Rodriguez-Cardi v. MMM Holdings, Inc.

United States Court of Appeals
For the First Circuit

No. 18-1415

CARMEN RODRÍGUEZ-CARDI,

Plaintiff, Appellant,

v.

MMM HOLDINGS, INC.,

Defendant, Appellee.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

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

Juan R. Dávila-Díaz, with whom Enrique J. Mendoza-Méndez and
Mendoza Law Offices were on brief, for appellant.
Katherine González-Valentín, with whom Patricia M. Marvez-
Valiente and Ferraiuoli LLC were on brief, for appellee.

August 26, 2019
 TORRUELLA, Circuit Judge. Carmen Rodríguez-Cardi

("Rodríguez-Cardi") appeals the district court's order granting

MMM Holdings, Inc.'s ("MMM") motion for summary judgment on her

Age Discrimination in Employment Act ("ADEA") claim regarding the

termination of her employment. The district court determined that

the record was devoid of any evidence from which a reasonable jury

could infer that MMM's articulated reason for terminating

Rodríguez-Cardi's employment was pretextual, let alone a pretext

for age discrimination. After careful consideration, we affirm.

I. Background

A. Factual Background

On October 16, 2012, Rodríguez-Cardi began working with

TEAMS LLC as an Independent Promoter for MMM, which "operates a

[highly regulated] health insurance plan designed [for]

beneficiaries of Medicare Advantage." During her tenure as an

Independent Promoter, Rodríguez-Cardi regularly performed several

tasks for MMM, including generating "valid leads . . . through

authorized marketing activities," while adhering to Centers for

Medicare & Medicaid Services ("CMS") and MMM policies, procedures,

and rules. MMM Supervisor Roberto Rodríguez-Delgado ("Rodríguez-

Delgado"), who oversaw Rodríguez-Cardi's work during this period,

and MMM Sales Manager Brenda Real ("Real") eventually approached

Rodríguez-Cardi and encouraged her to apply for a sales position

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at MMM. After interviewing with Rodríguez-Delgado and Real, on

June 24, 2013, Rodríguez-Cardi accepted an offer to work as an

Outside Sales Representative ("OSR") at MMM. Under the terms of

her employment, Rodríguez-Cardi -- who was forty-six years old at

the time -- would report directly to Rodríguez-Delgado.

To sell MMM products, all OSRs must have a license issued

by the Puerto Rico Insurance Commissioner. Rodríguez-Delgado

assisted Rodríguez-Cardi -- who was unlicensed and said she did

not have enough money to pay the licensing fees -- with securing

her license by lending her the necessary funds.

At the outset of her employment, Rodríguez-Cardi

acknowledged receipt of MMM's Job Description for the OSR position,

the "Sales Representative or Independent Producers Agreement

Letter," and the MMM Employee Handbook. 1 She certified her

understanding that any "coordinated marketing" must be compliant

with all applicable state and federal laws and CMS policies. She

additionally acknowledged that she was expressly prohibited from

"solicit[ing] door-to-door for Medicare beneficiaries or through

other unsolicited means of direct contact, including calling a

1 As an Independent Promoter, Rodríguez-Cardi had already been
exposed to the rigor of these policies and procedures through
firsthand experience and various trainings, including guidance on
CMS and Medicare Improvements for Patients & Providers Act
("MIPPA") regulations.

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beneficiary without the beneficiary initiating the contact."

Moreover, MMM's written Employee Counseling/Progressive Discipline

Policy provided that employees who "failed to meet MMM's . . . job

expectations or violated MMM's policies and/or CMS provisions"

could face either progressive discipline or immediate termination

depending on the circumstances.

Rodríguez-Cardi's OSR duties included "conducting

seminars and in-home sales presentations to eligible and potential

Medicare beneficiaries"; providing product information to

interested persons who had provided MMM with a valid written

authorization; visiting assigned providers to "generate sales

leads through referrals and to coordinate activities"; and

creating various reports (e.g., in-home reports, leads results

reports, and provider visit reports) which were due to Rodríguez-

Delgado each day at 7:30 a.m.

OSRs were required to meet with their supervisor each

month to discuss their job progress and performance, including

review of their Primary Responsibilities Form ("Hoja de

Responsabilidades Primarias," hereinafter "HRP"), which

memorializes the OSR's success in reaching their monthly quotas

and timeliness in submitting reports.

