Ramírez Rodríguez v. Boehringer Ingelheim Pharmaceuticals, Inc.

United States Court of Appeals
For the First Circuit

No. 04-2584

BOLÍVAR RAMÍREZ RODRÍGUEZ,

Plaintiff, Appellant,

v.

BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Godwin Aldarondo-Girald, with whom Aldarondo Girald Law Office
was on brief, for appellant.
Gregory T. Usera, with whom Lourdes C. Hernández-Venegas and
Schuster Usera & Aguiló LLP were on brief, for appellee.

October 7, 2005
 LIPEZ, Circuit Judge. Appellant Bolívar Ramírez Rodríguez

(Ramírez) filed an age discrimination claim against his former

employer, Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI),

pursuant to the Age Discrimination in Employment Act (ADEA), 29

U.S.C. §§ 621-634, and Puerto Rico law. The district court granted

summary judgment for BIPI on the ground that Ramírez had not

established a prima facie case of discrimination. Alternatively,

even if he had made such a case, the district court ruled that he

had not presented sufficient evidence for a jury to find that

BIPI's proffered non-discriminatory reason for terminating him was

pretextual. On appeal, Ramírez challenges the summary judgment

order, as well as an array of rulings by the district court on

evidentiary issues. We affirm on the alternative ground set forth

by the district court.

I.

We take the following facts from the summary judgment

record, presenting them in the light most favorable to the

appellant and drawing all reasonable inferences in his favor. See

Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 (1st Cir. 2005).

Ramírez was born on March 23, 1951. He worked as a

professional sales representative (PSR) for BIPI from November 1,

1977 to August 15, 2001, when he was terminated. As the district

court explained, Ramirez's "principal activity" as a PSR was

"promoting [BIPI's] products by conducting visits to physicians,

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hospitals, and pharmacies, educating health professionals about

[BIPI's] products, and providing product samples." Ramírez, like

all of the PSRs, was assigned to a particular geographic territory.

At the time of his termination, he was assigned to the southwest

region of Puerto Rico. Relevant to this case, BIPI policy requires

PSRs to obtain a signed Sample Signature Document (SSD) each time

they provide drug samples to a doctor. The SSD must be completed

in full in the PSR's presence. BIPI's sampling policy is designed

to comply with the requirements of the Prescription Drug Marketing

Act (PDMA), 21 U.S.C. §§ 301 et seq.1

Before 1999, Ramírez routinely received positive

performance evaluations for his work. In his 1999 evaluation of

Ramírez,2 district manager Valeriano García (García) -- the BIPI

1
The PDMA regulates, inter alia, distribution of samples of
prescription drugs to physicians. It permits manufacturers and
authorized distributors to provide samples to licensed
practitioners only upon written request "made on a form which
contains the practitioner's name, address, and professional
designation, the identity of the drug sample requested, the
quantity of drug samples requested, the name of the manufacturer or
authorized distributor of the drug sample, the date of the request
and signature of the practitioner making the request." 21 U.S.C.
§ 353(d)(3)(A). The PDMA also requires drug manufacturers and
distributors to "conduct, at least annually, a complete and
accurate inventory of all drug samples in the possession of [their]
representatives" and to "maintain records for at least 3 years of
all drug samples distributed, destroyed, or returned to the
manufacturer or distributor, of all inventories maintained under
this subparagraph, of all thefts or significant losses of drug
samples, and of all requests [made by a practitioner pursuant to 21
U.S.C. § 353(d)(3)(A)] for drug samples." 21 U.S.C. § 353(d)(C).
2
Although the evaluation covered the 1999 calendar year, it
was actually completed in March 2000.

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District Manager for Puerto Rico and Miami, and Ramírez's direct

supervisor -- rated Ramírez as meeting expectations in most areas.

However, García also raised several concerns about Ramírez's

performance. Specifically, García noted that Ramírez "[d]id not

call on [doctors in his territory] other than [in] Ponce and

Mayagüez," that he "[d]id not follow 4 week cycle plan [for

visiting doctors] as instructed," and that he was "[o]ver-sampling

targets and non-targets."3 García noted similar concerns, in more

detail, in an email he sent on January 31, 2000 to Antonio

Hernández, another District Manager in Florida, and Noel Díaz, who

was slated to assume García's duties in the Commonwealth in the

newly-created position of District Manager for Puerto Rico.

Although Ramírez questioned the basis for these concerns when he

received his evaluation, the record does not indicate that he

pursued his objections any further.

Díaz became the District Manager for Puerto Rico, and

therefore Ramírez's direct supervisor, on February 28, 2000. In

March 2000, BIPI informed Ramírez and the other PSRs that it was

restructuring the Puerto Rico sales region to accommodate an

expansion in the size of the sales force, i.e., an increase from 5

3
In its brief, BIPI explains that "oversampling means the
excessive distribution of drug samples to specific doctors." The
primary reason BIPI writes its policies to prevent oversampling is
that "it would permit certain doctors to obtain more samples than
are necessary for their practice, thus opening the door to illegal
sample distribution and/or sales."

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PSRs to 7 PSRs. As a result of the restructuring, Ramírez lost the

city of Ponce and gained the municipality of Arecibo.

Also in March 2000, Díaz asserted that Ramírez had failed

to timely renew his car registration and driver's license and

therefore was driving his company car without valid documentation.

As a result of Díaz's assertion, Ramírez also received an

admonishing email from Larry Wood, BIPI's Regional Director for the

Southeast Region. Ramírez responded by submitting evidence that he

had renewed both his license and registration on time. In a letter

to Wood, Ramírez described the accusations as "baseless and only

launched with ulterior motives as part of a personal agenda to

terminate my employment."

On April 5, 2000, while the dispute regarding the license

and registration was ongoing, Ramírez suffered a stroke.

Attributing the stroke to the stress of an argument with Díaz,

Ramírez applied for treatment under the State Insurance Fund,

Puerto Rico's workmen's compensation program.

On April 6, 2000, Díaz reported to Wood additional

concerns about Ramírez's sampling practices. Specifically, in an

email to Wood, Díaz reported that (1) Ramírez's physician database

was composed largely of primary care physicians rather than the

sub-specialists who would be expected to receive a large proportion

of samples, (2) 50% of the physician listings in the database had

only postal, not physical, addresses, and (3) Ramírez did not

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appear to be contacting important specialized physicians. Díaz

also reported talking to two cardiologists who had asked Ramírez

not to return to their offices after he asked them to sign

confirmation documents, i.e., SSDs, that overstated the number of

samples that he had provided. In the email, Díaz speculated that

Ramírez was "maintain[ing] a base of physicians that allow him to

dump large amounts of samples. In return he gets four or five

signed slips without date. He then allocates the signed slips on

a monthly basis and enters them accordingly to the system." Díaz

also expressed concerns about Ramírez's storage of samples.

