Velez v. Thermo King De Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 08-1320

JOSÉ VÉLEZ,

Plaintiff, Appellant,

v.

THERMO KING DE PUERTO RICO, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Leval,* and Lipez, Circuit Judges.

Carlos M. Vergne-Vargas for appellant.
Edwin J. Seda-Fernández, with whom Mariel Y. Haack was on
brief, for appellee.

October 16, 2009

*
Of the Second Circuit, sitting by designation
 LIPEZ, Circuit Judge. Plaintiff José Vélez appeals from

a grant of summary judgment for his former employer, Thermo King de

Puerto Rico, on his claims of age discrimination in violation of

the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"),

Puerto Rico Act No. 80, P.R. Laws Ann. tit. 29, § 185a ("Law 80"),

and Puerto Rico Act No. 100, P.R. Laws. Ann. tit. 29, § 146 ("Law

100"). After careful review of the record, we vacate the entry of

summary judgment and remand the case for further proceedings.

I.

We recite the background facts of this case and the

underlying sequence of events that provide the context for this

dispute. Subsequently, we discuss in more detail the facts

necessary for our disposition of this appeal. Because this is an

appeal from the entry of summary judgment, we recite the facts in

the light most favorable to the non-moving party, the plaintiff

Vélez. Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 219

(1st Cir. 2007).

Vélez worked for Thermo King from 1978 to 2002, when he

was fired at the age of 56. At the time of his discharge, his

position at the company was "Tool Crib Attendant," and he had been

in that role for approximately eight years. As Tool Crib

Attendant, he was in charge of maintaining, dispatching, and

safeguarding the company's tools and maintenance materials, as well

as preparing purchase requisitions for new tools and materials.

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Until shortly before his dismissal, his employment record with

Thermo King was unblemished.

In September 2002, Vélez arrived at work to discover that

the padlock securing an expensive chipping hammer had been broken

and the hammer, which was worth over $1,000, was missing. He

immediately reported the incident to management. Instead of

reporting the theft to authorities, Thermo King hired private

investigators to conduct an internal investigation into the

disappearance of the chipping hammer as well as other

irregularities with respect to its tools and materials. The

internal investigation uncovered allegations that Vélez had stolen

company property and sold it for his own profit.

Thermo King introduced into the summary judgment record

an affidavit of its Human Resources Director, Steve Soto,1 and

internal records of the investigation and employee interviews.

According to Thermo King, employee Alfredo Trinidad reported having

paid Vélez $80 for four gallons of gray floor paint that were the

1
Plaintiff claims that the district court abused its
discretion in admitting Soto's affidavit into the summary judgment
record because Soto had no personal knowledge of the events that
were the subject of the investigation and that the affidavit is
therefore based on inadmissible hearsay, in violation of Fed. R.
Civ. P. 56(e). This objection misses the mark. Soto's affidavit
about the results of the investigation was not admitted to show the
truth of those results, but because (according to Thermo King)
those results explain Thermo King's motivation to fire Vélez. As
we will explain, the relevant question in this case is not whether
Thermo King was correct that Vélez had violated rules, but whether
that perceived violation was the reason it fired him. Thus, there
was no abuse of discretion in admitting the affidavit.

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property of Thermo King. Trinidad also admitted to facilitating

the sale of four additional gallons of the floor paint to another

employee, Blanca Figueroa-Díaz ("Figueroa"). He reported paying

Vélez another $80 on Figueroa's behalf and arranging for the paint

to be delivered to her home. Trinidad further reported purchasing

from Vélez a Leatherman knife, which he believed to be the property

of Thermo King and for which he paid $20, and said that Vélez had

offered to sell him a paint spray gun for another $80 but that he

had refused the offer. Trinidad also admitted to stealing an

impact gun, soldering rods, an adjustable wrench, and other

lightweight tools from Thermo King, and reported that another

employee, Raúl Rivera, had also stolen tools. Other employees

reported during the investigation that Trinidad had stolen several

drills and other tools from Thermo King.

Investigators also spoke with Figueroa, who confirmed

that she had bought four cans of paint from the plaintiff through

Trinidad and that she had known that the paint was the property of

Thermo King. Another employee, Víctor Quiles-Miranda ("Quiles"),

told the investigators that Vélez had told him that he had a deal

with a Thermo King supplier whereby the supplier would provide

Vélez with Leatherman knives to sell in exchange for 50% of the

sales revenue. Quiles also admitted to the investigators that he

had stolen several tools, including screwdrivers, a roll of two-

sided tape, pressure pliers, a crescent wrench, and a pipe wrench,

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and that when he was "in charge of the tool warehouse" he had

"dispatched tools to several co-workers . . . without them bringing

in dispatch orders, aware that they were asking for them for their

own personal use and not for Thermo King."

