United States Court of Appeals
For the First Circuit
No. 07-2723
NORYS I. GARCÍA; JOSÉ E. CASTELLAR-VELÁZQUEZ;
CONJUGAL PARTNERSHIP CASTELLAR-GARCÍA,
Plaintiffs, Appellants,
v.
BRISTOL-MYERS SQUIBB COMPANY; BRISTOL-MYERS SQUIBB MANUFACTURING
COMPANY; BRISTOL-MYERS SQUIBB CARIBBEAN COMPANY; RAFAEL VÉLEZ; JANE
DOE; CONJUGAL PARTNERSHIP VÉLEZ-DOE; AMÉRICO ABADÍA; CHELSEA ROE;
CONJUGAL PARTNERSHIP ABADÍA-ROE; GLENN GERECKE; JULIA DOE;
CONJUGAL PARTNERSHIP GERECKE-DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Artemio Rivera Rivera for appellants.
Carl Schuster with whom Lourdes C. Hernández-Venegas and
Schuster Aguiló LLP were on brief for appellees.
July 23, 2008
LYNCH, Chief Judge. Norys I. García, a chemical engineer
employed for eighteen years by Bristol Myers Squibb Company in
Mayagüez, Puerto Rico, brought a Title VII suit alleging the
termination of her employment was motivated by gender
discrimination and not, as the employer said, by poor performance.
The district court entered summary judgment for the employer,
finding no reasonable jury could conclude, in the face of the
articulated reason, in plaintiff's favor. In this highly fact-
based case, we affirm the judgment.
I.
On September 15, 2005, García, along with her husband and
their conjugal partnership, brought suit under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Puerto
Rico law, against her former employer, Bristol Myers Squibb and two
of its subsidiaries (collectively "BMS"), as well as three
individuals: Rafael Vélez, Américo Abadía, and Glenn Gerecke, and
their respective wives and conjugal partnerships. Vélez and Abadía
were García's direct supervisors; Gerecke was their supervisor.
García alleged that the three men had built a case, based
on negative performance evaluations, to justify firing García and
that their real motivation was that she is a woman. García alleged
that she was subjected to "different treatment, evaluations,
disciplinary process and mechanisms" compared to the other male
project engineers. García alleged that Gerecke discriminated
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against her because he "condon[ed]" the discriminatory conduct of
the other two. García sought compensatory and punitive damages of
over $10 million as well as reinstatement to her job.
Defendants moved for summary judgment. The case was
referred to a magistrate judge, who recommended denying summary
judgment with respect to García's claim of sex discrimination. The
district court did not accept this recommendation and held that
summary judgment should be granted. García appealed. Because our
review of the grant of summary judgment is de novo, Thompson v.
Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008), we do not detail
the reasoning used by either court.
A. Factual Background
We review the record evidence, making all reasonable
inferences in plaintiff's favor. Mellen v. Trs. of Boston Univ.,
504 F.3d 21, 24 (1st Cir. 2007).
García's employment was terminated on January 24, 2005.
García then held the position of Senior Project Engineer within the
Facilities and Engineering Department. She was the only Senior
Project Engineer in the department and was responsible for the
administration of capital projects. This meant that she would work
as the leader of teams comprised of representatives from several
BMS departments and was ultimately responsible for the entirety of
each project assigned to her. Her peers in the department were
Eduardo Sánchez and Pedro Toro, who were both Project Managers, and
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Manuel Orsini, an Engineering Technician. During the time period
in question she had two different direct supervisors, Rafael Vélez
from February 2004 until her termination in January 2005 and
Américo Abadía from August 2003 to February 2004. Both had
difficulty with her work.
B. 2003 Evaluations and Vélez's Arrival
In February 2004, a year before the employment
termination, Abadía completed 2003 year-end evaluations for all of
the employees under his supervision. We consider these evaluations
by Abadía insofar as they provide relevant background.
