Arroyo-Audifred v. Verizon Wireless, Inc.

United States Court of Appeals
For the First Circuit

No. 07-1661

DENNIS ARROYO-AUDIFRED; WALESKA RIVERA MONTAÑEZ;
DESIREE ARROYO-RIVERA; DENNIS ARROYO-RIVERA,

Plaintiffs, Appellants,

v.

VERIZON WIRELESS, INC.; JOSÉ RUBÉN SÁEZ, in his personal and
official capacity; John Doe, in his personal and official
capacity; INSURANCE COMPANY ABC,

Defendants, Appellees.

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

[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

Before

Lipez, Circuit Judge,

Baldock,* Senior Circuit Judge,

and Howard, Circuit Judge.

Lydia Ramos, with whom Carlo Law Offices, P.S.C., was on
brief, for appellant.
Miriam B. Toledo-David, with whom Lizette Vélez-Rivé, Bayoán
Muñiz-Calderón and Vélez-Rivé & Toledo-David, P.S.C., were on
brief, for appellees.

June 4, 2008

*
Of the Tenth Circuit, sitting by designation.
 HOWARD, Circuit Judge. In this age discrimination case,

Appellant Dennis Arroyo-Audifred ("Arroyo") appeals the district

court's grant of summary judgment to his employer, Verizon

Wireless, Inc., on his claim that he was victimized by a policy of

discrimination and was wrongfully denied several promotions.1 We

affirm.

We review the district court's summary judgment decision

de novo, Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (1st Cir.

2004), taking the record facts in the light most favorable to the

nonmoving party, and drawing all reasonable inferences in his

favor. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).

We will affirm the district court if we find that there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). We are not,

however, required to "accept as true or to deem as a disputed

material fact, each and every unsupported, subjective, conclusory

or imaginative statement" made by a party. Torrech-Hernandez v.

General Elec. Co., 519 F.3d 41, 47 (1st Cir. 2008).

1
Arroyo also named a Verizon superior, Jose Saez, as a defendant. For
purposes of this motion, we treat Saez and Verizon similarly.
Additionally, Arroyo, his wife and children asserted claims under
Puerto Rico law. These claims were dismissed without prejudice
contemporaneously with the summary judgment ruling, and are not part
of this appeal.

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 I. BACKGROUND

Arroyo was born in 1956. In 1981, he began working as a

sales representative for the Puerto Rico Telephone Company

("PRTC"). He was promoted to a supervisory position seven years

later. In 1995, he began working for PRTC's wireless telephone

division as a store supervisor. In 2001, he successfully applied

to become a sales manager in the retail sales department. Also in

2001, Verizon became the parent company of PRTC and implemented a

reorganization that eliminated some positions and created others.

One of the eliminated positions was retail sales manager, which

Arroyo and four other Verizon employees held. The reorganization

led to the creation of two district manager positions. Arroyo

applied to become a district manager in late 2002, when he was 46

years old. Although Verizon's human resources department certified

that he met the minimum requirements for the job, he was not

selected. Instead, the job went to one of Arroyo's fellow

displaced retail sales managers, Gustavo Cañas, who was then 35

years old. The other unsuccessful candidates were 36, 43 and 58

years old.

At roughly the same time, given that the reorganization

had eliminated Arroyo's old position, Verizon offered Arroyo a

newly created position of retail store manager, at the same salary

as his former job of retail sales manager. Although he considered

it a demotion, he accepted the position, as did two other former

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retail sales managers, whose ages were 36 and 50. He was allowed

to choose the store where he would work, and selected the store in

Humacao, which was near his home.

In March 2003, Arroyo applied for the position of

associate director of corporate sales. Verizon's human resources

department certified Arroyo and three other candidates as meeting

the minimum requirements for the position. Three of the four were

older than 40 years of age. Rather than hiring any of the internal

candidates, Verizon turned to a headhunter, to look for external

candidates within the wireless industry. William Cuebas was

selected from a group of 20 candidates. He was 39 years old.

Near the end of 2003, the "other" district manager

position created in the 2002 reorganization became available due to

a retirement. Arroyo applied for the job, as did three other

Verizon employees over the age of 40. Only Arroyo had the minimum

educational requirements for the job. The opening was re-posted

internally, and two additional candidates were certified by the

human resources department as meeting the minimum job requirements

-- Madeline Cuesta and Vivianette Menendez. Both were, like

Arroyo, retail store managers. Menendez was 37 years old; Cuesta

was 35. General Sales Manager Jose Saez conducted the interviews.

