United States Court of Appeals
For the First Circuit
No. 20-1356
GIORGIO ZAMPIEROLLO-RHEINFELDT,
Plaintiff, Appellant,
v.
INGERSOLL-RAND DE PUERTO RICO, INC.;
TRANE PUERTO RICO, INC.; TRANE PUERTO RICO, LLC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Miguel Simonet-Sierra, with whom Dora L. Monserrate-
Peñagarícano, Richard J. Schell, and Monserrate Simonet &
Gierbolini, LLC were on brief, for appellant.
Mariel Y. Haack, with whom Edwin J. Seda-Fernández and Adsuar
Muñiz Goyco Seda & Pérez-Ochoa, P.S.C were on brief, for appellees.
May 28, 2021
THOMPSON, Circuit Judge. Trane Puerto Rico, LLC and its
parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively
"Trane") terminated the employment of Giorgio Zampierollo-
Rheinfeldt ("Zampierollo") after thirty-three years of service.
Zampierollo filed suit against Trane alleging wrongful termination
of his employment under state law, and age discrimination under
federal and state law. After discovery, Trane successfully moved
for summary judgment on all of Zampierollo's claims and to exclude
two documents from the summary judgment record. Zampierollo now
appeals the district court's granting of both motions. We agree
with Zampierollo that the district court erred by excluding the
two documents from the summary judgment record. We also find that
the record contains direct evidence from which a reasonable jury
may conclude that Zampierollo was terminated because of his age.
We therefore reverse the district court's order excluding the two
documents, vacate the district court's entry of summary judgment,
and remand for further proceedings.
I. Background
A. Factual Background
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
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favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st
Cir. 2015).
Trane is a heating and air conditioning systems and
services provider that does business around the world. In 1980,
Zampierollo, at the age of twenty-two, began working with Trane as
a Sales Engineer in Trane's Puerto Rico office. Zampierollo
received several promotions over the course of his employment with
Trane. In 2000, Trane promoted him to District General Manager,
the highest-ranking position at the Puerto Rico office. In that
capacity, Zampierollo oversaw the operations of Trane's Puerto
Rico office.
By 2012, William Sekkel was the President of Trane's
Latin America region. That year, Trane divided the region into
four districts -- Brazil, Mexico, Cono Sur, and North Latin America
-- each with its own Vice President, and Guillermo Feria became
Vice President of the North Latin America district, which included
the Puerto Rico office. Zampierollo reported directly to Feria.
At some point in 2012, Sekkel, who was older than
Zampierollo, retired from the company, and María Blasé became the
new President of the Latin America region. In September 2012,
Blasé and Feria visited the Puerto Rico office and met with
Zampierollo to discuss the operations there. Blasé told
Zampierollo about her goal to reduce the company's selling,
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general, and administrative ("SG&A") expenses, including those at
the Puerto Rico office.
In 2013, Feria retired from the company. In mid-May of
that year, Enrique Flefel ("Flefel"), who had been the Business
Leader1 of Trane's Chile office, was promoted to Vice President of
the North Latin America region. Hence, Flefel, who was eight years
younger than Zampierollo, became Zampierollo's direct supervisor.
Although the Puerto Rico office was profitable, Flefel
believed that its SG&A expenses were too high, and its sales were
below target. He thus asked Zampierollo to take cost-reducing
measures, such as renegotiating the office's lease agreement,
lowering the cost of employee benefits, and cutting the marketing
budget. Zampierollo successfully implemented some cost-reducing
measures, such as the extension of a tax exemption for the office
lease, which reduced the office's SG&A expenses by $500,000.
According to Flefel, however, the cost reductions obtained were
not enough, and he decided to also implement a reduction in force.
The reduction in force would come together with a "new structure"
for the Puerto Rico office. As part of this reduction in force
and reorganization, Flefel decided to eliminate Zampierollo's
position and create two heads at the same level: a Business Leader,
1 Trane uses the terms "Business Leader" and "Business
Director" interchangeably.
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who would be dedicated to business and revenue (sales), and an
Operations Leader, focused on fulfillment and operation of the
office. This two-headed structure was similar to the one already
in place at Trane's Chile office before Flefel was promoted to
Vice President of the Latin American region.2 Flefel also decided
to eliminate the position of Operations Manager, one Construction
Project Manager position, and one Administrative Assistant
position. At the time, a fifty-five-year-old occupied the position
of Operations Manager, a fifty-one-year-old held the position of
Construction Project Manager, and a woman in her mid-twenties
occupied the Administrative Assistant position. Blasé and Trane's
Human Resources Leader for the North Latin America region approved
Flefel's reorganization plan. The management of the Puerto Rico
office, including the Puerto Rico District Finance Leader, did not
participate in the decision. Trane projected that the elimination
of the four positions selected for the reduction in force would
bring savings in salary of approximately $525,000 per year.
After reviewing the organizational chart and several
Human Resources documents regarding current employees, Flefel
selected Sergio Sanjenis for the position of Business Leader and
Juan Carlos Teruel for the position of Operations Leader. Sanjenis
2 The parties dispute whether this two-headed structure
had been successful at the Chile office.
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and Teruel are ten and sixteen years younger than Zampierollo,
respectively. On September 23, 2013, Flefel informed Zampierollo
of his termination, effective as of September 30, 2013.
Zampierollo was fifty-five years old at the time. On September
30, 2013, the remaining three employees impacted by the reduction
in force were terminated. That same day, Flefel informed the
Puerto Rico office employees about the organizational changes.
Zampierollo's duties were distributed between Sanjenis and Teruel,
with Flefel's support. Both Sanjenis and Teruel received a salary
increase upon assuming their new roles. The changes also required
the hiring of additional management personnel: a Logistics Manager
and a Parts Manager. By November 7, 2013, Trane had already
contemplated hiring for these two new positions, and it filled the
positions in March and June 2014.3
B. Procedural History
On May 23, 2014, Zampierollo filed a charge with the
Equal Employment Opportunity Commission ("EEOC") against Trane
3 The parties dispute whether Trane achieved its goal
of reducing expenses by implementing the reduction in force. While
Trane claims that the Puerto Rico office lowered its SG&A expenses
from 2013 to 2014, Zampierollo points to deposition testimony from
Puerto Rico District Finance Leader, Brenda Fuentes, stating that
salaries and wages increased from 2013 to 2014 due to the raises
given to Sanjenis and Teruel and the hiring of the two additional
managers. At trial, such evidence would be relevant to the issue
of pretext. See Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 56 (1st Cir. 2000).
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alleging age-based discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.
Seven months later, the EEOC issued a right-to-sue letter.
Thereafter, on March 18, 2015, Zampierollo filed a complaint
against Trane in the U.S. District Court for the District of Puerto
Rico.
In his complaint, Zampierollo asserted claims for:
(1) age discrimination under the ADEA; (2) age discrimination
under Puerto Rico's general antidiscrimination statute, Act No.
