Lcdo harry anduze

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.