Garcia-Garcia v. Costco Wholesale Corp.

United States Court of Appeals
For the First Circuit

No. 17-1014

LEONAL ANTHONY GARCIA-GARCIA; KARELIS ECHEVARRÍA-CRUZ; CONJUGAL
PARTNERSHIP GARCIA-ECHEVARRÍA,

Plaintiffs, Appellants,

v.

COSTCO WHOLESALE CORPORATION,

Defendant, Appellee.

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

[Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge]

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

Jose G. Fagot Diaz and Manuel E. Lopez-Fernandez on brief for
appellants.
Vincente J. Antonetti, Javier G. Vázquez-Segarra, and Goldman
Antonetti & Córdova, LLC, on brief for appellee.

December 22, 2017
 THOMPSON, Circuit Judge. After approximately eleven

years of working his way up the Costco1 employment ladder,

appellant Leonal Anthony Garcia-Garcia2 (Garcia) was fired

following an investigation which revealed an inventory discrepancy

in the Meat Department that he managed. Garcia sued Costco in

federal court invoking diversity jurisdiction and alleging an

array of Puerto-Rico-based claims stemming from his discharge.3

The district court granted summary judgment in favor of Costco on

all counts and Garcia appealed to this Court. We briefly summarize

Garcia's employment history before we delve into the inventory

snafu which ultimately led to his dismissal. In doing so, we view

the evidence in the light most favorable to Garcia and draw all

reasonable inferences in his favor. See Del Valle-Santana v.

Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 128 (1st

Cir. 2015).

BACKGROUND

In 2002, Garcia began working at Costco store #365

located in Caguas, Puerto Rico, as a meat wrapper in the store's

1 Cover bears defendant's full corporate name.
2
Garcia's wife, Karelis Echevarría-Cruz, and their conjugal
partnership are also named plaintiffs and their claims are
derivative. See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134
(1st Cir. 2013).
3
The claims against co-defendant National Union Fire
Insurance Company of Pittsburgh, Costco's liability insurer, were
dismissed per joint motion.

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Meat Department. Throughout his tenure at Costco, Garcia

continuously received positive performance evaluations and

promotions. In 2006, he was elevated to meat cutter, and then in

2011, to meat manager. As part of his responsibilities as manager,

Garcia was tasked with conducting inventory of all goods within

the Meat Department. Although meat inventory was not Garcia's

sole responsibility, it was nevertheless his "primary" one.

Fast forward to October 28, 2013. Steve Stoddard, a

Regional Meat Manager at Costco, noticed, while reviewing the

Costco meat inventory, that "the ending inventory of $297,000

represented a meat inventory much higher than the actual inventory

[Costco] store #365 [could] physically accommodate in the store at

any given time."4 Thereafter, David Soto, then Costco-store-#365's

manager, along with his assistant manager, Rocío Mendez, and Garcia

were tasked with conducting a full accounting of the Meat

Department's stock. What they found was an ending inventory of

$315,000. Given this high ending tally, a manual count of the

meat cases was performed, which resulted in a discrepancy of

$114,000 in missing product.

Following up, on November 4, 2013, Nayreth Ríos,

Internal Auditor at Costco store #365, along with Rocío Mendez and

Garcia, performed a second manual inventory count, which resulted

4
All dollar amounts included in this decision are approximate
figures rounded to the nearest thousand.

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in an ending value of $178,000. When handed the result, Stoddard

compared the audited manual inventory count with the ending

inventory of the previous period and concluded that "the inventory

discrepancy was due to a hidden shrink5 of approximately $146,000."

A broader review of the inventory entries revealed that, on the

27th, 28th and 29th of October 2013, manual entries of

approximately $114,000 in product were made into the system (known

as AS400). At that time, "it was determined that . . . Costco's

inventory of the Meat Department for store #365 had been erratic

for over nine . . . monthly periods."

Thomas Farano, a Loss Prevention/Regional Manager at

Costco, conducted interviews to get to the bottom of the product

discrepancy. While speaking with Garcia, Farano, along with Jose

Mendez, Costco's Loss Prevention Manager, and Frank Chiriboga,

Costco's Regional Meat Manager, accused Garcia of stealing and

altering the inventory numbers "to cover up the theft."6 According

to Farano,

[Garcia] denied any knowledge or involvement in entering
the additional inventory into the AS400. [Garcia]
indicated that other people had his pass word [sic] and
he did not make any fraudulent entries to increase his
inventory levels. He also could not offer any

5
Shrinkage is the reduction in or loss of inventory due to
factors such as theft, vendor fraud, breakage, or waste. See
Shrinkage, Black's Law Dictionary (10th ed. 2014); Rando v.
Leonard, 826 F.3d 553, 554 (1st Cir. 2016).
6
Nayreth Rios, Inventory Auditor, was also separately
interviewed.

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 explanations to what could have happened which would
have impacted the inventory numbers.

Jeremy Dempsey, Vice President of Operations at Costco,

also interviewed Garcia and accused him of "manipulating inventory

and stealing products." When grilled, Garcia once again was

"unable to explain why his inventories were high and erratic over

the past nine . . . periods." Garcia reiterated that he had not

stolen any merchandise and that, in fact, he believed all the

merchandise had been accounted for. On three occasions, Garcia

also grieved to Dempsey, Soto, and Farano about the accusations

being made against him and complained about (what he characterized

as) Costco's "gender-based disparate treatment," which he said was

causing him emotional distress and anxiety. According to Garcia,

Costco had treated similarly situated female employees, including

Beatriz Gomez, Rocío Mendez, and Johanne Oquendo, differently than

him; when they engaged in similar alleged conduct (i.e., stealing

or allowing theft under their watch), they were not disciplined

and were actually later promoted.

