United States Court of Appeals
For the First Circuit
No. 19-2249
LUZ GONZÁLEZ-BERMÚDEZ,
Plaintiff, Appellee,
v.
ABBOTT LABORATORIES P.R. INC.; KIM PÉREZ,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Virginia A. Seitz, with whom Kathleen Moriarty Mueller,
Sidley Austin LLP, Ricardo F. Casellas Sánchez, Carla S. Loubriel,
and Casellas Alcover & Burgos PSC were on brief, for appellants.
Juan Rafael González Muñoz, with whom Juan C. Nieves-
González, González Muñoz Law Offices, P.S.C., Carlos M. Vergne-
Vargas, and Law Office of Carlos Vergne were on brief, for
appellee.
March 3, 2021
KAYATTA, Circuit Judge. After being demoted, threatened
with termination, and denied several promotions in 2013 and 2014,
Luz González-Bermúdez filed suit against her employer, Abbott
Laboratories, and her direct supervisor, Kim Pérez (collectively,
"Abbott"), alleging age discrimination and retaliation under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–34;
Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146–51; and Puerto
Rico Law 115, id. §§ 194–194b. After a six-day trial, the jury
found for González, awarding back pay in the amount of $250,000
and an additional $4 million for emotional distress. The district
court upheld the liability verdict and entered judgment against
Abbott on all counts but reduced the damages to just over $500,000
(to be doubled under Law 100, see id. § 146(a)(1)). On appeal,
Abbott argues that the evidence was insufficient to support the
jury's verdict. For the following reasons, we find that Abbott is
entitled to judgment as a matter of law on González's ADEA claims
and her corresponding claims under Law 100 and Law 115. But
because Abbott failed to preserve its challenge to the jury's
separate finding that Abbott retaliated against González for
reporting to the State Insurance Fund (SIF), in violation of
Law 115, we decline to upset the jury's verdict in that respect.
I.
We begin by briefly summarizing the facts, viewing the
record in the light most favorable to González and drawing all
- 2 -
reasonable inferences in her favor. See Muñoz v. Sociedad Española
de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 55 (1st
Cir. 2012). González began working at Abbott Laboratories in 1984.
Over the next twenty-five years, she eventually became a National
Sales Manager, which was designated as a Level 18 position on the
Abbott Laboratories pay scale. In November 2010, Abbott underwent
a reorganization and eliminated González's position, as well as
the positions of two other employees, Rocio Oliver and Dennis
Torres. All three employees accepted transfers to lower-level
positions. As a result, González assumed the role of Institutional
Marketing Manager, a newly created Level 17 position supervised by
Kim Pérez. González does not challenge the lawfulness of this
transfer.
González's transition to the new position was less than
smooth. She disliked Pérez's style of supervision, and in November
2011 she filed an internal complaint against Pérez for harassment,
which was ultimately found unsubstantiated. In addition to getting
used to a new supervisor, González had to adjust to a new workload:
While she had previously supervised twenty-eight employees in her
role as a National Sales Manager, she was expected to complete her
tasks independently in her new Institutional Marketing Manager
position. At trial, González admitted that she was unable to
timely perform all the duties of her new position, resulting in a
"partially achieved" performance rating for 2011 -- her first ever
- 3 -
negative performance evaluation at Abbott. González's duties were
subsequently redistributed at her request, and she received an
overall positive "achieved expectations" rating for 2012.
However, she still received a negative "partially achieved" rating
for two categories of tasks relating to communication,
organization, and meeting deadlines.
On March 18, 2013, Abbott reassigned González to a
Level 15 Product Manager position supervised by Pérez. At trial,
Pérez testified that the reassignment decision was made to reflect
the duties González had been performing since some of her
responsibilities from the Level 17 position were redistributed in
2012. González, by contrast, testified that she believed she was
demoted in 2013 because of her age: She was fifty-three years old
at the time, and the two other employees who had accepted lower-
level positions as a result of the 2010 reorganization, Oliver
(age forty-four) and Torres (age forty-one), were not similarly
demoted.
Upon learning that she was being demoted on March 18,
2013, González experienced symptoms of anxiety and immediately
reported to the company doctor. On the doctor's advice, she
reported to the SIF and was placed on rest until July 10, 2013.
