United States Court of Appeals
For the First Circuit
No. 04-2087
LUIS R. RONDA-PEREZ; MERCEDES A. QUESADA-RODRIGUEZ,
Plaintiffs, Appellants,
v.
BANCO BILBAO VIZCAYA ARGENTARIA -- PUERTO RICO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Enrique J. Mendoza-Mendez with whom Mendoza Law Offices was on
brief for appellants.
Pedro J. Manzano-Yates with whom Rosa M. Mendez-Santoni and
Fiddler Gonzalez & Rodriguez, PSC were on brief for appellee.
April 13, 2005
COFFIN, Senior Circuit Judge. This is an appeal from a grant
of summary judgment for the employer-defendant in an age
discrimination suit. We affirm essentially for the reasons
articulated in the district court's opinion, which contains a clear
and detailed statement of facts and a conclusion, with which we
agree, that there was a complete failure of proof of age as a
motivating factor. We add this supplementary opinion to address,
at plaintiff-appellant's urging, the question whether, in light of
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000),
plaintiff's prima facie case, together with his assaults on the
truth of appellee's reasons for terminating him, are enough,
without more, to defeat summary judgment.
I. The Investigation
Plaintiff, a 54-year-old branch manager who had been employed
by the bank or its predecessor since 1986 and whose salary had
increased from $31,944 in 1994 to $40,430 in 2000, was dismissed
and replaced by a 42-year-old woman. Defendant's action followed
an investigation of plaintiff, which was initiated by a complaint
from a fellow employee, Nélida Colón. She alleged that plaintiff
regularly made comments about the physical attributes of female
customers entering the bank, had disclosed the bankruptcy filing of
a client and former branch manager, discussed an employee's
evaluation with a client, had not been active in seeking to
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increase bank business, and had meddled with the personal lives of
herself and a coworker.
The bank initiated an investigation into the complaint, which
was conducted by a Human Resources officer, Manuel Frías. He
interviewed Colón and three other employees, finding agreement
among them confirming Colón's charges. He conducted two rounds of
interviews with these employees and met with plaintiff to review
their charges. Eventually, Frías prepared a report and
recommendation for dismissal, based on the facts that plaintiff's
conduct had a negative impact on the work environment of the
branch, that his comments and conduct had exposed the bank to
liability, and that he had violated the bank's policies against
sexual harassment and confidentiality of information. This report
was accepted by and implemented by the bank's Director of Human
Resources.
Other facts bearing on the course of this process will be
discussed in connection with our analysis.
II. Analysis
Plaintiff asserts that he has established a prima facie case.
Defendant concurs. He was in the protected age group, had been
performing well, suffered an adverse employment action, and was
replaced by a younger person. See De la Vega v. San Juan Star,
Inc., 377 F.3d 111, 117 (1st Cir. 2004). The question to be
resolved is whether the defendant's explanation of its conduct,
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together with any other evidence, could reasonably be seen by a
jury not only to be false but to suggest an age-driven animus.
See Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st
Cir. 2002). After due consideration, we have concluded that the
answer is "No."
In Reeves, the Supreme Court emphasized the possibility that
a plaintiff may survive summary judgment not by unearthing positive
evidence of a discriminatory motive, but by showing that an
employer's proffered justification for its adverse employment
action was such that a "trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose." See 530 U.S. at 147 (citing
Wright v. West, 505 U.S. 277, 296 (1992)). The Court went on to
disavow that a showing of pretext automatically would suffice to
defeat summary judgment, saying,
Whether judgment as a matter of law is appropriate in any
particular case will depend on a number of factors.
Those include the strength of the plaintiff's prima facie
case, the probative value of the proof that the
employer's explanation is false, and any other evidence
that supports the employer's case and that properly may
be considered on a motion for judgment as a matter of
law.
Id. at 148-49.
In Reeves, two characteristics of the evidence stand out:
there was "a substantial showing that respondent's [employer's]
explanation was false," and, in addition to a prima facie case and
the showing of falsity in the employer's explanation, there was
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"additional evidence that Chestnut [employer official] was
motivated by age-based animus and was principally responsible for
petitioner's firing." See id. at 144, 151.
Under these circumstances - "a prima facie case of
discrimination . . . , enough evidence for the jury to reject
respondent's explanation, and . . . additional evidence of age-
based animus," id. at 153 - the Court held that a jury could find
intentional discrimination. Shortly after Reeves was decided, we
had occasion to reconsider a ruling we had made in Feliciano de la
Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1 (1st
Cir. 2000). In an order denying panel rehearing, we held that our
analysis was consistent with Reeves, and reiterated that the
thinness of the plaintiff's showing of pretext, while enough to
create a triable issue as to the falsity of company reasons, failed
to shed any light on what the true reason was, "'let alone show
that the reason was discrimination based on [ethnic] origin.'" Id.
at 10. There was no other evidence of actions or words evidencing
an ethnic bias sufficient to support a jury verdict of
discrimination.