Seven days later, on November 29, 2013, Costco gave

Garcia the boot. According to Garcia, Soto delivered the discharge

news, and while doing so, apologized to Garcia and admitted Costco

had no evidence that "pointed to Garcia as having committed any

wrongdoing." Approximately two months later, Garcia sent a letter

to Joe Portera, Costco's Executive Vice President, asking Costco

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to reconsider its decision to terminate his employment. In the

letter, Garcia pointed out that other younger employees, "both

male and female," who had been involved in "similar situations"

had been allowed to continue working at Costco. He professed,

once again, that he did not steal from Costco and urged Portera to

reconsider his termination. Garcia's request was denied and his

employment was never reinstated.

The following year, Garcia, represented by counsel, sued

Costco in federal court pursuant to 28 U.S.C. § 1332 alleging

multiple violations of Puerto Rico law: (1) gender-based disparate

treatment and retaliation, Law 100, P.R. Laws Ann. tit. 29 § 146;

(2) sex discrimination and retaliation, Law 69, P.R. Laws Ann.

tit. 29 § 1321; (3) libel and defamation, P.R. Laws Ann. tit. 32

§§ 3141-3149; (4) violation of Sections 1, 8, and 16 of Article II

of the Puerto Rico Constitution; (5) wrongful discharge, Law 80,

P.R. Laws Ann. tit. 29 § 185b; and (6) violation of Puerto Rico's

Civil Code, Art. 1802. His complaint sought compensatory damages

and reinstatement. Costco filed an answer to the suit denying all

wrongdoings alleged in the complaint and retorting that Garcia was

dismissed "with just cause . . . after the investigation regarding

the inventory discrepancy showed that he was responsible for the

grossly negligent mishandling of company records and serious

misconduct and incompetence in the performance of his job."

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 Following discovery, Costco filed a motion for summary

judgment maintaining that the "present case poses no genuine issues

of material fact and as a matter of law the instant [c]omplaint

should be dismissed." In support of its motion, Costco filed three

affidavits from Costco agents Stoddard, Farano, and Dempsey.

Garcia objected to the motion on several grounds, including that

Costco had failed to meet its burden of establishing that his

termination was based on good cause.7 Garcia also objected to the

admission of the three affidavits asserting they were not notarized

and, according to Garcia, "all fail to represent[,] . . . assert[,]

and/or mention in the specific document that each declarant has

personal knowledge of the facts they pretend to assert."

Additionally, Garcia claimed, without any discussion, that "the

documents attached as exhibits to the [affidavits] are not

authentic" and should not be admitted. The judge disagreed and

admitted the affidavits8 after concluding that Stoddard "declared

7 He also argued that: (1) a jury could infer he had shown
pretext (relating to his gender discrimination claim); (2) he
demonstrated a strong causal connection between his protected
conduct and his termination (relating to his retaliation claim);
(3) Costco lost its conditional privilege to communicate matters
regarding the workplace (relating to his defamation claim); and
(4) his constitutional claim should still stand even if his
defamation claim failed.
8 It is unclear whether the judge ruled on the admission of
the Farano and Dempsey affidavits. Because there is nothing to
suggest these affidavits were excluded and Garcia treats them as
having been admitted, we will do the same for purposes of this
appeal.

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events based on his personal knowledge." She also declined to

entertain Garcia's "boiler-plate objection" that the exhibits had

not been properly authenticated. As to the merits of Garcia's

wrongful discharge claim, the district court found the following

facts to be undisputed and thus dispositive: (1) Garcia was in

charge of keeping inventory of the Meat Department; (2) Costco

conducted an extensive investigation into the inventory

discrepancy; and (3) Garcia was unable to account for such a

discrepancy. The district court also found no merit to Garcia's

remaining claims and granted summary judgment on all counts.9

Garcia appealed to this Court.

STANDARD OF REVIEW

"We review the entry of summary judgment de novo."

Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 126 (1st Cir.

2017). A grant of summary judgment is appropriate when "there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law." Ameen v. Amphenol

Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015). "A

genuine issue of fact exists where 'the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.'"

Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009)

(quoting Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir.

9 We will discuss the lower court decision in greater detail
as it becomes pertinent to our analysis.

- 8 -
2009)). The court must examine "the record in the light most

favorable to the nonmovant" and must make "all reasonable

inferences in that party's favor." Ameen, 777 F.3d at 68 (quoting

Barclays Bank PLC v. Poynter, 710 F.3d 16, 19 (1st Cir. 2013)).

"While we resolve all reasonable inferences in favor of the non-

moving party, we 'must ignore conclusory allegations, improbable

inferences, and unsupported speculation.'" Taylor, 576 F.3d at 24

(quoting Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n

of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536

F.3d 68, 75 (1st Cir. 2008)).

Moreover, when the district court's ruling is dependent

in part on preliminary evidentiary rulings, we "review the district

court's evidentiary rulings made as part of its decision on summary

judgment for abuse of discretion." Hoffman v. Applicators Sales

and Serv., Inc., 439 F.3d 9, 13 (1st Cir. 2006) (citing Alternative

Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 31 (1st Cir.

2004)).

DISCUSSION

On appeal, Garcia raises with us the same arguments he

made below regarding the admission of the affidavits and the

exhibits attached thereto--that neither should have been

considered because they were not in compliance with Rule 56(c)(4)

of the Federal Rules of Civil Procedure. Additionally, Garcia

continues to challenge the judge's summary-judgment ruling on the

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merits of each of his six claims against Costco. We begin with a

discussion of the affidavits before examining whether each count

of Garcia's complaint warranted summary disposition.10

A. Admission of Affidavits

Rule 56(c)(4) provides that "[a]n affidavit or

declaration used to support or oppose a motion must be made on

personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to

testify on the matters stated." "[T]he requisite personal

knowledge must concern facts as opposed to conclusions,

assumptions, or surmise." Perez v. Volvo Car Corp., 247 F.3d 303,

316 (1st Cir. 2001).

Before this Court, Garcia once again maintains that

Costco's supporting affidavits were not in compliance with Rule 56

for two reasons: (1) because the affiants did not declare that

they have personal knowledge regarding the matters stated therein;

and (2) because the inventory exhibits attached to the affidavits

were not authenticated by the affiants. We are not persuaded the

judge abused her discretion.