Vélez was interviewed last. He was asked whether he had

ever taken and sold company property, specifically paint and

Leatherman brand knives, for his own benefit. He denied doing so,

although he admitted having received low-value items, such as caps,

small knives, and pencils, from suppliers who left them in his

guard station as gifts. He also admitted to occasionally selling

the small, supplier-gifted knives to coworkers. About two weeks

before his termination, Vélez met with Thermo King's human

resources director, Steve Soto. During that interview, Vélez again

admitted receiving gifts, such as "simple" knives, from suppliers,

but denied receiving more expensive gifts such as Leatherman

knives.

Vélez was terminated on November 11, 2002. At the time,

Thermo King did not give him a reason for his termination. After

his dismissal, Vélez timely filed a complaint of employment

discrimination with the Puerto Rico Department of Labor's Anti-

Discrimination Unit ("ADU") and the Equal Employment Opportunity

Commission ("EEOC"). On December 20, 2002, Soto reported to the

ADU that Vélez had been terminated because he had accepted gifts

from Thermo King suppliers. On September 23, 2003, after a

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statutorily-required sixty-day period had passed and the parties

were not able to come to a resolution, see 29 U.S.C. § 626(d)(1),

the EEOC issued a right-to-sue letter.

Vélez initiated this suit against Thermo King on December

3, 2003, alleging violations of the ADEA and Puerto Rico Laws 80

and 100, and seeking injunctive relief, back pay, double

compensatory damages, and liquidated damages. Thermo King

responded to the suit by stating that it had fired Vélez because he

had "received gifts, favors, services, gratuities, and products

from Thermo King's suppliers and vendors without authorization of

Defendant and in clear violation of a Company policy." Further, it

stated for the first time that Vélez was fired because he had "sold

Thermo King's property to other employees and admitted to Thermo

King that he sold items received from vendors and suppliers."

On September 29, 2005, the district court adopted the

report and recommendation of a magistrate judge and granted Thermo

King's motion for summary judgment on all claims. We reversed that

decision on the ground that the district court had failed to

consider de novo, as it was required to do under 28 U.S.C. §

636(b)(1), the portions of the magistrate judge's report and

recommendation to which Vélez had specifically objected. Vélez-

Padro v. Thermo King de P.R., Inc., 465 F.3d 31, 32-33 (1st Cir.

2006). On remand the district court reviewed de novo the objected-

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to portions of the report and recommendation and again granted

summary judgment on January 3, 2008. This appeal followed.

II.

Summary judgment is properly granted where "the

pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). We review the grant of summary

judgment de novo. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d

40, 42 (1st Cir. 2002). In so doing, we "draw all reasonable

inferences from the facts in plaintiff's favor." Id.

A. The ADEA and McDonnell Douglas

The ADEA makes it unlawful for an employer "to fail or

refuse to hire or 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). As the

Supreme Court recently clarified, plaintiffs must "establish that

age was the 'but-for' cause of the employer's adverse action."

Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009). As

with other kinds of employment discrimination cases, however, ADEA

plaintiffs rarely possess "smoking gun" evidence to prove their

employers' discriminatory motivations. Arroyo-Audifred v. Verizon

Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008). "There will

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seldom be 'eyewitness' testimony as to the employer's mental

processes." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983). ADEA plaintiffs who do not have "smoking gun"

evidence may nonetheless prove their cases by using the three stage

burden-shifting framework set forth by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2

The first stage of the McDonnell Douglas framework

requires a plaintiff to establish a prima facie case of employment

discrimination. Id. at 802. In the context of an ADEA claim for

discriminatory firing, this requires a plaintiff to show that:

