Perez v. Horizon Lines, Inc.

United States Court of Appeals
For the First Circuit

No. 13-2546

VLADIMIR PÉREZ,

Plaintiff, Appellant,

v.

HORIZON LINES, INC., and GRACE ACEVEDO,
in her personal and official capacity,

Defendants, Appellees.

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

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Godwin Aldarondo-Girald, with whom Aldarondo Girald Law
Office and Ericson Sanchez Preks were on brief, for appellant.
Carlos E. George-Iguina, with whom Alberto J. Bayouth-
Montes and O'Neill & Borges LLC were on brief, for appellees.

September 30, 2015
 HOWARD, Chief Judge. Appellee Horizon Lines, Inc.

("Horizon") terminated Appellant Vladimir Pérez for engaging in

sexually inappropriate workplace conduct. After he was

terminated, Pérez then sued both Horizon and Grace Acevedo, the

company's Puerto Rico Human Resources manager, claiming that his

termination was unjust and that he had been the victim of sexual

harassment by Acevedo. The district court granted the defendants'

motion for summary judgment, and we affirm.

I.

We recount the facts and draw all reasonable inferences

in the light most favorable to Pérez, the non-moving party.

Statchen v. Palmer, 623 F.3d 15, 16 (1st Cir. 2010). Horizon

employed Pérez from 1998 to 2010. At the time of his termination,

he served as Horizon's Senior Yard Manager at the company's San

Juan dock. As part of his employment, Pérez agreed to abide by

the company's Code of Business Conduct and Ethics. That Code

provided in pertinent part that: "Sexual harassment . . .

includ[ing] unwelcome conduct of a physical, verbal, or visual

nature that creates a hostile or offensive environment is

unacceptable." The Code further defines sexual harassment as

including: "sexual innuendo, suggestive comments, insults, humor

and jokes about sex, sexual propositions and threats . . . obscene

gestures," or physical "touching such as pinching, brushing the

body, and other similar behavior."

- 2 -
 On October 15, 2010, Grace Acevedo, Horizon's Human

Resources Manager in Puerto Rico, received an anonymous e-mail

alleging that Pérez had indecently exposed himself, although the

e-mail did not specify whether the incident took place on Horizon

property. Attached to the e-mail was a photograph depicting a man

from the waist down exposing his genitals (the "lower-torso

photograph"). Either that same day or sometime thereafter (the

record is unclear), Acevedo also received what was purported to be

the top half of the same photograph (the "upper-torso photograph").

That image depicted a man's upper torso and face, identifiable as

Appellant Pérez.

Acevedo notified Mark Blankenship, the company's North

Carolina-based Vice President of Human Resources, about the

photographs. Blankenship alerted Richard Rodriguez, the Puerto

Rico Port Manager, that one of his employees may have taken the

photograph while on Horizon property. Rodriguez compared the tile

coloring and door stain depicted in the lower-torso photograph

with various locations throughout the dock, and determined that

the photograph must have been taken in the dock's Marine Building.

Because the furniture in the photograph differed, however,

Rodriguez concluded that it was at least a year old. On October

19, Rodriguez sent an e-mail to Blankenship reporting that the

photograph was likely taken on company property. Shortly

- 3 -
thereafter, the two men discussed the matter while Rodriguez was

in Charlotte on business.

Acevedo later conducted a formal investigation. On

November 5, she met with Pérez and Jacob Wegrzyn (Horizon's General

Manager in Puerto Rico) and confronted Pérez with the two

photographs. Pérez admitted that the upper-torso photograph was

of him, but denied that the lower-torso photograph depicted him.

Horizon placed Pérez on paid administrative leave following the

meeting.

Over the next ten days, Acevedo interviewed several of

Pérez's co-workers about the photographs. One co-worker, Victor

Ortega, admitted to taking both photographs and stated that they

were of Pérez. Other Horizon employees either identified Pérez as

the individual depicted in the lower-torso photograph or stated

that they had heard about the photograph and had been told that it

depicted Pérez. In addition, employees recounted a number of other

occasions when Pérez had allegedly exposed his genitals to his co-

workers in the workplace. Employees also described a general

atmosphere of sexually-charged horseplay among Horizon's

employees, in which Pérez participated.