100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146–151 ("Law
100"); and (3) unjust discharge under Puerto Rico's Unjust
Discharge Act, Act No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29,
§§ 185a–185m ("Law 80"). After discovery, Trane moved for summary
judgment, seeking the dismissal of all claims. Zampierollo filed
an opposition to Trane's motion for summary judgment accompanied
by several supporting documents. In response, Trane moved to
strike two of those documents on the grounds that they had been
produced to Trane after the discovery cut-off date and that they
had not been properly authenticated.4
4 Although Trane initially moved to strike three
documents, Zampierollo voluntarily withdrew one of them. There is
no issue on appeal regarding that third document.
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On February 21, 2020, the district court issued two
opinions and orders. In the first, the district court granted
Trane's motion to strike the documents submitted by Zampierollo as
Exhibit 5 (the Chile office "Business Overview") and Exhibit 10
(the Puerto Rico office "2013 Financial Summary") of his opposition
to summary judgment. Zampierollo-Rheinfeldt v. Ingersoll-Rand de
P.R., Inc., No. 15-1255-RAM, 2020 WL 881011, at *7 (D.P.R. Feb.
21, 2020). The district court precluded Zampierollo from using
these documents under Federal Rule of Civil Procedure 37(c)(1)
because Zampierollo had disclosed them to Trane after the discovery
cut-off date and, according to the court, Zampierollo had failed
to show that his belated disclosure of the documents was
substantially justified or harmless. Id. at *4-7.
In its second opinion and order, the district court
granted Trane's motion for summary judgment. Zampierollo-
Rheinfeldt v. Ingersoll-Rand de P.R., Inc., No. 15-1255-RAM, 2020
WL 882174, at *13 (D.P.R. Feb. 21, 2020). Analyzing Zampierollo's
age discrimination claims under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973), the district court determined that Zampierollo
had failed to establish the fourth prong of a prima facie case of
age discrimination -- i.e., that Trane "either failed to treat age
neutrally or that [it] replaced him with a younger employee." Id.
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at *8, *12. The court reasoned that Zampierollo had not been
replaced because his position as District General Manager had been
eliminated and his functions had been redistributed amongst
Sanjenis and Teruel, who had "absorbed [Zampierollo]'s duties in
addition to other duties and responsibilities that were assigned
to them as part of their new roles as Business Director and
Services Operations Leader, respectively." Id. at *8. The court
also determined that Trane's reduction in force was "age-neutral
facially and as applied." Id. at *10. It stated that the fact
that three out of the four employees terminated as part of Trane's
reduction in force were over fifty years old "should not be
interpreted to mean that [Trane] had an ageist and discriminatory
animus." Id. (emphasis omitted). It further determined that
"there was a higher percentage of employees in the protected age
group after the [reduction in force] than before [it]." Id. at
*10.
Assuming arguendo that Zampierollo had successfully
established a prima facie case of age discrimination, the court
then examined whether Trane had articulated a legitimate, non-
discriminatory reason for its decision to terminate Zampierollo.
Id. at *11. The court found that Trane's proffered reason -- that
Zampierollo had been terminated due to a reduction in force
implemented as part of a reorganization of the Puerto Rico office
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to reduce expenses -- was non-discriminatory and sufficient to
satisfy the second prong of McDonnell Douglas, thus shifting the
burden back to Zampierollo. Id.
Next, the district court found that the record was devoid
of any evidence from which a reasonable jury could infer that
Trane's articulated reason for terminating Zampierollo's
employment was pretextual, let alone a pretext for age
discrimination. Id. at *11-12. Therefore, the court dismissed
Zampierollo's age discrimination claim under the ADEA. Id. at
*12.
The district court then turned to Zampierollo's local
age discrimination claim. It noted that, although the ADEA and
Law 100 differ "with respect to how the burden-shifting framework
operates," "on the merits, age discrimination claims asserted
under the ADEA and under Law No. 100 are coterminous." Id. at *12
(first quoting Dávila v. Corporación de P.R. para la Difusión
Pública, 498 F.3d 9, 18 (1st. Cir. 2007); and then quoting Reyes
Caballero v. Oriental Bank, No. 16-2952-GAG, 2019 WL 6330812, at
*13 (D.P.R. Nov. 25, 2019)). Accordingly, the district court
concluded that Zampierollo's "Law 100 claim fail[ed] for the same
reason that his ADEA claim failed." Id.
Finally, the court also summarily dismissed
Zampierollo's unjust discharge claim under Law 80, concluding that
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Zampierollo's termination had been with "just cause," as that term
is defined in Law 80. Id. at *13. The court determined that Trane
had "provided evidence that restructuring was necessary for the
solvency of [its] Puerto Rico office." Id. It reasoned that
because Zampierollo was the only employee in his occupational
classification and he had not been replaced by anyone, Trane did
not have to follow Law 80's preferential treatment rule, which
generally requires an employer undergoing a reorganization or
downsizing to "give preference to those employees within the same
occupational classification who have greater . . . seniority with
the employer." Id. (citing P.R. Laws Ann. tit. 29, § 185c).
Accordingly, the court granted summary judgment on all of
Zampierollo's claims. Id. Zampierollo filed a timely appeal.
II. Discussion
A. Motion to Strike
As noted, once Zampierollo filed an opposition to
Trane's motion for summary judgment, Trane moved to strike
documents that Zampierollo had submitted in connection with his
opposition, specifically Exhibit 5 (the Chile office "Business
Overview") and Exhibit 10 (the Puerto Rico office "2013 Financial
Summary"). Trane argued that Zampierollo had produced these two
documents after the discovery cut-off date and that the documents
were not properly authenticated.
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The district court granted Trane's motion and precluded
Zampierollo from using them. Zampierollo-Rheinfeldt, 2020 WL
881011, at *7. After analyzing the factors (which we'll review
with you momentarily) outlined in Esposito v. Home Depot U.S.A.,
Inc., 590 F.3d 72, 78 (1st Cir. 2009), the court concluded that
"[m]ost of [those factors] favor[ed] exclusion of Exhibits 5 and
10" and Zampierollo had failed to show that the belated disclosure
of those exhibits was either justified or harmless. Zampierollo-
Rheinfeldt, 2020 WL 881011, at *7.
Federal Rule of Civil Procedure 26 requires a party to
disclose all documents that it may use to support its claims or
defenses, and all evidence that it may present at trial, unless
their purpose is "solely for impeachment." Fed. R. Civ.
P. 26(a)(1)(A)(ii), (a)(3)(A). Further, the party must also
"supplement or correct its disclosure or response [to an
interrogatory, request for production, or request for admission]
. . . in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect."
Fed. R. Civ. P. 26(e)(1)(A).