1) he was at least 40 years old at the time he was fired; 2) he was

qualified for the position he had held; 3) he was fired, and 4) the

2
In Gross, the Supreme Court noted that it "has not
definitively decided whether the evidentiary framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized in Title VII
cases is appropriate in the ADEA context." Gross, 129 S.Ct. at
2349 n.2; see also Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000) (assuming arguendo that the McDonnell Douglas
framework applies to an ADEA claim, and applying it to such a
claim, "[b]ecause the parties do not dispute the issue."). This
circuit, however, has long applied the McDonnell Douglas framework
to ADEA cases. See, e.g., Arroyo-Audifred, 527 F.3d at 218;
Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir.
2008); Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir.
1995); Loeb v. Textron, 600 F.2d 1003, 1010 (1st Cir. 1979) ("We
conclude that the operative principles behind McDonnell Douglas are
applicable in age cases as in Title VII cases . . . ."). Other
circuits also apply the framework in the ADEA context. See, e.g.,
Martino v. MCI Commc'n. Servs., Inc., No. 08-2405, 2009 WL 2224914
at *3 (7th Cir. Jul. 28, 2009); Smith v. Medpointe Healthcare,
Inc., No. 07-1753, 2009 WL 2055104 at *3 (3d Cir. Jul. 16, 2009)
(unpublished); Oliver v. Federated Mut. Ins. Co., No. 08-5416, 2009
WL 2031863 at * 1 (6th Cir. Jul. 15, 2009) (unpublished). Until
told otherwise by the Supreme Court, we shall continue to do so.

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employer subsequently filled the position, demonstrating a

continuing need for the plaintiff's services. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Arroyo-Audifred,

527 F.3d at 219. We have described this prima facie showing as

"modest," Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir.

2004), and a "low standard," Zapata-Matos, 277 F.3d at 44.

A plaintiff who makes the prima facie showing is entitled

to a presumption of age-based discrimination. The burden of

production then shifts to the employer "to articulate a legitimate,

non-discriminatory reason for its decisions." Arroyo-Audifred, 527

F.3d at 219.3 If the employer articulates such a reason, "the

McDonnell Douglas framework -- with its presumptions and burdens --

is no longer relevant." St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 510 (1993). At this stage, "the sole remaining issue [is]

3
As the Supreme Court has explained:

Under the McDonnell Douglas scheme, establishment of the
prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee.
To establish a "presumption" is to say that a finding of
the predicate fact (here, the prima facie case) produces
"a required conclusion in the absence of explanation"
(here, the finding of unlawful discrimination). 1 D.
Louisell & C. Mueller, Federal Evidence § 67, p. 536
(1977). Thus, the McDonnell Douglas presumption places
upon the defendant the burden of producing an explanation
to rebut the prima facie case -- i.e., the burden of
producing evidence that the adverse employment actions
were taken for a legitimate, nondiscriminatory reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993) (some
internal quotation marks and citations omitted).

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discrimination vel non." Id. (quotation marks and citation

omitted). A plaintiff "must be afforded the 'opportunity to prove

by a preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a

pretext for discrimination.'" Reeves, 530 U.S. at 143 (quoting

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Ultimately, the plaintiff's burden is to prove "that age was the

'but-for' cause of the employer's adverse action." Gross, 129 S.

Ct. at 2351.

The district court concluded that Vélez could not raise

a genuine issue of material fact over whether Thermo King's stated

reasons for firing him were a pretext for age discrimination, and

that it was therefore unnecessary to decide definitively whether he

had established a prima facie case. As we discuss in more detail

below, we disagree with the district court's conclusion on the

showing of age discrimination. To demonstrate the full basis for

our disagreement, we will set forth our analysis of the elements of

the prima facie case, the genuine issues of material fact relating

to the defendant's stated reason for firing the plaintiff, and why

we conclude that the court's entry of summary judgment for the

defendant must be vacated.

B. The Prima Facie Case

As the district court noted, Vélez is a person who is

over forty years old and who was fired by his employer. He

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therefore satisfies the first and third prongs of the prima facie

case, leaving for discussion the second and fourth prongs.

1. Prima facie prong two: Vélez's qualification for the
position of Tool Crib Attendant

Although the district court accepted "for the sake of

argument" that Vélez had established a prima facie case, the court

noted its agreement with the magistrate judge that Vélez failed to

establish that he was qualified for the job for two reasons:

1) Vélez had only established that he had performed satisfactorily

in his own eyes, not in the estimation of Thermo King, and 2) Vélez

did not disprove the honesty of Thermo King's position and belief

that his actions fatally impaired its confidence in his ability to

comply with the Code of Conduct. Both conclusions of the

magistrate judge and the district court judge were faulty.

First, the plaintiff relied on far more than his own

perceptions in making his prima facie showing that he was qualified

for the job. Plaintiff pointed specifically to his long record of

employment at Thermo King, a twenty-four year period without

discipline or indications of deficient performance, and his

promotion to Tool Crib Attendant and eight successful years at that

job. These are facts of record. They are not simply plaintiff's

own perception that he was qualified for the job.