10We pause to note that although every heading (including the
table of contents) of Costco's brief states that the district court
erred in entering summary judgment, the body of the brief prays we
affirm that entry.

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 1. Affidavits

Garcia maintains the judge erred by not striking the

affidavits of Stoddard, Farano, and Dempsey from the record.

According to Garcia: the three affidavits "reveal[] that the

affiants did not declare that they have personal knowledge of the

purported facts set forth in each of their declarations" and,

"[f]or such reason and because the affiants did not declare how

they would be competent to testify on those matters raised in the

[affidavits] at trial, the [district court] erred in not striking

these from the record as they are inadmissible in evidence."11

(Emphasis in the original). Notably, although Garcia summarily

and generally asserts that the affiants lacked personal knowledge

about the matters being sworn to, the argument he actually develops

on appeal is much more narrow and technical--he argues that the

affiants' mere failure to specifically declare within the

affidavits themselves that they did have personal knowledge

suffices to make the affidavits inadmissible.

11In his brief, Garcia quotes cases explaining the previous
Federal Rule of Civil Procedure 56(e), which required the records
submitted with affidavits to be certified (although he makes no
argument relating to certification). This rule was amended in
2010; while no change was made to the summary-judgment standard
itself, or to the burdens imposed on movants and opponents,
"authentication" is no longer required under the rule. Rule 56.
Summary Judgment, 10A Fed. Prac. & Proc. Civ. CIV Rule 56 (4th
ed.)

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 First we note that Rule 56 contains no requirement that

the affiant specifically articulate that he or she has personal

knowledge. See Fed. R. Civ. P. 56(c). Therefore, Garcia's focus

on this narrow argument, which is unsupported by the plain language

of the applicable rule, is quite odd. Further, a reading of the

affidavits demonstrates that all three affiants did have personal

knowledge about the facts they were swearing to, despite not

explicitly stating so. See Barthelemy v. Air Lines Pilots Ass'n,

897 F.2d 999, 1018 (9th Cir. 1990) (internal citation omitted)

("That Rule 56[]'s requirements of personal knowledge and

competence to testify have been met may be inferred from the

affidavits themselves."). For instance, Stoddard specifically

states in his affidavit that he was the Costco agent who noticed

the high inventory number of approximately $297,000 for store #365

and later "determined that the inventory discrepancy was due to a

hidden shrink of approximately $146,000[.]" Similarly, Farano

attested that he had been instructed to investigate the inventory

discrepancy, and as part of doing so, interviewed Garcia, along

with Mendez and Chiriboga. Farano also attached two emails as

exhibits to his affidavit whereby he provides a synopsis of the

interviews he conducted as part of the investigation. Finally,

Dempsey notes that Stoddard informed him of the high-ending

inventory, and that on November 13, 2013, he too "interviewed

Garcia regarding the inventory discrepancy." It is readily

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apparent, and easily inferred, that these statements were made

with personal knowledge.

But, to the extent the affiants make broader statements

about the inventory investigation without making their knowledge

readily clear, those statements are either undisputed or are not

specifically challenged by Garcia. Again, we note he does not

contest the accuracy or veracity of any specific statement within

the affidavits.

Accordingly, we find no abuse of discretion in the lower

court's decision to admit the affidavits. See Vélez v. Thermo

King de Puerto Rico, Inc., 585 F.3d 441, 445 n.1 (1st Cir. 2009)

(no abuse of discretion in admitting employer affidavit to show

what motivated employee's firing because "the relevant question in

th[at] case [was] not whether [the employer] was correct that [the

employee] had violated rules, but whether that perceived violation

was the reason it fired him").

2. Exhibits

As to the exhibits attached to the affidavits, Garcia

maintains that they were not authenticated by the affiants or

certified under oath and therefore, should have been excluded. We

disagree. As noted, the district court never reached the merits

of this contention because Garcia's argument was merely

boilerplate--it characterized the exhibits as lacking

authentication without noting any specifics. While Garcia

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attempts to resurrect this argument on appeal by adding in a bit

more bite (he gets more specific and argues the exhibits are

"illegible and unsigned"), his attempt is futile. See McCoy v.

Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("It

is hornbook law that theories not raised squarely in the district

court cannot be surfaced for the first time on appeal.")

Importantly, Garcia does not challenge the district court's

finding that his argument regarding the exhibits was mere

boilerplate. Accordingly, "[w]e reject, as procedurally

defaulted," Garcia's arguments relating to the authenticity of the

exhibits. See id.

Seeing no abuse of discretion, we proceed first to

address Garcia's wrongful discharge challenge and then take up his

gender-based discrimination and defamation claims.

B. Wrongful Discharge (Law 80)

Garcia's wrongful discharge claim is based on a Puerto

Rico statute, colloquially known as "Law 80," which provides a

remedy to employees who are discharged "without just cause." P.R.

Laws Ann. tit. 29, § 185a; see also Echevarría, 856 F.3d at 140.

Law 80 provides that "[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 as a

discharge for good cause." Id. § 185b(f). On the other hand, the

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statute specifies that the following constitute examples of good-

cause discharge:

 "the worker indulges in a pattern of improper or disorderly

conduct[;]" Id. § 185b(a).

 the employee's failure to perform his or her work "in an

efficient manner, or . . . doing it belatedly and

negligently or in violation of" quality standards; Id. §

185b(b).

 "repeated violations of the reasonable rules and

regulations established" by the employer, if a written copy

has been duly furnished to the employee. Id. § 185b(c).12

The following burden-shifting framework is applicable to

Law 80 claims: "(1) the employee must [first] show that he or she

has been discharged and allege that the dismissal was not

justified; (2) the burden then shifts to the employer to show, by

a preponderance of the evidence, that the dismissal was justified;

and (3) if the employer shoulders that burden, the employee must

rebut the showing of good cause." Echevarría, 856 F.3d at 140.