On May 8, 2000, Wood sent a letter instructing Ramírez to

move his samples within five days from his mother's house to a

commercial storage facility. Acknowledging that Ramírez was on

short-term disability leave, Wood offered to arrange for the

samples to be moved if Ramírez was unable to transport them

himself. At the time, Ramírez was the only PSR in Puerto Rico who

did not store his samples in a commercial facility. In a letter

dated May 19, 2000, Ramírez responded that his previous District

Manager had approved the storage arrangement. In the letter,

Ramírez also noted that he felt "persecuted, harassed and

discriminated by Mr. Noel Díaz because of my age and time with the

company."4 Wood replied to Ramírez's letter on June 9, 2000. He

4
Ramírez again described Díaz as harassing him in a June 7,
2000 letter to Wood regarding the dispute over whether Ramírez had
timely renewed his driver's license.

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assured Ramírez that he would investigate the claims of

persecution, harassment and discrimination, but reiterated that

Ramírez had to move his samples. Wood also cautioned that "failure

to follow my directive may constitute insubordination, which can

result in disciplinary action up to, and including, termination."

Ramírez ultimately moved the samples.

Wood and Ramírez met on July 13, 2000 to discuss

Ramírez's complaints of harassment and discrimination. In a letter

dated September 19, 2000, Wood indicated that "both prior and

subsequent to our July 13th meeting, I conducted an investigation

of your allegations of discrimination and harassment. Please be

advised that after careful investigation, I found no support for

your allegations that you have been subject to discriminatory or

harassing behavior by [Díaz] or by any Company employee."

On October 6, 2000, BIPI informed Ramírez that he would

be laid off as of October 13, 2000 because his short-term

disability benefits were expiring and he had not "provided

documentation that enables [his] return to work." On October 10,

2000, Ramírez informed Díaz that he had received authorization from

the State Insurance Fund to return to work the following day.

Accordingly, Ramírez returned to work from short-term disability

leave on October 11, 2000.

Díaz, Hernández, and Wood met with Ramírez on October 20,

2000 to outline a series of directives with which Ramírez had to

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comply upon returning to work and to establish deadlines for

completion of those directives. On May 10, 2001, Díaz informed

Wood that he and Hernández had visited several doctors in Ramírez's

sales territory and that the doctors had reported irregularities in

Ramírez's sampling practice. According to Díaz, the doctors

reported that Ramírez left blank SSDs to be signed outside his

presence or asked them to sign undated SSDs, both violations of

BIPI policy, which is designed to ensure compliance with federal

regulations.

Also on May 10, 2001, Ramírez asserted that pursuant to

an order by Díaz, he had not received any literature or promotional

materials since December 2000. In a letter to Wood, Díaz responded

that he had arranged to stop delivery of promotional materials and

samples to Ramírez while he was on short-term disability leave.

Díaz maintained that Ramírez "started to receive his normal

shipments" upon his return to work in October 2000 and that he did

not know why Ramírez had not received his December 2000 order.

Díaz also indicated that he had again arranged to stop delivery of

samples and material to Ramírez as of May 10, 2001 based on the

doctors' reports regarding Ramírez's sampling practices.

On June 13, 2001, Ramírez filed a claim with the Anti-

Discrimination Unit of the Puerto Rico Department of Labor (ADU),

alleging that Díaz

began a series of harassing acts against me [in February
2000] . . . due to my age. These acts on the part of the

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 company, by means of [Díaz and Wood], consisted in
changing my sales region in a manner which was
disadvantageous to myself . . .; forcing to change the
place of storing my samples to Ponce, in spite of the
fact that my residence and seat of operations is in
Mayaguez; make or promote accusations of insubordination
when I complained about the treatment that I was
receiving; false pointing out of negligence in the use of
my car and improper intervention with my treatment by the
State Insurance Fund . . . [w]hen I was in my disability
caused by a stroke [that] occurred during a heavy
discussion with Mr. Díaz.

During August 2001, Díaz continued to investigate

Ramírez's sampling practices. On August 15, 2001, Ramírez was

terminated. In a letter confirming Ramírez's termination, Wood

attributed the decision to his "violation of the Prescription Drug

Marketing Act and Company policy as it relates to sample

distribution and documentation." Following his termination,

Ramírez amended his ADU claim to include a charge of retaliation.

Ramírez filed the present suit in the federal district

court for the District of Puerto Rico on August 20, 2002, alleging

violations of the ADEA and Puerto Rico law. BIPI filed a motion

for summary judgment on February 9, 2004, and Ramírez filed an

opposition to the motion on April 2, 2004. On September 24, 2004,

the court found that Ramírez had not established a prima facie case

of age discrimination and that, even if Ramírez had made his prima

facie case, he had not demonstrated that BIPI's asserted non-

discriminatory reason for terminating him -- i.e., violations of

the PDMA and company sampling policies -- was pretextual. The

court also found that Ramírez's retaliation claim was flawed for

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essentially the same reasons, namely that he had not made a prima

facie showing that he was dismissed in retaliation for filing a

claim with the ADU and that, even if he could make such a prima

facie showing, he had not established that BIPI's asserted non-

discriminatory reason for firing him was pretextual. Accordingly,

the court granted summary judgment for BIPI on all claims. This

appeal followed.

II.

On appeal, Ramírez challenges not only the merits of the

district court's summary judgment ruling, but also its handling of

several discovery and evidentiary issues. We turn to those

preliminary issues first.

A. Motion to compel discovery

In defending against the claim of discrimination and

retaliation, BIPI has asserted that it terminated Ramírez solely

because of violations of the PDMA and company sampling policy.

This claim of violations rests on written statements by three

physicians regarding Ramírez's improper sampling practices.

Although BIPI disclosed the statements to Ramírez during discovery,

it did so only after redacting the physicians' names and addresses,

citing the physicians' concerns that Ramírez might seek reprisal

against them if he learned their identities. Ramírez filed a

motion to compel discovery of the identifying information, arguing

that he had a right to "know all the details related to th[e]

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statements, and to depose, if necessary, those physicians who

allegedly prepared said statements." BIPI opposed the motion and

sought a protective order. The district court denied the motion to

compel and granted the protective order. On appeal, Ramírez

assigns error to the denial of his motion to compel and the

corresponding grant of a protective order. Reviewing the court's

ruling under the deferential abuse of discretion standard, see

Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir.

1996), we reject Ramírez's claim.

