accommodation to Mr. Morales, as they had a position available in that moment. [8]
On December 8, 1994, Mr. Hector Rivera Ostalaza, rehabilitation specialist ESF in the region of San Juan, examined Mr. Morales and certified that his emotional condition prevented him from working as a payer-recipient. He also gave a report in which he indicated that Mr. Morales, was not able to return to their normal work, as it had substantial and permanent constraints to perform the tasks of post-receptor payer. However, it requested the relocation of Mr. Morales in an area that had no direct contact with money and staff. [9]
At the end of 1994, the Banco Popular was required to Mr. Morales benefits manager for long - term disability Social Security. [10] Dissatisfied with this course of action, Mr. Morales said the Banco Popular disagreed and said that it did not consider its inability require the application of these benefits could perform smoothly as in other areas of work. At this, the IEAs told her to request them as part of the process that was taking place. [eleven]
Finally, the benefits for Social Security disability were denied him whenever it is determined that despite his nervous condition, Mr. Morales could perform other work. [12]
On June 12, 1995, the ESF was discharged Mr. Morales, with a final diagnosis of permanent partial disability. [13]
Mr. Morales continued to work with difficulty until June 20, 1995, had to be treated by Dr. John G. Soto Silva. Said doctor certified that Mr. Morales, was not able to return to work with public and in places that revived the experience of assault.
At the request of Banco Popular, Dr. Israel Ganapolsky, he examined Mr. Morales and confirmed their inability to work in the area of payer-receptor. [14] However, Mr. Morales was not moved and continued to work as a payer-receptor. However, the Banco Popular reiterated its request for reasonable accommodation.
On June 21, 1995, in order of their immediate supervisors, was required to Mr. Morales attend a personnel training targeting employees in the areas of payer-receptor. [15] It arises from the testimony of Mrs. Carmen Rivera, instructor in charge of training, that Mr. Morales was ordered to leave before the end of it. This decision was based on the constant interruptions that allegedly caused with exits to the bathroom and negative comments.
Subsequently, the Banco Popular verbally informed him that because they needed more time for reasonable accommodation, would grant unpaid leave.
Against this background, Mr. Morales retained the services of Mr. Victor M. Perez Bermudez henceforth licensed Bermudez, who by letters addressed to the Banco Popular, requested reasonable accommodation for his client. In subsequent letters he warned the IEAs that the unjustified refusal to grant reasonable accommodation constitutes a violation of local and federal labor laws.
The situation of instability and uncertainty regarding the relocation of Mr. Morales came to work his nervous condition was worsening. As a result, he was admitted since August 9, 1995 until August 22, 1995 at the First Hospital Panamericano psychiatric institution.
Once discharged, Mr. Morales went to the ESF where he indicated that the Banco Popular, through licensed Emily Arean Diaz, Assistant Vice President of Human Resources Division, had applied to the ESF the reopening of psychiatric case of Mr. Morales .
During this time, specifically in October 1995, three new positions in the Banco Popular, one as a driver and two representatives of phone- emerged. [16] However, Mr. Morales was not considered for any of them [17] and continued on unpaid leave for approximately six (6) months until finally, on February 14, 1996, he was fired. [18]
The IEAs based its decision in that it never communicated with the staff of Banco Popular and argued that Mr. Morales had ignored the letters sent through the licensed Emily Arean.
Although it was a proven judgment made that the Banco Popular was notified that all communication for Mr. Morales will make viable through its legal representative, the Banco Popular obviated the legal channels in their communications and continue referring them to Mr. Morales and his wife. However, during the period that Mr. Morales was suspended for unpaid leave, Mr. Bermudez kept written with Banco Popular in order to keep supervisors informed of the condition of Mr. Morales communication. [19] These letters addressed to the Banco Popular through the legal representation of Mr. Morales, on the record of the employee and were admitted in evidence by the parties.
On May 6, 1996 Mr. Morales, brought an action before the Court of First Instance against the Banco Popular on interim interdict, preliminary and permanent and damages covered in Act. 44 of July 2, 1985, [20] which prohibits discrimination against handicapped, the "Americans with dissabilities Act", hereinafter ADA, supra [21] , the Law on Compensation for accidents, Act No.. 45 of April 18, 1935, as amended, [22] , Act No.. 80 of May 30, 1976, [23] and an action in damages under Article 1802 of the Civil Code. [24]
He alleged, among other things, that the Banco Popular declined to provide reasonable accommodation despite the requests made and the recommendations of their medical practitioners, who had been denied his right to reinstatement under Act. No. 45, supra and it had been unjustified and discriminatory dismissal.