Acevedo informed Blankenship about the results of her

investigation. After consulting with the corporation's Compliance

Committee, Blankenship decided to terminate Pérez's employment

effective November 16. Blankenship informed Pérez by letter that,

- 4 -
"[b]ased on the evidence obtained," the company had determined

that Pérez had "exhibited behavior on numerous occasions that is

in strict violation [of] Horizon Lines' Code of Business Conduct

Policy." Pérez sent Blankenship two follow-up e-mails requesting

additional information and contesting the employment decision, but

Blankenship twice reiterated his decision. In those

communications, Pérez never alleged he had been subjected to sexual

harassment.

A month later, on December 21, 2010, Pérez again

challenged his termination in writing, this time through counsel.

For the first time, Pérez also alleged that Acevedo had sexually

harassed him. Specifically, he claimed that Acevedo had invited

him to her home "with clear intentions of having sex" and had

attempted to force Pérez to dance with her at company social

events.

Pérez later filed a sexual harassment charge with the

Equal Employment Opportunity Commission, and the EEOC issued him

a right to sue letter. He then filed a complaint in federal court

asserting sexual harassment and gender discrimination under Title

VII and parallel claims under Puerto Rico law. Pérez also claimed

unjust termination under Puerto Rico's Law 80. As developed before

the district court, Pérez's sexual harassment claim broadened to

focus primarily on four sets of events that allegedly took place

between 2006 and 2010.

- 5 -
 The first set of incidents involved two similar events

at Horizon's annual Christmas parties in 2006 and 2007. Pérez

testified during his deposition that, on both occasions, Acevedo

urged him to dance with her and attempted "to drag him to the dance

floor with force by taking him by the arm and pulling him." Pérez,

made uncomfortable by Acevedo's requests, rejected them.

Second, Pérez claims that a sexual-innuendo-laced event

took place at a bar in 2006 or 2007 following a Horizon company

softball game. When Pérez was unable to locate his car keys,

Acevedo admitted that she had placed them in her pants. She

allegedly told Pérez that he would have to return to her home to

retrieve them. Pérez balked at the request, and Acevedo did not

return Pérez's keys for over an hour.

The third incident took place in December 2009 during an

early morning meeting in Acevedo's office. Pérez claims that

Acevedo called him to her office at 7:00 a.m. Although Pérez

believed the meeting was work-related, Acevedo instead engaged in

an elaborate "sea shell reading," which involved divining aspects

of Pérez's life from the way in which the shells landed on a straw

mat. Acevedo testified in her deposition that Pérez requested the

reading, but Pérez denies that characterization. Pérez testified

that during the reading Acevedo grabbed his hands and touched his

arms in a sexually suggestive fashion.

- 6 -
 The final incident involved Acevedo's almost weekly

requests, throughout 2010, that Pérez bring cornbread and pastries

to Acevedo's office. Pérez claims that Acevedo asked him to

personally bring the cornbread and pastries to her office and to

bring them "hot." He interpreted her request as an appeal for

sexual favors, in part because Acevedo's office was in a different

location than his own workplace and in part because of the prior

sea shell reading in her office.

Following discovery, the district court granted the

defendants' motion for summary judgment, rejecting Pérez's sexual

harassment and gender discrimination claims and concluding that

Horizon had cause to terminate him under Law 80. This timely

appeal followed.

II.

We review the district court's grant of summary judgment

de novo, and will affirm if the record reveals "no genuine dispute

as to any material fact and the movant is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(a); Pierce v. Cotuit Fire

Dist., 741 F.3d 295, 301 (1st Cir. 2014). Because the parties

dispute certain aspects of the factual record before us, we

reiterate that "the mere existence of some alleged factual dispute"

among the parties "will not defeat an otherwise properly supported

motion for summary judgment" unless there is a "genuine issue of

material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

- 7 -
247-48 (1986) (emphasis in original). As explained below, several

of Pérez's contentions rely only on conclusory allegations and

speculation to stay afloat; such allegations, without more, cannot

create a genuine issue of material fact. See Ahern v. Shinseki,

629 F.3d 49, 54 (1st Cir. 2010).

A. The Federal Claims

We begin with Pérez's federal claims brought under Title

VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et

seq. Pérez contends that Acevedo subjected him to consistent

sexual harassment and asserts that Acevedo initiated the

investigation that led to his termination not because of his

alleged infractions, but because he had rebuffed her sexual

advances. He relies on both a hostile work environment theory and

a quid pro quo theory of sexual harassment. See generally O'Rourke

v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)

(distinguishing between the theories). We start, as the district

court did, by considering the most recent event -- the cornbread

and pastry requests -- understanding that the context and meaning

of those requests are informed by the earlier incidents.1

Pérez faults the district court for concluding that there
1

were only four instances of alleged sexual harassment. Yet,
because he fails to identify or offer meaningful argumentation
about any other instances that might contribute to his harassment
claims, he has waived any reliance on them. See United States v.
Zannino, 895 F.3d 1, 17 (1st Cir. 1990).

