USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
____________________
No. 96-1899
ISABELO VALLEJO-SERRANO,
Plaintiff, Appellant,
v.
CIGNA INSURANCE CO., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Selya, Circuit Judge. _____________
____________________
Zuleika Llovet-Zurinaga for appellant. _______________________
Pedro J. Manzano-Yates with whom Jose A. Silva-Cofresi was _______________________ ______________________
on brief for appellees.
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May 23, 1997
___________________
Per Curiam. Appellant Vallejo-Serrano filed this employment __________
discrimination lawsuit against Cigna Insurance Co. and several
supervisors claiming that he was transferred to an undesirable
position, and later refused reinstatement after a medical leave,
because of his age and disability. The district court granted
summary judgment for defendants. It concluded that Vallejo had
failed to establish a prima facie case of either age or
disability discrimination, and that he had failed to show that
the company's proffered reasons for its actions were pretextual.
We conclude that appellant failed to establish a prima facie case
on the disability claim, and that the evidence is wholly
inadequate to support an age discrimination claim. We therefore
affirm.
The parties both maintain that the appropriateness of
summary judgment turns on whether Vallejo made an adequate
showing under the fourth prong of the McDonnell Douglas burden- __________________
shifting paradigm, the first three prongs concededly having been
satisfied. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, ___ ________________________ _____
802-05 (1973). They further agree that, for the disability
discrimination claim, this model required appellant to
demonstrate that he was replaced by a non-disabled person.
Although appellant asserts that there is at least a factual
dispute concerning whether he was "replaced" by Felix Vazquez,1
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1 Although Vallejo's complaint also asserts that he was
replaced by Josefina Bermudez and her temporary assistant, he
does not press this position on appeal, apparently because their
duties were quite distinct.
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the evidence does not support his contention. It is undisputed
that Vazquez already held a position equivalent to appellant's in
the Accounting Department, and that appellant was the accounting
clerk with the least seniority. The fact that Vazquez assumed
most of appellant's tasks, along with his own diminished
workload, is insufficient to establish that appellant was
"replaced." See LeBlanc v. Great American Ins. Co., 6 F.3d 836, ___ _______ _______________________
846 (1st Cir. 1993) ("A discharged employee `is not replaced when
another employee is assigned to perform the plaintiff's duties in
addition to other duties, or when the work is redistributed among
other existing employees already performing related
work.'"(citation omitted)).
As for the age discrimination claim, which involves an
alleged reduction in force, the burden-shifting framework
required appellant to show either that Cigna did not treat age
neutrally or that it retained younger persons in the same
position. Arguably, Vallejo's evidence satisfied the fourth
prong because it showed that the others retained in the
accounting clerk positions were younger than him. The company's
rationale, however, was that he was the least senior person in
that position -- a fact he does not dispute. Under the McDonnell _________
Douglas framework, Vallejo needs to respond to that explanation _______
by demonstrating that it is a pretext for age discrimination.
The record, however, makes reference to only a single remark
concerning age allegedly made by appellant's supervisor more than
a year before his transfer from the Accounting Department. This
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is insufficient to go to the jury.2 See LeBlanc, 6 F.3d at 843 ___ _______
("[T]he plaintiff cannot avert summary judgment if the record is
devoid of adequate direct or circumstantial evidence of
discriminatory animus on the part of the employer.").3
The judgment of the district court is therefore affirmed.4
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2 Indeed, plaintiff did not make reference to this remark in
his memorandum in support of his opposition to the summary
judgment motion.
3 Although the district court's opinion in certain instances
uses language that suggests factfinding, see, e.g., Opinion at 13 ___ ____
("We believe that plaintiff's age or disability was not a factor
when Cigna decided to eliminate Mr. Vallejo's position, and later
deny him reinstatement"; "Cigna eliminated Mr. Vallejo's position
because the Accounting Department could operate efficiently
without the extra accounting clerk position."); id. at 15 ___
("Cigna's refusal to reinstate plaintiff after his release from
the SIF was not of a discriminatory animus."), it is clear from
the opinion as a whole that the court found as a matter of law ___________________
that Vallejo had failed to adduce sufficient evidence to send the
case to a factfinder. We note that the court's task was made
more difficult by the plaintiff's failure to file the required
separate statement of contested facts.
4 Vallejo also alleged a retaliation claim based on his
having filed a complaint with the Anti-Discrimination Unit of the
Labor Department following his transfer in September 1993, and
the company's subsequent refusal to reinstate him in September
1994. The decision not to reinstate him was consistent with
Commonwealth law, however, and there is no support in the record
for a finding that it was motivated by retaliatory animus.
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