After several procedural incidents, the Banco Popular filed with the Court a motion for summary judgment in which requested the dismissal of the causes of action brought by Mr. Morales. In short, he alleged that Mr. Morales was not a person with a disability as provided in Act. 44, supra, and the ADA, supra. He argued further that did not meet the requirements of Article 5 (a) of the Num.45, supra. the Law Court upheld the summary judgment and dismissed the cause of action of Mr. Morales.
In this determination, Mr. Morales came before the Court of Appeal by appeal. [25] The forum, reversed the summary judgment of the forum court and ordered the conclusion of the corresponding trial.
Completion of the relevant procedures, the October 19, 2004, the Court concluded that the Banco Popular did not have just cause to dismiss Mr. Morales. Consequently, Banco Popular condemned to pay double wages forgone by Mr. Morales during the period of illegal dismissal. In addition, he ordered to pay fifty thousand dollars ($ 50,000) on account of mental anguish and moral damages.
On November 3, 2003, Mr. Morales filed a request for Reconsideration and / or amendment of judgment, while the Banco Popular filed a request for "findings of fact and Reconsideration".
On October 19, 2004, the Court issued Judgment amended in concluding that the dismissal of Mr. Morales was contrary to the Num laws. 80, supra and no. 45, supra, and ordered the reinstatement of Mr. Morales .
Not content with that opinion, the IEAs went to the Court of Appeal. In sum claimed that the forum of first instance erred in refusing to make the "Determinations additional facts" and concluding that, according to the Núm.80, supra, Law dismissal was unjustified. He further noted that said lining erred in finding that Mr. Morales was a person with a disability under the ADA, supra Act, and that even if that were so, the forum had an impact in deciding that the Banco Popular violated its obligation to provide reasonable accommodation.
Finally, Banco Popular argued that both the remedy of reinstatement of Mr. Morales as granting unpaid wages by him at the time of his dismissal were unfair since, by that date, Mr. Morales was enjoying a license without salary and was not qualified to perform the duties of his position.
On September 21, 2005, the intermediate appellate forum reversed the decision of the primary forum and dismissed in its entirety the lawsuit filed by Mr. Morales against the Banco Popular. It based its decision on the only limitation proven Mr. Morales was to work in the areas of money management and / or interaction with the public.
He noted that, not being a person with disabilities, it is not entitled to a reasonable accommodation, and that even if it were, it ignored the publication of banns on vacant positions.
Finally, the Court of Appeals concluded that the Banco Popular had just cause for the dismissal of Mr. Morales, as the evidence presented demonstrated insubordination and neglect of employment by it.
Nonconformist, Mr. Morales filed timely reconsideration, which was declared has no place. For this reason, comes to us through certiorari, claiming the commission of the following errors:
He missed the Honorable Court of Appeals having reversed the judgment of the Court of First Instance replaced the findings of fact to issue the forum contained therein which in turn were based on determinations of credibility.
He missed the Honorable Court of Appeals Honorable having reversed the Court of First Instance to the conclusions of law that were widely informed by the Honorable Court in the judgment overturned been replaced.
It erred in the Honorable Court of Appeals having reversed the Court of First Instance to have ignored public policy considerations and basic principles of hermeneutics applicable to disputes involving the interpretation of labor laws.
II
We modify the judgment of the Court of Appeal as follows: It is confirmed that they do not come complaints cars under the Compensation Act Workers ' Compensation, Act No. 45 and the claim for violation of special legislation, and. violation of the right to privacy by 1802. [26]
With regard to discriminatory dismissal under the No. laws. 44, and the ADA, we reverse the determination of the intermediate appellate forum and confirmed the decision of the Court of First Instance. Thus, we give the remedies available under Act. No. 100 of June 30, 1959. [27] This is double the unpaid wages, increases and fringe benefits, after deducting any amount the employee would have received for his work in that period with other employers. This amount shall be calculated from the February 14, 1996, the date of his dismissal until October 3, 2003, when the Court delivered its judgment.