- 8 -
 To proceed on a quid pro quo theory of sexual harassment,

Pérez must show that Acevedo used "her superior position to extract

sexual favors from a subordinate employee, and if denied those

favors, retaliate[d] by taking action adversely affecting

[Pérez's] employment." Valentin-Almeyda v. Municipality of

Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting O'Rourke, 235

F.3d at 728). Pérez claims that Acevedo warned him that she had

Blankenship "eating out of her hand" and that "you do not know

when you are going to need a favor." Pérez characterizes these

statements as threats portending negative consequences if he

failed to comply with Acevedo's advances.

Even accepting that Acevedo made such statements, the

undisputed record here fails to support an inference that the

cornbread requests were sexual demands directed at Pérez. Pérez's

own interrogatory answers state that Acevedo requested that he

send "union member employee 'Eleuterio Lopez'" to her office to

fulfill her requests -- not that Pérez deliver the pastries

himself. Pérez similarly testified during his deposition that

López was "requested by [Acevedo] because she trusted him." No

other evidence in the record contradicts this suggestion. See

Libertad v. Welch, 53 F.3d 428, 435 (1st Cir. 1995) (noting that

the non-moving party must adduce "sufficient evidence supporting

the claimed factual dispute" that would require a factfinder to

definitively resolve "the parties' differing versions of the truth

- 9 -
at trial"). López confirmed during his own deposition that he,

and not Pérez, brought the pastries and cornbread to Acevedo on a

weekly basis at Pérez's behest. And, although Pérez now claims

that Acevedo asked him to deliver the cornbread, Pérez plainly

conceded at multiple points during his deposition that he never

once delivered them and sent López instead. Because the cornbread

request was not even directed at Pérez, no reasonable jury could

conclude that he has established that those requests constituted

an implicit demand for sexual favors that he could have been

punished for rebuffing. To the extent that Pérez seeks to rely

only on the much earlier incidents of alleged harassment standing

on their own, we find those events far too remote to support his

quid pro quo theory.2 Accordingly, that theory fails.

As to his hostile work environment theory of sexual

harassment, Pérez must show that his workplace was "permeated with

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of [his]

2 Although we have not definitively resolved whether evidence
of a close temporal proximity, alone, could support a quid pro quo
claim in some circumstances, see Gerald v. Univ. of P.R., 707 F.3d
7, 23 n.9 (1st Cir. 2013), the other instances of alleged
harassment Pérez relies on here took place between eleven months
and four years prior to his termination. Those events are too
remote, without more, to support an inference that Acevedo
retaliated against Pérez on their account. Cf., e.g., Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (nine-month gap
between age discrimination complaints and termination too remote
to establish retaliation).

- 10 -
employment and create an abusive working environment." Kosereis

v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003) (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). There is no

"mathematically precise test" for determining when harassment

becomes sufficiently severe or pervasive or when a work environment

"would reasonably be perceived, and is perceived, as hostile or

abusive." Harris, 510 U.S. at 22; accord, e.g., Marrero v. Goya

of P.R., Inc., 304 F.3d 7, 18-19 (1st Cir. 2002). Instead, we

consider all of the "attendant circumstances including the

frequency of the discriminatory conduct; its severity; whether it

was physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interfered with an

employee's work performance." Pomales v. Celulares Telefonica,

Inc., 447 F.3d 79, 83 (1st Cir. 2006).