Second, by concluding that Vélez was not qualified

because he had not disproved the honesty of Thermo King's belief

that he had violated company rules, the magistrate judge and the

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district court erroneously accepted for the purpose of the prima

facie analysis Thermo King's stated reason for firing Vélez as

proof that he was not qualified for the Tool Crib Attendant job.

This error was captured well in Wexler v. White's Fine Furniture,

Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc):

[A] court may not consider the employer's
alleged nondiscriminatory reason for taking an
adverse employment action when analyzing the
prima facie case. To do so would bypass the
burden-shifting analysis and deprive the
plaintiff of the opportunity to show that the
nondiscriminatory reason was in actuality a
pretext designed to mask discrimination.

See also Freeman v. Packaging Mach. Co., 865 F.2d 1331, 1335 (1st

Cir. 1988) ("legitimate expectations" prong met where plaintiff

"tendered some evidence which, if believed, proved that he was

doing his chores proficiently").

2. Prima facie prong four: Thermo King's continuing need
for the services of Tool Crib Attendant

The district court correctly accepted the magistrate

judge's finding that plaintiff had met his prima facie burden of

establishing that Thermo King had a continuing need for the work

that he was performing prior to his termination. Vélez stated in

his deposition that the company asked two other employees ---

Radamés Padró and Carlos Pérez -- to carry out the duties of the

position after Vélez's departure. We previously have stated that

"[a] replacement need not be sought from outside the company . . .

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nor need he be designated formally as such." Loeb, 600 F.2d at

1013 n.11.

C. Thermo King's Explanation and Vélez's Showing of
Discrimination

Thermo King proffered a non-discriminatory reason for

firing Vélez, asserting that Vélez was fired for violating the

company's Code of Conduct and profiting financially from the sale

of Thermo King property. These are both legitimate, non-

discriminatory reasons for firing him. Thus, we reach the third

stage of the analysis and assess whether Vélez has raised a genuine

issue of material fact about whether Thermo King's stated reason is

a pretext for age-based discrimination. The crucial issue is

whether, upon examination of all the evidence, it can reasonably

support a finding that the employer practiced age-based

discrimination against Velez. We find several aspects of the

evidence that, taken together, are more than sufficient to support

a factfinder's conclusion that Thermo King was motivated by age-

based discrimination, and which thus raise a genuine issue of

material fact that defeats summary judgment. These include Thermo

King's shifting explanations for its termination fo Velez, the

ambiguity of Thermo King's company policy and the resulting

uncertainty as to whether Velez violated it, and, most importantly,

the fact that in response to arguably similar conduct by younger

employees, Thermo King took no disciplinary action.

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 1. Shifting Explanations

In arguing that Thermo King's stated reason for

discharging him was pretextual, Vélez first points to the company's

shifting explanations for his termination. Thermo King did not

initially provide Vélez with any reason for firing him. One month

later, Soto told the ADU and the EEOC that Vélez had been fired for

violating the company's policy on receiving gifts from suppliers.

It was not until over a year later that Thermo King, responding to

this lawsuit, first said that Vélez had been fired for stealing and

selling company property. The fact that the employer gave

different reasons at different times for its action surely supports

a finding that the reason it ultimately settled on was fabricated.

2. The Ambiguous Company Policy

Although Thermo King argues that Vélez's admitted

acceptance of gifts from suppliers was a "clear violation" of

Thermo King's company policy, the record permits a contrary

finding. A rational jury could conclude that Vélez's admitted

acceptance of pens, caps, and "simple" knives was by no means a

clear violation of Thermo King's Code of Conduct, which reads in

relevant part:

Relationships with customers, vendors, and
suppliers: . . . If you are offered or receive
any substantial gift or favor, it should not
be accepted and your supervisor should be
notified. This guideline does not apply to
items of small value commonly exchanged in
business relationships, but even in this case,

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 discretion and common sense should be your
guide.

(Emphasis added.) By its terms, this provision does not apply to

items of small value or even to selling gifted items. To be sure,

a company is ordinarily in the best position to assess the meaning

of its own Code of Conduct. We are not suggesting otherwise. Cf.

Arroyo-Audifred, 527 F.3d at 221 ("[C]ourts in employment

discrimination cases may not act as 'super personnel departments,'

substituting judicial judgments for the business judgments of

employers."). Nonetheless, in light of the shifting explanations

given for Veléz's dismissal, the inescapable ambiguity about whether

the Code of Conduct even precludes Vélez's admitted behavior in

accepting and selling the small value gifts adds to the suspicion

that the company's reliance on the policy may be pretextual. See

Santiago-Ramos, 217 F.3d at 56 (a plaintiff "can also establish

pretext by showing weaknesses, implausibilities, 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.")