As for the additional amount awarded for attorney fees, the determination of the forum is changed, for the purposes of granting the amount of 25% of the basic compensation awarded to the employee.
We return the case to the Court to continue the proceedings in accordance with scheduled here.
It agreed by the Court and certifies the Secretary of the Supreme Court."The Chief Justice Mr. Hernandez Denton dissents from the Judgment of the Court to understand that the decision of the Court of Appeals is essentially correct. That forum coincides with that in the particular circumstances of this case Mr. Herbert Morales was not entitled to a reasonable accommodation under the Americans with dissabilities Law Act, or legislation protecting against unfair dismissal ". Associate Justice Mr. Rivera Pérez opinion Compliance issues. Associate Justice Mrs. Rodriguez Rodriguez dissents without written opinion.
Aida Ileana Oquendo Graulau
Secretary of the Supreme Court
2008 DTS 073 V. MORALES BENGOCHOA BANCO POPULAR 2008TSPR073
Review of Compliance issued by the Associate Judge Mr. Rivera Pérez to which joins the Associate Judge Mr. Rebollo Lopez.
San Juan, Puerto Rico, May 7, 2008.
The action brought by Mr. Morales before the Court of First Instance against his employer Banco Popular, was originally dismissed by summary judgment. Rightly, the Court of Appeal overturned the original ruling and established the existence of disputes that warranted the conclusion of a full trial.
The Court held the trial as ordered by the appellate court. To do this, limited evidence to disputes raised by the Court of Appeal as follows:
to) With regard to the Núm.45, supra Law, if Mr. Morales met or not, with the requirement in Article 5 (a) concerning the need to apply the employee is physically and mentally able to perform the functions held before the accident.
b) As for the causes of action under Act. No. 44, supra, and the ADA, supra, the test was on three aspects, whether Mr. Morales had no right to reasonable accommodation, whether there were vacant positions he could have played and if the Banco Popular was in a position to provide such reasonable accommodation.
c) Finally, if indeed the dismissal of Mr. Morales, was one justified under the provisions of Act No.. 80, supra.
The corresponding arguments presented by the parties and paraded the test, the primary forum determined that Mr. Morales established by documentary and oral evidence the existence of a prima facie impediment subject to reasonable accommodation. Thus, he gave judgment by which it decided that the Banco Popular violated the provisions of the Act Núm.44, supra, and the ADA, supra Law. It further concluded that the Banco Popular did not prove the existence of just cause for dismissal so a dismissal contrary to Núm.80, supra and Compensation Act Workers ' Compensation, Act No. 45, supra Law was set. He has also declared the action for damages pursuant to the provisions of Article 1802 of the Civil Code for violation of special laws and violation of the right of privacy.
However, the Banco Popular appealed that judgment to the Court of Appeal who overturned the opinion of the primary forum and dismissed all causes of action on the grounds that the conduct of Mr. Morales was one of insubordination and neglect of employment, which constituted fair cause for his dismissal.
Having the benefit of test transcribed evaluate each of the causes of action brought by Mr. Morales.
TO
First we examine the action brought under Act No. 45, supra, for the purposes of determining whether the IEAs violated the provisions of Article 5 (a) of this statute.