Abadía's evaluation of García, which they both signed on
February 18, 2004, was markedly less positive than his evaluations
of others he supervised. In García's evaluation, which reflected
comments from others about García, including from female employees,
he wrote:
Norys is a hard worker but needs to
learn how to influence the organization in a
positive way to get the job done with a level
of comfort. She is good at planning but when
she encounters a pushback in the way she is
approaching the task she gets upset and is
able to accept alternate solutions with a
level of difficulty. "Her way is the best
way". . .
Norys needs to understand that be[ing]
a team player within our environment is an
important factor . . . . Professionals that
have worked with her feel uncomfortable in the
way she approaches conflicting differences.
She needs to be more proactive in modeling BMS
Core Behaviors. . . .
Another area that Norys has to address
is in the presentation skills. While she has
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the required information her presentation
lacks the required structure to make sure that
attendees can grasp the understanding of the
subject at hand. . . .
In a sworn statement, Abadía stated that his review of García was
based on his observations that "when she encountered resistance to
differing opinions or suggestions, she would have difficulty
receiving that feedback and would respond by getting upset and
reacting as such." He also noted that García had been inadequately
prepared for a presentation to the plant's Vice President and
General Manager in late 2003, which Abadía had to cancel because it
was "lacking the appropriate structure or completeness." As
discussed below, García wrote a letter on August 4, 2004,
complaining about several aspects of this evaluation, including
Abadía's reliance on the opinions of people with whom García
claimed she had not actually worked during the time period in
question.
By contrast, Abadía had far fewer concerns about other
employees in the department. His evaluations of Toro and Orsini,
García's male co-workers, were overwhelmingly positive, and his
evaluation of Sánchez expressed a few concerns but was still very
strong:
Within the 7 months that I have worked with
Eduardo he needs to be more reactive to
resolving situations that come to his hand but
also increase the level of pro-activeness to
resolve situations before they become a
problem. Eduardo has the technical talent and
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also the administrative expertise to climb to
his next performance step.
Eduardo with his knowledge and
expertise . . . can do more to increase the
level of effectiveness of this department and
for the overall organization. [He i]s
considered within our operational community to
be an[] excellent person to document [c]apital
preparation documents the correct way.
García considers Sánchez to be her male comparator.
In February 2004, Abadía was promoted to Director of
Manufacturing and was replaced as Director of Facilities and
Engineering by Rafael Vélez. Vélez had previously served as
Materials Manager and worked with García in that capacity; García
characterized that working relationship as "normal" and did not
indicate that there had been any problems between the two. Vélez
testified that he had known García since he started working at BMS
in approximately 1993.
In a sworn statement, Vélez stated that after his
appointment as Director of Facilities and Engineering, he was
informed that an internal audit had revealed deficiencies in the
carrying out and documentation of equipment qualifications. These
had been García's responsibility both as Senior Project Engineer
and before that when she was Senior Qualification Engineer. As a
result, BMS had transferred responsibility for the qualification
process away from García.
On April 23, 2004, Vélez placed a warning letter in
García's file critical of her job performance due to "inappropriate
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administrative controls." The letter stated that García had
violated several BMS internal procedures. On April 1, she had
brought to Vélez's attention the need to extend a purchase order
for an additional $30,000 to cover both a performance qualification
for four lyophilizers and the process qualification for an external
vial washer. On April 16, Vélez had learned that the qualification
of the external washer had in fact been awarded as part of a
previous change order, and also that three prior changes, all of
which had included the lyophilizers, had also been made against the
purchase order. As a result of all these changes, the original
contract had increased from $20,000 to $88,950. Vélez's letter
constituted an official warning, and cautioned García "to take
immediate corrective action to prevent this situation from
recurring and to exercise sound judgment when administering
contract, terms and conditions set forth in Company internal
controls." From Vélez's point of view, García's performance did
not improve. García claims that she was not aware of the April
2004 warning letter until her deposition in this case, but she does
not dispute the existence of the underlying cost overrun.