Even if a reasonable jury could conclude that Acevedo's

requests that Pérez have another employee deliver cornbread and

pastries to her office was harassing, no reasonable jury could

conclude that those requests were sufficiently severe or

objectively offensive to prove actionable. For one thing, on the

scale of severe conduct, Acevedo's request falls considerably

below even the mildest conduct that we have found actionable under

Title VII. See, e.g., Ponte v. Steelcase Inc., 741 F.3d 310, 320-

21 (1st Cir. 2014) (citing cases found sufficiently severe

involving, for example, daily, humiliating "sexual remarks and

- 11 -
innuendos" and other inappropriate sexual contact including

blowing in an employee's ear and standing over her "with their

bodies squarely touching as she made copies"). Viewed most

favorably to Pérez, Acevedo's requests could be considered subtle

instances of sexual innuendo. But her requests involved no

physical touching or threatening comments. Nor was any vulgar or

sexual language involved. But see Fontánez-Núñez v. Janssen Ortho

LLC, 447 F.3d 50, 57 (1st Cir. 2006) (noting that even vulgar

comments "inappropriate to the workplace" or "completely

unprofessional" may be insufficiently severe). While Acevedo's

suggestion that Pérez instruct others to bring her cornbread and

pastries may have made Pérez uncomfortable, "discomfort is not the

test" for an actionable harassment claim. Ponte, 714 at 320. No

reasonable jury could find Acevedo's requests severe.

Pérez also acknowledges that Horizon's employees often

asked others to perform personal errands. This context is

informative, and is ultimately problematic for Pérez. We assess

"the objective severity of harassment . . . from the perspective

of a reasonable person in the plaintiff's position, considering

all the circumstances" and giving "careful consideration" to "the

social context in which particular behavior occurs and is

experienced by its target." Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 80 (1998) (internal quotation marks omitted).

Thus, even if Acevedo's requests for personal errands contravened

- 12 -
company policy, in the particular context of Horizon's San Juan

dock an employee in Pérez's position is unlikely to have viewed

Acevedo's request as something out of the ordinary. This is all

the more true given Pérez's acknowledgement that Acevedo requested

that he send another employee to purchase and deliver the pastries

and that Pérez never once ran the errands himself. This fact

considerably deflates Pérez's efforts to cast the requests as

"objectively . . . offensive, such that a reasonable person would

find it hostile or abusive." Ponte, 741 F.3d at 320. A Horizon

employee may have objectively viewed Acevedo's requests as

unprofessional, but unprofessional conduct is simply "not the

focus of discrimination laws." Lee-Crespo v. Schering-Plough Del

Caribe Inc., 354 F.3d 34, 46-47 (1st Cir. 2003).

Nor has Pérez supplied any evidence from which a jury

could infer that Acevedo's requests "unreasonably interfered with

[his] work performance." Ponte, 741 F.3d at 320. Although he

baldly asserts that Acevedo's requests intimidated him and led him

to decide that he would never return to her office alone, he makes

no effort to explain how the lack of in-person visits to Acevedo's

office affected his work performance. Indeed, the only evidence

he does supply demonstrates precisely the opposite. Rodriguez and

others consistently provided Pérez with positive performance

reviews throughout the time period during which he claims he

endured harassment, indicating that Acevedo's conduct did not

- 13 -
negatively affect his ability to work as a Yard Manager. See

Pomales, 447 F.3d at 84. Thus, whatever the impact of Acevedo's

behavior on Pérez, no reasonable jury could find it sufficiently

severe to have negatively affected his job performance.

Ultimately, the undisputed facts here show that the

cornbread requests fall "beyond Title VII's purview" because, even

as informed by the prior putative incidents of harassment, the

requests did not contribute to the creation of "an objectively

hostile or abusive work environment." Harris, 510 U.S. at 21. As

the district court noted, the other incidents that Pérez alleges

contributed to the hostile work environment were, on their own,

time barred. See Rivera-Diaz v. Humana Ins. of P.R., Inc., 748

F.3d 387, 390 (1st Cir. 2014) (noting that in a deferral

jurisdiction such as Puerto Rico a plaintiff must file an EEOC

charge within 300 days following the unlawful employment

practice). Pérez invokes the continuing violations doctrine and

points to the cornbread incident as a discriminatory "anchoring

act" falling within the limitations period that would allow him to

recover for these otherwise time-barred acts. Yet, an "anchoring

act" must itself be discriminatory. Lockridge v. Univ. of Me.

Sys., 597 F.3d 464, 747 (1st Cir. 2010). It must be one that

"contribut[ed] to that hostile environment." Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 105 (2002). Because the cornbread

requests are not actionable as a matter of law, Pérez's effort to

- 14 -
invoke the continuing violations doctrine necessarily fails.3 See

Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 222

(1st Cir. 1996) ("Common sense teaches that a plaintiff cannot

resuscitate time-barred acts, said to be discriminatory, by the

simple expedient of linking them to a non-identical, non-

discriminatory, non-time barred act." (emphasis added)).