In the present case, our de novo review demonstrates

that Garcia easily overcomes the first hurdle--it is undisputed

12
The statute also specifies three other good-cause grounds
for termination "that relate to company restructuring or
downsizing." Carrasquillo-Ortiz v. Am. Airlines, Inc., 812 F.3d
195, 196 (1st Cir. 2016); see also P.R. Laws Ann. tit. 29, §
185b(d)-(f).

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that he was discharged from his employment with Costco and he

alleges in his complaint that such discharge was not justified.

The burden now shifts to Costco to show by a

preponderance of the evidence that Garcia's discharge was based on

good cause. See id. To meet the good-cause prong, Costco "need

only demonstrate that it had a reasonable basis to believe that

[Garcia] has engaged in one of those actions that the law

identified as establishing such cause." Id. (quoting Pérez v.

Horizon Lines, Inc., 804 F.3d 1, 9 (1st Cir. 2015)). In fact,

even a "perceived violation [would] suffice[] 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).

The termination need only be "non-arbitrary" and bear "some

relationship to the business' operation." Pérez, 804 F.3d at 9.

Costco cites Garcia's inability to account for the

$146,000 in missing meat product as the cause of his termination.

As noted, Garcia, as meat manager, had inventory oversight of the

Meat Department. He himself admitted at his deposition that

ensuring that the reported inventory figures comported with the

physical inventory in the Meat Department was his "primary

responsibility"; despite this, under his supervision, the meat

inventory was inflated for a total of nine monthly periods. When

Costco agents inquired about the discrepancy, Garcia was unable to

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explain or justify the numbers. At best, the record shows that

Garcia wasn't satisfactorily performing his primary job

responsibility. Given this backdrop, we believe the evidence

presented by Costco would compel a reasonable jury to conclude

that Costco has met its good-cause burden and that its decision to

dismiss Garcia was not made on a whim.13 See Hoyos, 488 F.3d at

10. Therefore, Costco has shouldered its burden of proving by a

preponderance of the evidence that Garcia's employment was

terminated for good cause. See Pérez, 804 F.3d at 10 ("Although

[employee] has shown that he was discharged, a reasonable jury

could only conclude that [employer] ha[d] met its burden of showing

just cause.")

"Because [Costco] established cause for [Garcia's]

termination, to withstand summary judgment [Garcia] bore the

burden to rebut that showing." Id. To satisfy his burden, Garcia

was required to do more than "cast[] doubt" on Costco's proffered

reason for his discharge; instead, Garcia had to "adduce probative

evidence that [Costco] did not genuinely believe in or did not in

fact terminate [Garcia] for the reason given." Id. at 11 (citing

Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987)).

13The district court ended its analysis here, but Law 80
framework requires us to consider whether Garcia has presented any
evidence to rebut Costco's good-cause showing. See Echevarría,
856 F.3d at 140.

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 The following three themes can be distilled from

Garcia's brief (with a lot of effort on our part) as addressing

why he believes he has rebutted Costco's good-cause showing: (1)

he had an excellent employment record at Costco; (2) no inventory

discrepancy actually existed; and (3) even if one did exist, Costco

failed to prove he was the one responsible.14 We address and reject

each of these arguments in turn.

1. Employment History

Garcia maintains that as to his "purported job

incompetence and just cause for dismissal," he presented evidence

that he had a great employment history with Costco, highlighting

that "during the same year of his termination, (2013) he was

favorably evaluated and received a salary increase." He also cites

to his history of frequent promotions, high ratings on quality

inspections, and high monthly average sales to rebut Costco's good-

cause showing.

While evidence of overall positive employment reviews

may be used to establish pretext when an employee is later

14Garcia's brief does not clearly present these arguments
within prong 3 of the Law 80 burden-shifting framework (where he
is tasked with rebutting Costco's proffered reason for discharging
him). Instead, he conflates prongs 2 and 3--sometimes arguing
Costco has not met its burden (implying prong 2), while at other
times arguing that the proffered reason given by Costco for his
dismissal was pretextual (implying prong 3). Because Garcia's
arguments all appear to challenge Costco's proffered reason, we
think they best address the third prong. We note that his
arguments fail irrespective of what prong we tie them to.

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terminated for poor performance, see Acevedo-Parrilla v. Novartis

Ex-Lax, Inc., 696 F.3d 128, 140-43 (1st Cir. 2012), Costco has

never suggested that it was anything but pleased with Garcia's

work performance before his elevation to Meat Department manager.

Indeed, in 2010 Costco had named Garcia employee of the month.

However, Costco need not establish a continuous pattern of poor

behavior to satisfy the good-cause prong; instead, one instance

can suffice. See Hoyos, 488 F.3d at 6 ("Although Law 80 generally

refers to multiple episodes of misconduct as constituting good

cause, 'Law 80 does not invariably require repeated violations,

particularly where an initial offense is so serious, or so reflects

upon the employee's character, that the employer reasonably should

not be expected to await further occurrences.'") (quoting Gonzalez

v. El Dia, Inc., 304 F.3d 63, 75 (1st Cir. 2002)). Undeniably,

Costco's proffered reason--a costly and unexplained $146,000

inventory discrepancy within the department Garcia managed--is so

severe that Costco could not have been "expected to await further

occurrences." See id. Therefore, Garcia's first attempt to rebut

Costco's good-cause showing fails.15

15To the extent Garcia argues there are "genuine issues over
material facts" regarding his stellar employment record, these
facts are by no means material to this case. Whether Garcia had
a great (or a terrible) employment history with Costco prior to
the inventory discrepancy does not really matter because Costco
relies on the inventory discrepancy (and nothing else) to satisfy
its good-cause prong.