But she returned to work just a few weeks later, cutting her
medical leave short, after receiving a letter from Abbott
- 4 -
threatening to terminate her employment if she did not report to
work by April 8, 2013.
According to González's 2013 mid-year performance
evaluation, González continued to miss project deadlines after
returning to work. Nevertheless, González testified that based on
her mid-year review, she believed she was "on track" and achieving
the expectations of her position. One month later, in mid-October
2013, González's attorneys informed Pérez that González intended
to sue her for age discrimination, based on the March 2013 demotion
decision. Later that month, González filed an administrative claim
of age discrimination. According to González's testimony at trial,
her professional relationship with Pérez worsened after she filed
her complaint of age discrimination. For example, González
testified that Pérez deprived her of information she needed to
participate in a meeting held on October 30, 2013.
In November 2013, González became aware that a Level 16
Senior Product Manager position had opened up. She emailed Matt
Harris, Abbott's general manager in Puerto Rico, expressing her
interest in the position and her belief that she had not been
informed of the opening out of retaliation for her complaint of
age discrimination. Unbeknownst to González, Abbott had begun
recruiting externally for the position via LinkedIn in August 2013.
After receiving González's email, Harris had the position posted
internally so that Abbott employees could compete with external
- 5 -
candidates. González subsequently submitted her name for
consideration. Meanwhile, the hiring committee designed the
process by which they would select a candidate to fill the
position. In doing so, the members of the hiring committee --
Harris, Pérez, and two members of Abbott's human resources
department -- discussed González's discrimination complaint among
themselves and with counsel. After conducting an initial review
of the candidate slate, the hiring committee selected three
finalists -- González and two external candidates.
In December 2013, the hiring committee interviewed
González and the other two finalists for the Senior Product Manager
position. After the interviews, the hiring committee informed all
three finalists that they would each be required to give a mock
sales presentation the following day. González had never heard of
such a requirement in an Abbott interview process. And she thought
it was unnecessary for her to fulfill such a requirement because
she had given similar presentations in the course of her employment
at Abbott to various individuals, including members of the hiring
committee. Concluding that the presentation requirement was
imposed specifically to prevent her promotion, González refused to
participate. Despite her withdrawal from the presentation
component of the selection process, González emailed one of the
members of the hiring committee two days later to reiterate her
interest in the position, at which point she was informed that one
- 6 -
of the other finalists -- who had fulfilled the presentation
requirement -- had already been hired.
In January 2014, González sought to be promoted to a
Level 18 Regional Sales Manager position that had been posted
internally. The following month, she received her end-of-year
evaluation for 2013. Pérez had given her an overall negative,
"partially achieved" performance rating, rendering her ineligible
for promotion in 2014 according to Abbott's general policy or
practice. Pérez testified at trial that she gave González a
negative evaluation because González had repeatedly missed
deadlines and lost her composure with colleagues when confronted
about her untimely work. González did not specifically dispute
the contents of the evaluation but disagreed with Pérez's overall
assessment of her performance and requested that the human
resources department conduct its own review. In connection with
that request, she asked that her emails from 2013 be reinstated,
but was informed that the emails had already been deleted and could
not be retrieved. Hearing this, González filed an administrative
complaint for retaliation.
While González's request for review of her performance
evaluation and her administrative complaints were pending, Abbott
determined that a different employee should be promoted to the
Level 18 Regional Sales Manager position. Because promoting that
employee would leave a Level 16 Senior District Manager position
- 7 -
open, Abbott began looking for yet another employee to promote.
Harris directed the hiring committee to keep this news quiet, but
González found out about the Senior District Manager opening anyway
and emailed Harris in March 2013 asking to be considered. Harris
flatly denied her request, stating that she had failed to meet
minimum expectations in several areas for the last three years.
Ultimately, Abbott preselected another employee for the Senior
District Manager position without requiring her to compete with
other candidates for the promotion.
In April 2014, the human resources department developed
a "Talent Management Review" document, which listed developmental
actions and future potential promotions for some Abbott employees.
The document did not identify any developmental actions or
potential promotions for González. Nor was González placed on an
official "performance improvement plan" to help her raise her
performance rating from a negative "partially achieved" in 2013 to
a positive "achieved expectations" in 2014. González nevertheless
received a positive performance evaluation for both 2014 and 2015,
albeit from a new supervisor.