Failure to properly disclose triggers Rule 37(c)(1):
incomplete or late disclosures may preclude a party from using
"that information . . . to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
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justified or is harmless." Fed. R. Civ. P. 37(c)(1). "[I]n the
absence of harm to a party, a district court may not invoke the
severe exclusionary penalty provided for by Rule 37(c)(1)." Cruz-
Vázquez v. Mennonite Gen. Hosp., Inc., 613 F.3d 54, 58 n.1 (1st
Cir. 2010). Furthermore, even when there is harm to a party,
"[p]reclusion is not strictly required." Lawes v. CSA Architects
& Eng'rs LLP, 963 F.3d 72, 91 (1st Cir. 2020). Instead, "[w]hen
noncompliance occurs, the ordering court should consider the
totality of events and then choose from the broad universe of
available sanctions in an effort to fit the punishment to the
severity and circumstances of the violation." Id. (quoting Young
v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003)); see also Esposito,
590 F.3d at 78 ("[D]istrict courts have broad discretion in meting
out [discovery] sanctions" and "may choose a less severe sanction."
(first alteration in original) (citations omitted)).
When reviewing a district court's decision precluding
evidence as a sanction, we consider an array of factors, including:
the history of the litigation; the proponent's need for the
precluded evidence; the justification (or lack of one) for the
late disclosure; the opponent-party's ability to overcome the
adverse effects of the late disclosure (surprise and prejudice);
and the late disclosure's impact on the district court's docket.
Esposito, 590 F.3d at 78 (citing Macaulay v. Anas, 321 F.3d 45, 51
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(1st Cir. 2003)). Because "district courts are generally in a
better position to determine the propriety of a particular
sanction," we review the district court's choice for abuse of
discretion. Id. An "[a]buse of discretion 'occurs when a material
factor deserving significant weight is ignored, when an improper
factor is relied upon, or when all proper and no improper factors
are assessed, but the court makes a serious mistake in weighing
them.'" Lawes, 963 F.3d at 90 (quoting Fashion House, Inc. v.
K mart Corp., 892 F.2d 1076, 1081 (1st Cir. 1989)).
On appeal, Zampierollo primarily argues that he did not
have to disclose the documents constituting Exhibits 5 and 10
because they fell within the exception for materials that are
presented solely for impeachment purposes. According to
Zampierollo, the documents at issue show that, contrary to Flefel's
contentions, the Chile office was "far from successful" and that
the Puerto Rico office had been profitable while under
Zampierollo's direction. Thus, he says, it made no sense to
replicate the Chile office's two-headed structure in Puerto Rico.
Zampierollo posits that, because he had no duty to disclose
impeachment evidence, the preclusion sanction was unwarranted.
See Klonoski v. Mahlab, 156 F.3d 255, 269-70 (1st Cir. 1998)
(noting that evidence that is presented "solely for impeachment
purposes" is not subject to discovery under Rule 26(a)). Because
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Zampierollo did not make this argument below, it is forfeited, and
our review would be for plain error only. See Hoolahan v. IBC
Advanced Alloys Corp., 947 F.3d 101, 114 (1st Cir. 2020)
("Arguments 'debuted on appeal' are deemed 'forfeited' and
therefore engender plain error review." (quoting Nat'l Fed'n of
the Blind v. Container Store, Inc., 904 F.3d 70, 85 (1st Cir.
2018))); Dávila, 498 F.3d at 14 & n.2 (explaining that an argument
not raised below is "forfeited" and reviewed for plain error).
We, however, bypass the issue because Zampierollo's fallback
argument provides alternative grounds for reversal. We thus turn
to Zampierollo's alternative argument.
"Rule 37(c)(1) contains a narrow escape hatch that
allows the court to admit belatedly proffered . . . evidence if
the proponent's failure to reveal it was either substantially
justified or harmless." Lohnes v. Level 3 Commc'ns, Inc., 272
F.3d 49, 60 (1st Cir. 2001). Here, the district court's discussion
of Zampierollo's justification and the alleged prejudice to Trane
in its consideration of the Esposito factors reflects that the
court found that neither branch of the exception applied.
Zampierollo contests that finding.
Regarding Zampierollo's justification for his late
disclosure of the documents, the court rejected his contention
that the documents "only became relevant once [Trane] allegedly
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referenced Chile's organizational structure for the first time in
[its] Motion for Summary Judgment." Zampierollo-Rheinfeldt, 2020
WL 881011, at *4. The court noted that Chile's organizational
structure was not mentioned for the first time in Trane's motion
for summary judgment, but rather in Flefel's deposition, which
took place before the discovery cut-off date. Id. The court also
noted that Zampierollo's assertion that he had "access" to the
documents at issue because of his role with Trane and that he had
found them after "conduct[ing] a search" showed that he could have
obtained and produced the documents before discovery closed. Id.
at *4-5. In addition, the court found that the fact that Trane
might have also had access to the documents did not justify
Zampierollo's failure to timely disclose them to Trane because he
had an independent duty to disclose the documents he would use as
evidence. Id. at *5. Faced with this rational explanation, we
discern no abuse of discretion in the court's finding that
Zampierollo's failure to disclose the documents to Trane was not
substantially justified.
We therefore turn to the remaining out in the escape
hatch: "whether the late disclosure, though not justified, was
nonetheless harmless." Gagnon v. Teledyne Princeton, Inc., 437
F.3d 188, 197 (1st Cir. 2006). Adopting the contentions put
forward by Trane, the district court found that Trane would be
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prejudiced by Zampierollo's late disclosure of the documents
because Trane "had already submitted a summary judgment motion
premised on evidence provided by both parties before the discovery
cut off" and, if the documents constituting Exhibits 5 and 10 were
admitted, "discovery might have to be re-opened, years after it
already closed on November 30, 2015." Zampierollo-Rheinfeldt,
2020 WL 881011, at *6. Zampierollo challenges this finding. He
argues that, contrary to the district court's conclusion,
preclusion was not justified because Trane suffered no prejudice
by the late disclosure, and that Trane's discovery argument is a
"red herring" because the "documents [were] generated by and
through their operations and procedures." He posits that an
"inability to defend [one]self is the crux of any prejudice
analysis" and Trane was able to defend itself. He notes that,
even before the district court ruled on Trane's motion to exclude
the documents at issue, Trane was able to file a lengthy reply to
his opposition to summary judgment, in which Trane addressed the
facts proposed by Zampierollo and supported by the documents at
issue, and "pointed to the economic data that allegedly supported
[its] decision to restructure [its Puerto Rico] operations." We
agree with Zampierollo that the late disclosure of the two exhibits
was harmless.
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The fact that a motion for summary judgment has already
been filed does not necessarily mean that a late disclosure cannot
be harmless. Instead, given our totality-of-circumstances
approach to our sanctions review, we necessarily determine whether
a late disclosure is harmless on a case-by-case basis. González-
Rivera v. Centro Médico del Turabo, Inc., 931 F.3d 23, 27 (1st
Cir. 2019). Here, the documents at issue were the Chile office
"Business Overview" from 2010, 2011, and 2012 (Exhibit 5) and the
Puerto Rico office "2013 Financial Summary" (Exhibit 10). In its
motion for summary judgment, Trane's articulated non-
discriminatory reason for terminating Zampierollo was that he had
been selected for a reduction in force implemented as part of a
reorganization of the Puerto Rico office. Trane further explained
that this reorganization followed the two-headed business model
that had been used in its Chile office under Flefel's direction
and which had proven to be successful. At oral argument, Trane
clarified that, despite having used this two-headed model in some
of its offices located in other countries, its motion for summary
judgment focused on Chile because Flefel had previously served as
the Business Director (one of the two heads) of the Chile office
and he was "extremely familiar with this model and he deemed it
appropriate" for the Puerto Rico office. In light of the record
before us, and considering that the belated documents were from
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the Chile office, from a period in which Flefel was directing that
office, that it was Flefel who decided to replicate that business
model in Puerto Rico, that Trane had access to Flefel for
assistance in replying to Zampierollo's opposition to Trane's
motion for summary judgment, that, in fact, Trane filed a thorough
reply in which it addressed Zampierollo's claim of pretext, and
that Trane has not explained why it would require additional
discovery given that any other documents relevant to the argument
for which Zampierollo has invoked Exhibit 5 are presumably within
its control, we are hard-pressed to understand exactly how Trane
was prejudiced by the belated disclosure of the documents in
Exhibit 5.