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 2. Existence of Inventory Discrepancy

Next, Garcia argues that there was no actual inventory

discrepancy as all the products that Costco agents claimed were

missing were, in fact, "physically there and part of the

inventory." According to Garcia, when he specifically asked to

see the list of "missing items," Costco was unable to provide him

with one.16 Garcia maintains that the apparent inventory

discrepancy could easily be explained: Costco agents compared a

partial inventory (of just beef and pork resulting in a low

$160,000 figure)17 with the inventory reported for the entire meat

department. In other words, there appeared to be a discrepancy

because they did not compare the same products.

Garcia's attempt to undermine Costco's evidence of

hidden shrinkage fails. Stoddard's affidavit, including the

inventories and emails attached thereto, show that the "partial

inventory" of pork and beef Garcia refers to was in fact compared

to a manual inventory conducted for the same meat items. Here's

what the record shows: Stoddard was surprised by the reported

inventory of $297,000 and requested that Soto perform another

16
Garcia does not point to anything in the record indicating
he requested this information during discovery.
17
Although Garcia notes a $160,000 amount for the pork and
beef inventory, the record suggests this figure was actually
$118,000. Regardless, the exact amount is not material to the
issues on appeal.

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inventory; after the results were still high ($315,000), Stoddard

requested a manual recount of the entire Meat Department ($178,000)

and, specifically, the results for "pork and meat."18 Stoddard

then compared the results of the manual recount sent by Soto to

reported inventories for seven specific "pork and meat" items.

The $114,000 discrepancy found was the result of a comparison

between what was reported and what was physically present for these

seven meat items.19 Thus, Garcia's argument that the apparent

discrepancy is based on an inherently flawed analysis is not

supported by the record.

3. Other Employees

Lastly, Garcia faults Costco for failing to meet

"its burden of demonstrating without any doubt" that he is the

person who actually engaged in the alleged theft and/or inventory

manipulation. Other employees, including managers and auditors,

had his password, says Garcia, and could have accessed and entered

false inventory figures into AS400. Once again, we are not

persuaded.

18Because "meat" would include the entire department, it is
likely that he meant "pork and beef."
19 The hidden shrink later rose to $146,000 when the entire
physical meat inventory of $178,000 was compared to the reported
ending inventory for the previous period of $297,000. A worksheet
attached to Stoddard's affidavit includes the calculations made to
reach the amount of $146,000 in hidden shrink.

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 For starters, Garcia clearly has the standard wrong;

Costco need not "demonstrate[] without any doubt" that Garcia

manipulated the numbers. Instead, it must show by a preponderance

of the evidence that it had good cause to terminate Garcia. See

P.R. Laws Ann. tit. 29, § 185b. As noted, even a "perceived

violation" is sufficient to rebut an allegation that the decision

to dismiss an employee was made on a whim. See Hoyos, 488 F.3d at

10. Here, Garcia as manager was primarily responsible for the

meat tabulation; whether or not he was the one guilty of any theft

or of manipulating the inventory numbers is immaterial. Being

terminated from his post for failing to adequately perform his

primary responsibility of ensuring that the accounting was

accurate bore a direct "relationship to the business' operation."

See Pérez, 804 F.3d at 9. Therefore, Garcia has failed (once

again) to rebut Costco's good-cause showing.

Accordingly, because a reasonable jury would be

compelled to find that Costco has met its burden of proving just

cause and that Garcia has failed to rebut such showing, the

district court correctly granted summary judgment on the Law 80

claim.20 Id. at 8.

20Garcia also argues that Costco's alleged violation of its
own internal accounting procedures by not having a member of the
warehouse management staff sign the inventory (and then later using
that inventory to establish that Garcia's discharge was justified)
demonstrates that the reasons given for his termination were
pretextual. We fail to see any plausible link between an inventory

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 C. Gender Discrimination (Law 100 and Law 69)

In addition to his wrongful discharge claim, Garcia

alleges that he was discriminated against in violation of Law 100,

P.R. Laws Ann. tit. 29 § 146, and Law 69, P.R. Laws Ann. tit. 29

§ 1321. These statutes prohibit gender and sex-based

discrimination in the workforce. See id. "Indeed, Law 69 is

merely an amplification of the principles contained in Law 100."

Rodriguez-Torres v. Caribbean Forms Manufacturers, Inc., 399 F.3d

52, 61 (1st Cir. 2005). Law 100's burden-shifting framework

provides that: (1) the employee must first show that his or her

discharge was not for just cause21--if successful, the employee

enjoys a presumption that he or she has been the victim of

discrimination; (2) the burden of production and persuasion then

shifts to the employer to rebut this presumption. Ramos v. Davis

that was not signed, and Garcia's argument that somehow this
demonstrates pretext. Garcia's argument, as this Court understands
it, completely lacks merit and is rejected.
Moreover, Garcia indicates that several other male Costco
employees had stolen merchandise at Costco but were nevertheless
allowed to continue their employment. Because Garcia does not
develop any specific argument as to how this fact rebuts Costco's
good-cause showing, it is deemed waived. See Mills v. U.S. Bank,
NA, 753 F.3d 47, 54 (1st Cir. 2014) (treating as waived "embryonic
arguments").
21"'[T]he Supreme Court of the Commonwealth of Puerto Rico
determined that, because Law 100 did not define the term 'just
cause,' the term's definition would be drawn from an analogous
statute--' Law 80." Alvarez-Fonseca v. Pepsi Cola of Puerto Rico
Bottling Co., 152 F.3d 17, 28 (1st Cir. 1998).