Rule 26(c) of the Federal Rules of Civil Procedure

permits the district court to grant a protective order in the

discovery context for "good cause shown." The district court

explained that it was granting BIPI's request for protection to

"safeguard what appears to be a legitimate concern for defendant,"

i.e., the physicians' fear of reprisal by Ramírez. Ramírez

challenges the court's explanation on the grounds that BIPI "did

not submit any supporting document or specific fact to sustain the

[physicians'] alleged 'fears'" of reprisal, and therefore did not

show good cause for the order. He further faults the district

court for "fail[ing] to discuss whether the producing party's

burden of production and its interests outweighed the opposing

party's right to obtain the information sought."

While it perhaps would have been preferable for the

district court to explain its decision to grant a protective order

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in more depth, see United States v. Microsoft Corp., 165 F.3d 952,

959-60 (D.C. Cir. 1999) (noting that Rule 26(c) requires "an

individualized balancing of the many interests that may be present

in a particular case"), its failure to do so does not affect our

analysis. FDIC v. Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000)

(noting that "[w]e have thus far refused to insist upon a rigid

rule" precluding summary disposition of pre-trial discovery

motions). As we have repeatedly stated, "[i]t is well settled that

the trial judge has broad discretion in ruling on pre-trial

management matters." Ayala-Gerena, 95 F.3d at 91. Here, the court

used its discretion to craft an order tailored to the situation it

faced. Although that order denied Ramírez access to the

physicians' identifying information, the court indicated that the

order was merely a "temporary remedy . . . [that] may be modified

if adequate safeguards are offered" and specifically invited

Ramírez's counsel to "propose to the court alternatives to

safeguard what appears to be a legitimate concern for defendant."

The court also emphasized that it "remains open to solutions." In

short, the court did not treat its protective order as definitively

precluding Ramírez from engaging in further discovery regarding the

statements. Rather, the court expressed a willingness to work with

Ramírez to balance the physicians' privacy and safety concerns with

his interest in conducting discovery.

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 Notwithstanding the court's explicit invitation, Ramírez

does not appear to have suggested any alternative methods by which

he could conduct discovery regarding the physician statements. The

reason for this omission is not clear from the record. If Ramírez

felt that he did not have enough time to respond to the court's

invitation before addressing BIPI's motion for summary judgment --

which was pending when the court issued the protective order5 -- he

could have informed the court of his situation by means of a motion

under Federal Rule of Civil Procedure 56(f).6 It is undisputed

that he did not file such a motion. Instead, Ramírez filed a

motion in limine with his opposition to the summary judgment

motion, seeking to exclude the physicians' statements entirely on

the ground that he had been "denied his right to discover relevant

information and to confront the alleged evidence in which Defendant

5
We supply the following dates to provide a brief chronology
of the discovery dispute. Ramírez filed his motion to compel
discovery on December 5, 2003. BIPI requested the protective order
on January 16, 2004. Ramírez filed his opposition to BIPI's
request on January 28, 2004. BIPI submitted the physician
statements to the court under seal on January 29, 2004. Ramírez
opposed the filing under seal on February 3, 2004. BIPI filed a
motion for summary judgment on February 9, 2004, while the motions
regarding the physician statements were still pending. The court
granted the protective order on March 3, 2004. Ramírez filed his
opposition to summary judgment, along with a motion in limine
seeking to exclude the physician statements, on March 31, 2004.
6
"Should it appear from the affidavits of a party opposing the
motion [for summary judgment] that the party cannot for reasons
stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or
may order a continuance . . . or may make such other order as is
just."

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attempts to sustain its nondiscriminatory reason to discharge him."

Nowhere in the motion in limine did Ramírez acknowledge the court's

willingness to consider alternative avenues by which he could

discover information relating to the statements or request more

time to proffer such alternatives.

It is troubling that Ramirez did not have an opportunity

to challenge the doctor's accounts that led to his termination.

While this case is not about whether the statements are true or

not, see infra Section II.B.2, evidence of falsity would be

relevant to a claim that BIPI's professed reliance on the

statements was a pretext for age discrimination. Ramírez, however,

bears substantial responsibility for his own predicament because of

his failure to respond to the court's invitation for proposals for

modification of the protective order. In light of Ramírez's

failure to take advantage of this opportunity, his claim that the

court abused its discretion in denying his motion to compel

discovery and granting the protective order rings hollow. Cf.

Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26,

45 (1st Cir. 1998) ("A party relying on Rule 56(f) must demonstrate

that he exercised due diligence in pursuing discovery.");

Springfield Terminal Ry. v. Can. Pac. Ltd., 133 F.3d 103, 109 (1st

Cir. 1997) (cautioning that "failure to resort to such first aid

[as Fed. R. Civ. P. 56(f)] will ordinarily bar belated aid").

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B. Motion in limine

As noted, Ramírez filed a motion in limine, concurrently

with his opposition to summary judgment, seeking to exclude the

physicians' statements and other evidence as inadmissible under the

Federal Rules of Evidence. Ramírez asserts that the court

implicitly rejected the motion by considering the disputed evidence

in its order granting summary judgment, and that the rejection was

erroneous. We review for an abuse of discretion. White v. N.H.

Dep't of Corr., 221 F.3d 254, 262 (1st Cir. 2000).

1. Evidence at issue

In his motion in limine, Ramírez sought to exclude

evidence relating to his alleged sampling irregularities in 1999

and the unidentified physicians' statements, as described below.7

a. Sales report

BIPI's Proposed Statement of Uncontested Facts included

the following assertions:

7
Ramírez also sought to exclude a sentence in BIPI's proposed
statement of uncontested facts relating to BIPI's decision to
terminate another PSR, Zoe Corretjer, for "similar reasons as those
that led to plaintiff's termination." Ramírez asserts on appeal
that the district court abused its discretion in denying his motion
with regard to that sentence. We need not reach this claim. There
is no indication in the record that the court denied the motion to
exclude the statement regarding Corretjer's termination. To the
contrary, given that the district court did not refer to
Corretjer's termination in its order granting summary judgment, it
appears that the court granted that aspect of Ramírez's motion in
limine.

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 15. On January 19, 2000, [Ramírez's then-supervisor]
Garcia made an email request to [BIPI sales analyst] Rita
Riberio, to provide him with the total amount of samples
given of each product by each sales representative in
Puerto Rico during 1999. Riberio answered said inquiry,
also [by] email, on January 28, 2000. . . .

16. The information provided by Riberio indicated
peculiarities with several PSRs, including Ramírez. . . .
This information led García to conclude that plaintiff
could be incurring in the practice known in the industry
as "oversampling," and that he may not be complying with
his assigned territory. On January 31, 2000, [García]
communicated these concerns by email to Antonio
Hernández, District Manager in Florida, and Noel Díaz,
who would shortly become District Manager in Puerto Rico.
. . .