Regarding Exhibit 10, Trane does not dispute
Zampierollo's contention that it is "substantially the same" as a
document submitted by Trane with its motion for summary judgment.
The district court accepted this representation from Zampierollo
but determined that it cut against him because it showed that
Zampierollo did not need to rely on the document, i.e., he could
rely on Trane's document to make his point. Zampierollo-
Rheinfeldt, 2020 WL 881011, at *4. If, as everyone seems to agree,
Zampierollo's Exhibit 10 is substantially the same as a document
that Trane itself submitted with its motion for summary judgment,
then we fail to see how Trane could have been prejudiced by
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Zampierollo's late disclosure of a document which Trane had already
factored into its own case strategy. Just because Zampierollo
used the document to support a different argument does not
demonstrate prejudice.
Because, in the absence of harm to Trane, the district
court should not have applied the "severe exclusionary penalty
provided for by Rule 37(c)(1)," Cruz-Vázquez, 613 F.3d at 58 n.1,
we reverse the district court's preclusion of the documents
constituting Exhibits 5 and 10 to Zampierollo's opposition to
summary judgment.5 Since the district court did not address, and
the parties did not brief, Trane's alternative argument that the
documents constituting Exhibits 5 and 10 also warranted exclusion
from the summary judgment record because they allegedly were not
properly authenticated, we express no opinion on the matter. See
Joseph v. Lincare, 989 F.3d 147, 155 & n.4 (1st Cir. 2021).6
B. Summary Judgment
We next turn to the district court's grant of Trane's
motion for summary judgment. Summary judgment may be granted only
Zampierollo also challenges the district court's
5
weighing of some of the other Esposito factors against him. In
light of our ruling, however, we find it unnecessary to address
these additional arguments.
We pause to note that even without Exhibits 5 and 10,
6
Zampierollo put forth enough evidence to avoid the summary judgment
axe as we'll discuss next.
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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)
(quoting Barclays Bank PLC v. Poynter, 710 F.3d 16, 19 (1st Cir.
2013)); Fed. R. Civ. P. 56(a). A genuine dispute is "one that
must be decided at trial because the evidence, viewed in the light
most flattering to the nonmovant, would permit a rational
factfinder to resolve the issue in favor of either party." Medina-
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)
(citations 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)).
1. ADEA Claim
The ADEA makes it unlawful for an employer to "discharge
any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's age." 29 U.S.C.
§ 623(a)(1). In a wrongful discharge case under the ADEA, the
plaintiff bears the burden of proving by a preponderance of the
evidence that his age was the "determinative factor in his
discharge, that is, that he would not have been fired but for his
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age." Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir.
1988); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-
78 (2009).
A plaintiff may use either direct or circumstantial
evidence to prove his ADEA claim. See Gross, 557 U.S. at 177-78;
Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17,
24 (1st Cir. 1998). If the plaintiff "provides direct evidence of
discrimination, the issue may be put to a finder of fact without
further ado." Alvarez-Fonseca, 152 F.3d at 24. If the plaintiff,
however, does not provide direct evidence of discrimination, we
apply the familiar burden-shifting framework outlined in McDonnell
Douglas Corp., 411 U.S. at 802-05, 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 who was
terminated as part of a reduction in force has the initial burden
of establishing a prima facie case by showing that: (i) he was at
least forty years old at the time of his termination; (ii) he was
meeting the employer's legitimate performance expectations;
(iii) he was terminated from his employment; and (iv) "the employer
did not treat age neutrally or that younger persons were retained
in the same position."7 LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,
7 If the plaintiff's termination was not part of a
reduction in force, the plaintiff must demonstrate under the fourth
prong that he "was replaced by a person with roughly equivalent
-22-
842 (1st Cir. 1993) (quoting Hebert v. Mohawk Rubber Co., 872 F.2d
1104, 1111 (1st Cir. 1989)). "This burden is not onerous."
Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 57 (1st Cir.
2018).
If the plaintiff establishes his prima facie case, "the
burden of production -- but not the burden of persuasion -- shifts
to [the employer], who must articulate a legitimate, non-
discriminatory reason" for its action. Theidon v. Harvard Univ.,
948 F.3d 477, 495 (1st Cir. 2020) (quoting Johnson v. Univ. of
P.R., 714 F.3d 48, 53–54 (1st Cir. 2013)); see also McDonnell
Douglas Corp., 411 U.S. at 802. If the employer articulates such
a reason, the burden shifts back to the 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." Vélez v. Thermo King de P.R., 585 F.3d 441, 447-48 (1st
Cir. 2009) (quoting Gross, 557 U.S. at 177).
Zampierollo makes three primary arguments regarding his
ADEA claim. First, Zampierollo argues that despite having put
forth direct evidence of age discrimination, which was enough in
job qualifications." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,
842 (1st Cir. 1993). However, "if the job loss was part of a
reduction in force, the plaintiff need not show replacement by
someone with equivalent job qualifications." Id.
-23-
itself to survive summary judgment, the district court failed to
consider it as direct evidence and, instead, analyzed such evidence
"within the confines of the McDonnell-Douglas framework." Second,
Zampierollo posits that, even assuming arguendo that the record
does not contain direct evidence of age discrimination, the
district court nevertheless erred in determining that he failed to
establish a prima facie case of age discrimination under the ADEA.
Third, Zampierollo contends that the district court improperly
concluded that the summary judgment record is devoid of evidence
from which a reasonable jury could find that Trane's articulated
reasons for dismissing him were pretextual and that Trane's actions
derived from ageist discriminatory animus. We address
Zampierollo's arguments in turn.
Zampierollo points us to evidence which he claims
qualifies as direct evidence of Trane's ageist discriminatory
animus, but which the district court failed to consider as such.
This evidence consists of Zampierollo's deposition testimony to
the effect that at the time of his termination, Flefel told him
that Zampierollo's employment was being terminated because Trane:
wanted to "rejuvenate the region," was seeking the "rejuvenation
of the team," was "rejuvenating the management," and was
-24-
"rejuvenating the management team,"8 in addition to wanting to
reduce its costs.