The Accident Compensation Law Labour Law Núm.45 above, is a remedial statute nature that seeks to give workers certain protections and benefits, particularly in the context of accidents on stage work. [28] Among its main safeguards Article 5 (a) imposes on the employer the obligation to reserve employment and reinstall the same to an employee who has suffered an industrial accident subject to the following conditions highlights: 1) than before elapses 12 months from the date of the accident, the injured required the employer to the reinstatement in their jobs within a period of 15 days from the date it was discharged; 2) the employee is mentally and physically qualified to hold such employment when applying for reinstatement; 3) employment subsists at the time the worker or employee to request replacement. [29]
In Rodriguez v. Mendez & Co, [30] express that, to be covered by Article 5 (a), supra, the worker must be unable to perform his duties and his absence from work is recommended or authorized by the ESF. The protection provided by Article 5 (a), above, is for employees who are temporarily incapacitate an accident or occupational disease and therefore can not attend your place of employment. For these workers, the legislature established the reserve period employment for twelve (12) months, so that when they were fit to join their work, their work was available to them. The temporary disability shall cease when the worker is discharged, either because it is cured or because a permanent disability that will not improve with additional medical or surgical treatment is recognized. [31]
On that particular no. 3966 Regulation of 8 August 1989, [32] in section 7 indicates that the determination to discharge a worker occurs when the Administrator, previous medical opinions given in any case, concludes that more additional treatment is not to improve the condition of the worker or employee, so it is appropriate discharge and set the degree of disability that has been, if any. [33]
We have previously determined that such expression or high - determination, does not connote an award by the ESF in the sense that the employee is able to perform the functions of their post. [3. 4]
However, this high - determination issued by the ESF is prima facie evidence that the employee is qualified to perform the duties of his former post. [35] Presumption, that being rebuttable, rebutted, ie, the employer may, through specific and reasonable facts demonstrate that the employee is disabled for work. [36]
As we see, the protection offered by Article 5 (a) the worker is not absolute. [37] In our labor legislation every employer has the right to raise the defense of a just cause against an alleged unfair dismissal. [38] For these purposes, the inability to work would represent just cause for the dismissal of an employee, unless appropriate provide reasonable accommodation under the ADA, supra Act, and Act No.. 44, supra. [39] This is an evidentiary matter whose weight falls on the employer as soon as the employee certifies that are authorized to work. [40]
In this case, between affirmative defenses, the BBPR argued that Mr. Morales, not being mentally and physically qualified to hold this job in the date requested reinstatement did not meet the requirement under Article 5 (a) the Núm.45, supra Law. Assists reason.
The record indicates that, Mr. Morales, requested reinstatement within the time required by Núm.45, supra Law, ie, fifteen days from the date it is discharged by the ESF.
Once he was discharged by the ESF, June 12, 1995, he reported to work and was placed in his post pagador- receiver. On that date it was further required that an appearance at a training targeting employees payer-recipient area.
Morales was the Lord himself who said that during the trial, was not mentally or physically able to perform such functions. He also expressed his disagreement with the decision of Banco Popular, to place him in the position of paying-receiver, as this was contrary to the recommendations of the ESF. [41]
Medical and occupational assessments made Mr. Morales by doctors and rehabilitation technicians ESF faculty, determined ... "[t] he need to relocate the employee to another scenario, with tasks where it is not exposed to possible attacks, the management securities in cash or direct personal contact in public " [42] "[S] olicitamos the case reviewed in line with the administrative procedures of Banco Popular and in harmony with state and federal law for people with disabilities" [...]. [43]
All evaluations of doctors of Mr. Morales, consistently certified that he could not return to work as payer-receiver better than to serve in contact areas with direct public money management and / or places that relive the experience of a assault. [44]
However, high - determination issued by the ESF, stressed that Mr. Morales had the potential to remain productive at work so it recommended that the Banco Popular granting reasonable accommodation.
Therefore, it should be noted that although Mr. Morales was not able to be reinstated in the same position, was himself trained to perform other functions with a reasonable accommodation.
In this sense, the same judgment issued by the Court of First Instance said that Mr. Morales established by documentary and oral evidence the existence of a prima facie impediment subject to reasonable accommodation.
The entire test established that Mr. Morales, for his emotional condition was not qualified to perform the duties of his post. It is why we are convinced that the cause of action under No. 45, supra Law, is inadmissible.
However, given that Mr. Morales was a qualified person for the job, with certain limitations, we will examine the merits of its claim under the Act Núm.44, supra and the ADA.
B
The "Americans with Disabilities Act" known by its acronym ADA, was passed by the US Congress on 26 July 1990. This statute established the obligation of every employer to provide a reasonable accommodation in the workplace for people with impairments. [Four. Five]
No.. 44, supra, Law is its local equivalent. [46] Both laws pursue similar purposes, protecting people with physical or mental disabilities, prohibit employment discrimination against such people and expand their opportunities. [47]
After the approval of the ADA, supra, the Legislative Assembly of Puerto Rico, [48] amended Act No.. 44, supra, in order to adjust our legislation to the ADA, supra Law, through the adoption of Act. 105 of December 20, 1991. [49] In particular, the amendment added to Article 9 to Act No. 44, supra, and established the employer's obligation.:
"Carry out reasonable accommodations in the workplace to ensure that he be allowed to qualified persons with disabilities effectively work at maximum productivity ...". (Emphasis added).
