United States Court of Appeals
For the First Circuit
No. 10-2276
HERNÁN ACEVEDO-PARRILLA; NITZA I. MEDINA MARTÍNEZ;
and the conjugal partnership composed between them,
Plaintiffs, Appellants,
v.
NOVARTIS EX-LAX, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. Senior District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Vilma M. Dapena-Rodríguez, for appellants.
Enrique R. Padró-Rodríguez, with whom Pedro J. Manzano-Yates
and Fiddler, González & Rodríguez, P.S.C., were on brief for
appellee.
October 10, 2012
TORRUELLA, Circuit Judge. Plaintiff-Appellant Hernán
Acevedo-Parrilla ("Acevedo") appeals the district court's award of
summary judgment to his former employer, Novartis Ex-Lax ("Ex-Lax"
or "the company"), on his claims of age discrimination in violation
of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§§ 621-634. Upon careful review of the record, we find that it
holds sufficient evidence from which a jury could conclude that the
company's reason for terminating Acevedo was pretextual, and that
the true reason for his termination was discriminatory based on his
age. We therefore reverse the district court's grant of summary
judgment and remand.
I. Background
Because our review is from a grant of summary judgment,
we set forth the background facts, as supported by the record, "in
the light most favorable to the non-moving party," in this case,
Acevedo. Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 444
(1st Cir. 2009).
A. Acevedo's History at Ex-Lax
Acevedo was born in 1951 and is a trained mechanical
engineer. For twenty years, from 1975 to 1995, Acevedo worked in
various posts as an engineer in the manufacturing, government, and
pharmaceutical sectors, a trajectory that included the assumption
of supervisory roles and exemplary performance evaluations. In
1996, the General Manager of Ex-Lax -- a pharmaceutical company
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that manufactures over-the-counter products, including laxatives --
approached Acevedo and offered him the position of Maintenance and
Engineering Manager at the company's site located in Humacao,
Puerto Rico. Acevedo accepted the position and held it for the
next eleven years, until he was terminated in 2007. At the time of
his termination, Acevedo was 56 years old.
Acevedo's main responsibility as the Maintenance and
Engineering Manager at Ex-Lax consisted of keeping the plant's
facilities in optimum condition, including facilities associated
with the company's production machinery, treatment plant,
landscaping, and building services. Acevedo's department also
provided engineering support to other departments in the company,
supervised major contract works, and oversaw the provision of
services such as pest control, cleaning, and sanitation by outside
contractors. In all, the job required that Acevedo supervise
approximately twelve employees, including a maintenance technician,
several mechanics, a stock room clerk, a groundskeeper, a packaging
engineer, and a facilities project engineer.
For most of his career at Ex-Lax, Acevedo received
positive performance reviews that fluctuated between overall
ratings of "fully met expectations" and "exceeding expectations."1
1
Ex-Lax's performance reviews contained both objective and
subjective evaluations, respectively titled the "Objectives" and
"Values and Behaviors" sections. For each performance review, the
employee's execution in various areas would be rated under both
sections. This entailed rating the accomplishment of specific
-3-
From 2000 to 2006, Acevedo was awarded performance2 bonuses of over
$10,000.00 in each of those years, except for 2004, when his bonus
totaled only $6,244.00. In 2007, the year of his termination, both
Acevedo's immediate supervisor at the time, Carlos Ceinos
("Ceinos"), and Ceinos's supervisor, Iván Martí ("Martí"), approved
a bonus of $13,166.00 for Acevedo's performance in 2006.
B. Ceinos's Superintendence as Site Leader
In 2003, Ex-Lax hired Ceinos for the position of Site
Leader, which made him responsible for overall operations at the
company's Puerto Rico site. As part of his duties, Ceinos
evaluated the performance of all of Ex-Lax's department managers,
including Acevedo. Ceinos was also charged with reviewing
"unplanned deviation reports" generated by investigation teams at
the site. These reports contained analyses of deviations from
Ex-Lax Standard Operating Procedures ("SOPs"), and were prepared in
order to determine the "root cause" of particular deviations,
establish appropriate corrective and preventive actions, and gauge
the impact of the deviation on Ex-Lax's products.