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& Geck, Inc., 167 F.3d 727, 734 (1st Cir. 1999). Here, because

Costco made the showing that it had just cause to dismiss Garcia

in the Law 80 context, it follows that "the Law 100 presumption

[of discrimination] disappears." Alvarez-Fonseca v. Pepsi Cola of

Puerto Rico Bottling Co., 152 F.3d 17, 28 (1st Cir. 1998) (citing

P.R. Laws Ann. tit. 29, § 148). Therefore, Garcia bears "the

burden of proof on the ultimate issue of discrimination," meaning

that he "must prove that, even if the dismissal was justified,

[Costco] nevertheless violated Law 100 because the dismissal was

motivated by discriminatory animus instead of or in addition to

the legitimate reasons for dismissal." Id. In other words, that

the reasons proffered were pretextual.22 See Pérez, 804 F.3d at 8

n.4 ("[The Law 100] framework follows the Law 80 burden shifting

framework" and because "no reasonable jury could conclude that

[the employer] lacked cause to terminate [the employee,] . . . to

succeed on his Law 100 claim [the employee] must show that [the

22The district court, after noting that Law 100's presumption
of discrimination "was not triggered" because Costco had met its
burden of showing that the dismissal was justified, concluded that
"the burden shifting analysis ends here." The judge nevertheless
provided an analysis "assuming that the presumption of
discrimination was triggered," and found that Garcia would in any
event lose. (Emphasis added). We pause to note that even where
the presumption is not triggered, as was the case here, the
analysis does not end there. Instead, as noted, the result is
that the employee bears "the burden of proof on the ultimate issue
of discrimination." See Alvarez-Fonseca, 152 F.3d at 28.

- 24 -
employer's] proffered reason was pretext specifically designed to

mask gender discrimination.").

One method of showing that an employer's stated reasons

are pretextual "is to produce evidence that the plaintiff was

treated differently than other similarly situated employees."

Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003)

(citations omitted). While the "examples of disparate treatment

'need not be perfect replicas, . . . they must closely resemble

one another in respect to relevant facts and circumstances.'" Id.

(quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st

Cir. 1999)). In other words, when comparing the plaintiff's

experience to that of other employees, "apples should be compared

to apples." Woodward v. Emulex Corp., 714 F.3d 632, 639 (1st Cir.

2013) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13,

19 (1st Cir. 1989)).

After reviewing the record, we conclude that Garcia's

gender discrimination claims under "Law 100 fail because he has

not 'proffered sufficient admissible evidence, if believed, to

prove by a preponderance of the evidence . . . that the employer's

justification . . . was merely a pretext for impermissible [gender]

discrimination.'" See Velázquez-Fernández v. NCE Foods, Inc., 476

F.3d 6, 11 (1st Cir. 2007) (quoting Woodman v. Haemonetics Corp.,

51 F.3d 1087, 1092 (1st. Cir. 1995) (ellipses in original)). In

support of his pretext argument, he claims "similarly situated

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female employees" were treated differently and cites several

examples of employee wrongdoings that went unpunished.23

First, Garcia notes that three female employees,

including Beatriz Gomez, Rocío Mendez, and Johanne Oquendo, were

allowed to continue their employment at Costco after they admitted

to authorizing a $95,000 purchase which was later discovered to be

fraudulent. Garcia suggests that the monetary amount involved in

this incident alone should have been enough to terminate these

employees. Even assuming that the employees implicated in the

incident were "similarly situated" because of the monetary value

of the fraud, a crucial fact, which Garcia acknowledged at

deposition but omitted from his brief, is that this incident also

involved two male employees who like their female colleagues were

not terminated. See Mariani-Colón v. Dep't of Homeland Sec. ex

rel. Chertoff, 511 F.3d 216, 222 (1st Cir. 2007).

To have a plausible differential treatment claim, Garcia

was required to first show that employees of the opposite sex were

similarly situated and that he "was treated differently and then

that gender was the reason for that difference." Rivas Rosado v.

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

omitted). Given that male employees were also involved, this fraud

23The examples he cites throughout his brief, however, also involve
male employees, are overly broad, do not involve employees
"similarly situated," or encompass some combination of these fatal
flaws.

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incident does little to support Garcia's allegation that he was

treated differently than female employees, let alone "that gender

was the reason for that difference." Id. Even when viewed in the

light most favorable to him, an example involving unpunished male

and female employees does not support a finding that he was

discriminated against based on his gender.

Second, Garcia maintains that Johanne Oquendo and Rocío

Mendez were involved in some sort of "issue with the use and

payment of the chemicals," but were allowed to continue working at

Costco.24 Garcia also cites to an incident where Rocío Mendez

failed to follow managerial procedure after she observed another

employee improperly use Garcia's password to access AS400. We can

easily dispose of both examples as Garcia fails to explain exactly

how these women were "similarly situated" to him--he provides no

detail and no support other than his subjective belief that he was

being discriminated against by Costco. See Mariani-Colón, 511

F.3d at 222 (summary judgment affirmed in favor of employer in

employee's Title VII discrimination claim because employee's

"statements merely reflect [his] 'subjective speculation and

suspicion' that he was treated unfairly") (quoting Quinones v.

Buick, 436 F.3d 284, 290 (1st Cir. 2006)). His general statements

24The district court did not consider this allegation as it held
it was not sufficiently supported by the record.

- 27 -
that are not properly supported by the record fail to carry the

day.

Prior to the inventory discrepancies and Garcia's

termination, Garcia had been repeatedly promoted by Costco and

"[t]here were no statements or behaviors by [Costco agents]

involved in terminating [Garcia] from which an inference of

discrimination could be drawn." See Rivas Rosado, 312 F.3d at

534. The evidence presented at summary judgment would not permit

a reasonable jury to find that Garcia had carried his burden of

proof on the ultimate issue of discrimination. After taking a

fresh look ourselves, we conclude that the district court did not

err in dismissing with prejudice Garcia's gender discrimination

claim.

D. Retaliation (Law 69)

Moving along, Garcia alleges that his discharge was an

act of retaliation after he complained to Costco agents that he

was being treated differently than his female co-workers--recall

he told Dempsey, Soto, and Farano during the inventory

investigation that Beatriz Gomez, Rocío Mendez, and Johanne

Oquendo were not disciplined after engaging in similar alleged

misconduct. Law 69, P.R. Laws Ann. tit. 29 § 1340, contains a

retaliation provision that mirrors one of its federal law

counterparts under Title VII. The statute provides, in relevant

part, that: "[i]t shall be an unfair labor practice for an employer

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. . . to dismiss or discriminate against any employee or

participant who files a complaint or charge, or is opposed to

discriminatory practices. . . ." P.R. Laws Ann. tit. 29 § 1340.