II.
We review de novo the district court's denial of Abbott's
motion for judgment as a matter of law. See Muñoz, 671 F.3d at
55. Reversal is appropriate only if, based on the evidence in the
record, "reasonable persons could not have reached the conclusion
- 8 -
that the jury embraced." Id. (quoting Sanchez v. P.R. Oil Co., 37
F.3d 712, 716 (1st Cir. 1994)).
A.
We begin with González's claim of age discrimination.
This claim is based solely on her demotion in March 2013. The
district court held that the jury could have found age
discrimination under both the ADEA and Law 100 on a theory of
disparate treatment, citing evidence that two employees younger
than the fifty-three-year-old González -- Rocio Oliver (age forty-
four) and Dennis Torres (age forty-one) -- were not demoted in
2013.
This was error. "[I]n order to be probative of
discriminatory animus, a claim of disparate treatment 'must rest
on proof that the proposed analogue is similarly situated in
material respects.'" Vélez v. Thermo King de P.R., Inc., 585 F.3d
441, 451 (1st Cir. 2009) (quoting Perkins v. Brigham & Women's
Hosp., 78 F.3d 747, 752 (1st Cir. 1996)). Though the comparison
cases "need not be perfect replicas," García v. Bristol-Myers
Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008) (quoting Conward v.
Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)), they must
be similar enough that "apples are compared to apples," Cardona
Jiménez v. Bancomercio de P.R., 174 F.3d 36, 42 (1st Cir. 1999)
(alteration omitted) (quoting Dartmouth Rev. v. Dartmouth Coll.,
889 F.2d 13, 19 (1st Cir. 1989)).
- 9 -
No matter how generously one views the trial record, it
is apparent that Oliver and Torres were not similarly situated to
González in several important respects. Although Oliver and
Torres, like González, saw their positions eliminated as a result
of Abbott's reorganization three years earlier in 2010, this at
most shows that they were similarly situated to González in one
respect in 2010. For the next three years, Oliver and Torres
occupied lower positions, performed different duties, and reported
to different supervisors than did González. See García, 535 F.3d
at 32–33 (finding two employees not similarly situated where they
held different positions and had different responsibilities);
Rodríguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 20–21
(1st Cir. 1999) (finding two employees not similarly situated where
the employees had different supervisors and worked under different
circumstances). Moreover, there is no evidence in the record
regarding Oliver and Torres's job performance between 2010 and
2013, which would be necessary for González to establish that
Abbott discriminated against her by demoting her without also
demoting Oliver and Torres. See Alvarez-Fonseca v. Pepsi Cola of
P.R. Bottling Co., 152 F.3d 17, 26 (1st Cir. 1998) (rejecting a
disparate treatment claim where two employees had different
performance records). In sum, if Oliver and Torres were apples in
2013, González was not even a fruit.
- 10 -
Without this unsuitable comparator evidence, González is
left with no evidence that in any way suggests that she was demoted
in March 2013 because of age discrimination. At oral argument,
counsel could cite none. In her brief, González tries to rely on
the fact that months later, after she asserted her claim that the
March 2013 demotion was discriminatory, Pérez mentioned the claim
while discussing the selection process for the Senior Product
Manager position. But an employer's awareness that a
discrimination claim has been made hardly provides evidence that
the claim is valid. Otherwise, there would necessarily be evidence
of discrimination in every case of claimed discrimination.1
The district court speculated that perhaps Pérez had
designed the Level 17 job to which González was transferred in the
2010 reorganization to be so difficult that González would fail in
it. But there is no evidence to support this rather remarkable
speculation, and even González did not challenge her transfer to
the new position in 2010. See Brandt v. Fitzpatrick, 957 F.3d 67,
75 (1st Cir. 2020) (explaining that a plaintiff cannot avoid
judgment as a matter of law in an employment discrimination case
based on "rank conjecture," "improbable inferences," and
"unsupported speculation" (first quoting Pina v. Children's Place,
1 By contrast, awareness of a claim is certainly relevant
(indeed necessary) to establishing a retaliatory motive for a
subsequent adverse employment action. Medina-Rivera v. MVM, Inc.,
713 F.3d 132, 139 (1st Cir. 2013).
- 11 -
740 F.3d 785, 795 (1st Cir. 2014); then quoting Ray v. Ropes &
Gray LLP, 799 F.3d 99, 116–17 (1st Cir. 2015))).