Rodríguez-Delgado assessed Rodríguez-Cardi's job

performance in a probationary period evaluation dated

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September 23, 2013. The evaluation, which Rodríguez-Cardi received

and signed, concluded that she "presented doubts regarding MIPPA

regulation[s] and [that] her sales reports [contained] many

errors." Despite the concerns expressed in the evaluation,

however, Rodríguez-Cardi was given a regular employee position as

an OSR. Between August 2013 and February 2014, Rodríguez-Cardi's

monthly evaluations reflected her pervasive failure to meet job

expectations; her HRPs indicated that she was noncompliant with

between forty and sixty-seven percent of the performance

indicators each month. These unfulfilled performance indicators

included meeting sales, "Scope of Appointments," 2 and provider

visit quotas, as well as "daily arrival at the office."

On February 21, 2014, Rodríguez-Delgado issued a "Record

of Disciplinary Action" to Rodríguez-Cardi for her repeated

failure to timely submit her sales reports between December 2013

and February 2014. When discussing the Record of Disciplinary

Action with Rodríguez-Cardi, Rodríguez-Delgado informed her that

"her actions were affecting the daily process of the Sales

Department, generation of reports, quality calls, and audits," and

that continued underperformance would be met with "more severe

2 A Scope of Appointment is "a form that authorizes an MMM
representative to approach potential affiliates or beneficiaries
prior to giving an orientation and close sales."

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disciplinary measures resulting in [termination]." Rodríguez-

Cardi did not write any comments or objections on the Record of

Disciplinary Action despite having been given the opportunity to

do so.

After failing again to meet her monthly sales quotas in

October 2013 and February 2014, Rodríguez-Cardi was placed on an

Action Plan "to help her with her productivity and sales."3 On

March 17, 2014, Rodríguez-Delgado met with Rodríguez-Cardi and

informed her that she was not meeting the Action Plan's objectives

and that continued failure to comply would result in further

adverse disciplinary action, including termination. Rodríguez-

Cardi received and signed the "Action Plan Follow-Up." On

April 2, 2014, Rodríguez-Delgado met with Rodríguez-Cardi once

again, this time to discuss the "Action Plan Closing Memo," which

detailed her noncompliance with the Plan's objectives. The

following day, Rodríguez-Delgado issued Rodríguez-Cardi a "Final

Written Warning," which included a "Final Action Plan" -- a last-

ditch attempt to improve her sales numbers and overall

productivity.

3 Rodríguez-Cardi admitted that other sales representatives who
failed to meet their sales quotas were "placed under the same
action plan given to her."

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 The MMM Scope of Appointment Policy MKT-0047 provides

that OSRs are strictly prohibited from any unsolicited contact

with potential enrollees. An OSR must have a "Scope of Appointment"

-- a specific written authorization -- issued by the Medicare

beneficiary or legal representative before the OSR can engage in

a sales presentation appointment. Pursuant to the Sales

Investigation Process Policy CMP-0046, the recommended

disciplinary action for unapproved door-to-door solicitation is

"immediate suspension or termination." Additionally, the MMM

Standards of Conduct for Sales and Marketing Activities dictate

that OSRs who call or visit "a beneficiary who was referred by a

friend, provider, provider's secretary, [or] any other third-party

without obtaining a [S]cope of [A]ppointment prior to contact and

member attestation form (testimonial)" should be terminated from

employment with MMM.

On March 14, 2014, CMS Caseworker E. Dumas referred a

beneficiary's complaint to MMM, which was reported through 1-800-

MEDICARE and alleged marketing misrepresentation. MMM Compliance

Auditor Specialist Frances Benítez Fernández ("Auditor Benítez")

commenced a compliance investigation regarding the complaint on

March 30, 2014. At the end of the investigation, on April 11,

2014, Auditor Benítez concluded in her Compliance Investigation

Report that Rodríguez-Cardi had "incurred in a door-to-door

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solicitation" by arriving at beneficiary Ms. Doe's 4 residence

"without prior and valid authorization." Finding that the "Scope

of Appointment" and "attestation" were improperly obtained --

Rodríguez-Cardi acquired them after appearing at Ms. Doe's

residence "without a proper prior contact" -- Auditor Benítez

recommended that Rodríguez-Cardi's employment be terminated.