. . .

23. During a meeting held on March 28, 2000 in Miami,
Noel Díaz discussed his concerns regarding Valeriano
García's January 2000 communications in connection with
plaintiff's apparent oversampling with Larry Wood, BIPI's
Regional Director for the Southeast Region of the United
States. Díaz decided to investigate the matter further,
as suggested by García. . . .

. . .

28. . . . On April 6, 2000, Díaz reported that he
identified additional concerns about plaintiff's
practices that arose during the course of Díaz's field
work with plaintiff and an additional set of numbers
generated by Rita Riberio.

Riberio's January 28 response to García's request for information

was among the exhibits appended to the Proposed Statement of

Uncontested Facts.

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 Ramírez asserts that Riberio's response -- which was in

the form of a data report8 -- is inadmissible hearsay, and that the

court should therefore have excluded both the response and Proposed

Statements 15, 16, 23, and 28, which Ramírez asserts are all

related to it.

b. Physicians' statements

Ramírez also sought to exclude BIPI's Proposed Statements

29, 30, 41, 42, 44, and 47 on the ground that they "refer to

information obtained by Mr. Noel Díaz and Mr. Antonio Hernández

from alleged visits and communications with several doctors" whose

identifying information was not disclosed to Ramírez. On appeal,

Ramírez continues to assert that because he was not able to conduct

discovery regarding the identity of the physicians, the physician

statements are inadmissible hearsay and the corresponding

statements must be deleted from BIPI's proposed statement of

uncontested facts.9

8
Ramírez also sought to exclude the cover memo that Riberio
sent to García with the report. The memo merely states that her
results were attached and that García was free to "share this
information with [his colleagues] if you think they could use it."
For ease of reference, we use the term "report" as a short hand for
both the report and the cover memo.
9
We note that not all of the proposed statements of
uncontested facts identified by Ramírez actually rely on the
statements by unidentified physicians. Proposed statements 29 and
30 do not cite the redacted physicians' statements, but rather cite
an April 6, 2000 email from Díaz to Wood in which Díaz reported
talking to two physicians who had asked Ramírez not to return to
their offices as a result of irregularities in his sampling

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 2. Hearsay claim

On appeal, Ramírez asserts that the evidence and

statements that we have just described constitute inadmissible

hearsay. "'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted." Fed. R. Evid.

801(c). Hearsay evidence is not admissible at trial, see Fed. R.

Evid. 802, or for summary judgment purposes, see Vazquez v. Lopez-

Rosario, 134 F.3d 28, 33 (1st Cir. 1998), unless it falls within

one of the exceptions specified in the Federal Rules of Evidence.

See Fed. R. Evid. 802. In Ramírez's view, none of the evidence

that he seeks to exclude is covered by a hearsay exception.

At the risk of stating the obvious, whether a particular

statement falls within a hearsay exception is relevant only if the

statement is, in fact, hearsay. We must therefore consider, as an

initial matter, whether any of the evidence at issue -- either

Riberio's report or the physician statements -- is hearsay. By

definition, hearsay is a statement "offered in evidence to prove

the truth of the matter asserted." Fed. R. Evid. 801(c). BIPI

practice. The email, which was appended to BIPI's proposed
statement of uncontested facts as Exhibit 10, identified the
physicians by name and provided their addresses and phone numbers.
For reasons that are unclear to us, neither party has referred to
this email on appeal.

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asserts that it did not offer the evidence at issue to prove the

truth of the matter asserted. We agree.

The "matter asserted" in both Riberio's report and the

physician statements is essentially that Ramírez's sampling

practice was inconsistent with company policy and the PDMA. The

company offers these assertions to explain the basis for its

decision to terminate Ramírez from his employment. That

explanation alone has evidentiary significance. See Zapata-Matos

v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir. 2002) (noting

that in an employment discrimination case, "once the plaintiff has

met the low standard of showing prima facie discrimination, the

employer must articulate a legitimate nondiscriminatory reason [for

the adverse employment action] in response"). In short, the report

and physician statements were not offered to prove that Ramírez

engaged in misconduct, but rather to demonstrate that his superiors

had reason, based on a thorough investigation, to believe that he

had.

In an attempt to rescue his claim, Ramírez asserts that

Ribiero's report and the physician statements were, in fact,

submitted to demonstrate that Ramírez violated company and

industry-wide sampling policies, i.e., for the truth of the matter

asserted. He maintains that BIPI has defended its decision to

terminate him on the grounds that he engaged in such misconduct,

rather than on the more nuanced ground that it thought he had

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engaged in such misconduct. We reject this reasoning. Although

BIPI may have framed its argument inconsistently at times, it

explained in its motion for summary judgment that "the results of

[the] investigation into plaintiff's sampling practices . . . led

to the conclusion that plaintiff had incurred in serious violations

of the PDMA and Company policies." BIPI further explained, in

opposing Ramírez's motion in limine, that the evidence at issue was

"not being offered to prove that the plaintiff in fact engaged in

the practice of over-sampling or violated company policies, but to

show that this was the information defendant had before it and that

defendant considered this information when it made its decision to

terminate plaintiff's employment." In short, BIPI has defended its

decision on the grounds that it thought, based on its

investigation, that Ramírez had engaged in misconduct.10

10
Through his motion in limine, Ramírez also sought to exclude
Ribiero's report and the physician statements pursuant to Federal
Rule of Evidence 403, which provides, in part, that, "[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice." On
appeal, Ramírez asserts that the district court abused its
discretion under Rule 403 by considering Ribiero's report and the
physicians' statements before ruling in its summary judgment order.
We disagree. Although "courts also have the power to exclude
evidence under Rule 403 at the summary judgment stage," see Jack B.
Weinstein & Margaret A. Berger, 2 Weinstein's Federal Evidence
§ 403.02[1][b] (2d ed. 2005), Ramírez has not demonstrated that the
evidence he seeks to exclude meets the "unfair prejudice" standard
set forth in that rule.

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 III.

Ramírez challenges the court's grant of summary judgment

for BIPI on his age discrimination claim. Summary judgment is

appropriate when "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c).

Under the ADEA, it is "unlawful for an employer . . . to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age." 29

U.S.C. § 623(a)(1). The district court properly considered

Ramírez's ADEA claim under the burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973):

once the plaintiff has met the low standard of showing
prima facie discrimination, the employer must articulate
a legitimate nondiscriminatory reason in response. Once
that reason is articulated, the presumption of
discrimination drops out of the picture, the McDonnell
Douglas framework with its presumptions and burdens
disappears, and the sole remaining issue is of
discrimination vel non.