Nor is there evidence showing that Abbott told any
material lies that might in context have been viewed as attempts
to conceal a discriminatory motive. The district court found that
the jury could have reasonably believed Abbott "had something to
hide," citing only the rather trivial disagreement among Abbott
witnesses about whether González's 2013 demotion should be
characterized as a "demotion" or a "transfer." This evidence does
not support an inference of discrimination. See Zapata-Matos v.
Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st Cir. 2002) (explaining
that courts must weigh the evidence "case by case," asking "not
whether the explanation was false, but whether discrimination was
the cause" of the adverse employment action).
There is evidence that González and Pérez had a difficult
professional relationship from the get-go, leading González to
file an unsubstantiated harassment claim against Pérez back in
2011. The district court, too, found Pérez to be "haughty" while
on the stand at trial. But that stands far removed from proving
discrimination. If anything, it suggests that the two simply did
not get along.
González falls back on a claim of waiver, asserting that
Abbott failed to preserve its challenge to the sufficiency of the
evidence on the age discrimination claim concerning the March 2013
- 12 -
demotion. Abbott moved for judgment as a matter of law pursuant
to Rule 50(a) at the close of the evidence, arguing that there was
"no direct evidence of discrimination" and not "a scintilla of
evidence" that the elimination of González's position was
"associated" with any "lies." But in staking out that position,
Abbott did not specifically mention and refute the comparator
evidence that González relied on in attempting to prove age
discrimination. Therefore, reasons González, Abbott waived the
right to make any arguments concerning that evidence.
We disagree. A party certainly must move for judgment
as a matter of law under Rule 50(a) at the close of the evidence
in order to preserve fully the ability to press a renewed motion
for judgment as a matter of law under Rule 50(b) after the verdict.
See Osorio v. One World Techs., Inc., 659 F.3d 81, 87 (1st Cir.
2011). Here, Abbott indisputably filed a timely motion under Rule
50(a) at the close of the evidence and specifically asserted that
there was no evidence to support the age discrimination claim.
Our caselaw does not as a general matter require more specificity.
See id. at 88 ("[Rule 50(a)] does not require technical precision
in stating the grounds of the motion." (alteration in original)
(quoting Lynch v. City of Boston, 180 F.3d 1, 13 n.9 (1st Cir.
1999))). Otherwise, Rule 50(a) motions -- often made while the
jury awaits argument and instructions -- would necessarily turn
into lengthy analyses of every possible piece of evidence in the
- 13 -
other party's possible favor. In this very case, the district
court told counsel to "make it very short because I know what the
evidence is. So just make it short." When Abbott later filed its
Rule 50(b) motion, which specifically pointed out the
insufficiency of González's comparator evidence, the district
court expressed no surprise and found no waiver. Finally, the
record suggests that no more precision was necessary to avoid
prejudice to González. There is, in short, no reason to find that
Abbott lost the opportunity to explain on appeal why it was correct
in timely asserting that there was no evidence of age
discrimination in the March 2013 demotion.
Finding no waiver and no evidence that González was
demoted in March 2013 because of her age, we conclude that the
evidence at trial was not sufficient to support a verdict against
Abbott for age discrimination under the ADEA. And while González
correctly points out that Law 100 shifts the burden of proof to
the employer on the issue of discrimination if the challenged
employment action is unjust, see Alvarez-Fonseca, 152 F.3d at 27,
she has not put forth any evidence of unjustness in her demotion.
Even if she had, Abbott established a total absence of evidence
that its actions were motivated by González's age.2 See Baralt v.
2 Because the jury could not reasonably have found that
Abbott demoted González because of her age, we need not decide
whether Kim Pérez (González's supervisor) could have been held
personally liable for age discrimination under Law 100.
- 14 -
Nationwide Mut. Ins. Co., 251 F.3d 10, 17–21 (1st Cir. 2001)
(rejecting the plaintiffs' Law 100 claim because the record was
"bereft of indicia of discriminatory intent").
B.