"Direct evidence is evidence which, in and of itself,
shows a discriminatory animus." Jackson v. Harvard Univ., 900
F.2d 464, 467 (1st Cir. 1990). It "consists of statements by a
decisionmaker that directly reflect the alleged animus and bear
squarely on the contested employment decision." Febres v.
Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000); see
also Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st
Cir. 1996) (stating that the remarks or comments must be linked to
the adverse employment decision); France v. Johnson, 795 F.3d 1170,
1173 (9th Cir. 2015) ("Direct evidence, which standing alone can
defeat summary judgment, must be evidence directly tied to the
adverse employment decision."). "[S]tray remarks in the
workplace, particularly those made by nondecision-makers or
statements made by decisionmakers unrelated to the decisional
process itself" do not qualify as direct evidence. Ayala-Gerena,
95 F.3d at 96; see also Patten v. Wal-Mart Stores E., Inc., 300
F.3d 21, 25 (1st Cir. 2002) (noting that "mere background noise"
and "stray remarks" do not qualify as direct evidence). Although
"'direct evidence is relatively rare,' . . . that burden is not
8 For simplicity, where appropriate, we refer to these
variants as Flefel's "rejuvenation" statement.
-25-
insurmountable." Patten, 300 F.3d at 25 (quoting Fernandes v.
Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999)).
Viewing the evidence put forth by Zampierollo in the
light most favorable to him, as we must at this stage, we conclude
that it qualifies as direct evidence of age discrimination. It is
uncontested that Flefel was the key managerial employee who decided
to terminate Zampierollo, a fifty-five-year-old employee who had
no performance issues. According to the evidence Zampierollo
relies on, upon being informed of his termination, Zampierollo
specifically asked Flefel why he was being terminated, to which
Flefel allegedly responded that Trane was terminating him because
it wanted to "rejuvenate" the team/management/region and lower
costs. A reasonable jury could construe this evidence as an
admission by the decision-making employer that it decided to
terminate Zampierollo's employment because of his age inasmuch as
it wanted a younger workforce. This Circuit, as well as others,
has held that similar evidence qualifies as direct evidence. See,
e.g., Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 171 (1st Cir.
1998) (citing with approval a Seventh Circuit opinion holding that
a "[c]omment by [a] supervisor that the plaintiff's 'accounts could
use some younger blood' constituted sufficient direct evidence of
discriminatory intent" (quoting EEOC v. G-K-G, Inc., 39 F.3d 740,
746 (7th Cir. 1994))); see also Ezell v. Potter, 400 F.3d 1041,
-26-
1051 (7th Cir. 2005) (finding that employer's statement to a new
hire that they intended "to get rid of older carriers and replace
them with younger, faster carriers" constituted direct evidence of
discriminatory intent).
Trane, however, submits that Zampierollo's deposition
testimony about Flefel's "rejuvenation" statement does not qualify
as direct evidence of age discrimination for several reasons. None
of those reasons passes muster. First, Trane argues that
Zampierollo's deposition testimony does not constitute direct
evidence because Zampierollo allegedly could not remember at his
deposition "what Mr. Flefel said or what words he used" when
explaining to Zampierollo why Trane was terminating his
employment. Trane further argues that because Zampierollo "isn't
even sure [if the statement] was ever made," Flefel's alleged
"rejuvenation" statement "should be disregarded."
Trane's argument is premised on a misconstruction of the
record. During his deposition, Trane's counsel repeatedly asked
Zampierollo about the reasons provided by Flefel for Trane's
decision to terminate Zampierollo's employment. Faced with these
questions, Zampierollo consistently testified that Flefel told him
"basically [that they] were going to rejuvenate the region, and
the costs were too high and . . . had to be lowered." Trane's
counsel, in an apparent attempt to steer Zampierollo away from the
-27-
"rejuvenation" statement, stated, "So, if I understand you
correctly, the stated reason for your termination was reduction in
costs?" Refusing to take the bait, Zampierollo responded,
"[r]eduction in costs and rejuvenation of the team, of the region."
A little later in the deposition, Trane's counsel stated, "I'm
asking you about a specific conversation in connection with your
termination. And, the question was whether, during that
conversation with Mr. Enrique Flefel, you discussed anything else,
aside from what you just testified?" Zampierollo again responded,
"[n]o, it was basically or emphatically '[t]his is a reduction in
cost, and we're rejuvenating the management.'" Finally,
Zampierollo concluded that "[he] was taken out because of [his]
age." This statement prompted Trane's counsel to ask him, "and
you reached that conclusion on your own?," to which Zampierollo
responded, "I reached that conclusion when I hear the bells, like
we're rejuvenating the management team and all that, so I get it.
And, when I look at everything that happened, who was fired with
me . . . ."
This testimony does not support Trane's allegations that
Zampierollo did not remember what Flefel told him regarding Trane's
motivations for terminating him or that Zampierollo was not "even
sure" whether Flefel had informed him that his termination was due
to Trane's desire to rejuvenate the team/management/region. To
-28-
the contrary, Zampierollo's testimony was consistent throughout
his deposition and he was adamant that Flefel had mentioned that
Trane's desire to rejuvenate its workforce was the reason behind
its decision to terminate Zampierollo. We note that at his
deposition, after Zampierollo quoted Flefel as having said that
"we're rejuvenating the management," Trane's counsel asked
Zampierollo, "did Mr. Enrique Flefel specifically say the word[s]
'rejuvenating' the workforce?," to which Zampierollo responded
that he did not remember "[t]he specific words" used by Flefel.
This exchange occurred shortly after Zampierollo had cited Flefel
as having said that Trane was "going to rejuvenate the region,"
and was doing a "rejuvenation of the team," and after quoting him
as saying that Trane was "rejuvenating the management." Despite
not remembering whether Flefel's exact words were "rejuvenate the
region," "rejuvenation of the team," "rejuvenating the workforce,"
or "rejuvenating the management," his testimony was unequivocal
that Flefel's statement as to the reason that he was terminated
included the use of the word "rejuvenate" and so the only possible
uncertainty he acknowledged as to what he recalled Flefel to have
said concerned whether the statement was referring to the "region,"
"team," "workforce," or "management." See Ocasio-Hernández, 777
F.3d at 4 (stating that on summary judgment we construe the record
in the light most favorable to the nonmovant and resolve all
-29-
reasonable inferences in that party's favor). Furthermore, "a
witness's lack of memory normally generates simply a credibility
issue for the factfinder." United States v. Rojas-Tapia, 446 F.3d
1, 6 (1st Cir. 2006); Febres, 214 F.3d at 60 n.3 (stating that
direct evidence "does not require that the plaintiff produce
evidence that the court finds persuasive" and "credibility
determinations in respect to direct evidence are for a properly
instructed jury, not for the judge"); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (noting that, in deciding a
motion for summary judgment, "[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge," and
"[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor" (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970))).
Second, Trane argues that Zampierollo's deposition
testimony about Flefel's "rejuvenation" statement does not
constitute direct evidence of age discrimination because
Zampierollo allegedly admitted to being "speculating as to the
motives for his termination." This argument is also based on a
misreading of the record.