In this case, it is undisputed that plaintiff has established
a prima facie case. Plaintiff was 54 at the time of his
termination, had performed well (as evidenced by regular salary
increases), and was succeeded by a 42-year-old person. But we have
no information about that person's background or experience. As
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for additional evidence pointing to age discrimination, appellant
has made only conclusory statements about his employer "taking out"
two other older managers, José Ramos and Pérez Caratini, but he
acknowledged that he did not know why they were terminated or who
was responsible for the decisions. Moreover, the record is bereft
of any age-related comments. For the six years preceding the
events in this case – when plaintiff already was older than the age
at which his successor took the position – he had been awarded
annual raises in salary, hardly evidence of preexisting age-related
animus. See Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 534
(1st Cir. 2002)(no basis for inferring gender discrimination where
employee was regularly promoted before discovery of
irregularities).
Whether plaintiff's showing was adequate to warrant further
fact finding therefore depends on his evidence of pretext. In
Reeves, the Court cites Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981), for the proposition that a
plaintiff must have the opportunity to prove that "'the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.'" 530 U.S. at 143. The Seventh
Circuit in Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681,
684 (7th Cir. 2000), elaborates, explaining that "[a] 'pretext for
discrimination' means more than an unusual act; it means something
worse than a business error; 'pretext' means deceit used to cover
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one's tracks." This is consistent with dictionary guidance:
"something that is put forward to conceal a true purpose or
object." The Random House Dictionary of the English Language 1534
(2d ed. 1987).
Plaintiff attempts to establish this kind of pretext by firing
a spirited volley of some twelve charges, with the hope that the
resulting smoke will be considered proof of fire. We consider them
carefully but conclude that the smoke dissipates with the firing of
each charge.
To begin, the investigation leading to plaintiff's dismissal
was in response to a complaint by a fellow employee, Colón. Human
Resources Officer Frías conducted two sets of interviews with
branch employees and met with plaintiff. The other employees
generally agreed with the instigating employee. Plaintiff did not
assert any adverse motive or bias on the part of any of these
persons and conceded that Frías was doing his job.
While plaintiff denied the alleged misconduct, Frías deemed
all his informants credible. The question is not whether
plaintiff's or his fellow employees' version is the true one, but
whether Frías and his superiors believed what he had been told by
those he interviewed. See Zapata-Matos, 277 F.3d at 45-46 ("[T]he
ultimate question is not whether the explanation was false, but
whether discrimination was the cause of the termination."); Mulero-
Rodríguez v. Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996) ("[T]he
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issue is not whether [the employer's] reasons . . . were real, but
merely whether the decisionmakers . . . believed them to be
real."). Plaintiff's plea that his denials establish triable
issues of fact foreclosing summary judgment would, if accepted,
spell the end of summary judgment. Of similar nature is
plaintiff's assertion that all of the witnesses against him should
be deemed unworthy of belief because they were all connected with
his and their employer.
Plaintiff's catalogue of "fishy" characteristics of the
investigation starts with the assertion that, during much of it, he
was kept in the dark about complaints concerning his sexist
comments about bank customers. In his deposition, he initially
stated that he was told in his meeting with Frías that the
complaints against him concerned his disclosure of confidential
information about a client, discussing an employee evaluation with
a client, discriminating against students who sought information
for homework, meddling in the life of Colón and a coworker, and
failing to go out to get business.
Upon being pressed as to his memory of that meeting, he
testified as follows:
Q. . . .[A]t any time did they mentioned [sic] that
there were some complaints about certain comments and the
way that you referred to the women who went to the
branch?
A. No, no, what I was told at that time was that I made
comments as to the ladies that came in or walked in front
of the branch. Before Noel Torres I questioned him and
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he said no, that he had not heard that. That is why I
don't mention it, because Mr. Noel Torres denied it, he
said no.
Q. But that was something that Mr. Manuel Frias brought
to your attention.
A. In the first I don't consider it.
Q. And it was something about certain complaints that
had been made by the employees.
A. Supposedly.
Notwithstanding this deposition testimony, plaintiff maintains
that he did not learn of complaints of "sexual harassment" until
defendant filed answers to interrogatories. But the answer he
cites reveals information identical to that given him by Frías in
his first meeting: "Mrs. Colón complained that Ronda regularly made
comments in relation to the females that visited the Branch,
specifically their appearance and body." We see no indication that
any lack of clarity in giving notice of this particular charge
could point to any devious effort to conceal age discrimination.
