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tolic.docxDecisions 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.
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Federico Hernández Denton