MMM Human Resources Director Gloribel Rivera-Cabrera

("Director Rivera") upheld Auditor Benítez's recommendation after

evaluating Auditor Benítez's Compliance Investigation Report,

Rodríguez-Cardi's record, training, and disciplinary and

performance history, as well as applicable policies and procedures

regarding disciplinary action. On April 16, 2014, MMM terminated

Rodríguez-Cardi's employment.5 Her duties and assigned providers

were distributed among eight other MMM employees, ranging in age

from twenty-seven to forty years old.

Rodríguez-Cardi contends that, prior to her termination,

some of her colleagues called her "la mayor del grupo" ("the oldest

in the group"). She additionally claims that two OSRs referred

to her as "la vieja" ("the old lady"), called her hairstyle old-

4 Like the district court, we do not disclose the beneficiary's
name for confidentiality reasons.
5 Subsequently, in June 2014 and October 2015, MMM also terminated
two other OSRs -- aged 29 and 34 -- who incurred in a violation of
unsolicited contact with a beneficiary.

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fashioned, and remarked that she had an "old woman's coat."

Moreover, she says that these OSRs mocked her cell phone, which

she had owned for twelve years and did not have internet access,

and her car, a 1987 S.U.V. model, for being old. In her deposition,

Rodríguez-Cardi claimed that she told Rodríguez-Delgado that

coworkers "were making out of place comments" and "bothering" her;

even so, she admitted that she had never formally complained about

any alleged mistreatment or unwelcome age-related comments in

writing.

B. Procedural History

On November 25, 2014, Rodríguez-Cardi filed a complaint

in the U.S. District Court for the District of Puerto Rico against

MMM. In her amended complaint filed on January 29, 2015, Rodríguez-

Cardi asserted claims for: (1) age discrimination, hostile work

environment, and retaliation under the ADEA, 29 U.S.C. § 621 et

seq.; (2) age discrimination under Law 100 of June 30, 1959, as

amended, P.R. Laws Ann. tit. 29, § 146 et seq., Puerto Rico's

general antidiscrimination statute; (3) retaliation under Law 115

of December 20, 1991, as amended, P.R. Laws Ann. tit. 29, § 194 et

seq., Puerto Rico's general anti-retaliation statute; (4) unjust

discharge under Law 80 of May 30, 1976, as amended, P.R. Laws Ann.

tit. 29, § 185a et seq., Puerto Rico's Unjust Discharge Act; and

(5) damages under Articles 1802 and 1803 of the Puerto Rico Civil

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Code, P.R. Laws Ann. tit. 31, §§ 5141, 5142, Puerto Rico's general

tort statute. On June 8, 2015, the district court granted MMM's

motion to dismiss Rodríguez-Cardi's retaliation claims under the

ADEA and Law 115. MMM then moved for summary judgment on

Rodríguez-Cardi's remaining claims.

On March 30, 2018, the district court entered an opinion

and order granting MMM's motion for summary judgment. Rodríguez-

Cardi v. MMM Holdings, Inc., No. 14-1854, 2018 WL 1725549, at *1

(D.P.R. Mar. 30, 2018). The district court determined that

Rodríguez-Cardi failed to provide any evidence to show that MMM's

"articulated reason for its decision to terminate [her was]

pretextual, much less a pretext to discriminate against [her]

because of her age." Id. at *9. Therefore, the district court

found, Rodríguez-Cardi failed to meet her burden under the burden-

shifting standard for ADEA employment claims. Id. at *8-9. The

district court further noted that the "same actor inference"

provided an additional ground to dismiss Rodríguez-Cardi's ADEA

claim. Id. at *10 n.31. According to the same actor inference,

"[i]n cases where the hirer and the firer are the same individual

and the termination of employment occurs within a relatively short

time span following the hiring, a strong inference exists that

discrimination was not a determining factor for the adverse action

taken by the employer." LeBlanc v. Great Am. Ins. Co., 6 F.3d

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836, 847 (1st Cir. 1993) (quoting Proud v. Stone, 945 F.2d 796,

797 (4th Cir. 1991)).

