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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