(quotation marks and citation omitted).4

4
Vélez also argues that Thermo King's internal investigation
did not begin in September 2002, as Thermo King asserts, but three
months earlier in June 2002 (before the disappearance of the
chipping hammer), and that this timing indicates that the
investigation was simply a search for a reason to fire Vélez.
Vélez cites nothing in the record in English to support this
contention, however, and we therefore do not consider it.
Furthermore, Vélez suggests that Quiles, Figueroa, and Trinidad

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 3. Disparate Treatment

While Thermo King's shifting explanations and ambiguous

company policy support the conclusion that its explanations for

Velez's discharge were pretextual, Velez needed evidence from which

a jury could reasonably find that the true motivation was

discrimination to defeat Thermo King's motion for summary judgment.

Velez's evidence that Thermo King treated him differently from

younger employees who were similarly situated is more than

sufficient. Conceding only for the sake of argument that Thermo

King's accusations about his theft and sale of company property are

accurate, Velez asserts that younger Thermo King employees,

including Trinidad, Figueroa, and Quiles, were not fired despite

their complicity in the theft and/or sale of company property.5

changed their stories between their first interviews and statements
taken in preparation for litigation, and that these changes impugn
the veracity of the investigation and again suggest that the
investigation was undertaken for the purpose of finding a false
reason to fire Vélez. But Quiles is the only employee who recanted
or changed any part of his original statement, and he recanted only
the part in which he admitted to his own wrongdoing. Vélez does
not support his suggestion that Figueroa and Trinidad changed their
stories with any specific references to the record, and we find no
support for that contention. Furthermore, while Quiles's claim
that he confessed to violating policy because the investigators
were threatening him, and the apparent failure of the company to
pursue that claim, raise suspicions about the purpose and conduct
of the investigation, these suspicions involve too much speculation
to contribute reasonably to the proposition that the investigation
was a sham designed to craft an ostensibly legal reason to fire
Vélez. See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,
8 (1st Cir. 1990).
5
Plaintiff's brief and the record on summary judgment tell
us that Trinidad is 36, Figueroa is 47, and Quiles is 28. Neither
the brief nor the record, however, reveals when these employees'

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Based on the evidence in this case, a jury could find that such

disparate treatment existed, exposing the pretextual nature of

Thermo King's proffered explanation for firing Velez and revealing

that Thermo King's true motivation was age discrimination.

An employer's disparate treatment of employees in response

to behavior that legitimately offends the employer can provide

evidence of discriminatory animus. See McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 283 (1976) ("While Santa Fe may decide

that participation in a theft of cargo may render an employee

unqualified for employment, this criterion must be 'applied[] alike

to all members of all races . . . .'") (quoting McDonnell Douglas,

411 U.S. at 804). But, in order to be probative of discriminatory

animus, a claim of disparate treatment "must rest on proof that the

proposed analogue is similarly situated in material respects."

Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 752 (1st Cir.

1996). We examine "whether a prudent person, looking objectively

at the incidents, would think them roughly equivalent and the

protagonists similarly situated. While an exact correlation is not

necessary, the proponent must demonstrate that the cases are fair

congeners." Id. (internal quotation marks and citation omitted).

The district court rejected Vélez's disparate treatment

argument on the ground that the other employees who had committed

misconduct were not "similarly situated" because they had not been

ages were measured.

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implicated in the sale of company property for their own pecuniary

benefit. Elaborating on this point, Thermo King argues here, as it

did below, that Vélez's behavior is distinguishable from those other

employees because "none of the employees that admitted taking tools

or materials for their personal use at home, or that admitted

receiving gifts from suppliers during the investigation conducted

by CRI, profited from Thermo King's property or made a business out

[of] the Company tools and materials." Thermo King describes this

distinction as "an objective criteria and a critical difference"

between Vélez and the non-fired employees.