At Zampierollo's deposition, when Trane's counsel tried
to limit his testimony about Flefel's stated reasons for his
-30-
termination to "reduction in costs," Zampierollo clarified that
Flefel's stated reasons were "[r]eduction in costs and
rejuvenation of the team, of the region." Zampierollo then
expanded on his response by adding,
We needed change. We needed change probably
of . . . I'm one of the old guards there. I
was part of all what came from William Sekkel,
from Guillermo Feria, from everyone else, and
this is, if you want to call it . . . I don't
know. I'm speculating there.
(alterations in original). When read in context, it is clear that
Zampierollo's statement that he was speculating was related to his
explanation regarding the need for change and not to Flefel's
stated reasons for his termination. Zampierollo consistently
testified throughout his deposition that Flefel had "emphatically"
informed him that he was being terminated from his employment
because of Trane's desire to rejuvenate its
team/management/region.
Trane next posits that Zampierollo's testimony about
Flefel's "rejuvenation" statement does not qualify as direct
evidence because Zampierollo did not mention any ageist comments
in his complaint or move to amend his complaint "even after his
deposition was taken," and because he allegedly waited until after
Trane had moved for summary judgment to come up with a new legal
theory. Here, we are reviewing the district court's resolution of
a motion for summary judgment, not of a motion to dismiss, where
-31-
our review would be limited to the well-pleaded facts alleged in
the complaint. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d
1, 7 (1st Cir. 2011). Our review of the district court's
resolution of a motion for summary judgment entails consideration
of the evidence in the summary judgment record, which includes
deposition testimony pointed to by the parties. See Calero-Cerezo
v. U.S. Dep't of Just., 355 F.3d 6, 19 (1st Cir. 2004) (noting
that "[s]ummary judgment is appropriate when 'the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to a material fact and that the moving party is entitled
to a judgment as a matter of law'" (quoting Fed. R. Civ. P. 56(c))).
Accordingly, we are not constrained to the facts specifically
alleged in the complaint -- facts which generally must give the
defendant only "fair notice" of what the plaintiff's claim is and
the grounds upon which it rests. See Ocasio-Hernández, 640 F.3d
at 8. After the complaint is filed, discovery then allows the
parties to learn of the scope of the evidence supporting the
opposing party's contentions. Here, Zampierollo's complaint gave
Trane fair notice of his age discrimination claims and the grounds
upon which those claims rested. He specifically alleged in his
complaint that Trane terminated his employment because of his age,
and replaced him with two younger employees as "part of [its]
-32-
strategy to eliminate senior employe[es] and substitute them with
younger employees." During discovery, Trane then had the
opportunity to inquire about the scope of the evidence supporting
Zampierollo's contentions. The evidence obtained during discovery
could become part of the summary judgment record even if this
evidence was not specifically referenced in the complaint.
Furthermore, Trane's argument that we should disregard
the evidence about Flefel's "rejuvenation" statement because
Zampierollo allegedly waited "until he was faced with a well-
reasoned motion for summary judgment" to come up with a new legal
theory is preposterous. Zampierollo's legal theory has remained
consistent throughout the litigation. Zampierollo testified about
Flefel's "rejuvenation" statement at his deposition, well before
Trane filed its motion for summary judgment. In fact, many of the
facts included in Trane's motion were supported by the transcript
of Zampierollo's deposition. Zampierollo then opposed summary
judgment citing his deposition testimony. Contrary to Trane's
contentions, this simply is not a case in which the plaintiff
waited until a properly supported motion for summary judgment had
been filed to come up with a sham affidavit, new evidence of
discrimination not previously disclosed during discovery, or a new
theory.
-33-
Trane also argues that Zampierollo's deposition
testimony about Flefel's "rejuvenation" statement does not
constitute direct evidence of age discrimination because Flefel's
statement was "inherently ambiguous" and subject to two different
interpretations -- one discriminatory and the other benign -- and
Zampierollo had "failed to put forth any evidence that could put
the alleged comment in further context."
Statements that are "inherently ambiguous" do not
qualify as direct evidence. Patten, 300 F.3d at 25 (quoting
Fernandes, 199 F.3d at 583); Lehman v. Prudential Ins. Co. of Am.,
74 F.3d 323, 329 (1st Cir. 1996) ("Isolated, ambiguous remarks are
insufficient, by themselves, to prove discriminatory intent."). A
statement is inherently ambiguous if, viewed in context, it is
subject to be interpreted in a benign, non-discriminatory way.
See Patten, 300 F.3d at 25-26. The fact that a jury would not be
compelled to find a statement was direct evidence of discrimination
does not make it inherently ambiguous so long as a jury could
conclude it was. An "inherently ambiguous" statement is not
susceptible of being reasonably found to be direct evidence
precisely because its inherently ambiguous nature would make such
a characterization of it merely speculative.
In support of its contention that Flefel's
"rejuvenation" statement is inherently ambiguous, Trane cites the
-34-
Cambridge Dictionary's alternate definition of "rejuvenation."
Although the Cambridge Dictionary first defines "rejuvenation" as
"to make someone look or feel young and energetic again," Trane
notes that it also defines "rejuvenation" as "to make an
organization or system more effective by introducing new methods,
ideas, or people." Rejuvenation, Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/rejuvenate
(last visited on May 27, 2021). According to Trane, this alternate
definition is "wholly benign and unrelated to age," which makes
the word inherently ambiguous. Trane, however, fails to
acknowledge that even the usage example given for this alternate
definition of "rejuvenation" is age-based: "He has decided to
rejuvenate the team by bringing in a lot of new, young players."
Id. (emphasis added). Other dictionaries likewise associate
"rejuvenation" with age. See Rejuvenate, Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/rejuvenate
(last visited May 27, 2021) (defining "rejuvenate" as "to make
young or youthful again" and explaining that "rejuvenate" stems
from the Latin "juvenis," meaning "young"); Rejuvenation,
Dictionary.com, https://www.dictionary.com/browse/rejuvenation
(last visited May 27, 2021) (defining "rejuvenation" as "the act
of making someone young again or restoring them to youthful vigor"
or "the act of making something new and fresh, or restoring it to
-35-
a former better state"). Furthermore, the context in which the
statement is made informs our decision on whether the statement is
inherently ambiguous or not. See Patten, 300 F.3d at 25-26;
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 434 (1st Cir.
2000). And, contrary to Trane's contention, Flefel's
"rejuvenation" statement was neither isolated nor ambiguous, when
viewed in context. The statement was not a stray remark made in
isolation and unrelated to the decision-making process. According
to Zampierollo, the statement was made in the context of a
conversation he had with his direct supervisor and key
decisionmaker regarding his termination, as a direct response to
Zampierollo's inquiry as to why Trane was terminating his
employment. Accordingly, a reasonable jury could conclude that
the use of the word "rejuvenation" or "rejuvenate" in this context
unambiguously suggests an age-based animus. See, e.g., G-K-G,
Inc., 39 F.3d at 746.9
9 Trane cited Patten, 300 F.3d 21, in support of its
proposition that an inherently ambiguous statement cannot
constitute direct evidence of discrimination. Although Trane made
no developed argument as to why our holding in Patten should be
controlling, we clarify that Patten is clearly distinguishable.