We turn next to González's retaliation claims under the
ADEA and Law 115. Both statutes prohibit an employer from taking
adverse employment action against an employee because of her
protected activity. See Rivera-Rivera v. Medina & Medina, Inc.,
898 F.3d 77, 94, 97 (1st Cir. 2018). The district court held that
the evidence at trial was sufficient for the jury to find Abbott
liable for retaliating against González on three separate
occasions. We address each in turn.
1.
At trial, González argued that Abbott retaliated against
her in violation of Law 115 by threatening her with termination
after she reported to the SIF. Recall that after González was
informed of her demotion in March 2013, she reported to the SIF
and went on medical leave. Approximately one to two weeks later,
she received a letter from Abbott stating that if she did not cut
her medical leave short and return to work, Abbott would terminate
her employment. Presumably based on that threat of termination,
the jury found that Abbott retaliated against González for
reporting to the SIF, which is undisputedly protected activity for
purposes of Law 115. The district court upheld this aspect of the
- 15 -
jury's verdict, finding that Abbott had waived any objection in
its Rule 50(a) motion.
On appeal, Abbott suggests that the SIF claim could not
support a finding of retaliation under Law 115 because a threat of
termination is not an adverse employment action. But it provides
no support for this proposition, and it does not attempt to explain
why the contrary authorities cited by the district court are
inapplicable. And insofar as Abbott argues that its letter
threatening to terminate González's employment was authorized by
Puerto Rico law and thus could not constitute unlawful retaliation
under Law 115, it does not adequately develop that argument on
appeal. Nor does it develop any argument as to why the district
court's Rule 50(a) waiver ruling was wrong. Rather, it simply
states that it "strongly disagree[s]" with the district court's
logic. We therefore deem Abbott's contentions regarding
González's SIF claim waived for lack of sufficient argumentation,
see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and
affirm the district court's decision to the extent that it upholds
the jury's verdict on that claim under Law 115.
- 16 -
2.
González's second theory of retaliation arises out of
Abbott's refusal to promote her to the Senior Product Manager
position in December 2013, following her complaint of age
discrimination against Pérez in October 2013. The district court
held that the jury could have believed that the selection process
for this position was intentionally stacked against González and
that her non-promotion was therefore retaliatory.
In a retaliatory failure-to-promote case, a plaintiff
must ordinarily show, among other things, that "she applied for a
particular position . . . for which she was qualified." Velez v.
Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006). No
reasonable jury could find that González has met this threshold
burden. The undisputed evidence in the record shows that González
refused to participate in the mock-presentation component of the
application process. As such, she voluntarily forfeited her
eligibility for promotion to the Senior Product Manager position.
Cf. Zabala-De Jesus v. Sanofi-Aventis P.R., Inc., 959 F.3d 423,
430–31 (1st Cir. 2020) (holding that an employer did not
discriminate against the plaintiff by failing to hire him for a
position for which he did not apply); Love v. Alamance Cnty. Bd.
of Educ., 757 F.2d 1504, 1510 (4th Cir. 1985) (rejecting a claim
of discriminatory non-promotion where the employee withdrew her
application).
- 17 -
Of course, if an employer makes it clear that completing
the application process is futile on account of a potential
applicant's recent complaint of age discrimination, then the law
may require only that the plaintiff show that she would have
otherwise applied for and obtained the job. Cf. Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 365 (1977) ("If an
employer should announce his policy of discrimination by a sign
reading 'Whites Only' . . . , his victims would not be limited to
the few who ignored the sign and subjected themselves to personal
rebuffs."). We might also imagine an extreme case in which an
employer unlawfully made it impossible or dangerous for a person
to complete the application process.
This is not such a case. González only argues that the
sales presentation was not a usual part of Abbott's hiring process.
That is beside the point. It was plainly job-related, and it was
required equally of all the finalists who were selected to
interview for the position. Perhaps she would have done well.
Perhaps not. We do not know only because she did not try. As a
general rule, it is not for the plaintiff to predict the employer's
hiring decision and then claim to be the victim of that predicted
decision. See Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d
Cir. 1998) ("It would be unthinkable to routinely permit non-
applicant plaintiffs in individual suits to recover . . . based on
what amounts to mere speculation that they would have been rejected
- 18 -
for discriminatory reasons had they applied." (quoting 1 Lex
K. Larson, Employment Discrimination § 8.02[2], at 8-30-8–31 (2d
ed. 1997))); see also Hoffman-García v. Metrohealth, Inc., 918
F.3d 227, 230 (1st Cir. 2019) (describing the plaintiff's failure
to apply for the position at issue as a "fatal defect").