Plaintiff also contends that he demonstrated the falsity of
the information on which Frías relied to conclude that he had
violated the bank's confidentiality strictures. But to be relevant
on the issue of employer deviousness, the fact of such falsity must
have been communicated to Frías, the investigator. Frías, however,
found the responses of the employees to be consistent, and he knew
of no reason to disbelieve them. Plaintiff now relies on the fact
that the asserted breaches of confidentiality (one relating to a
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client bankruptcy and the other to an employee evaluation) have
been contradicted by disinterested witnesses. But these
contradictions were contained in affidavits signed after suit had
been brought, a year after Frías made his investigation and
recommendation to superiors. This evidence, therefore, cannot
reflect on Frías's honest belief at the time he made his report.
Plaintiff also itemizes a variety of alleged procedural
irregularities, which he claims indicate the suspicious nature of
the investigative process. He points to the more favorable
treatment of a coworker, Assistant Manager Neil Torres, who
admitted his complicity in stimulating some of the sexist
observations. He was not terminated, and instead received a
reprimand and warning. But Torres had evidenced remorse, had
freely acknowledged his inappropriate behavior, was at a lower
level of responsibility than plaintiff, and was free from the other
criticisms levied at plaintiff.
Plaintiff also complains of differences in note-taking in the
investigative interviews. While notes were taken during interviews
with his fellow employees, who also were asked to read and sign
such notes, conversations with plaintiff were not simultaneously
recorded. Plaintiff even points, as evidence of pretext, to such
minutiae as inconsistent testimony concerning whether employee
Carmen Morales signed notes from one or both of her meetings with
Frías. Putting the worst face on such differences, we could say
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only that perhaps it would have been better if there had been
either more uniformity in recording interviews or a reasonable
explanation for any differences in treatment. But on no account
could we say that such vagaries amount to "a lie rather than an
oddity or an error," Kulumani, 224 F.3d at 685. In referring to a
similar "step-by-step" criticism of another employer investigation
in Rivas Rosado, we observed that "Title VII . . . does not ensure
against inaccuracy by an employer, only against gender-based
discrimination," 312 F.3d at 534-35.
The fact that the Human Resources Department had delayed in
processing an inquiry from plaintiff about the termination of a
probationary employee similarly does not imply anything from its
more rapid attention to this obviously serious matter involving
possible hostile work environment. Nor can the existence of a
simple offer of payment conditioned on settlement of any age
discrimination claim be seriously considered prejudicial to an
employer in a situation of this nature. The district court
included this in its summary of evidence that it found had no
bearing on the issue of age discrimination. We do not disagree,
but add our view that this rejected offer, made in the context of
an obviously contested investigation, fits within the spirit if not
the letter of Fed. R. Evid. 408, which bars consideration of offers
of compromise. Even if considered, the modest amount of the offer,
the articulated purpose of providing some help during a transition
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period following termination, and the specific disavowal that any
payment constituted an admission of age discrimination effectively
deprive it of significant weight in assessing the propriety of
summary judgment.
We have considered plaintiff's remaining criticisms, but find
them not to merit our further attention.
This case is similar in an important way to Baralt v.
Nationwide Mutual Insurance Co., 251 F.3d 10 (1st Cir. 2001), where
we set aside a verdict for the employee, notwithstanding that the
employer bore a heavy burden under Puerto Rico law to prove that
its decision was not motivated by age discrimination. The facts
established a similar prima facie case: plaintiffs were within the
protected class, they were fired, and they were replaced, one by a
slightly younger person and the other by a much younger person,
although also within the protected class.
The employer's actions were such as to entitle the jury to
disbelieve its stated reasons. Despite the plaintiffs' long and
successful service, a Human Resources officer who had not reviewed
plaintiffs' files and had interviewed them for only a brief time
abruptly announced his decision to terminate them following a field
investigation of alleged improprieties. See id. at 14-15. We
found defendant's rationale "far from compelling." Id. at 17. But
we noted that the probe leading to the dismissals had been
triggered by employees, and that "with virtually no evidence
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besides the discharges themselves pointing to age as a factor and
none indicating that the investigation was fabricated by company
officials to conceal other motives, a reasonable jury could not
entirely reject the company's abundant evidence that the
terminations stemmed, however unwisely, from the investigation."
Id. at 19. Had the case been judged under federal standards,
reversal would have been even more clear.
In sum, the dozen perceived chinks in appellee's reasons for
terminating plaintiff let in no light as to any true reason, do not
add up to the slightest suggestion of an effort to deceive or cover
up a hidden motive, and obviously fail to indicate that there is a
viable issue of age-related discrimination to bring before a trier
of fact.
Affirmed.
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