In that case, the plaintiff, who had a disability known to her
employer since before it hired her, had an absenteeism problem
which had become quite serious. Patten, 300 F.3d at 23. After
having missed six days of work, leaving early one day without
justification, and calling in sick on another day, all within a
span of twenty-two days, it became evident to her employer that
the plaintiff could not comply with its attendance policy. Id. at
24. Her supervisor thus called her in and stated, "[w]e understand
-36-
Trane further argues that, even if Zampierollo's
deposition testimony about Flefel's "rejuvenation" statement is
that you have health problems. We understand that you are
disabled, but we don't want you working in this store." Id. The
plaintiff filed a disability-based discrimination claim against
her employer, and the case proceeded to trial. Id. At trial,
"[a]ll of [the plaintiff's] allegations were denied by management
personnel," who testified that she was fired for "gross misconduct
of the attendance policy." Id. The jury concluded that although
the plaintiff was disabled, "her disability was not the determining
factor in [her employer's] decision to discharge her." Id. It
therefore ruled in the employer's favor. Id. On appeal, in the
context of reviewing a jury instruction, we held that the statement
allegedly made by the supervisor did not qualify as direct evidence
because the statement was "subject to the interpretation that
management fully understood that [the plaintiff] had a disability
but could not further abide [her] gross and repeated absenteeism."
Id. at 25. We clarified that "[a] decisionmaker's mentioning of
a disability in the context of an adverse employment action cannot,
without more, constitute direct evidence of discrimination." Id.
at 25-26.
Zampierollo argues that Patten is inapposite because
that case concerns an appeal of "a jury's verdict concluding that
[the plaintiff] was not discriminatorily discharged," whereas
"[h]ere, Zampierollo has not even been given an opportunity to
have a jury hear and weigh the 'rejuvenation' comment and determine
whether it is discriminatory or not." We agree with Zampierollo
that both cases were appealed at different stages and that the
issues presented in each appeal are different. The key
distinction, however, is that unlike in Patten, where the
supervisor merely referenced a protected ground in the context of
an adverse employment action, here, Flefel did not merely reference
Zampierollo's age in the context of his termination. Instead,
Flefel made his age-related statement in direct response to
Zampierollo's specific question as to why Trane was terminating
his employment. That is, Flefel specifically told Zampierollo
that the reason why Trane was terminating him was because it wanted
to rejuvenate its team/management/region. Accordingly, in light
of the context in which it was made, Flefel's statement was not
inherently ambiguous and it constitutes direct evidence of
discrimination. Hence, Patten is inapposite.
-37-
unambiguous and could constitute direct evidence, it would still
be unreasonable for a jury to conclude that it is sufficient direct
evidence that Zampierollo was terminated because of his age when
one considers the effect that the restructuring of the business
had in Trane's workforce. Specifically, Trane stresses that, as
the district court found, there was a higher percentage of
employees within the protected age group after the reorganization
than before it.
The evidence in the record, however, does not support
Trane's contention or the district court's finding that "there was
a higher percentage of employees in the protected age group after
the [reduction in force] than before the same." Zampierollo-
Rheinfeldt, 2020 WL 882174, at *10. In fact, the record supports
the opposite conclusion. It is uncontested that, effective
September 30, 2013, Trane terminated Zampierollo and three other
employees, and these four employees were the only ones terminated
as part of Trane's reduction in force. Three out of these four
terminated employees were over the age of forty. It is also
undisputed that as of October 1, 2013, forty-five of Trane's
ninety-five Puerto Rico employees (or 47.3% of its workforce) were
forty years of age or older. Thus, a simple mathematical analysis
leads us to conclude that on September 30, 2013, when Trane
terminated Zampierollo and three other employees, its workforce
-38-
was composed of ninety-nine employees, forty-eight (or 48.4%) of
which were in the protected age group. In consequence, contrary
to Trane's contention, the percentage of its employees within the
protected age group decreased after the reduction in force.10
10 We note that, at his deposition, defense counsel
asked Zampierollo to estimate the number of Trane employees within
the protected age group before the reduction in force. Zampierollo
was not sure of this figure, but estimated that, before the
reduction in force, Trane's workforce was composed of
approximately one hundred employees of which "[p]robably a third"
were over forty. This figure was underestimated. Then, to support
its contention that more employees were within the protected age
group after the reduction in force than before the same, Trane
conveniently used Zampierollo's pre-reduction in force
underestimated figure as a comparator, instead of using the real
pre-reduction in force figure. By so doing, Trane conveniently
reached a result that, although favorable to its argument, distorts
the truth.
Our analysis does not factor in the effect of Trane's
hiring of a Parts Manager and a Logistics Manager in 2014.
According to Trane, the restructuring -- which was planned in or
about August 2013 and became effective on October 1, 2013 --
affected only four employees (Zampierollo and the other three
employees terminated on September 30, 2013). Furthermore, Trane
admitted that the decision to hire these two additional managers
occurred "[a]fter the restructuring [had] t[aken] place." Defs.
SUMF in Supp. of Mot. for Summ. J. at 11 ¶¶ 83-84, Zampierollo-
Rheinfeldt, No. 15-1255-RAM (D.P.R. Jan. 8, 2016), ECF No. 20.
Moreover, Trane itself used the data from its workforce as of
October 1, 2013, to make its point that the number of employees in
the protected age group allegedly increased after the
restructuring. Defs. Mot. for Summ. J. at 45-46, Zampierollo-
Rheinfeldt, No. 15-1255-RAM (D.P.R. Jan. 8, 2016), ECF No. 19. In
light of these facts, and because we construe the facts in the
light most favorable to the nonmovant, we assess the age-neutrality
of the restructuring by looking to the demographic makeup on
October 1, 2013, the date Trane itself used in making its age-
neutrality argument.
-39-
Finally, Trane makes much out of the fact that a big
chunk of its Puerto Rico office's expenses consisted of salaries
and benefits and that it had a legitimate interest in reducing
such expenses, which it sought to do through a reduction in force.
Whatever legitimate business reasons Trane might have had to reduce
its workforce, it is not enough, in light of the direct evidence
put forth by Zampierollo, to take the issue away from a jury. The
ADEA does not prevent an employer from reducing its expenses
through the implementation of reductions in force. "But an
employer may not use its [reduction in
force]/reorganization/improved-efficiency rationale as a pretext
to mask actual discrimination . . . ." Hodgens, 144 F.3d at 166.
Accordingly, an employer who has a "compelling reason wholly
unrelated to the [age] of any of its employees to reduce the size
of its work force" may still be liable under the ADEA if it "use[s]
the occasion as a convenient opportunity to get rid of its [older]
workers." Id. at 167 (quoting Matthews v. Commonwealth Edison
Co., 128 F.3d 1194, 1195 (7th Cir. 1997)).