During Arroyo's interview, Saez said, "This position is like

stepping in a train station, sometimes the doors open and sometimes

they don't." Arroyo interpreted the comment to mean that the

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position could already be closed to him. For his part, Saez

explained that he used the analogy with all interviewees currently

employed by Verizon because he wanted them to remain focused on

their jobs while waiting for an open position. In addition, Arroyo

testified that Saez yawned during his interview, which Arroyo took

to mean that Saez found his answers boring or he didn't care for

them. Saez testified that Cuesta and Menendez were his first two

choices for the job. He noted in a written summary his opinion

that although Arroyo was a "good candidate," he "lacked

professional maturity," meaning that Arroyo did not express himself

with the necessary confidence for the job in question. After the

interviews, Saez's supervisor, Walter Forwood, asked Saez for his

top two choices, as he had a long-standing job opening and wanted

to interview them. Forwood hired Menendez as distribution channels

director. Saez then chose Cuesta for the district manager

position.

Cuesta was promoted in May 2006, and Arroyo applied for

her former district manager job. The interview process consisted

of an English test, a sales aptitude test, and a "structured

interview," wherein all candidates would be asked the same

questions by interviewers. The process is designed to be

objective, as there are specific subjects to be covered and

responses deemed acceptable. Arroyo did not pass the structured

interview. Sometime after the interview, Arroyo spoke with one of

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the interviewers, Human Resources Manager Vivian Sanabria. She

told Arroyo that he needed to improve his organizational and

planning skills. Cuesta, participating in the interview for her

old job, testified that Arroyo's answers were superficial,

incomplete and indirect. Frances Rodriguez, whose interview score

was higher than Arroyo's was chosen to be the new district manager.

Rodriguez was 52 years old at the time.

LEGAL ANALYSIS

The Age Discrimination in Employment Act, ("ADEA")

prohibits employers from taking adverse employment actions against

an employee older than 40 because of his age. Bennett v. Saint-

Gobain Corp., 507 F.3d 23, 30 (1st Cir. 2007). Where, as here,

there is no "smoking gun" evidence of discrimination, a plaintiff

can use the familiar McDonnell Douglas burden shifting framework to

meet his ultimate burden of proving that he was denied promotions

due to his age. Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 478

(1st Cir. 1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05 (1973)). Arroyo bears the initial burden of making out

a prima facie case of age discrimination. To do so, he must show:

1) he was at least 40 years old at the time of the discrimination;

2) he was qualified for the position; 3) he was denied the

promotion; and 4) Verizon filled the position with a younger person

of similar qualifications. Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992). This

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"modest showing" is sufficient to raise an inference of

discrimination. Rathbun, 361 F.3d at 71. The burden then shifts

to Verizon to articulate a legitimate, non-discriminatory reason

for its decisions. Currier v. United Techs. Corp., 393 F.3d 246,

254 (1st Cir. 2004). If Verizon does so, Arroyo must produce

evidence that Verizon’s proffered reasons are a pretext for age

discrimination. Hoffman v. Applicators Sales and Service, Inc.,

439 F.3d 9, 17 (1st Cir. 2006). "[T]he ultimate burden on the

plaintiff is to show that discrimination is the or a motivating

factor, a showing which may, but need not be, inferred, depending

on the facts, from the showing of pretext." Id. (citing Fite v.

Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000)).

Before we undertake the analysis of the summary judgment

record, we address certain subsidiary issues. Arroyo's complaint

alleged both that he was improperly denied specific promotions and

that he was victimized by Verizon's policy of discrimination that

"closed the doors" of promotion to older workers. The district

court found that the statute of limitations barred consideration of

the promotion denials in 2002 and March 2003 as specific claims of

discrimination. The court did, however, allow consideration of the

claim of a discriminatory policy if it continued after July 28,

2003. Arroyo-Audifred v. Verizon Wireless, 431 F. Supp. 2d 215,

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220 (D.P.R. 2006).2 Arroyo has not appealed this ruling, and we

therefore do not revisit it.

Next, we note that while Arroyo complied with Fed. R.

Civ. P. 56 and Local Rule 56(c) by submitting an opposing statement

of material facts in support of his objection to Verizon's summary

judgment motion, his denials of many of Verizon's asserted facts

consisted of the following statement: "Denied, as it is a matter

of veracity for the jury to assess, together with all the

circumstances in the case." The district court deemed such denials

as ineffective for the purpose of opposing summary judgment, and we

do as well. It is simply not enough to say, in effect, that the

testimony of a Verizon employee might be disbelieved by a jury.