A rational jury could view this distinction as so

meaningless that it masks a different purpose for distinguishing

among the employees -- their ages. The summary judgment record

established that Trinidad admitted to stealing tools from Thermo

King and purchasing property he believed was stolen from Thermo

King, and that he was accused by other employees of stealing tools

from Thermo King. Figueroa admitted to purchasing property she

believed was stolen from Thermo King, and Quiles admitted to

stealing tools from Thermo King and failing to observe company rules

when he was in charge of the tool warehouse. Although Vélez is the

only employee who is alleged to have profited monetarily, the other

employees stole for their own benefit, knowingly bought stolen

Thermo King property, and facilitated the sale of stolen Thermo King

property to others. Furthermore, Trinidad, Figueroa, and Quiles

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each admitted to taking part in illegal and unethical activities,

whereas Vélez adamantly insisted from the beginning of the

investigation that he did not. In light of the other employees'

similarly culpable behavior, their admissions to wrongdoing, and the

lack of any coherent explanation of why Vélez's alleged profits made

him an unworthy employee while the others remained worthy, a jury

might reasonably distrust Thermo King's "monetary profit"

distinction and conclude that age was the true basis for

distinguishing among them.6

Of course, "[i]n assessing pretext, a court's focus must

be on the perception of the decisionmaker, that is, whether the

employer believed its stated reason to be credible." Azimi v.

Jordan's Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006) (internal

quotation marks and citations omitted). We understand that "[i]t

is not enough for a plaintiff merely to impugn the veracity of the

employer's justification; he must elucidate specific facts which

would enable a jury to find that the reason given is not only a

sham, but a sham intended to cover up the employer's real [and

unlawful] motive of discrimination.'" Azimi, 456 F.3d at 246

6
In rejecting plaintiff's disparate treatment argument, the
district court wrote that "the fact that other younger employees
admitted to taking company property and were not fired, does not
make it mandatory to infer that plaintiff's dismissal was
discriminatory." (Emphasis added.) This statement, and others
like it in the district court's order, reflect a misapprehension of
the summary judgment standard, where the question is whether there
is a genuine dispute of material fact, not whether the evidence
compels a finding in favor of the non-moving party.

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(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.

1991)). Here, plaintiff has made a showing that the situations of

other employees are "fair congeners," Perkins, 78 F.3d at 751, and

that Thermo King's stated explanation for firing Vélez and not the

others so lacks rationality that it supports the inference that the

real reason for firing Vélez was his age. See, e.g., St. Mary's

Honor Ctr., 509 U.S. at 511 (noting that a "suspicion of mendacity"

may be particularly influential to a jury's determination of whether

an employer seeks to cover up intentional discrimination).

D. Conclusion

The ultimate question on summary judgment in this ADEA

case is "whether or not the plaintiff has adduced minimally

sufficient evidence to permit a reasonable factfinder to conclude

that he was fired because of his age." Dávila v. Corporación de

P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007).

Evidence establishing a prima facie case, in combination with

evidence of pretext, can be sufficient to defeat summary judgment

if a rational factfinder could conclude that unlawful age

discrimination was the actual, but-for cause of the discrimination.

Domínguez-Cruz, 202 F.3d at 430 n.5 (quoting Rodriguez-Cuervos v.

Wal-Mart Stores, 181 F.3d 15, 22 n.5 (1st Cir. 1999)). Here, the

prima facie case, Thermo King's shifting explanations for firing

Vélez, its reliance on an ambiguous company policy, and the

unusually strong evidence of disparate treatment, viewed in the

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light most favorable to Vélez, would allow a rational factfinder to

conclude that age discrimination was the determinative factor in

Vélez's dismissal. Therefore, we must vacate the district court's

grant of summary judgment on the ADEA claims.

The district court based its dismissal of plaintiff's

Puerto Rico Law 80 and Law 100 claims on the dismissal of the ADEA

claims.7 In light of our ruling that Vélez's ADEA claim must be

reinstated, we must vacate the summary judgment on the Puerto Rico

law claims as well.

The judgment is vacated, and the case is remanded for

further proceedings consistent with this decision. Costs are

awarded to Jóse Vêlez.

So ordered.

7
Law 100 provides similar protection against age-based
discrimination as that provided by the ADEA. Under Law 100,
however, plaintiff's burden is lighter: "absent just cause for
dismissal, the plaintiff's prima facie case creates a rebuttable
presumption of discrimination which shifts to the defendant not
only the burden of producing the evidence, but also of persuading
the trier." Menzel v. Western Auto Supply Co., 848 F.2d 327, 331
(1st Cir. 1988) (quotations and emphasis omitted). To defeat that
presumption, "the employer must prove, by a preponderance of the
evidence, that the challenged action was not motivated by a
discriminatory age animus." Alvarez-Fonseca v. Pepsi Cola of P.R.
Bottling Co., 152 F.3d 17, 27-28 (1st Cir. 1998). Law 80 provides
a compensation remedy for individuals terminated without just
cause. Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 1 (1st Cir.
2009).

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