In sum, the record contains direct evidence to support
Zampierollo's theory that Trane selected him for termination
because of his age, due to Trane's desire to rejuvenate its
team/management/region. In light of this direct evidence, the
district court should have denied Trane's motion for summary
-40-
judgment and allowed the case to proceed to trial, see Alvarez-
Fonseca, 152 F.3d at 24, instead of analyzing Zampierollo's ADEA
claim under the McDonnell Douglas framework, see Smith v. F.W.
Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996) (stating that the
McDonnell Douglas framework is inapposite when a plaintiff
produces direct evidence of discrimination).11 Accordingly, we
vacate the district court's grant of summary judgment on the ADEA
claim.12
11 In ruling that the direct evidence put forth by
Zampierollo was enough to defeat summary judgment and proceed to
trial, we do not mean to limit the evidence that Zampierollo may
present at trial or the route that he may follow to prove his case.
At trial, Zampierollo may use his direct evidence to prove Trane's
motive and may "reinforce that evidence with proof that [Trane's]
ostensible reasons for firing him were unworthy of belief." See
G-K-G, Inc., 39 F.3d at 747. He may also elect to ask the jury to
infer discrimination by using "an adaptation of McDonnell Douglas
to the trial setting." Id. (noting that "a plaintiff who has
withstood the defendant's motion for summary judgment, yet has not
been able to obtain summary judgment for himself and must therefore
go to trial, can ask the jury to infer discrimination from the
defendant's failure to present a credible explanation for why it
fired the plaintiff despite his satisfying the defendant's
legitimate expectations, and replaced him with a member of a
nonprotected group"). None of this is to say that Trane acted in
a discriminatory manner. Our task at this point is not to decide
whether Zampierollo was terminated because of his age. Rather, we
rule only that he has direct evidence to warrant a trial.
12 Our conclusion makes it unnecessary to address
Zampierollo's arguments regarding the district court's application
of the McDonnell Douglas burden-shifting framework.
-41-
2. Law 100 Claim
Puerto Rico Law 100, like the ADEA, provides a cause of
action for persons who suffer discrimination in their employment
because of their age. See Ramos-Santiago v. WHM Carib, LLC, 919
F.3d 66, 72 (1st Cir. 2019). "Law 100's protections against age
discrimination are 'coterminous' with the ADEA's protections,"
Puig v. Novo Nordisk Inc., 992 F.3d 12, 16 (1st Cir. 2021),
although the "plaintiff's burden is lighter" under Law 100, Vélez,
585 F.3d at 452 n.7.13
Here, the district court based its dismissal of
Zampierollo's Law 100 claim on the dismissal of the ADEA claim.
In light of our ruling that Zampierollo's ADEA claim must be
reinstated, we must vacate the summary judgment ruling on the Law
100 claim as well.
3. Law 80 Claim14
Law 80, Puerto Rico's Unjust Discharge Act, protects
employees hired without a fixed term from being terminated without
13 Under Law 100, "absent just cause for dismissal, the
plaintiff's prima facie case creates a rebuttable presumption of
discrimination which shifts to the defendant not only the burden
of producing the evidence, but also of persuading the trier."
Vélez, 585 F.3d at 452 n.7 (quoting Menzel v. W. Auto Supply Co.,
848 F.2d 327, 331 (1st Cir. 1988)). "To defeat that presumption,
'the employer must prove, by a preponderance of the evidence, that
the challenged action was not motivated by a discriminatory age
animus.'" Id. (quoting Alvarez–Fonseca, 152 F.3d at 27–28).
14 We refer to the version of Law 80 in force prior to
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just cause. P.R. Laws Ann. tit 29, § 185a. If the employer
terminates the employee without just cause, it must pay him a
severance or "mesada," which is calculated pursuant to a formula
that takes into account the employee's salary and years of service
with the employer. Id. The statute's definition of just cause
includes "three [reasons] that relate to company restructuring or
downsizing." Carrasquillo-Ortiz v. Am. Airlines, Inc., 812 F.3d
195, 196 (1st Cir. 2016) (citing P.R. Laws Ann. tit. 29, § 185b(d),
(e), (f))15. Pursuant to section 185c, however, "[a]n employer
citing a restructuring or downsizing reason as just cause 'must
its amendment in 2017. See P.R. Laws Ann. tit. 29, §§ 185a–185n
(added on Jan. 26, 2017, No. 4); López-Santos v. Metro. Sec.
Servs., 967 F.3d 7, 11 n.3 (1st Cir. 2020).
15 The statute provides that the following reasons
"shall be understood as just cause":
. . .
(d) Full, temporary, or partial closing of the
operations of the establishment. . . .
(e) Technological or reorganization changes as well as
changes of style, design, or the nature of the product
made or handled by the establishment, and changes in the
services rendered to the public.
(f) Downsizing made necessary by a reduction in the
foreseen or prevailing volume of production, sales, or
profits at the time of the discharge or for the purpose
of increasing the establishment's competitiveness or
productivity.
P.R. Laws Ann. tit. 29, § 185b(d)-(f).
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give preference to those employees with greater seniority over
those with less seniority within the same occupational
classification.'" Puig, 992 F.3d at 18 (quoting Carrasquillo-
Ortiz, 812 F.3d at 196); P.R. Laws Ann. tit. 29, § 185c.16 If the
employer fails to follow this preferential retention mandate, the
employee's dismissal will generally be without just cause.
See P.R. Laws Ann. tit. 29, § 185c.
Once the plaintiff alleges unjustified dismissal and
proves by a preponderance of the evidence that he was discharged,
it is presumed that the dismissal was unjustified. Alvarez-
Fonseca, 152 F.3d at 28. The burden of proof then shifts to the
16 Specifically, section 185c establishes that:
In any case where employees are discharged for the
reasons indicated in subsections (d), (e) and (f) of
§ 185b of this title, it shall be the duty of the
employer to retain those employees of greater seniority
on the job with preference, provided there are positions
vacant or filled by employees of less seniority in the
job within their occupational classification which may
be held by them . . . . However, at the time of the
discharge . . . , if there is a reasonably clear or
evident difference in favor of the capacity,
productivity, performance, competence, efficiency or
conduct record of the compared employees, the employer
may make a selection based on such criteria.
P.R. Laws Ann. tit. 29, § 185c.
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employer to prove by a preponderance of the evidence that the
discharge was justified. Id. at 27-28.
The Puerto Rico Supreme Court has clarified that,
although not all unjustified terminations are necessarily
discriminatory, all discriminatory terminations are unjustified.
Díaz v. Wyndham Hotel Corp., 155 P.R. Dec. 364, 387 (2001)
(certified translation). Hence, a finding of age discrimination
in this case would necessarily make Zampierollo's termination
unjustified under Law 80. See id. Because, as discussed above,
there are genuine issues of material facts that must be resolved
at trial regarding whether Trane terminated Zampierollo because of
his age, the district court erred in granting summary judgment for
Trane on Zampierollo's Law 80 claim. We, thus, vacate the entry
of summary judgment on the Law 80 claim.
III. Conclusion
We reverse the exclusion of the two documents from the
summary judgment record, vacate the district court's entry of
summary judgment in Trane's favor, and remand for further
proceedings consistent with this opinion. Costs are awarded to
the appellant.
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