Instead, Arroyo must offer specific facts to counter those set out

by Verizon. See, e.g., Vega, 3 F.3d at 479 (nonmovant's facts must

demonstrate the existence of definite competent evidence fortifying

plaintiff's version of the truth). This is the case even where

motive and intent are at issue. Santiago v. Cannon, 138 F.3d 1, 5

(1st Cir. 1998). Arroyo may not meet his burden by citing "an

inequity and tacking on the self-serving conclusion that the

2
The district court relied on Crowley v. L.L. Bean, Inc., 303 F.3d
387, 406 (1st Cir. 2002), which held that a plaintiff can pursue a
hostile environment sexual harassment claim in which the hostility
began outside the statute of limitations as long as some of the
unlawful conduct took place within the limitations period. We assume
without deciding that this analysis, first enunciated by the Supreme
Court in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002),
applies equally to ADEA claims involving so-called systemic claims.

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defendant was motivated by a discriminatory animus." Id. (quoting

Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)).

With respect to the specific incidents about which Arroyo

timely filed, the district court assumed, without deciding, that

Arroyo satisfied his prima facie burden. Although neither side

argues this point, we view the evidence as indisputable that, at

least with respect to the 2006 district manager position, Arroyo

failed to establish a prima facie case because Verizon did not

"fill the position with a younger person of similar

qualifications." See Mesnick, 950 F.2d at 822. As previously

noted, Verizon selected Frances Rodriguez for the job. At 52, she

was more than two years older than Arroyo. Thus, we need go no

further in analyzing this alleged incident of discrimination. See

Hershey v. Donaldson, Lufkin & Jenrette Securities Corp., 317 F.3d

16, 20 (1st Cir. 2003) (we may affirm the district court's grant of

summary judgment for any reason supported by the record.).

Arroyo's remaining specific and timely allegation is that

he was improperly denied the district manager job in the late 2003

- early 2004 time frame. Here, we have no problem concluding that

Arroyo meets his prima facie burden, as it is undisputed that he

met the minimum qualifications for the position, and that the job

went to Madeline Cuesta, 12 years Arroyo's junior. Just as easily,

we also conclude that Verizon has offered a non-discriminatory

reason for the hiring decision. Specifically, Saez, having

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concluded that Arroyo "lacked professional maturity," found the

other two candidates better suited for the position.

Arroyo asserts several reasons to support his claim that

Verizon's stated reasons were simply a pretext for discrimination.

First, he cites the fact that Saez yawned while he was interviewing

Arroyo. While we agree that such an act could make an interview

awkward, we fail to see how an involuntary yawn evinces a hidden

discriminatory animus any more than a sneeze or a cough. Arroyo

posits the subjective belief that the yawn indicated that his

answers didn't matter to Saez, as the discriminatory die had been

cast. In Arroyo's view, this is enough to create an issue of fact

sufficient to defeat summary judgment. We disagree. It is well-

settled that the court is required to draw only reasonable

inferences in plaintiff's favor. Torrech, 519 F.3d at 47.

Imputing an ulterior motive to a yawn is not such a reasonable

inference.

Nor can we find any nefarious intent behind Saez's

"train" comment. Arroyo does not dispute Saez's testimony that he

made the same or similar comments to every internal job candidate.

Instead, he offers his subjective view that the comment was a not-

so-subtle way of telling Arroyo that he had no chance for the job.

Once again, Arroyo's subjective belief as to the "real meaning" of

a somewhat ephemeral comment is not a suitable proxy for

admissible evidence.

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 Next, Arroyo argues that his human resources

"certification score," being the highest of all candidates,

constitutes evidence of discrimination. We disagree. Verizon's

Human Resources Director, Sandrelly Cordova, testified that such

scores are only for the human resources department's internal use

to ascertain that candidates have the minimum requirements for the

job, and thus may be "certified" candidates. She further testified

that the human resources department has no further role in the

selection process. Arroyo does not counter this evidence with

anything other than an assertion that Cordova's credibility is for

the jury to determine. This is insufficient to show pretext.

Santiago, 138 F.3d at 5. Arroyo must put forth some evidence that

Cordova's explanation is false. He has not done so.

Finally, as we have found that summary judgment was

appropriate with respect to the specific incidents that were timely

filed, we necessarily find that Arroyo cannot, as a matter of law,

demonstrate any continuing pattern of discrimination that extended

beyond July 28, 2003, as required by the district court's statute

of limitations ruling, which Arroyo did not appeal.

Given the record evidence, this lawsuit boils down to

Arroyo's claim that he was more qualified for jobs that went to

others. However, courts in employment discrimination cases may not

act as "super personnel departments," substituting judicial

judgments for the business judgments of employers. Bennett, 507

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F.3d at 32 (citing Mesnick, 950 F.2d at 825). Because we agree

with the district court that the record lacked evidence that

Verizon's decisions with respect to Arroyo were either pretextual

or motivated by discriminatory animus or policy, the judgment is

affirmed.

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