Zapata-Matos, 277 F.3d at 44-45 (internal citations omitted).11

11
The prima facie showing of discrimination under McDonnell
Douglas has four components:

An ADEA claimant must adduce evidence that (1) she was at
least forty years of age; (2) her job performance met the
employer's legitimate expectations; (3) the employer

-21-
 Having reviewed the relevant legal framework,12 we turn

to the specific facts of the case at hand. Instead of evaluating

Ramírez's prima facie case, as the district court did, we assume

arguendo that Ramírez has made out a prima facie case of

discrimination based on age. In response, BIPI has articulated a

legitimate, nondiscriminatory reason for its decision to terminate

Ramírez’s employment–-namely, its conclusion, based on the results

of an investigation, that Ramírez’s sampling practices violated the

PDMA and company policy.13 At this stage, then, "[t]he question to

subjected her to an adverse employment action (e.g., an
actual or constructive discharge); and (4) the employer
had a continuing need for the services provided by the
position from which the claimant was discharged.

Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 n.5 (1st Cir. 2002).
12
On appeal, Ramírez asserts for the first time that the
district court should have considered his claim not only under the
McDonnell Douglas framework, but also under the standards set forth
in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) for mixed-
motive employment discrimination claims, i.e., claims that "both
legitimate and illegitimate reasons motivated the [adverse
employment] decision." Id. at 93. Because Ramírez failed to
advance this argument in the district court, we consider it waived.
See Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003)
(expressing doubt that the plaintiff had preserved claim that
Desert Palace applied to his ADEA suit, "as he never suggested to
the district court that he was presenting a mixed-motive case");
Davis v. Lucent Techs., Inc., 251 F.3d 227, 232 (1st Cir. 2001)
("[W]here a plaintiff fails to present arguments to the district
court in opposition to a defendant's motion for summary judgment,
we have refused to consider those arguments for the first time on
appeal.").
13
The physician statements whose admissibility we discussed in
Section II reported that Ramírez usually left a large amount of
samples and asked the physicians to sign multiple sample signature
documents.

-22-
be resolved is whether the defendant's explanation of its conduct,

together with any other evidence, could reasonably be seen by a

jury not only to be false but to suggest an age-driven animus."

Ronda-Perez v. Banco Bilbao Vizcaya Argentaria -- P.R., 404 F.3d

42, 44 (1st Cir. 2005). Urging us to answer this question in the

affirmative, Ramírez asserts that BIPI's articulated reason for his

termination was false and alleges that several aspects of BIPI's

conduct reveal a discriminatory animus based on age. We examine

these claims.

A. Territory reorganization

In March 2000, BIPI realigned the sales territories in

Puerto Rico to accommodate an expansion of its sales force from

five PSRs to seven PSRs. Ramírez asserts that the realignment had

a negative impact on him and another PSR, Félix Ruiz, who was 58

years old at the time, and that the more desirable territories were

given to the new 28- and 35-year old PSRs.14 Ramírez focuses on the

14
BIPI contends that Ramírez's claim regarding the 2000
reorganization "is time-barred, inasmuch as it is a discrete act
which occurred more than 300 days prior to his filing of the ADU
charge." This contention is a reference to 29 U.S.C. § 626(d)(2),
which establishes a 300-day filing period for claims under the ADEA
in "deferral states" including Puerto Rico. Am. Airlines, Inc. v.
Cardoza-Rodriguez, 133 F.3d 111, 122 (1st Cir. 1998). It is true
that the March 2000 territory reorganization occurred more than 300
days before Ramírez filed his ADU claim on June 13, 2001. We do
not view Ramírez's reference to the reorganization as an attempt to
recover for a discrete act, however, but rather as part of his
effort to demonstrate that BIPI's stated reason for his termination
was pretextual. The 300-day statute of limitations does not "bar
an employee from using the prior acts as background evidence in
support of a timely claim." Nat'l R.R. Passenger Corp. v. Morgan,

-23-
fact that Ponce was removed from his territory and replaced with

Arecibo, which has fewer specialists spread over a wider

geographical area. He emphasizes that his new territory had 88

specialists and Ruiz's had 82 specialists, while the 28- and 35-

year-old PSRs' territories had 208 specialists and 121 specialists,

respectively. While acknowledging that territories had been

reorganized, and that Ponce had been removed from his territory

before, Ramírez asserts that "the process followed in prior

reorganizations was different. Appellant and Mr. Félix Ruiz were

consulted, and all changes were discussed with them prior to

becoming in effect. . . . The 2000 reorganization was [behind]

closed doors." Together, Ramírez asserts, this evidence is

sufficient to create a dispute of material fact as to whether the

reorganization reflected a discriminatory animus. We disagree.

Ramírez has conceded that BIPI has reorganized its

territories in the past and that Ponce was removed from his

territory in 1995. Although he has not explained the circumstances

of the 1995 removal, it is notable that he does not assert that the

1995 removal was motivated by a discriminatory animus. The only

difference he cites between prior reorganizations and the 2000

536 U.S. 101, 113 (2002) (discussing an analogous 300-day time bar
for claims brought under Title VII); see Mercado v. Ritz-Carlton
San Juan, 410 F.3d 41, 47 (1st Cir. 2005) (noting that "we have
held repeatedly that the ADEA and Title VII stand[ ] in pari passu
and that judicial precedents interpreting one such statute [are]
instructive in decisions involving [the other]") (internal
quotation marks omitted) (alterations in original).

-24-
reorganization is that during prior reorganizations, PSRs were

consulted and that new employees were given less complex

territories. The fact that PSRs were not consulted before the 2000

reorganization is not evidence that the reorganization was carried

out in a discriminatory way. Nor has Ramírez offered evidence that

the 2000 reorganization was a deviation from BIPI's policy -- if

BIPI had such a policy in the first place -- of assigning less

complex territories to newer PSRs. He has pointed out only that

the newly created territories had more specialists than his, not

that they were somehow more complex.

B. Discriminatory comments

Ramírez asserts that Díaz, his supervisor at the time of

his termination, Valeriano García, the district manager who

supervised Ramírez prior to Díaz, and Antonio Hernández, a district

manager in Florida, made comments that reflect a discriminatory

animus and therefore support a finding that BIPI's articulated

reason for his termination was pretextual. The district court,

quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d

46, 55 (1st Cir. 2000), recognized that "[d]iscriminatory comments

may be probative of pretext if a plaintiff can 'show that

discriminatory comments were made by the key decisionmaker or those

in a position to influence the decisionmaker.'" The court

concluded, however, that "[g]iven Defendant's compelling stated

reason for Plaintiff's termination, the[] stray remarks [cited by

-25-
Ramírez] do not permit the inference that Defendant's real

motivation for Plaintiff's discharge was age discrimination."