The district court also found that the lack of evidence

of pretext warranted "dismissal as a matter of law" of Rodríguez-

Cardi's age discrimination claim under Law 100. Rodríguez-Cardi,

2018 WL 1725549, at *11. Furthermore, the court determined that

Rodríguez-Cardi's hostile work environment claim also failed

because she provided insufficient evidence that she was harassed

in a manner that was "sufficiently severe or pervasive to alter

the conditions of [her] employment," considering the "totality of

circumstances." Id. at *12. Finally, the court also dismissed

Rodríguez-Cardi's Law 80 claim, finding that MMM terminated her

"for reasons linked to the proper and normal operation of the

establishment" rather than a "mere whim." Id. at *13.

Accordingly, the court granted MMM's motion for summary judgment

and dismissed all of Rodríguez-Cardi's remaining claims. Id.

Rodríguez-Cardi timely appealed.

On appeal, Rodríguez-Cardi challenges only the dismissal

of her age discrimination claim under the ADEA. She argues that

the district court misapplied the summary judgment standard and

erred in holding that no reasonable factfinder could determine

that MMM's reasons for terminating Rodríguez-Cardi were

pretextual.

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 II. Discussion

We review a district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that party's

favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st

Cir. 2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.

1990)). Summary judgment may be granted only 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) (citation omitted).

"Facts are material when they have the 'potential to affect the

outcome of the suit under the applicable law,'" Cherkaoui v. City

of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)), and "[a] dispute is

'genuine' if 'the evidence about the fact is such that a reasonable

jury could resolve the point in the favor of the non-moving

party,'" Sánchez, 101 F.3d at 227 (quoting Rivera–Muriente v.

Agosto–Alicea, 959 F.2d 349, 352 (1st Cir. 1992)).6

6 The district court clearly employed the correct standard of
review for summary judgment. Rodríguez-Cardi's contentions to the
contrary, implying that a "debate" over any issue must be tried
before a jury, lack merit.

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 In a wrongful discharge case under the ADEA, the

plaintiff bears the burden of proving that her age was the

"determinative factor in [her] discharge, that is, that [she] would

not have been fired but for [her] age." Freeman v. Package

Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988). Where, as here,

the plaintiff does not have direct evidence of discrimination, we

apply the burden-shifting framework outlined in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-05 (1973), which has been

adopted for ADEA cases. Woodman v. Haemonetics Corp., 51 F.3d

1087, 1091 (1st Cir. 1995).

Under the McDonnell Douglas framework, a plaintiff

alleging an ADEA claim for discriminatory firing has the initial

burden to set forth a prima facie case by showing that (i) she was

at least forty years old at the time of her termination; (ii) she

was qualified for the position she held and was meeting the

employer's reasonable expectations; (iii) she was terminated from

her employment; and (iv) "the employer subsequently filled the

position, demonstrating a continuing need for the plaintiff's

services." Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447–

48 (1st Cir. 2009). If the plaintiff establishes her prima facie

case, the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its action. Id. at 447. If the

employer articulates such a reason, the burden shifts back to the

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plaintiff, who must then show, by a preponderance of the evidence,

that the employer's proffered reason for the adverse employment

action was pretextual, and "that age was the 'but-for' cause of

the employer's adverse action." Id. at 447–48 (quoting Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).

On appeal, the parties assume -- as the district court

did below -- that Rodríguez-Cardi had successfully established a

prima facie case of age discrimination, which MMM properly rebutted

by articulating a legitimate, nondiscriminatory reason for

Rodríguez-Cardi's termination -- to wit, her ongoing performance

problems. The parties' arguments are thus limited to the pretext

inquiry of the burden-shifting framework. Likewise, we limit our

analysis accordingly.

To defeat MMM's summary judgment motion, Rodríguez-Cardi

had to produce sufficient evidence to support an inference that

MMM's proffered reason was pretextual and that she was in fact

terminated because of her age. Rodríguez-Cardi advances various

contentions she claims would allow a reasonable jury to determine

-- contrary to the district court's conclusions -- that MMM's

reason for terminating her was pretextual.