. No. 44, supra, Act defines person with physical limitations such as:
"Every person with a disability motor, mental or sensory nature, that impede or limit your home or work, study, or for the full enjoyment of life and that is qualified to perform the basic functions of the job or area of study with or without reasonable accommodation. " [50] (Emphasis added).
" It is further understood that a person with disabilities, under the protection of this chapter, any person whose impairment would substantially limit your performance in one or more activities of daily living, the person has a previous history of the condition, or he believes that having such an impairment even when it does not. "(Emphasis added).
"For the purposes of this chapter shall be considered as sensory impairment that substantially affecting, hearing, vision, touch, smell and speech." [51]
Meanwhile the ADA, supra, Act defines disabled person as one who, with or without reasonable accommodation, can perform the essential functions of their jobs. According to the ADA, supra Act, an employee who meets the aforementioned criteria impediment entitled to the employer to provide reasonable accommodation in their area of employment. [52]
Reasonable accommodation may include the providing accessible and available facilities for people with disabilities, job redesign, modified work schedules, reassign to a vacant position, and such other similar accommodations for persons with disabilities. [53]
Under Act No.. 44, supra, reasonable accommodation is reasonable accommodation that allows a qualified person for the job, but with physical limitations, perform the duties assigned to his post. The term includes any action that may reasonably facilitate the adjustment to a person with physical limitations at work and does not represent an extremely costly effort to the employer in economic terms. [54]
. To be sheltered under Act No. 44, supra, and the employer is obliged to provide reasonable accommodation, the employee must demonstrate: (1) that a person with a disability as defined by law, and (2) that is qualified to perform the basic functions of the job, with or without a reasonable accommodation. [55]
Similarly, a claimant under the ADA, supra, has the burden of proving that it is a qualified disability ( "qualified individually with a disability") individual, but with or without reasonable accommodation , can perform the essential functions of his post . [56]
Once the employee has formalized a request for reasonable accommodation, the employer is obliged to start an interactive process with the employee to discuss whether it is possible to grant the relief requested and how it can be granted. [57] The request for reasonable accommodation does not require written or any other form in particular, simply emerge demands that the employer informed the employee need a reasonable accommodation. [58]
The only exception for which an employer is not required under the ADA, Law supra , to make a reasonable accommodation is whether it will represent an extremely costly effort ( " undue hardship" ). [59] However, the assessment, if reasonable accommodation is an extremely costly effort, rests mainly on the nature and cost of the accommodation needed financial resources of the organization, the number of employees, and the effect of expenses and resources or the impact on operations of the facilities. [60]
Finally, the legislator included the employee who is the subject of disability discrimination between classes protected by the Law No.100 of June 30, 1959. [61] For these purposes, Act No.. 44, supra , section 511 provides that an employee victim of a discriminatory dismissed because of their disability, have available the remedies granted under the Law No.100, supra . We quote:
"The Secretary of Labor and Human Resources shall ensure compliance with this law in all matters relating to employment in binding Advocate for Persons with impedientos."
" The remedies, powers, authority and procedures set forth in Sections 146, 147, 147 (a), 148, and 149 of Title 29 will be available to the Secretary of Labor and Human Resources for anyone who understands that it has suffered discrimination in employment on the basis of disability in violation of the provisions of sections 501 et seq. of this title. "(Act No. 44 of July 2, 1985).
The civil action provided by the No.100, Law supra , provides that anyone who violates its provisions shall incur liability for an amount equal to twice the amount of damages that the act has caused, including emotional harm. [62] This law also provides for the imposition of attorney 's fees to the employer.
The Court found, inter alia, that the basis of the documentary evidence presented could reasonably conclude that Mr. Morales was a qualified person within the context of the ADA, Law supra and No. 45, Law supra .
According to the definition provided in these cases, the emotional condition of Mr. Morales was an impairment that substantially limited their performance in one or more major life activities, such as breathing, eating, sleeping. [63]
Of the findings of fact the primary forum that certification arises high with disability, issued by the ESF, he recommended the relocation of Mr. Morales, a decision that did not question the Banco Popular. On the contrary, it was a proven fact that the recruiting officer, Mrs. Chary Pineiro, informed both the ESF as Mr. Morales that needed more time to provide a reasonable accommodation. [64]
Later, Mrs. Chary Pineiro, Mr. Morales told him that as they could not relocate it would grant leave without pay , without explaining the scope and effect of it.