Finally, Pérez brings a claim of gender discrimination,

which the district court properly rejected. Pérez characterizes

Horizon's proffered reasons for his termination as a "sham" and

claims that, in light of Acevedo's own alleged sexual advances

toward him, Horizon has plainly treated Acevedo (a woman)

differently than him (a man). But in the face of Horizon's

"legitimate, nondiscriminatory reason" for terminating him, Pérez

must do more than simply "elucidate specific facts which would

enable a jury to find" Horizon's justification "a sham."

Santangelo v. N.Y. Life Ins. Co., 785 F.3d 65, 70 (1st Cir. 2015)

3 Pérez also contends that equitable tolling should apply
because he would have had to direct any complaints to Acevedo.
But Pérez acknowledged during his deposition that Horizon
employees had access to an "ethics hotline" that bypassed Acevedo
and went directly to individuals at Horizon's Charlotte
headquarters. Without evidence to substantiate his fear that his
complaints through the hotline would have proved unavailing, this
record does not present the extraordinary circumstances necessary
to apply the equitable tolling doctrine. See, e.g. Rivera-Diaz,
748 F.3d at 390; Abraham v. Woods Hole Oceanographic Inst., 553
F.3d 114, 119 (1st Cir. 2009) (noting that a plaintiff must show
that "circumstances beyond his or her control precluded a timely
filing").

- 15 -
(internal quotation marks omitted). He must point to some evidence

from which a jury could conclude that his termination was "a sham

intended to cover up the employer's real motive." Id. Simply

stated, he points us to no evidence, beyond rhetoric and empty

assertions, to suggest that if there was any differential

treatment, "gender was the reason for that difference." Rivas

Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002).

Accordingly, the district court properly granted summary

judgment to the defendants on Pérez's federal claims.

B. The Commonwealth Claims

Pérez also pursues several Puerto Rico claims. Only his

Law 80 claim merits extended discussion.4

4 We can easily resolve Pérez's claims under Law 100 and Law
17 -- Puerto Rico's Title VII analogues prohibiting employment
discrimination and sexual harassment, respectively. See, e.g.,
Gerald v. Univ. of P.R., 707 F.3d 7, 28 (1st Cir. 2013); Pérez-
Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 26 n.10 (1st Cir.
2011). The parties here agree that the commonwealth claims differ
from their federal counterparts only with respect to the burden
shifting framework that applies. Cf. Dávila v. Corporacion de
P.R. Para La Difusion Publica, 498 F.3d 9, 18 (1st Cir. 2007)
(noting that "as applied to age discrimination," Law 100 "differs
from the ADEA only with respect to how the burden-shifting
framework operates"). That framework follows the Law 80 burden
shifting framework, see Alvarez-Fonseca, 152 F.3d at 28, and as we
explain below no reasonable jury could conclude that Horizon lacked
cause to terminate Pérez. Thus, to succeed on his Law 100 claim
Pérez must show that Horizon's proffered reason was pretext
specifically designed to mask gender discrimination. For the same
reason that Pérez's Title VII gender discrimination claim fails,
"it suffices to reiterate" that Pérez has "adduced no significantly
probative evidence that his discharge was motivated by" his gender.
Dávila, 498 F.3d at 18. As to the Law 17 claim, Pérez has neither
provided developed argumentation about the burden shifting

- 16 -
 Law 80 "modifies the concept of at-will employment" and

provides monetary compensation to employees who are employed

"without a fixed term" and who are discharged "without just cause."

Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 7 (1st Cir. 2009);

see P.R. Laws Ann. tit. 29, § 185a. The statute specifies several

grounds that are considered good cause for termination including,

as relevant here, when a "worker indulges in a pattern of improper

or disorderly conduct" or when an employee has engaged in "repeated

violations of the reasonable rules and regulations established for

the operation of the establishment, provided a written copy thereof

has been opportunely furnished to the employee." P.R. Laws Ann.

tit. 29, § 185b. The statute establishes that, by contrast, a

"discharge made by the mere whim of the employer or without cause

relative to the proper and normal operation of the establishment

shall not be considered . . . good cause." Id.