On appeal, Ramírez asserts that in considering the

allegedly discriminatory comments, the district court failed to

view the evidence in the light most favorable to him, and instead

"weighted the evidence in favor of the appellee." We consider this

argument with regard to each of the comments that Ramírez has

identified as discriminatory.

1. "Sacred cows"

Relying on the deposition testimony of PSR Rafael Oliver,

Ramírez asserts that during a private meeting on January 12, 2000,

Díaz told Oliver and another PSR, Rommel Barnacet, "that he (Mr.

Díaz) had orders to 'cut off' the heads of older sales

representatives that Mr. Díaz, Mr. Rommel Barnacet, and Mr. Oliver

called 'the sacred cows,' but that they should keep this

information secret." This description does not accurately reflect

Oliver's testimony, which was that Díaz said that he had

instructions to cut off the heads of some "sacred cows," not of

"older sales representatives." It was Oliver who interpreted the

comment as a reference to age.15 Oliver also testified that he was

15
BIPI asserts that Oliver's testimony regarding his
interpretation of the "sacred cow" comment is inadmissible because
it reflects "mere conjecture as to what someone may have meant."
We reject this claim, concluding that Oliver's interpretation of
the comment was admissible as opinion testimony by a lay witness.
See Fed. R. Evid. 701.

-26-
considered a "sacred cow" because he was disabled, but that

Barnacet, who was five years younger than Oliver, was not a sacred

cow. Nevertheless, given the summary judgment posture of this

case, we conclude that the district court erred in disregarding the

"sacred cows" comment altogether. Oliver testified that he

understood "sacred cows" as a reference to the oldest PSRs in terms

of both seniority and age. Drawing all reasonable inferences in

favor of Ramírez, we think that a jury relying on Oliver's

testimony could interpret Díaz's comment as a reference to age.

In a related vein, Ramírez also emphasizes the deposition

testimony of Ruiz that during a meeting on February 28, 2000, Díaz

stated that he had "instructions from management that they had to

'cut off the heads' of the oldest representatives."16 This

testimony, like Oliver's testimony, is somewhat ambiguous. It

appears that Ruiz described only the instruction to "cut off the

heads" as a quote from Díaz. We cannot tell from the testimony

whether Díaz referred specifically to "the oldest representatives,"

or if Díaz made a different reference that Ruiz interpreted as a

reference to age, as was the case with Oliver. Again, however,

given the posture of this case, we recognize that a jury could

interpret the comment as a reference to age.

16
The district court did not directly address this testimony.

-27-
 2. Employee salary

According to the deposition testimony of PSR Rafael

Oliver, "there were always comments" from García and Hernández to

the effect that "you have to pay two [employees] in their twenties

less than one in his fifties because of what is being earned. That

with that salary they would pay two, or they would pay two and a

half." Ramírez cites this statement as evidence that "Mr. Díaz,

Mr. Hernández, and Mr. García preferred young sales

representatives," and therefore that he was terminated because of

his age. Even if this statement does reflect age bias (the

inference most favorable to Ramírez), Ramírez has cited no evidence

on appeal that either Hernández or García -- as opposed to Díaz,

his direct supervisor -- was involved in the decision to terminate

him.17 "[S]tatements made either by nondecisionmakers[,] or by

decisionmakers not involved in the decisional process, normally are

insufficient, standing alone, to establish either pretext or the

requisite discriminatory animus." Gonzalez v. El Dia, Inc., 304

F.3d 63, 69 (1st Cir. 2002).

17
In a motion opposing summary judgment, Ramírez asserted that
comments by García and Hernández were probative of discriminatory
animus because "García was Plaintiff's supervisor and allegedly
began the so called investigation in the year 2000" and "Hernández
acted as Regional Director, he was notified of Plaintiff's alleged
violations and participated in Plaintiff's supervision." Neither
of these assertions address the role of García and Hernández in the
decision to terminate Ramírez in August 2001.

-28-
 3. "Twilight zone"

In his deposition, Ramírez testified that Hernández said

that "[t]hose old guys are in the 'twilight zone.'" As the

district court pointed out, however, Ramírez has not explained

when, or in what context, he heard the statement. Moreover, as the

district court also noted, "[w]hile Mr. Oliver [also] claims that

Mr. Hernández stated that 'these people are in the twilight zone'

after meetings with unnamed employees, notably, Mr. Oliver's quote

makes no reference to age." To the contrary, Oliver interpreted

the "twilight zone" comment as referring to people who did not meet

their sales quotas. More importantly, as we have already noted,

Ramírez cites no evidence on appeal to demonstrate that Hernández

was involved in the decision to terminate him. See id.

C. Disparate treatment

Ramírez asserts that he was subjected to adverse

disparate treatment that revealed a discriminatory animus on the

part of his superiors. The district court rejected this

contention, concluding that it rested on "unsupported allegations."

1. Employee discipline

Ramírez contends that BIPI has a disciplinary procedure

requiring "progressive discipline before termination or discharge"

and that the procedure was not followed in his case. He further

asserts that other employees "did not use the proper sampling and

-29-
targeting procedures" but that "no one else was disciplined, much

less discharged."

It is true that BIPI's employee manual sets forth a

procedure to "monitor consistent non-compliance" with the rules

established for ensuring sampling accountability. However, the

manual also sets forth a series of "unacceptable" practices that

"will result in varying levels of disciplinary action up to and

including termination." (Emphasis added.) One of the practices

listed is "any violation of the Prescription Drug Marketing Act of

1987," the ground that BIPI has cited for Ramírez's termination.

Moreover, the manual also cautions that "[t]ermination of

employment can result . . . in the event of any breach of

discipline or job standards which is deemed serious enough." BIPI

apparently concluded that Ramírez's perceived violations of the

PDMA and company policies designed to comply with that Act were

"serious enough" to result in termination, rather than a lesser

sanction. It is not our role to second-guess the merits of that

conclusion. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st

Cir. 1991) ("Courts may not sit as super personnel departments,

assessing the merits -- or even the rationality -- of employers'

nondiscriminatory business decisions.").

Although Ramírez asserts that other employees did not use

proper sampling procedures but were not disciplined, he has not

identified any employee who engaged in sampling violations akin to

-30-
those for which he was terminated. The closest Ramírez comes is an

allegation that García, his former supervisor, "gave orders to use

un-approved and illegal materials." The documents to which Ramírez

cites in support of this proposition are far from clear, however,

and they do not indicate whether, if García did violate company

policy designed to comply with the PDMA, decisionmakers at BIPI

were aware of the violation. Accordingly, we reject Ramírez's

claim that his termination reflects disparate treatment based on

his age.