C. García's Placement on a Performance Improvement Plan
On June 15, 2004, Vélez decided to place García on a
ninety-day Performance Improvement Plan ("PIP"). Vélez stated that
he decided to place García on the PIP because he "felt that García
had not improved in the areas indicated by Abadía in his
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evaluation, as well as in several additional areas that I had
noticed from my own experience and observations of her performance
during the months in which she had been under my supervision." For
instance, he noted that he had "received negative comments from
several persons involved in projects handled by García," including
Humberto Cardona, Manufacturing Manager, Victor Mojica,
Manufacturing Supervisor, and Frances Montes, Technical Services
Scientist.
The PIP included a numbered list of García's "corrective
action steps and job commitments," and stated these would be
assessed at progress review meetings. These steps included, for
instance: "Meet with project team members at least twice a month.
Provide meeting minutes and next steps to team members." "Complete
project within Budget. Provide monthly hour reconciliation per
projects executed." The PIP also included a Job Development Plan
which set out what García's immediate supervisor would do to assist
her, what assistance García would need from other people or
departments, what García could do to meet her commitments, and what
she should accomplish during the probationary period.
Vélez met with García to discuss the PIP on July 12, and
that same day she signed a form indicating that the PIP "has been
reviewed and accepted for implementation." On August 4, García
prepared a document for her human resources file expressing her
reservations about the PIP. First, García complained that the PIP
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was issued as a result of her 2003 assessment, to which she had
objections. She documented those objections in a second document
also dated August 4. Second, García noted that the 2003 assessment
was based on the opinions of two women, María Pérez and Vanessa
Colón, with whom García claimed she had never interacted during the
period under review. Next, García asserted that she had asked
Vélez to seek feedback on her 2003 performance from others who had
worked with her, but he had indicated that he could not act upon
the 2003 assessment. García also complained that the PIP addressed
project administration skills that were not mentioned as areas of
concern in the 2003 assessment: "It addresses Communication,
Leadership and Alignment aspects different from the ones described
in the performance appraisal. Rafael Vélez explained that the
Performance Improvement Plan has to follow this format by procedure
and cannot be changed." García's final objection to the PIP was
that "[t]raining dates are not established to allow for proper
planning."
As noted above, in a separate document for her human
resources file also dated August 4, García objected to her 2003
assessment, which she had signed several months earlier on February
18. She now complained that "[g]eneral statements were used to
support the summary of performance and capabilities section." She
also objected that Abadía never provided direct feedback on
presentation skills other than suggesting that visual aids should
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include all the information to be discussed, which was a contrast
from the previous director's preferences. García summarized the
work she had done on various projects, requested a re-evaluation,
and asked for a larger merit increase in pay.
D. Progress Reports
While García was on the PIP, she and Vélez met about four
times to discuss her progress in meeting its goals.
García's first PIP progress report was dated August 9,
2004, less than a month after her first meeting with Vélez.
According to this review, García was showing progress: she had
issued minutes for three pending projects, submitted "Time and
Events" updates for four projects, participated in the weekly
safety meeting, and was applying the "stage gate" planning process
required by the company. García's second review, on September 13,
was not quite as rosy. It set forth several areas in which she had
not met requirements, but also noted that García had acknowledged
the situation and that she had explained that her absence had been
due to a death in her family.
In early October 2004, García's mid-year review for the
first part (January through approximately June) of 2004 was
completed. On this evaluation, done by Vélez, García received a
rating of "Meets Expectations" in each of the seven categories
being assessed: "Leads Strategically," "Builds Alignment,"
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"Communicates Directly," "Drives Performance," "Collaborates,"
"Energizes Others," and "Develops People."