Law 80 applies a burden shifting framework that differs

from the Title VII framework. Under Law 80, a plaintiff must both

prove that he was discharged and allege that his dismissal was not

justified. Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co.,

152 F.3d 17, 28 (1st Cir. 1998). Law 80 then "shifts the burden

of proof to the employer to show that the discharge was justified"

framework that should apply nor identified any cases explaining
how a Law 17 claim would be resolved differently than his federal
claims. For that reason, his Law 17 claim fails as well. See
Zannino, 895 F.2d at 19.

- 17 -
by a "preponderance of the evidence." Id. (citing P.R. Laws Ann.

tit. 29, § 185k). If the employer shoulders that burden, the

employee must then rebut the showing of good cause. Id.

We have not had occasion to precisely delineate the exact

showing necessary for an employer to establish just cause under

Law 80. Nevertheless, we think it sufficiently clear that to show

just cause an employer need only demonstrate that it had a

reasonable basis to believe that an employee has engaged in one of

those actions that the law identifies as establishing such cause.

See P.R. Laws Ann. tit. 29, § 185b.

The text of Law 80 supports this reading. By providing

that an employer's decision to discharge an employee must not be

"made by the mere whim of the employer or without cause relative

to the proper and normal operation of the establishment," Law 80

focuses on the employer's reasoned deliberation. Id. The

statement that an employer must not act on a "whim" appears to

indicate that a "just" discharge is one where an employer provides

a considered, non-arbitrary reason for an employee's termination

that bears some relationship to the business' operation.

The Puerto Rico Supreme Court appears to have adopted

this reading. When considering Law 80 claims, that court

consistently asks whether an employer's termination decision was

"whimsical or abusive" or whether the employer has acted "abruptly

or capriciously." Narvaez v. Chase Manhattan Bank, 120 P.R. Dec.

- 18 -
731, 20 P.R. Offic. Trans. 766, 773 (1988); Báez García v. Cooper

Labs., Inc., 120 P.R. Dec. 145, 20 P.R. Offic. Trans. 153, 162

(1987). Indeed, that court has otherwise resisted reading Law 80

to impose statutory penalties "just because an employer makes an

error of judgment," since such a rigid reading (which would seem

to require courts to regularly review the merits of companies'

internal investigations) would go "beyond the letter and spirit of

the law." Narvaez, 20 P.R. Offic. Trans. at 773.

Following as we must the Puerto Rico Supreme Court, we

have also focused on the employer's reasonable belief rather than

the objective veracity of the employer's action. In upholding the

entry of summary judgment under Law 80, we have noted that a

"perceived violation suffices to establish that [the employer] did

not terminate [the employee] on a whim, but rather for a sensible

business-related reason." Hoyos v. Telecorp Commc'ns, Inc., 488

F.3d 1, 10 (1st Cir. 2007) (emphasis added). We have also found

just cause, and affirmed the district court's grant of a Rule 50

motion in favor of an employer, where "although [the employee]

denie[d] it," his employer had "overwhelming evidence that he

instigated [a] fight with [his co-worker], and not the other way

around." Alvarez-Fonseca, 152 F.3d at 28.

As we have said in a similar context, courts do not "sit

as super personnel departments, assessing the merits -- or even

the rationality -- of employers' nondiscriminatory business

- 19 -
decisions." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st

Cir. 1991) (considering an Age Discrimination in Employment Act

claim). In modifying at-will employment, Law 80 undoubtedly

circumscribes the reasons for which an employer may terminate an

employee. But, in doing so, we do not read the statute to require

a factfinder to regularly review the objective accuracy of an

employer's conclusions.5 To establish just cause, therefore,

Horizon merely had a burden to show that it had a reasonable basis

to believe that Pérez had "indulge[d] in a pattern of improper or

disorderly conduct" or engaged in "repeated violations of the

reasonable rules and regulations established for the operation of

the establishment." See P.R. Laws Ann. tit. 29, § 185b.

Although Pérez has shown that he was discharged, a

reasonable jury could only conclude that Horizon has met its burden

of showing just cause. Cf. Alvarez-Fonseca, 152 F.3d at 28

(affirming district court's post-trial grant of Rule 50 motion

because the evidence presented at trial "would not permit a

reasonable jury" to find that discharge was unjustified);

Anderson, 477 U.S. at 250 (noting that the summary judgment

standard "mirrors the standard for a directed verdict under [Rule]

5 We have previously explained that an interpretation of Law
80 which would require that a jury always determine whether an
employer had just cause to terminate an employee "does not conform
with our understanding" of the statute. Hoyos, 488 F.3d at 6 n.4
(citing Velázquez-Fernández v. NCE Foods, Inc., 476 F,3d 6, 13
(1st Cir. 2007)).