The testimony given by Mrs. Chary Pineiro, together with the documentary evidence submitted, showed that on the date for which Mr. Morales was clever to work, there were three vacant positions, two representatives of phone- and a driver. The own testimony of that witness, it appears that he was eligible for the position of representative services, a position that was done by telephone and keyboard knowledge required.
Asked by the defense, the witness stated that the candidate for such a position had to know about sales techniques and know if Mr. Morales was fit for it. However, it is not envisaged the need to interview, or train them.
A similar situation occurred for the driver position. Mrs. Chary Pineiro argued that he was not offered the position because Mr. Morales was not available. However, the record indicates that, for the date were evaluating candidates for vacant positions, Mr. Morales was under the unpaid leave . During this period he received no invitation to be considered for these vacancies or positions different or similar nature. [65]
Given that the ADA provides an alternative to the "reasonable accommodation" relocation to a vacant position ", the Court of First Instance examined the proceedings gotten by Banco Popular to meet such a requirement.
He concluded that the Banco Popular showed no affirmative steps have made to try to reubicarle not comply with the relevant regulations for the processing of a request for reasonable accommodation. [66] It also decided that according to the evidence presented and the credibility given to the witnesses, the Banco Popular did not present any evidence that would support that Mr. Morales was not qualified for such vacancies. [67]
In view of these proceedings the primary forum concluded that the Banco Popular did not demonstrate irrefutably that the relocation of Mr. Morales was a too onerous effort so that he could grant exceptions to this obligation, which concluded that the dismissal of Mr. Morales was discriminatory.
However, the Banco Popular argued that brokered just cause for the dismissal of Mr. Morales, because the employee quit his job.
It is settled rule that there is no absolute prohibition on the dismissal of an employee. [68] As a general rule, an employer can fire an employee hired without certain time, at any time, with just cause or without cause. However, if it does so without just cause shall be bound, before the claim of former injured, to compensate the corresponding compensation for unfair dismissal provided in Section 1 of Law 80, employee supra . [69] Thus, it meets the purpose of protecting employment tenure and discourage the incidence of unfair dismissal. [70]
Law 80, supra , does not establish a list of the constituent forms of unfair dismissal. Instead, it provides rules and guidelines that help determine what constitutes just cause. [71] To this end, Article 2 of Act. 80, supra , provides as grounds for dismissal of an employee, the following [72] :
a) That the workers follow a pattern of improper or disorderly conduct.
b) The attitude of the employee not perform their work efficiently or do so late and negligently or in violation of the standards of quality of the product produced or handled by the establishment.
c) Violation reiterated by the employee reasonable rules and regulations established for the operation of the establishment provided written copy thereof has been delivered promptly to the employee.
d) total or partial closure temporary store operations.
e) technological changes or reorganization, as well as style, design or nature of the product produced or handled by the establishment and changes in services rendered to the public.
f) Reductions in employment made necessary due to a reduction in the volume of production, sales or profits, anticipated or prevailing to the dismissal occur.
Subsequently, the aforementioned article establishes the conceptual basis of what constitutes "just cause" to fire, and we quote:
"it shall not be deemed dismissal for just cause that is done by mere whim of the employer or without reason related to the proper and normal operation of the establishment." [73]
That status can be inferred that the guiding principle governing dismissal for just cause, is one that defines the circumstances under which it occurs . [74] Thus, it is understood as just cause, one that has its origin in some reason or motive linked to the orderly march and normal operation of the company . [75]
In addition, the Court has framed the concept of just cause as that based on the needs of the company and can be described as a lawful transaction and in the course of business. [76]
In keeping with its purpose, the Núm.80, Law supra , provides that where the employer stands as an affirmative defense been for just cause for dismissal, it is up then prove, by a preponderance of evidence that it was justified. [77] That is, prove that the non - occurrence of the event is more likely occurrence. [78]
If the employer has no evidence that defeats the presumed fact is, that the employee was dismissed without just cause, the Court must accept the existence of that fact. That is, that the employee was dismissed without just cause. [79]
In this case, the IEAs claimed as justification for the dismissal of Mr. Morales, who once unpaid leave granted, it ignored requests required on your health, which constituted a violation of the general rules of work. The Banco Popular interpreted that action as a dereliction of duty, and thus a waiver. He also said that Mr. Morales held an improper and disorderly attitude.