Vélez testified that this mid-year evaluation is
initially a self-assessment; García had assessed herself in some
categories as "Exceeding Expectations" and he lowered that to
"Meets Expectations." Vélez stated that at the time he and García
met to discuss this mid-year evaluation, she was doing well on her
PIP and he allowed the mid-year evaluation to reflect that: "During
the first months of the PIP period, I noticed that García had shown
some improvement on several areas set forth in the plan, as
evidence[d] in her October 18, 2004 follow-up PIP Form. Therefore,
in her mid-year evaluation of October, 2004, I rated her overall as
'meeting expectations'."
A third PIP assessment dated October 18, 2004, documented
that García had submitted project progress reports, meeting minutes
and updates, and "Times and Events" updates on active projects.
However, it also stated that García was not consistent with respect
to her participation in site safety audits, completing only two of
four, and she attended only two of five weekly safety meetings. She
also had struggled with the stage gate process for two of her
projects, but the assessment noted that "[a]fter several coaching
sessions . . . progress is be[ing] made towards using the process."
The assessment also noted that García had been "coach[ed] to align
expectations and close communication loops with customers to avoid
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confusions"; that she had "demonstrated the capacity to reach for
consensus on requirements"; and that she had received very strong
feedback from her project team. Specific requirements were laid
out for the two projects for which she had not followed the stage
gate process to assist her in meeting expectations.
On November 5, 2004, Vélez and Vanessa Colón from the
Human Resources Department met with García and informed her that
Vélez had decided to extend her PIP until December 15. A PIP
extension memorandum, written by Vélez, noted that García had made
progress in her communication with others but needed to demonstrate
consistency. As for leadership, she needed to improve on her
planning and time management skills and provide more detailed
engineering work and alternate plans. With respect to alignment,
she had "demonstrated the capability to work on a team environment
and approach issue resolution in a consensus with the team," but
needed to demonstrate consistency. The memorandum stated that
García was to resubmit documents regarding two of the projects
under her control to management by December 15.
Vélez and García did not meet to discuss her performance
after November 5; Vélez said that this was because the time period
between November 5 and the end of the PIP extension on December 15
was relatively short.
Vélez's final PIP review for García, dated December 30,
2004, covered her performance in November and December and was
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markedly negative. It noted that although García submitted project
progress reports for November and December for several projects,
she was "not able to handle the pressure triggered by unfavorable
and controversial issues. She presents an attitude of labeling .
. . questions coming from stakeholders as personal threats and acts
of hostile behavior make[] it very difficult to communicate with
her."
The review also noted that García did not submit meeting
minutes and updates on active projects during November and
December, nor did she provide evidence of formal meetings with team
members on active projects.
Although García submitted "Time and Events" updates
during November and December, there was no evidence that García had
met with or discussed these updates with the local team, as
required. On December 8, she had sent Sánchez an email, without
any previous discussion of the subject, stating that a project that
had been under her control since June 2004 could not be executed
because the equipment purchased was incorrect. The review also
noted she was inconsistent in her participation in safety audits,
attending only two of four, and she had attended only four out of
twelve weekly safety meetings between October and December.
Additionally, the review noted that García demonstrated no progress
with the stage gate process during this time period and did not
meet project milestones for several projects. She failed to
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deliver the project documentations that had been due to management
on December 15.
Moreover, the review noted several specific instances
that "clearly demonstrate [García's] lack of consistent performance
when handling projects." For instance, an October 29 communication
from García to a supplier stated the terms and conditions for the
transfer and storage of a tablet press about which she had not
consulted her direct supervisor, a situation which "demonstrates
her unilateral approach to implementing decisions without
consultation to her one-over manager . . . that compromises basic
company procedures and put[s] at stake the company['s] business
relationship with suppliers." On November 12, García had written
an email to a sourcing expert telling the expert to proceed with a
purchase order for service, again without the authorization of her
direct supervisor, and a "meeting was set immediately with
purchasing to clarify the engineering role and the purchasing role
in this negotiation." The review also noted that García had
attended two training sessions, one on working with teams and one
on BMS Core Behaviors, but she had refused to participate in a
project management training because she felt that "it was too basic
for her."