First, Rodríguez-Cardi argues that MMM's articulated

reason for her termination -- her allegedly unsolicited door-to-

door contact with Ms. Doe, a Medicare beneficiary -- is false,

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which constitutes evidence of pretext. According to Rodríguez-

Cardi, MMM's investigation of Ms. Doe's complaint -- which

Rodríguez-Cardi claims was related to the cost of the health plan

as opposed to her alleged unsolicited contact -- was "flawed"

because: Auditor Benítez did not know that Ms. Doe lived in a

retirement home and "sales representatives [are] allowed to visit

[] retirement home[s] for propaganda, sales and business

purposes"; it was Ms. Doe who approached Rodríguez-Cardi, not the

other way around; and Rodríguez-Cardi then completed the required

documentation. Based on these facts, Rodríguez-Cardi contests

MMM's interpretation of its policies and procedures and claims

that she did not violate any of their provisions. Rodríguez-Cardi

further argues that determining whether MMM "believed" its reason

for terminating her employment "to be real" is inextricably

intertwined with motive and intent, and summary judgment is

improper "when motive and intent play[] leading roles."

Contrary to Rodríguez-Cardi's contentions, summary

judgment is not necessarily improper just because a case involves

motive or intent. See Medina-Muñoz v. R.J. Reynolds Tobacco Co.,

896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where elusive

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

may be appropriate."); see also Mesnick, 950 F.2d at 822, 829

(affirming summary judgment due to "plaintiff's failure to adduce

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evidence supporting an inference of discriminatory or retaliatory

motive"). Because pretext "means something worse than a business

error," Ronda-Pérez v. Banco Bilbao Vizcaya Argentaria-P.R., 404

F.3d 42, 45 (1st Cir. 2005) (quoting Kulumani v. Blue Cross Blue

Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000)), the factfinding

inquiry at the pretext stage of the ADEA burden-shifting framework

"focuses on 'whether the employer believed its stated reason to be

credible,'" and not on whether the employer was right. Woodman,

51 F.3d at 1093 (emphasis in original) (quoting Goldman v. First

Nat'l Bank of Boston, 985 F.2d 1113, 1118 (1st Cir. 1993)); see

also Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 41 (1st Cir.

2013) ("[M]ere questions regarding the employer's business

judgment are insufficient to raise a triable issue as to pretext."

(alteration in original) (quoting Acevedo-Parrilla v. Novartis Ex-

Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012))). Accordingly, to

survive summary judgment, "[i]t is not enough for [Rodríguez-

Cardi] merely to impugn the veracity of the employer's

justification" or to point to flaws in MMM's investigation.

Mesnick, 950 F.2d at 824. Instead, she "must 'elucidate specific

facts which would enable a jury to find that the reason given is

not only a sham, but a sham intended to cover the employer's real

motive: age discrimination.'" Id. (quoting Medina-Muñoz, 896 F.2d

at 9). This she cannot do.

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 Rodríguez-Cardi has not pointed us to any evidence in

the record from which a reasonable jury might infer that Auditor

Benítez's investigation was cloaked in age-based animus. Nor has

she pointed us to evidence on the record to dispute Director

Rivera's testimony that she honestly believed the veracity of both

the Compliance Investigation Report and Rodríguez-Cardi's

documented history of poor performance, and that she relied on

that belief in making her decision to recommend Rodríguez-Cardi's

termination. In fact, as the district court noted, Rodríguez-

Cardi "does not even suggest that [Auditor] Benítez or [Director]

Rivera were motivated by any illegal or inappropriate animus when

conducting the investigation, when evaluating the findings of the

investigation, and does not contest her prior disciplinary action

and history of performance productivity problems." Rodríguez-

Cardi, 2018 WL 1725549, at *10. Although she challenges the

accuracy of MMM's investigation and interpretation of its own

policies and procedures, when faced with employment decisions that

lack a clear discriminatory motive, "[c]ourts may not sit as super

personnel departments, assessing the merits -- or even the

rationality -- of employers' nondiscriminatory business

decisions." Mesnick, 950 F.2d at 825.

Next, Rodríguez-Cardi avers that MMM changed its

reasoning for her termination from her "unsolicited contact" with

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Ms. Doe to her poor performance record, which she argues "is

evidence of pretext." Rodríguez-Cardi claims that at the time of

her termination, she was told that she was being fired for the

"allege[d] unsolicited contact" and "[n]othing else." Two out of

three witnesses deposed in this case, 7 Rodríguez-Cardi argues,

mentioned only the unsolicited contact as the grounds for her

termination. Because MMM did not allege termination based on her

performance until it filed its answer to her complaint, Rodríguez-

Cardi's argument goes, these "[c]hanging explanations raise[]

genuine issue[s] of material fact with regard to the veracity of

the non-discriminatory reason articulated."