2. Salary

Ramírez did not receive a merit-based salary increase for

the year 2001, while all other PSRs did. In an email informing

Ramírez of the salary decision, Díaz explained that

merit increases are based on the sales and general
performance of any given representative during a one year
period. The guideline for the year 2000 was 4.0%.
Unfortunately your extended leave of absence due to Short
Term Disability did not allow a fair evaluation period to
make the merit assessment for the year. Therefore the
decision has been made to leave your year 2000 base pay
unchanged at $63,500.00 for the year 2001.

In his motion opposing summary judgment, and again on appeal,

Ramírez asserts the denial of a salary increase violated company

policy. Contrary to Ramírez's representation, however, company

policy does not establish that "any employee on leave will receive

a salary increase in proportion to the time worked." Rather, it

provides that "[i]f approved, a proratum will apply to all annual

merit reviews when issued for less than a 12 month salary cycle"

-31-
and that "[t]he amount of your merit increase, if any, is

discretionary." (Emphasis added.) BIPI did not approve a merit-

based increase for 2001 because it was unable to evaluate Ramírez's

performance for 2000. Company policy therefore did not require an

increase in proportion to the time worked.

Ramírez asserts that the denial of a salary increase

reflects disparate treatment nonetheless because, unlike Ramírez,

PSR Oliver received salary increases while on short-term

disability. The only evidence that Ramírez cites for this

proposition is his own "unsworn statement under penalty of

perjury." While the document that Ramírez cites is admissible for

summary judgment purposes despite being unsworn, see Goldman,

Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc.,

982 F.2d 686, 689-90 (1st Cir. 1993), his specific statement about

Oliver's salary is inadmissible because Ramírez does not explain

the basis for his knowledge. See Fed. R. Civ. P. 56(e); Cloutier

v. Costco Wholesale Corp., 390 F.3d 126, 137 (1st Cir. 2004), cert.

denied, 125 S. Ct. 2940 (2005). We therefore cannot credit

Ramírez's claim.

3. Conditions upon return from short-term disability

Finally, Ramírez asserts that he was singled out for

adverse disparate treatment upon his return from short term

disability, when BIPI imposed "work rules, conditions, and

examinations not required [of] other [PSRs]." The only sources

-32-
that Ramírez cites for his contention that similar requirements

were not imposed on other PSRs are his own deposition testimony to

that effect and a letter that he wrote to Díaz regarding his

compliance with the conditions, in which he asserted that after

speaking with Ruiz and Oliver, he learned that "after their short

term disability, they were never required to comply with these

directives or similar directives." This evidence does not help

Ramírez. First, the statements of Ruiz and Oliver are inadmissible

hearsay. See Fed. R. Evid. 801(c), 802. Second, even if the

evidence were admissible, it still does not establish that Ramírez

was subjected to adverse disparate treatment based on his age. As

Ramírez's own statements indicate, Ruiz -- who is eight years older

than Ramírez -- was not subjected to similar treatment.18

D. Falsity of stated reason

Ramírez also alleges that BIPI falsified the physicians'

statements or requested them only after it had made the decision to

18
Ramírez also asserts in passing that he was subjected to
disparate treatment when Wood instructed him to store his samples
in a commercial storage facility rather than at his mother's house.
Emphasizing that he stored samples at his mother's house -- with
his District Manager's approval -- for many years prior to April
2000, Ramírez points out that BIPI's storage policy does not
actually require samples to be kept in a commercial facility.
While that may be the case, there is no evidence to support
Ramírez's contention that the order to move his samples reflected
a discriminatory animus. Before Wood's order, Ramírez was the only
PSR in Puerto Rico who did not store his samples in a commercial
facility. By requiring him to move his samples to such a facility,
Wood was merely putting Ramírez in the same position as all of the
other PSRs.

-33-
terminate him. He has provided no evidence, however, to

substantiate those allegations, see Fed. R. Civ. P. 56(e)

(cautioning that "[w]hen a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse party's

pleading"),19 and the evidence that is in the record supports a

finding that BIPI did not fabricate its articulated reason for

terminating Ramírez's employment.

In a letter confirming Ramírez’s termination, BIPI

attributed its decision to Ramírez’s "violation of the Prescription

Drug Marketing Act and Company policy as it relates to sample

distribution and documentation." BIPI has produced the physicians’

statements that led it to this conclusion, which it has articulated

consistently throughout the course of this litigation. See Zapata-

Matos, 277 F.3d at 47 (emphasizing that explanations by

representatives of an employer for their decision to terminate the

plaintiff “are themselves consistent and not contradicted by either

contemporaneous documents or statements made at termination, or

statements made later”). As the district court recognized, BIPI

also proffered evidence of other "perceived irregularities in

Plaintiff's sales practice" dating back several years, as well as

19
Although Ramírez was hampered in that effort by his inability
to conduct discovery regarding the physicians' identities, he bears
substantial responsibility for that limitation, as we have
discussed.

-34-
evidence of its investigation into the irregularities. The record

thus presents no basis for a finding that BIPI did not believe, in

good faith, that it had a legitimate reason to terminate Ramírez.

We recognize that “the employer’s good faith belief is not

automatically conclusive” on the issue of pretext. However, there

is also no evidence in the record to support a jury finding that

the articulated reason, though honestly held, “constituted

discrimination (e.g., stereotyping).” Id. at 45-46.

E. Conclusion

In determining whether a defendant is entitled to summary

judgment on an ADEA claim, we must consider, inter alia, "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." Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 149 (2000). As we have discussed, Ramírez has offered

virtually no proof that BIPI's explanation for his termination is

false. He has not presented sufficient evidence to support a jury

finding that the territory reorganization was motivated by a

discriminatory animus or that he suffered adverse disparate

treatment as a result of his age. Nor are the comments by García

and Hernández probative of discriminatory animus, without evidence

that they were involved in the decision to terminate him.

Moreover, there is no support in the record for Ramírez's claim

-35-
that BIPI fabricated the physicians' statements or obtained them

after it had decided to terminate him based on his age.

In short, the only evidence of a discriminatory motive

that Ramírez has unearthed are two comments by Díaz in early 2000

that a jury could interpret to evince animus based on age.

However, Ramírez was not terminated until more than eighteen months

after Díaz made the comments at issue, and at the time of his

termination, Ruiz, who is several years older than Ramírez, was

still employed at the company. Against this background, we

conclude that Díaz's comments, standing alone, are insufficient to

support a finding that Ramírez was terminated because of his age.