E. Decision To Terminate García's Employment
Vélez made the decision to terminate García's employment
on December 15, at the expiration of her second PIP. He
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communicated this decision to Beatriz Sanabria, BMS's Human
Resources Director, who instructed him to put together the
necessary documentation. In a sworn statement, Sanabria stated
that she began the termination process, which involved gathering
the necessary documents and consulting with BMS's corporate legal
department in New York, in response to Vélez's request. However,
the process was delayed for several weeks and it was not until late
January 2005 that she received final confirmation of the
termination process as well as the documents necessary to offer
García a severance package. On January 24, 2005, Sanabria and
Vélez met with García to inform her of the termination decision and
provide her with copies of her final PIP progress report and 2004
year-end evaluation.
Meanwhile, García went on vacation on December 17, 2004,
and did not return until December 23. The circumstances
surrounding her vacation are in dispute. Vélez claims that he ran
into García several times on December 17 and she never inquired
about a vacation request, and he had no knowledge that she had
requested any specific vacation time. He had received only a
December 8 inquiry from her regarding the payment of excess accrued
vacation. García, on the other hand, claims that she made multiple
efforts to contact Vélez about her desire to take vacation days so
that they would not be lost at the end of the year, but received no
response. The dispute is simply not material. At oral argument,
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both parties agreed that García's vacation took place after Vélez
had made the decision to terminate her, and thus her allegedly
unauthorized use of vacation days should not be considered as a
factor in the decision to fire her.
When García returned to work on December 23, Vélez gave
her a written warning about her allegedly unauthorized use of
vacation time. Apparently in response, on December 27, García
filed a complaint with BMS's Department of Human Resources alleging
that Vélez had discriminated against her on account of her sex.
This was the very first time she raised the issue of gender-based
discrimination.1 Sanabria stated that she immediately conducted an
investigation and that she "concluded that García's claims were
based on her dissatisfaction with legitimate employment
expectations from her supervisor, and not on sexual
discrimination."
García's year-end evaluation for 2004, which Vélez signed
on January 24, 2005, was negative. García received a "Needs
Improvement" rating in each of the seven categories. Vélez's
1
There is no copy of the complaint in the record so there
is no information about the scope of the complaint. The record
does contain a letter from García to Vélez, dated December 27,
2004, complaining that she had difficulty reaching Vélez and was
not given "quality time" with him. The letter makes no mention of
sexual discrimination per se but concludes: "The managerial
practices toward employees in this Department are not uniform:
there is a high degree of flexibility with the other employees
(even when they fail); I have to struggle for my rights." It is
not clear whether this is the "complaint" in question.
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criticisms repeated and were consistent with those made in García's
final PIP progress report, such as that she had trouble working
well with others, reacted negatively to feedback, and blamed others
when problems arose.
After García was fired, BMS was delayed in moving
forward with two of the projects that she had been managing because
they had difficulty finding "a person with the right set of
skills." In early 2006, BMS hired Ángel González, a male, to
replace García as Senior Project Engineer.
F. Performance of Sánchez, a Claimed Comparison Employee
Vélez also completed an undated 2004 mid-year evaluation
for Eduardo Sánchez. We assume, in García's favor, it was in the
same time period as plaintiff's evaluation. In this evaluation,
Sánchez was rated as "Meets Expectations" in six categories and as
"Needs Improvement" in one ("Drives Performance"). The
accompanying text made one criticism, that Sánchez failed to
"consistently meet deadlines, commitments or objectives," although
it also noted that Sánchez met other goals within the category of
"Drives Performance," such as staying focused on objectives when
competing priorities arose.
At some point after García's departure, BMS placed
Sánchez on a PIP, a decision in which Vélez participated.
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II.
We review a district court's grant of summary judgment de
novo. Thompson, 522 F.3d at 175. "Summary judgment is appropriate
when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law" based on
the record before the court. Id.