However, it was a proven fact and not contested, that Mr. Morales once hired legal representation, informed the Banco Popular that this would be the channel for the following communications. On the record the letters sent by his legal representation at Banco Popular, informing regarding your health condition and desires of relocation. It also became clear that the wife of Mr. Morales remained in communication with the Banco Popular.
The Court held that, the requirement for a medical certificate for absence was inadmissible because it did not attend their work to remain subject to the unpaid leave that the Banco Popular imposed.
There is nothing in the record of work of Mr. Morales, a negative assessment to justify or prove its alleged pattern of improper and disorderly conduct. Moreover, of this it has been the reason, Banco Popular was not having reinstated once he was discharged by the ESF, and he did not.
The primary forum concluded that the Banco Popular could not satisfactorily justify the reasons for the dismissal of Mr. Morales, nor demonstrated the alleged resignation of the employee.
On the other hand, during the questioning of witnesses of Banco Popular, [80] said trial forum realized that the Banco Popular granted unpaid leave in violation of its institutional policy. It also determined that Banco Popular did not comply with the rules contained in the Manual on General Standards Employees, which provide for a final interview prior to dismissal. [81]
Given these facts, the Court concluded that the Banco Popular did not show that Mr. Morales would violate a regulatory provision of the Banco Popular and the aforementioned actions do not meet the criteria of reasonableness which constitute just cause for dismissal contained in Article 2 Act. No. 80, supra . However, the intermediate appellate forum overturned that judgment. We disagree with this proceeding.
Considering specifically, in this cause of action , the major source of proof it was the testimony of the witnesses presented by the parties, in the absence of manifest error, passion, prejudice, bias or extraordinary circumstances arising from the record, it must confirm the decision issued by the Court of First Instance.
That court is in a unique position to examine, evaluate and appreciate the evidence presented before it. [82] For this reason and in consideration of the opportunity to see and hear the witnesses, their appreciation deserves great respect and deference. [83]
In situations like this, where the credibility of witnesses has been settled, the appellate court should not dismiss and replace its own assessments, the weighted determinations of the Court of First Instance, especially when we do not find in the documentary evidence dossier hold the position of Banco Popular.
C
Finally, we will consider the evidence presented as to the cause of action for damages under Article 1802 of the Civil Code of Puerto Rico. [84]
The Court has declared place claim damages for violation of privacy and violation of public policy contained in Act. 44, supra , which prohibits the discharge of persons with disabilities.
Mr. Morales based his claim on damages that his dismissal was made for the purpose of thwarting a clear public policy, namely the Núm.44, Law supra and also claimed a violation of their right to privacy. We are not persuaded.
Although a cause of action for violation of privacy rights, human dignity and protection against risks to personal integrity is an exception to the exclusive remedy provided by Act. 80, supra, we have decided that to prove allegations a cause of action for violation of the right to privacy arising in the context of an employment relationship, the claimant must provide proof of specific actions of the employer that are within his intimate or family life . [85] Furthermore, the claimant must show that the employer 's actions are outside the normal performance on stage work and that they are harmful to their dignity and personal or family integrity attacks. [86]
In the case before us, the only evidence that Mr. Morales offered to support the alleged violation of his right to privacy, was the fact that the vice president of the Division of Human Resources, Ms. Emily Arean, went to the offices of ESF to request to reopen the case siquiátrico your employee. Mr. Morales argued that such action was intended to manipulate their confidential medical information for the purpose of extending medical treatment and later justify his dismissal.
The record indicates that the ESF did not accede to the request made by Ms Emily Arean, being contrary to Article 3 (d) of the Compensation Act Workers ' Compensation Law Núm.45, supra , which states that only processed requests for reopening requested by the injured.
Present facts, not allow us to appreciate the actual damage that this action resulted in Mr. Morales. We can not forget that we are facing a claim for damages pursuant to Article 1802 of the Civil Code, supra , which as all claims must be held on the basis of the test. We are of the opinion that the claims raised here are not sufficient to constitute a violation of the rights of privacy of Mr. Morales.
Efrain E. Rivera Pérez
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