González also suggests that her failure to complete the
application process for the Senior Product Manager position is not
dispositive because Abbott had already retaliated against her by
requiring her to apply in the first place, given that other Abbott
employees were offered promotions without having to compete with
external candidates. However, the undisputed evidence in the
record shows that Abbott began soliciting external candidates for
the Senior Product Manager position in August 2013, well before
González engaged in protected activity by filing her age
discrimination complaint against Pérez in October 2013. So
Abbott's failure to offer González the Senior Product Manager
position outright could not have been a retaliatory response to
her October 2013 complaint of age discrimination.3 See Morón-
Barradas v. Dep't of Educ., 488 F.3d 472, 481 (1st Cir. 2007) ("It
3 Having determined that González's failure to complete the
application process for the Senior Product Manager position in
December 2013 bars her corresponding retaliation claim, we need
not consider her other arguments for why the jury could have found
retaliation.
- 19 -
is impossible for [an employer] to have retaliated against [an
employee] before she engaged in protected activity.").
3.
Finally, the district court held that the jury could
have reasonably found Abbott liable for retaliating against
González in violation of the ADEA and Law 115 by giving her a
"partially achieved" performance evaluation for 2013 and then
denying her two promotions in early 2014. On appeal, Abbott argues
that the record lacked sufficient evidence for a reasonable jury
to find that either the 2013 performance evaluation or the 2014
non-promotions were motivated by retaliatory animus rather than
legitimate business judgments.
a.
González's claim that her worse performance evaluation
for 2013 was retaliatory rested primarily on chronology: She
testified that she received a favorable rating from Pérez at her
mid-year evaluation in September 2013, then filed her claim of age
discrimination against Pérez in October 2013, and then received
the less favorable end-of-year review from Pérez in February 2014.
So, she reasons, the "drop" from mid-year to end-of-year must have
been a retaliatory response to her October claim.
Chronology alone can sometimes support an inference of
improper motive, but only where the circumstances make such an
inference reasonable. See Colburn v. Parker Hannifin/Nichols
- 20 -
Portland Div., 429 F.3d 325, 337–38 (1st Cir. 2005). The immediate
problem with González's reasoning is that she had also filed an
internal complaint against Pérez in 2011, before the 2013 mid-year
review. Yet, says González, that was a good and fair review. So
we question the reasonableness of any inference that the lesser
end-of-year review was necessarily the result of González's
October 2013 claim against Pérez, and ask whether something else
accounts for the lower review.
The record answers that question in the affirmative. It
contains undisputed evidence that González's performance worsened
after her mid-year evaluation had been completed. According to
the mid-year evaluation, she missed only three deadlines in the
first eight months of 2013 -- one on January 15, one on July 15,
and one on August 1. The end-of-year evaluation indicates that
González missed at least three more deadlines over just the next
four months -- including one on September 30, one in mid-October,
and one on November 5 -- and failed altogether to complete one of
the late projects that had been discussed at her mid-year
evaluation. These facts are not disputed by González, and they
buttress the unreasonableness of any inference of retaliation
arising from the chronology she relies on. See id. at 336–38
(finding that the timing of the plaintiff's termination raised no
inference of retaliation because, during the period between his
protected conduct and his termination, his employer determined
- 21 -
that he had lied about his reasons for being absent from work on
two occasions); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st
Cir. 1991) (similar).
The district court nevertheless suggested that the jury
reasonably could have disbelieved Abbott's missed-deadlines
argument because Abbott had deemed González a finalist for
promotion to the Senior Product Manager position in December 2013,
just days before the end of the yearlong period on which her 2013
performance evaluation was based. In the district court's view,
this evidence implied that González's performance was sufficiently
competent in 2013 to qualify her for promotion and therefore
suggested that her negative evaluation must have been motivated by
retaliatory animus rather than her poor performance. But
undisputed trial testimony indicates that González was included in
the pool of finalists for that position based on her positive
performance evaluation for 2012, which was her most recent
performance evaluation at the time, rather than on her performance
in 2013. In short, there was no inconsistency between González's
partial success in seeking a promotion based on her 2012
performance and her subsequent receipt of a negative rating for
her 2013 performance.4
4 Moreover, that partial success of being selected as one of
the three finalists out of more than one hundred applicants came
after González filed her charge of age discrimination. This only
- 22 -
The district court also identified other actions that it
viewed as incompatible with Abbott's contention that González's
poorer evaluation was justified by her poorer performance.