In the district court there was a great deal of attention
to whether plaintiff had made out a prima facie case.2 We will
assume that García has made out a prima facie case in order to move
on to the real issues in the case. See, e.g., Fennell v. First
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) ("On summary
judgment, the need to order the presentation of proof is largely
obviated, and a court may often dispense with strict attention to
the burden-shifting framework, focusing instead on whether the
evidence as a whole is sufficient to make out a jury question as to
2
Under the framework articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff
who lacks direct evidence of discrimination establishes a
presumption of gender discrimination by establishing that she is a
member of a protected class; that an adverse employment action was
taken against her; that she was otherwise qualified; and that her
position remained open or was filled by a person with
qualifications similar to hers. See id. at 802; see also Douglas
v. J.C. Penney Co., Inc., 474 F.3d 10, 13-14 (1st Cir. 2007). Once
a plaintiff makes out a prima facie case, the burden of production
shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the dismissal; the plaintiff must then
show that the defendant's articulated reason is pretextual and that
the defendant's action was in fact motivated by prohibited
discrimination. Douglas, 474 F.3d at 14; Straughn v. Delta Air
Lines, Inc., 250 F.3d 23, 33-34 (1st Cir. 2001).
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pretext and discriminatory animus."); see also Kosereis v. Rhode
Island, 331 F.3d 207, 213 (1st Cir. 2003) ("[I]n disparate
treatment cases, comparative evidence is to be treated as part of
the pretext analysis, and not as part of the plaintiff's prima
facie case . . . ."). BMS has identified a legitimate, non-
discriminatory reason for firing García: her deficient performance.
See Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st
Cir. 2007) (defendant employer stated a legitimate reason for
firing employee because of her failure to follow instructions
regarding a presentation to superiors). Thus we focus on whether
García has provided sufficient evidence to demonstrate that this
explanation is a pretext and that a motivating factor for her
termination was her gender. "At summary judgment, this question
reduces to whether or not the plaintiff has adduced minimally
sufficient evidence to permit a reasonable factfinder to conclude
that [she] was fired because of [her gender]." Dávila v.
Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 16 (1st
Cir. 2007).
García has presented two major themes of differential
treatment based on gender. The first is that her "Meets
Expectations" assessment of October 2004 is inconsistent with
Vélez's decision to place her on a PIP and ultimately to terminate
her employment on December 15, 2004. That inconsistency raises
suspicions, she asserts, that the explanation that her performance
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was inadequate was not true. She argues that the more likely
reason was Vélez's hostility to her as one of the few female
engineers at the company. She also explains her being placed on a
PIP as discriminatory given that her prior evaluations by
supervisors before Abadía and Vélez did not lead to her losing her
job.
The second theory is that male employees who had
performance problems, notably Sánchez, were not placed on PIPs and
their employment was not terminated. Her sub-theme is that the PIP
she was placed on was impossible for her to meet and that no male
was given such onerous projects. We start with this second theory.
A. Male Comparators
A plaintiff can demonstrate that an employer's stated
reasons are pretextual "in any number of ways," including by
producing evidence that plaintiff was treated differently from
similarly situated employees. Kosereis, 331 F.3d at 214. "To
successfully allege disparate treatment, a plaintiff must show
'that others similarly situated to [her] in all relevant respects
were treated differently by the employer.'" Id. (quoting Conward
v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)). The
comparison cases "need not be perfect replicas," but they must
"closely resemble one another in respect to relevant facts and
circumstances." Conward, 171 F.3d at 20.
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García makes several arguments as to how she was treated
differently from her male peers. Most prominently, she points to
the disparity between Sánchez's 2004 mid-year evaluation and her
own and claims that because she received ratings of "Meets
Expectations" in all categories whereas Sánchez received one rating
of "Needs Improvement," it was he, and not she, who should have
been placed on a PIP.