The district court was correct to grant summary judgment to BIPI on

the ADEA discrimination claim.

IV.

Ramírez challenges the court's grant of summary judgment

on his claim that he was terminated in retaliation for filing a

discrimination complaint with the Anti-Discrimination Unit of the

Puerto Rico Department of Labor (ADU). We review the court's

summary judgment ruling de novo. Gonzalez-Pina, 407 F.3d at 431.

In addition to prohibiting age discrimination, the ADEA

also protects individuals who invoke the statute's protections.

See 29 U.S.C. § 623(d) ("It shall be unlawful for an employer to

discriminate against any of his employees . . . because such

individual . . . has opposed any practice made unlawful by this

-36-
section, or . . . made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

litigation under this chapter."). Where there is no direct

evidence of retaliation, our analysis of a claim under § 623(d)

closely tracks the McDonnell Douglas framework. First, "the

plaintiff must make a prima facie showing that (i) he engaged in

ADEA-protected conduct, (ii) he was thereafter subjected to an

adverse employment action, and (iii) a causal connection existed

between the protected conduct and the adverse action." Mesnick,

950 F.2d at 827.20 If the plaintiff makes a prima facie showing of

retaliation, "the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for its employment decision."

Id. Finally, if the defendant presents such a reason, "the

ultimate burden falls on the plaintiff to show that the employer's

proffered reason is a pretext masking retaliation for the

employee's opposition to a practice cast into doubt by the ADEA."

Id. As we emphasized in Mesnick, the "critical inquiry [is]

whether the aggregate evidence of pretext and retaliatory animus

suffices to make out a jury question." Id.

20
It is not essential to a plaintiff's prima facie case that
the underlying conduct actually constitute an ADEA violation.
Rather, "[i]t is enough that the plaintiff had a reasonable, good-
faith belief that a violation occurred; that he acted on it; that
the employer knew of the plaintiff's conduct; and that the employer
lashed out in consequence of it." Mesnick, 950 F.2d at 827.

-37-
 Ramírez filed a complaint with the ADU on June 13, 2001,

asserting that he had been subjected to "a series of harassing acts

. . . due to [his] age."21 He was terminated approximately two

months later, on August 15, 2001. Accordingly, the district court

found, and BIPI has conceded, that Ramírez established the first

two elements of the prima facie showing described in Mesnick,

namely that he engaged in ADEA-protected conduct (i.e., filing a

complaint of age discrimination) and that he subsequently suffered

an adverse employment action (i.e., termination). The district

court concluded, however, that Ramírez's prima facie case faltered

on the third element, namely the existence of a causal connection

between the filing of the ADU claim and the subsequent termination.

The court found that the temporal proximity between the two events

-- two months -- was "insufficient, standing alone, to establish a

causal connection." The court further held that even assuming

arguendo that Ramírez established a prima facie case, BIPI would

still be entitled to summary judgment on the retaliation claim

because it "offered enough evidence to suggest that its decision to

fire Plaintiff was based on Plaintiff's alleged malfeasance

21
In his ADU complaint, Ramírez also alleged that he had been
"the victim of discrimination due to national origin and/or race --
Puerto Rican -- since the company provides higher salary raises and
better terms and conditions of employment . . . to its
predominantly white and North American employees in the United
States." That aspect of Ramírez's claim is not part of this suit.

-38-
. . . [and] Plaintiff has not offered any evidence to suggest that

Defendant's actions were pretextual."

On appeal, Ramírez emphasizes that although his superiors

had concerns about his conduct by January 2000, they "waited until

August 2001 to discharge him, two months after he filed a charge of

discrimination before the [ADU]." While Ramírez's superiors

speculated that he was engaging in improper "oversampling" as early

as January 2000, however, the physician statements that BIPI cites

as the basis for Ramírez's termination were not documented until

May 10, 2001. Ramírez filed his complaint with the ADU one month

later. He therefore was terminated three months after Wood

received the physician complaints and two months after engaging in

ADEA-protected activity. The fact that Wood terminated Ramírez

after he filed his ADU claim rather than before does not, standing

alone, establish a causal connection between the ADU complaint and

the termination. "[C]hronological proximity does not by itself

establish causality, particularly if '[t]he larger picture

undercuts any claim of causation.'" Wright v. CompUSA, Inc., 352

F.3d 472, 478 (1st Cir. 2003).

Ramírez's other causation argument rests on the fact that

he was terminated without notice instead of being subjected to less

severe discipline first, as he asserts would have been consistent

with company policies. As we have already discussed, however,

Ramírez's termination was not inconsistent with company policy, nor

-39-
has he provided evidence that other employees were subjected to

less severe discipline (or no discipline at all) based on similar

conduct. The fact that he was terminated, rather than merely

reprimanded, two months after filing an ADU complaint does not

establish that the termination was causally linked to the

complaint.

Nor has Ramírez offered evidence to support a finding

that BIPI's articulated reason for the termination -- i.e.,

violations of company sampling policy and the PDMA -- was a pretext

for retaliation. He has not, for example, pointed to any "comments

by the employer which intimate a retaliatory mindset" or

demonstrated that he was subjected to differential treatment after

filing the ADU complaint. Mesnick, 950 F.2d at 828.22 Ramírez does

attempt to demonstrate pretext by arguing that the physicians'

statements were inadmissible hearsay and thus BIPI has not advanced

a legitimate, non-discriminatory reason for his termination.

However, as we have already concluded, the physicians' statements

were admissible.

22
To be sure, Ramírez alleges disparate treatment in the fact
that he was terminated instead of being subjected to less severe
discipline. As we have discussed, however, Ramírez cites no
evidence to support his claim that other employees were disciplined
less severely, if at all, for similar violations. A party opposing
summary judgment "may not rest upon . . . mere allegations." Fed.
R. Civ. P. 56(e).

-40-
 In short, Ramírez has not "present[ed] evidence from

which a reasonable jury could infer that [his] employer retaliated

against him for engaging in ADEA-protected activity." Id. We

therefore conclude that the district court was correct to award

summary judgment to BIPI on the retaliation claim.

V.

For the foregoing reasons, we hold that the district

court did not abuse its discretion in handling the discovery issues

surrounding the physicians' statements or in denying Ramírez's

motion in limine to exclude Ribiero's sales report and the

physicians' statements, and that BIPI was entitled to summary

judgment on both the age discrimination and retaliation claims.23

The judgment of the district court is affirmed.

So ordered.

23
Upon granting summary judgment on the age discrimination and
retaliation claims, the district court ordered the dismissal of the
entire case. Ramírez has not appealed the resulting dismissal of
his state law claims, on which the district court did not
specifically rule.

-41-