- 20 -
50(a)"). Pérez admitted that he received a copy of and was aware

of Horizon's Code of Business Conduct. Blakenship concluded that

Pérez had violated that Code after reviewing the photos,

determining in consultation with Rodriguez that those photos were

taken on Horizon property, and considering the results of Acevedo's

investigation. Acevedo's investigation not only suggested that

the lower-torso photograph depicted Pérez, but also revealed that

Pérez had exposed his genitals in the workplace on multiple

occasions and that Pérez was generally involved in an atmosphere

of inappropriate sexual horseplay and behavior.

Because Horizon established cause for Pérez's

termination, to withstand summary judgment Pérez bore the burden

to rebut that showing. Pérez expends considerable energy arguing

that Horizon came to several incorrect conclusions over the course

of its investigation. But to rebut Horizon's showing that it had

a reasonable basis to believe that he had engaged in workplace

misconduct, he must do more than show that Horizon may have gotten

some of the particulars wrong. Cf. Dea v. Look, 810 F.2d 12, 15

(1st Cir. 1987) (finding "evidence casting doubt on the correctness

of the employer's proffered reason for the discharge" insufficient

to show pretext). Instead, Pérez had the burden to adduce

probative evidence that Horizon did not genuinely believe in or

did not in fact terminate Pérez for the reason given. His numerous

claims that the evidence fails to show just cause are unavailing.

- 21 -
 First, he denies that the lower-torso photograph

depicted him. But that question is immaterial. Horizon was aware

that Pérez denied the photograph was of him and, in any event,

Pérez's termination letter definitively refutes his contention

that the lower-torso photograph was the sole reason for his

termination. In the letter, Blankenship stated that the

investigation had revealed that Pérez had "exhibited behavior on

numerous occasions that is in strict violation with Horizon Lines'

Code of Business Conduct Policy." (Emphasis added). Blankenship

was confronted with a plethora of evidence that Pérez had exposed

his genitals in the workplace (although Pérez denies that he ever

did) and, even now, Pérez concedes that he was involved in the

sexually-charged horseplay among the San Juan dock employees.

Horizon thus established that it had just cause to terminate Pérez

for "indulg[ing] in a pattern of improper or disorderly conduct"

or engaging in "repeated violations of the reasonable rules and

regulations established for the operation of the establishment."6

P.R. Laws Ann. tit. 29, § 185b.

6 Pérez also relies on Horizon's concession that no one ever
submitted a formal complaint about his behavior. We do not find
this fact relevant. While Horizon's Code of Conduct requires
employees to report harassing or inappropriate behavior, in the
absence of a formal complaint a company may still conclude that
certain behavior is "improper or disorderly."

- 22 -
 Pérez also asserts that Acevedo singled him out,

reinitiated the investigation on her own accord, and concealed

relevant information from Blankenship. He seems to assume that if

Acevedo's investigation was a sham then the decision Blankenship

made in reliance on that investigation could not constitute

adequate cause. Perhaps if the record contained some evidence

tending to show that Blankenship was aware of false information

contained in Acevedo's investigation notes or that Acevedo's

information would give a reasonable supervisor reason to doubt the

investigation's conclusions, such an argument could suffice to

defeat summary judgment. But none of the contentions Pérez relies

upon to buoy this argument are supported by the record.7

We acknowledge the several minor discrepancies in Acevedo's
7

investigation notes that Pérez claims demonstrate that the
investigation was a sham. For example, Pérez points out that
during the deposition another Horizon employee, Juan Carrero,
Carrero denied meeting with Acevedo until after "Pérez was
discharged" -- although Carrero's interview did take place after
Pérez had been placed on administrative leave, and the record does
not make clear what period Carrero meant when referring to Pérez's
"discharge." Carrero also claimed that, contrary to Acevedo's
interview notes, he had not discussed prior incidents when Pérez
had exposed his genitalia. But Carrero did confirm that he had
heard that the lower-torso photograph depicted Pérez, thus
supporting Acevedo's overall conclusion. Pérez also repeatedly
emphasizes the fact that Acevedo's son, a recently terminated
Horizon employee, first sent the lower-torso photograph to her.
Yet, when stripped of the "conclusory allegations, improbable
inferences, acrimonious invective, [and] rank speculation," Ahern,
629 F.3d at 54, we fail to see how any of these facts provide
probative evidence that something nefarious was going on or would
allow a jury to infer that Blankenship's lacked cause to terminate
Pérez, in light of repeated testimony from other employees
corroborating the general thrust of Acevedo's findings.