García's argument, however, ignores the timeline of
events. When Vélez made the decision to place her on a PIP in June
2004, she and Sánchez were by no means similarly situated. She had
received a far more negative 2003 year-end assessment from Abadía
than Sánchez had. Additionally, Vélez had been informed about
problems with García's oversight of equipment qualifications which
had required transferring that responsibility to a different
department, and he had issued García a warning in April for her
failure to follow internal protocols. García's mid-year evaluation
was not completed until October, several months after Vélez decided
to place her on a PIP, and he stated that he gave García relatively
good ratings on this mid-year evaluation because she had been
demonstrating improvement since being placed on the PIP. García
has not rebutted any of these facts.3
3
Even if it is true that García had not seen the April
2004 warning letter, the important aspect of this warning is not
whether García saw it but that it demonstrates problems in her
behavior about which Vélez was concerned. García does not dispute
that there were significant cost overruns in a project she was
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García also claims that she was treated differently
because she was assigned more difficult projects than her peers
while she was on the PIP; because Vélez made it more difficult for
her than for her male co-workers to communicate with him; because
she was not allowed to attend a training on the stage gate process;
and because Sánchez was not disciplined for purchasing incorrect
equipment. None of these allegations are supported by the record.
García argues that "[a]bout the same time [she was] put
on probation through her PIP, Vélez assigned García various old
projects that had been previously assigned to other project
engineers and that nobody had been able to finalize." BMS contests
this allegation, but even assuming that it is true, García has not
demonstrated that she was treated differently from similarly
situated male peers. For one thing, she was the only person with
the title of Senior Project Engineer and she had different job
responsibilities from the others in her department. Moreover, she
has not provided any evidence regarding men at BMS who were placed
on PIPs and whether they were also assigned old projects.
As for Vélez's communication with García, she claims that
she had trouble getting in touch with him, in particular with
respect to her request regarding vacation days in December. Even
if we credit García's version of the facts, which defendants
contest, her only evidence that similarly situated men were treated
managing, which were the subject of the warning.
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differently consists of the following exchange from Sánchez's
deposition:
Q: Have you ever had a problem reaching
Mr. Vélez, or having him . . . answer your
calls?
A: If he's available, he will return my
call; if he's not available, there have been
times in which I have called him and he has
not been able to call me back.
Q: But is it the norm that it is
difficult for you to get a hold of him . .
.[?]
A: No, no, the time that I have called
him, if he's available, he would return my
call at that time or later on.
This exchange does not indicate that Sánchez never had trouble
reaching Vélez; on the contrary, it indicates that Vélez sometimes
was not able to call Sánchez back, at least not immediately. This
testimony hardly shows that Vélez communicated better with male
employees than he did with García.
As for the stage gate process training, García alleges
that everyone else in the department went to the off-site training
but Vélez asked her to stay at the plant to assist with an audit.
After they returned, Vélez and Sánchez filled García in and gave
her notes to review. García has not shown that it was not
necessary for her to stay at the plant and assist with the audit,
nor has she rebutted defendants' contention that she did not need
to attend the training because she had already attended the same
training the previous year.
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García also claims that Sánchez purchased the wrong
equipment while working on a project she was managing. At
deposition, she asserted that she, as the project manager, was
given a warning because she made mistakes regarding installation
and communicating with the financial department, but he was not
given a warning for purchasing the wrong equipment.4 García
provides no evidence to support this allegation, but even assuming
that it is true, García and Sánchez were not in the same position.
García was directly responsible for the entire project and made
different mistakes than Sánchez did.5
4
García's testimony is not entirely clear, but it appears
that this warning was not the same one that Vélez gave her in April
2004, and instead this warning was given to her sometime in
November 2004. The record does not contain a copy of this warning
or any other references to it.
5
In an unsworn statement on December 7, 2006, García
alleged that a project under Pedro Toro's control was a "complete
failure" in several respects, and she also made additional
allegations about Sánchez's purchasing incorrect equipment. This
should not have been considered in the district court for a number
of reasons: it is not competent evidence and it is inconsistent
with her deposition testimony and that discrepancy has not been
explained. Additionally, her counsel has now disavowed reliance on
it.