To prove a claim of retaliation, Garcia must first establish a

prima facie case, including that (1) he engaged in protected

conduct; (2) he experienced an adverse employment action; and (3)

there was a causal connection between the protected conduct and

the adverse employment action. Calero-Cerezo v. U.S. Dep't of

Justice, 355 F.3d 6, 25 (1st Cir. 2004). "[I]nformal protests of

discriminatory employment practices, including making complaints

to management, writing critical letters to customers, protesting

against discrimination by industry or by society in general, and

expressing support of co-workers who have filed formal changes,"

are instances of protected conduct. Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015).

Garcia maintains that "the facts demonstrate that prior

to his unlawful termination, [he] grieved of gender based disparate

treatment" by Costco and that the temporal proximity--being fired

just seven days after he last grieved--may alone create the causal

connection "between the firing and the activity because it is

strongly suggestive of retaliation." See Collazo v. Bristol-Myers

Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) ("[O]ur law is

that temporal proximity alone can suffice to meet the relatively

light burden of establishing a prima facie case of retaliation.")

- 29 -
(quoting DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008)).

Here, though, any probative force of the chronology is belied by

the fact that the allegation of discrimination itself only came in

response to Costco's accusation of a defalcation that was itself

the cause for the discharge that ensued. See Germanowski v.

Harris, 854 F.3d 68, 74-75 (1st Cir. 2017). For purposes of this

appeal, we will nevertheless assume without deciding that Garcia

has produced adequate evidence to establish a prima facie case.

See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.

2001); see also Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62,

67 (1st Cir. 2008) ("For simplicity's sake, we assume without

deciding that the plaintiff established a prima facie case

. . . .").

Taking it from there, the burden then shifts to Costco

to articulate a legitimate, non-retaliatory reason for its action.

See Collazo, 617 F.3d at 46 (citation omitted). Given Costco's

reason for discharging Garcia--the inventory discrepancy--as

discussed in detail above, Costco has met this burden. Having

been successful, "the burden shifts back to [the plaintiff] to

show that the proffered legitimate reason is in fact a pretext and

that the job action was the result of the defendant's retaliatory

animus." Id. (quoting Roman v. Potter, 604 F.3d 34, 39 (1st Cir.

2010)).

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 Garcia has presented no evidence by which a reasonable

jury could conclude that Costco's proffered reason for terminating

him was mere pretext and that his termination "was the result of

the defendant's retaliatory animus." Id. (quoting Roman, 604 F.3d

at 39) (summary judgment for the employer inappropriate in

retaliation claim where employee had "submitted evidence from

which a reasonable jury could conclude that the purported company

reorganization was not the real reason for his termination"). The

only record evidence Garcia points to in support of his retaliation

claim is his own deposition statement wherein he states his belief

that he was "dismissed unjustifiably" and that Costco "took

reprisals" against him because he noted "that they had done nothing

against [other employees]." Garcia failed to present any evidence

to support these "conclusory allegations." See Vives v. Fajardo,

472 F.3d 19, 21 (1st Cir. 2007) ("Even in retaliation cases, where

elusive concepts such as motive or intent are at issue, summary

judgment is appropriate if the non-moving party rests merely upon

conclusory allegations, improbable inferences, and unsupported

speculation.") (internal quotation marks omitted). Having failed

to present "significant probative evidence tending to support

[his] [retaliation] claim[,]" we are satisfied that summary

judgment in favor of Costco on Garcia's retaliation claim was

appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986).

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 E. Defamation

Garcia's final arguments address his defamation claims.

He contends the judge erred in dismissing his claims and in

concluding that Costco's communications to others were covered by

the qualified privilege of intra-business communications. In

Puerto Rico, "[t]he protection against defamatory or libelous

expressions has three sources." Giménez Álvarez v. Silen

Maldonado, 131 P.R. 91, 97 (1992). First, the Constitution of the

Commonwealth of Puerto Rico, Art. II, § 8; second, the Libel and

Slander Act, P.R. Laws Ann. tit. 32 §§ 3141-3149; and third, Civil

Code § 1802, P.R. Laws Ann. tit. 31 § 5141. Id. at 97-98 (citations

omitted).

A defamation claim based on all three sources of Puerto

Rico law "requires that the plaintiff prove: (1) that the

information is false, (2) that plaintiff suffered real damages,

and (3) in the case of a private figure plaintiff, that the

publication was negligent.” Ayala-Gerena v. Bristol Myers-Squibb

Co., 95 F.3d 86, 98 (1st Cir. 1996) (quoting Mojica Escober v.

Roca, 926 F. Supp. 30, 33 (D.P.R. 1996)); see P.R. Laws Ann. tit.

32 §§ 3142-43. "[P]ublication" is an essential element of the

claim and can be met "when the defamatory statement is communicated

to a third person, that is, someone other than the person defamed."

Porto y Siurano v. Bentley P.R., Inc., 132 P.R. 331, 347-48 (1992).

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In Porto y Siurano, the Supreme Court of Puerto Rico discussed the

publication element in the corporate context. Id. at 348.

As at issue here, communications within an organization

"among 'managers or supervisors of a discharged employee,

regarding the reasons for'" an employee's discharge are covered by

a conditional privilege. Soto-Lebrón v. Fed. Express Corp., 538

F.3d 45, 63 (1st Cir. 2008) (quoting Porto y Siurano, 132 P.R. at

353-54). Because the privilege is conditional, it is lost if the

employer abuses it by giving the statement "excessive publicity"

or by publishing it for "improper reasons." Id. The privilege

also vanishes if the publication is made to one whom there is no

reason to believe will protect the author's interest or the

community's. Porto y Siurano, 132 P.R. at 354.