Specifically, the district court noted that Abbott had not placed
González on a "performance improvement plan" or formally
identified "developmental actions" for her to take in 2014. But
it is undisputed that Abbott only instituted performance
improvement plans for employees who had received two consecutive
negative performance evaluations, not for employees like González
who had received only one. And while several witnesses at trial
offered different reasons for Abbott's failure to identify
developmental actions for González, documentary evidence admitted
at trial indisputably indicates that Abbott did not list
developmental actions for every employee, or even for every
employee whose performance needed improvement.
Finally, the district court suggested that the jury
nevertheless could have found Abbott liable for retaliation based
on her 2013 performance evaluation because the jury reasonably
could have regarded González's poorer performance as the result of
"sabotage[]" by Pérez, based on González's testimony that Pérez
had excluded her from meetings and deprived her of information
essential to the performance of her duties. But González's actual
reinforces our conclusion that Abbott did not retaliate against
her.
- 23 -
testimony indicates only that she complained about being deprived
of information with respect to a single meeting on October 30,
2013, regarding a single project, which does not explain the
multiple missed deadlines listed in her end-of-year evaluation.
And there is no evidence in the record that González was excluded
from meetings -- only that she felt "sidelined" during the
October 30 meeting just mentioned.
In sum, it is apparent from the record that González
repeatedly missed deadlines throughout 2013, and that her job
performance worsened after she received critical feedback
regarding her late work. The evidence cited by the district court
and González, viewed collectively, does not suggest otherwise.
More generally, it matters not whether González or Abbott is
correct in characterizing the quality of her performance. Rather,
the question is whether Abbott falsely claimed that it regarded
her performance as poorer and, if so, whether the jury could
reasonably infer that the real reason for the poorer performance
rating was retaliation. Brandt, 957 F.3d at 82. Given that
González's performance indisputably worsened to some extent
between the September review and the end-of-year review, no
reasonable jury could infer that Abbott's less favorable
characterization of that performance, by itself, implied a
retaliatory motive. See Carreras v. Sajo, García & Partners, 596
F.3d 25, 37 (1st Cir. 2010) (rejecting an employee's retaliation
- 24 -
claim because "[t]he evidence was consistent on the essential
point, i.e., that [his] work was untimely and therefore
unsatisfactory").
b.
We quickly dispose of González's remaining retaliation
claim, which arises out of Abbott's refusal to promote her to
either Regional Sales Manager or Senior District Manager in early
2014. It is undisputed that, during the relevant time period,
Abbott ordinarily did not promote employees who had received a
"partially achieved" rating for the preceding year. Witnesses at
trial, including González herself, consistently testified that
this was the reason González was not promoted in 2014. It is true
that the trial record contains discrepancies regarding whether
this general rule was a "policy" or a mere "practice" at Abbott;
whether González was "considered" for the promotions she sought
before she was ultimately rejected; and whether Abbott relied on
alleged performance shortcomings from 2011 and 2012 as well as
from 2013 when deciding not to promote her. But such debates about
tangential characterizations are, as a matter of law, insufficient
to prove retaliation. See Carreras, 596 F.3d at 37.
III.
For the foregoing reasons, we affirm the judgment of the
district court in part, reverse in part, and remand for a new trial
on the sole issue of damages resulting from Abbott's April 2013
- 25 -
letter threatening to terminate González's employment after she
reported to the SIF, which the jury found to be unlawful
retaliation.5 We award no costs.
5 Having concluded that González's other claims of
discrimination and retaliation lack adequate support in the
record, we deny as moot Abbott's alternative request for a new
trial on those claims. And, having concluded that a new trial as
to damages is appropriate, we need not consider Abbott's
alternative request for further remittitur.
- 26 -