This unsworn statement came in response to defendants'
motion for summary judgment. It contained several allegations that
were not in the original complaint nor made during García's
deposition. Defendants urge us to ignore this unsworn affidavit as
a "sham" because it contradicts García's deposition testimony.
When questioned about the affidavit at oral argument, plaintiff
stated that she was not relying on it but rather on the documents
in the record.
A court is "not obliged to accept as true or to deem as
a disputed material fact[] each and every unsupported, subjective,
conclusory, or imaginative statement made to the Court by a party."
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir.
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Thus, as in Kosereis, "all of the instances of disparate
treatment cited by [García] . . . are either unsupported by the
record or are distinguishable in important respects from the facts
and circumstances that [García] faced." Kosereis, 331 F.3d at 216.
B. Theory That Employer Was Inconsistent
As to plaintiff's first theory, that too is not supported
by the evidence. The record contains no direct evidence of gender
bias by Vélez -- no offensive statements or smoking guns.6 The
seeming inconsistency between the October performance evaluation
and the December 15 termination decision disappears when seen in
context. Even before Vélez was promoted to be her supervisor,
García's former supervisor found problems with her work. Those
problems were consistent in kind with the problems Vélez found in
his evaluation of her work. Vélez also had other sources of
information confirming García's performance problems, such as the
internal audit reports and complaints from other employees. García
has not demonstrated that there are "'weaknesses, implausibilities,
2008). Here García made new allegations in an unsworn affidavit
after stating at deposition that she had put forth every incident
of disparate treatment she knew of, and then she disavowed reliance
on the affidavit before this court. We thus do not credit
allegations made in García's unsworn affidavit that are not
otherwise supported by the record.
6
In her unsworn statement, García alleged that Vélez told
her that she could not attend the stage gate training because she
was to stay at the plant working with the FDA on an audit and that
"women stay at home." Again, we do not credit allegations in the
unsworn statement that are not otherwise supported by the record.
-25-
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons' such that a factfinder could 'infer
that the employer did not act for the asserted non-discriminatory
reasons.'" Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 56 (1st Cir. 2000) (quoting Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 168 (1st Cir. 1998)). The record more than
adequately demonstrates García's poor work performance and the
deterioration of her performance over the course of her PIP, which
she essentially does not dispute.7 Similarly, the record does not
provide any support for the proposition that the evaluation process
itself was tainted by gender bias. See Thomas v. Eastman Kodak
Co., 183 F.3d 38, 64-65 (1st Cir. 1999).
At most García questions whether her performance problems
should have led to the termination of her employment. But even if
that were questionable, there is absolutely no evidence that
Vélez's decision was motivated by gender bias. Indeed, the
inferences run against García. If Vélez truly were determined to
see a woman in her position fail, it is unlikely he would have
7
García put into the record two generally positive
evaluations from members of a project team she led which are dated
October 11 and 13, 2004. These evaluations are consistent with
Vélez's relatively upbeat October 18, 2004 PIP progress report.
García also put into the record a handful of emails containing
various updates and meeting minutes she had sent in July, August,
November, and December, but these were acknowledged in her PIP
progress reports. Indeed, García does not challenge the accuracy
of these reports' assessment of the specific performance benchmarks
set forth in the PIP.
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noted the short-term improvements in her PIP performance or
extended her PIP to give her more time to meet expectations.
Moreover, both Abadía and Vélez have promoted several women during
their tenures at BMS. In his sworn statement, Abadía identified
five women he hired or promoted to professional or managerial
positions within the company, and Vélez identified two.
III.
García has not provided sufficient evidence showing that
defendants' explanation for firing her was a pretext and the real
reason was discrimination to reach a jury. We affirm the district
court's grant of summary judgment for defendants.
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