While Rodríguez-Cardi correctly points out that an

employer's "[c]hanging explanations" for an adverse employment

action can be evidence of pretext, she has not provided any

evidence to show that MMM has changed its reasoning for her

termination. See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d

424, 431-32 (1st Cir. 2000) ("[W]hen a company, at different times,

gives different and arguably inconsistent explanations [for an

employee's termination], a jury may infer that the articulated

reasons are pretextual."). In their depositions, Rodríguez-

Delgado, Auditor Benítez, and Director Rivera all testified that

7 Rodríguez-Cardi and three witnesses (Rodríguez-Delgado, Auditor
Benítez, and Director Rivera) were deposed.

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MMM's reasoning for terminating Rodríguez-Cardi's employment was

based on the outcome of the Compliance Investigation Report, which

concluded that Rodríguez-Cardi had engaged in a grave violation of

federal regulations by initiating an unsolicited contact with a

potential Medicare beneficiary. Director Rivera's testimony that

she also considered Rodríguez-Cardi's poor performance record in

addition to the Compliance Investigation Report hardly shows that

MMM changed its reasoning for her termination; if anything, it

provides support to MMM's claim that it completed a thorough review

of Rodríguez-Cardi's record before making a final decision.

("That is what is normally done in these cases, all the criterias

[sic] are evaluated. All these criterias [sic] are taken into

consideration for any termination, even when the breach . . . was

a recommendation of termination . . . ."). Additionally,

Rodríguez-Delgado noted in his deposition that Rodríguez-Cardi,

prior to her termination, "had several write-ups that [he] had to

document." Accordingly, the record does not contain evidence from

which a reasonable jury could infer that MMM changed its reasoning

for terminating Rodríguez-Cardi, capable of supporting the

conclusion that MMM's articulated reason is pretextual.

Rodríguez-Cardi next contends that she was "not being

treated the same way [as] similarly situated employees." As an

OSR, Rodríguez-Cardi claims, she was subjected to the "worst

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cases," among which she includes "potential affiliates [who]

already had better health plans that would never change to MMM"

and "the farthest cases" from the office. Moreover, she asserts,

providers were "removed from her list," and she "was the only sales

person that was not given the clients list for the Open Enrollment

season." As the "disparity of treatment afforded to [her] is

evident," her argument goes, "pretext and discrimination can be

inferred."

It is true that evidence of an employer's more favorable

treatment of "similarly situated employees" can be evidence of

pretext. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43-

44 (1st Cir. 2001). Yet, Rodríguez-Cardi fails again to point to

any evidence on the record showing that she was treated differently

than other OSRs similarly situated. Her claim that she was given

the "worst cases," which were the "farthest" from the office and

involved clients who already had better insurance, is unsupported

by the record. Moreover, Rodríguez-Cardi admitted that "all other

[OSRs] also complained about [Rodríguez-Delgado's] alleged

preference [for] three or four" coworkers in assigning cases, which

undercuts her argument that she alone was treated less favorably.

Additionally, the record reveals that, because as an Independent

Promoter Rodríguez-Cardi had worked the leads of potential

affiliates prior to her employment as an OSR, MMM did not provide

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her with the client list for Open Enrollment based on its

understanding that a conflict of interest would exist if as an OSR

she worked the leads that she had generated as an Independent

Promoter, thus receiving double compensation. Rodríguez-Cardi

does not provide evidence to contest MMM's explanation that it did

not provide her the client list for Open Enrollment pursuant to

company policy, based on her prior work as an Independent Promoter

and potential conflicts of interest. Nor does she point to

evidence that other OSRs were allowed to work the leads that they

had previously generated as Independent Promoters. Consequently,

Rodríguez-Cardi has not shown that similarly situated employees

were treated more favorably than her in order to support an

inference of pretext.

In addition, Rodríguez-Cardi argues that she was subject

to age-related "derogatory comments, jokes and offensive

language," which violated MMM's Anti-Discrimination Policy, yet

MMM did nothing to address the situation. According to Rodríguez-

Cardi, this constitutes evidence of pretext because MMM failed to

follow its own policy.

Evidence that the employer deviated from its standard

procedure or policies in taking an adverse employment action

against a plaintiff may be relevant to the pretext inquiry.