- 23 -
 First, the record does not support Pérez's speculation

that Acevedo initiated her investigation entirely on her own accord

after Rodriguez's own inquiry concluded and without direction from

Blankenship. Although Rodriguez did testify that Blankenship had

told him the initial inquiry into the lower-torso photograph's

source would not move forward, Rodriguez, Blankenship, and Acevedo

all testified that Rodriguez's inquiry was not a "formal"

investigation but was, at most, an informal inquiry undertaken on

Rodriguez's own initiative. Moreover, even Rodriguez testified

that after his meeting with Blankenship, Acevedo indicated that

she had received a second photograph, and Rodriguez surmised that

the second photo was the reason "the investigation was going to

continue." Indeed, Ortega's own deposition supports this same

interpretation of events: he stated that he provided Acevedo with

the upper-torso photograph depicting Pérez roughly two weeks after

she received the lower-torso photograph (around the time that she

started her investigation). And an e-mail from Acevedo to

Blankenship sending two photographs on November 2, 2010 -- after

Rodriguez met with Blankenship and around the time that Acevedo

began to investigate the photographs in earnest -- substantiates

that understanding of the record. Thus, beyond Pérez's own

speculation, the record simply does not support his claim that

Acevedo began an unauthorized investigation out of the blue.

- 24 -
 Nor does the record support Pérez's two specific claims

that Acevedo concealed evidence. First, the statement of another

co-worker, Robert Batista, which Pérez says proves that Ortega had

previously admitted that the lower-torso photo depicted Ortega

(and not Pérez) was included in Acevedo's interview notes, which

Blankenship reviewed before deciding to terminate Pérez.

Moreover, Batista's statement is not necessarily the smoking gun

that Pérez describes, and he fails to explain how it might have

changed Blankenship's assessment.8 Second, although Pérez asserts

that Acevedo concealed that the lower-torso photograph was likely

several years old, Rodriguez had already informed Blankenship via

e-mail that the photograph was "very old." And, again, Pérez fails

to explain how the age of the photograph would have had any impact

on Blankenship's assessment that exposing oneself on Horizon's

property, at any time, violated Horizon's Code of Business

Conduct.9

8 According to Acevedo's notes, Batista stated that Ortega
had a photograph "of a big penis that he shows the girls he goes
out with so they can see how big he has it." This statement may
suggest only that Ortega showed women a photo that Ortega boasted
depicted his own genitals, not that the photo was, in fact, of
him. In fact, during his deposition, Batista further clarified
that, to "be clear," he "didn't know" if that photo was the same
as the lower-torso one that Acevedo received. Furthermore, another
employee, Manuel Barreto, similarly stated during his deposition
that he didn't "think that [Ortega] said it was a photograph of
him," but that Ortega had only claimed that "[t]his is what there
is for the gals."

9 Pérez also vigorously asserts that others involved in the

- 25 -
 Ultimately, "[n]othing in the record supports an

inference" that Blankenship's reason for terminating Pérez's

employment "was anything other than [Pérez's] own conduct." Hoyos,

488 F.3d at 10. Accordingly, because Pérez has failed to rebut

Horizon's showing of just cause, the district court correctly

granted summary judgment to the defendants on the Law 80 claim.

III.

Because the district court properly granted summary

judgment on all of Pérez's claims, its judgment is affirmed.

horseplay were not similarly disciplined or terminated and thus
summary judgment was improper. We are not persuaded by this
argument. The record does not support that Pérez's co-workers
similarly and repeatedly exposed themselves in the workplace. As
such, Pérez's disparate treatment argument fails. Admittedly,
this could be a different case if the record suggested that the
company treated the co-workers differently and that the co-workers
engaged in the same behavior as Pérez. However, this record does
not support that conclusion.

- 26 -