Garcia argues that the district court twice erred, first

by ruling that Costco's publications were subject to privilege;

according to Garcia, Costco "abused its conditional . . . privilege

by publicizing defamatory statements to other [Costco] employees

who had no right to know about Garcia's termination of employment."

Second, Garcia argues that he "proffered evidence to prove malice,"

as the statements "were made with knowledge of falsity and reckless

disregard as to their truth."

We agree with the district court's conclusion that

Garcia's allegations in support of his defamation claims "are the

textbook definition of 'conclusory.'" As the district court noted,

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all that Garcia put forth fell into three groups: "(1)

conversations that he sustained with his superiors as part of the

investigation into the inventory discrepancies;" "(2) alleged

information relayed . . . by . . . other Costco employees"

(including Garcia's father-in-law who worked at Costco); and "(3)

two emails sent by Jerry Dempsey to Yoram Robanenko and David Soto"

accusing Garcia of altering company documents.

As it relates to group one conversations--Garcia's

superiors accusing him "of negligence, lying, stealing

merchandise[,] and of manipulating inventory and its data[,]"--

clearly these communications are intra-business communications

covered by the qualified privilege. See Porto, 132 P.R. at 354-

55. Garcia has failed to present any evidence to support his

allegation that the privilege was lost due to "excessive

publication" or that any publication was made for "improper

reasons." See Soto-Lebrón, 538 F.3d at 63. As the nonmoving party

at the summary judgment stage, Garcia was tasked with providing

more than mere allegations; he was required to "set forth specific

facts showing that there [were] genuine issue[s] for trial."

Anderson, 477 U.S. at 248 (quoting Fed. R. Civ. P. 56). Garcia

has failed to meet his burden.25 Furthermore, even if the

25In granting summary judgment the district court expressed
that "other than his own averments, [Garcia] has not shown that
the statements in question[] damaged his reputation or honor." We
pause to note, however, that to the extent the statements are that

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conditional privilege had been lost, Garcia cannot meet the

publication element required because these accusations were

communicated to him, not to third parties. See Porto y Siurano,

132 P.R. at 347.

Moreover, as it relates to the remaining groups two and

three statements--those purportedly made by Costco managers to

employees, which eventually made their way to Garcia--we agree

with the district court that they "are based on nothing more than

hearsay and gossip, and, as such, do not provide a solid basis for

a defamation claim." Garcia presented no supporting affidavits or

deposition transcripts from the individuals who allegedly learned

these defamatory statements from Costco managers. The deposition

transcript of Israel Echevarría-Nieves (Garcia's father-in-law),

which accompanied Garcia's objection to Costco's motion for

summary judgment, does not provide any support for Garcia's

allegations. Echevarría-Nieves (like we mentioned earlier), an

Garcia is a thief, he would not be required to establish harm.
See González Pérez v. Gómez Aguila, 312 F. Supp. 2d 161, 174
(D.P.R. 2004) (citing Pérez–Rosado v. El Vocero de Puerto Rico,
149 P.R. 427 (1999)) ("[T]he Puerto Rico Supreme Court has held
that publications in which the commission of a crime is imputed
are considered libelous per se.").

- 35 -
employee at a separate Costco store, noted that his manager, Rafael

Reyes, asked him what he thought had occurred at store #365 but

that he didn't have an answer for him. According to Echevarría-

Nieves, his manager said that prices were inflated and that numbers

did not match, and that Garcia "had no reasoning or answer to

that;" "that it appeared that it was either they had stolen the

merchandise or they had inflated the inventories." When

specifically asked whether Reyes had told him that Garcia had

stolen the merchandise, Echevarría-Nieves responded: "No.

[Reyes] just said that he didn't understand how something like

that could've happened." Not only is this statement hearsay, even

if it were admitted and accepted, it readably does not support

Garcia's claims. See United States v. $8,440,190.00 in U.S.

Currency, 719 F.3d 49, 61 (1st Cir. 2013) ("[I]t 'is black-letter

law that hearsay evidence cannot be considered on summary judgment

for the truth of the matter asserted[.]'") (quoting Kenney v.

Floyd, 700 F.3d 604, 609 (1st Cir. 2012)).

Accordingly, even viewing the evidence in the light most

favorable to Garcia, he has completely failed to present any

triable issue relating to his defamation claims to survive summary

judgment. Accordingly, we affirm the entry of summary judgment in

favor of Costco.26

26 Garcia also claims that the district court erred by not
separately addressing his constitutional causes of action. While

- 36 -
 AFFIRMED.

Garcia attempts to characterize his constitutional claim as an
independent claim, what he alleges--that his "dignity was
transgressed and utterly violated resulting from Costco's
continuous badgering and hostile working environment in calling
him a thief and a liar"--sounds like defamation. "[M]erely
relabeling [his] arguments does nothing to advance them." Coors
Brewing Co. v. Méndez-Torres, 678 F.3d 15, 27 (1st Cir. 2012);
see Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995)
(restatement of a defamation claim as a "false light" privacy claim
merited no independent discussion). Moreover, Garcia does not
specify in his constitutional argument exactly who made the
statements and to whom the statements were made. On top of that,
in his filing to the district court, and again in his brief to us,
Garcia quotes a Puerto Rico Supreme Court case, Garcia Benavente
v. Aljoma Lumber, 2004 T.S.P.R. 125 (2004), in support of his
argument that his constitutional claim should stand even though
his defamation claim failed, but Garcia "has not provided a
translation as required by this court's rules." Hoyos, 488 F.3d
1, 6 (citing 1st Cir. Loc. R. 30[e]). As such, "the case may not
be used to support his position." Id. (citing López-González v.
Mun. of Comerío, 404 F.3d 548, 552-53 n.4 (1st Cir. 2005)). For
all these reasons, we affirm summary judgment in favor of Costco
on Garcia's constitutional claims. We also reject Garcia's
argument that Costco has waived any defense regarding his
constitutional claim.

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