See Acevedo-Parrilla, 696 F.3d at 142-43 (noting that, where the

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employer had fired the plaintiff without first implementing

progressive discipline and obtaining approval by the Human

Resources Department, the employer's failure to adhere to a policy

requiring "progressive disciplinary program" and that "all

disciplinary actions (including termination)" be approved by the

Human Resources Department was relevant to the plaintiff's burden

of demonstrating pretext); Brennan v. GTE Gov't Sys. Corp.,

150 F.3d 21, 29 (1st Cir. 1998) (finding that evidence that

employer had not followed its standard procedure for laying off

employees during reduction in force was "directly relevant to

[laid-off employee's] burden of demonstrating pretext"). The

rationale is that if an employer has a policy or procedure that

governs a specific situation but fails to adhere to the same in

taking an adverse employment action against an employee, then it

might be inferred that the reason articulated for taking the

adverse employment action against the employee was not true. Yet,

Rodríguez-Cardi points to no evidence indicating that MMM's Anti-

Discrimination Policy covered the situations that led to her

termination or that MMM's alleged deviation from its Anti-

Discrimination Policy (i.e., its failure to investigate Rodríguez-

Cardi's alleged complaints) had any bearing in the termination

decision or was even relevant to it.

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 Finally, Rodríguez-Cardi contends that the district

court failed to consider the "totality of the circumstances" of

her case and, instead, "segregated [her] evidence" and "ignored

the vast majority of it as irrelevant." The district court did

no such thing. It carefully analyzed Rodríguez-Cardi's arguments

and the evidence she offered to support her claims and correctly

concluded that the record was devoid of evidence from which a

reasonable jury could conclude that MMM's stated reason for

terminating Rodríguez-Cardi's employment was a mere pretext of age

discrimination. Reviewing de novo we reach the same conclusion.

The totality of the circumstances shows that Rodríguez-Cardi had

a meticulously recorded (and uncontested) history of poor

performance, and that she had been issued a Final Written Warning,

which notified her that further underperformance could lead to

termination. The record also shows that MMM conducted a

compliance investigation into allegations that Rodríguez-Cardi

initiated unsolicited contact with a beneficiary, which MMM

considers a serious infraction. Finally, the record demonstrates

that at the end of the investigation, Auditor Benítez recommended

termination of Rodríguez-Cardi's employment, which Director Rivera

upheld after reviewing the Compliance Investigation Report and

examining Rodríguez-Cardi's past performance. The totality of the

circumstances, rather than proving Rodríguez-Cardi's pretextual

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argument, instead show a lack of foundation for Rodríguez-Cardi's

claim.8

8 Rodríguez-Cardi also challenges the district court's conclusion
that the "same actor inference" supports dismissal of her age
discrimination claim inasmuch as Rodríguez-Delgado was the person
that hired Rodríguez-Cardi and then fired her only ten months
later. See LeBlanc, 6 F.3d at 847 ("[I]n cases where the hirer
and the firer are the same individual and the termination of
employment occurs within a relatively short time span following
the hiring, a strong inference exists that discrimination was not
a determining factor for the adverse action taken by the employer."
(quoting Stone, 945 F.2d at 797)). Rodríguez-Cardi urges this
court to limit the application of the same actor inference, as she
claims other courts have done, but does not provide adequate
reasoning to support her argument. We thus deem her argument
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("It is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its
bones."). We further note that although Rodríguez-Cardi cites
several cases she claims support her argument that the same actor
inference should be limited, those cases are inapposite in light
of her concession that Rodríguez-Delgado both hired and fired her
within a ten-month span, see, e.g., Quinby v. WestLB AG, No. 04-
7406, 2007 WL 1153994, at *8 (S.D.N.Y. Apr. 19, 2007) (refusing to
apply the same actor inference because there were disputed facts
as to whether the plaintiff had been hired and fired by the same
person and four years had passed between the plaintiff's hiring
and her termination), or were conveniently cited out of context,
see, e.g., Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443
(11th Cir. 1998) (cited by Rodríguez-Cardi for the proposition
that the court had "decline[d] to accord to th[e] same actor
factual circumstance a presumption that discrimination necessarily
was absent" from the employer's decision, but omitting that the
court nonetheless allowed a "permissible inference that no
discriminatory animus motivated [the employer's] actions")
(emphasis in original) (internal quotation marks omitted).

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 III. Conclusion

For the foregoing reasons, we affirm the district

court's order.

Affirmed.

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