"objectives" (e.g., compliance with protocols) and the fulfillment
of particular qualities or "values" (e.g., competence and
leadership). Ratings were given on a scale of 1 through 3
(1 = "Partially Met Expectations," 2 = "Fully Met Expectations,"
and 3 = "Exceeded Expectations"), and were adjudicated for distinct
areas as well as tallied for an "Overall Rating."
2
As we will explain infra, Ex-Lax maintains that its bonuses are
not tied to the individual's performance per se, but rather respond
to a myriad of considerations, including the performance of the
company as a whole.
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According to Elizabeth Rodríguez ("Rodríguez"), Ex-Lax's
Human Resources ("HR") Manager from March 1997 to May 2005, upon
assuming the role of Site Leader, Ceinos asked Rodríguez to
investigate "the inclinations" of employees "who had reached
retirement age" to determine "what their wishes were regarding
leaving the company." Rodríguez testified that this request was
part of Ceinos's new "recruitment plan," instituted for the purpose
of "proceed[ing] to substitute the persons who were of retirement
age." In order to qualify for retirement, employees had to have
accumulated at least five years of service with the company and be
55 years of age or older. Although Rodríguez stated that "[t]here
was no pressure as such" exerted upon employees to retire as part
of Ceinos's plan, she gave at least one example of an employee at
retirement age who chose not to retire after being asked and was
subsequently moved to another department, resulting in what
Rodríguez characterized as a "demotion."
Information provided by Ex-Lax in answers to
interrogatories reveals that, after 2003 -- the year in which
Ceinos became Site Leader -- the company hired approximately 140
employees, 114 of whom were less than forty years of age. In the
same period, Ex-Lax fired only 17 employees, 15 of whom were older
than forty.
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C. The 2004 and 2006 Incidents
Not long after Ceinos became Site Leader, Acevedo began
to experience performance problems at the company. Ceinos became
aware of a number of incidents involving Acevedo's department that
occurred from 2004 to 2006 and factored these into Acevedo's
performance reviews. In 2004, such events included (1) the
recorded presence of rodents in the chocolate manufacturing and
packaging areas, (2) the recorded presence of bacteria in two lots
of Ex-Lax's Gas-X Super Extra Strength Soft Gel 30's, and (3) a
packaging process deviation.
The first of these incidents transpired in January of
2004, when a rodent was found in the packaging area near the
chocolate line, causing production to be put on hold. A subsequent
investigation conducted by Ex-Lax personnel, and in which Acevedo
participated, determined that the rodent had likely entered the
packaging area during a building renovation that began on December
30, 2003, during which contractors accessed the plant through the
cafeteria's emergency exit door and the employees' entrance door.
The investigation team found that these doors had remained open for
longer than necessary, but the resulting report did not
specifically mention a mistake or error on the part of Acevedo or
his department.
Later, in June of 2004, an employee from One Source,
Ex-Lax's building services contractor, found traces of ceiling tile
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on the floor of the chocolate manufacturing area. It was later
confirmed that this was the result of rodent activity in the
ceiling above the chocolate room. After the setting of traps and
the capture of one small rodent, a maintenance technician found a
hole in an unused exhaust fan in the ceiling of the Quality
Assurance Laboratory. The exhaust fan was immediately removed and
the hole sealed. A subsequent investigation concluded it was
highly probable that the rodent gained access through the
previously uncovered hole. The discovery of this latter rodent
activity caused the company to "reject," or decommission, a batch
of chocolate laxative.
The second 2004 event took place in September and
involved the detection through laboratory tests of a bacteria in
two lots of Ex-Lax's Gas-X Super Extra Strength Soft Gel 30's.
This triggered the Quality Assurance Department's rejection and
disposal of the lots. An investigation team comprised of Ex-Lax
personnel, including Acevedo, later concluded that the bacteria
could have originated either from mold contamination in (closed and
unused) bathrooms located near the production area, or from the
fact that one of the operators who participated in the inspection
of the lots was confirmed to be sick at the time of the inspection.
Acevedo indicated through testimony that contamination in the
bathrooms could have been prevented had there been an SOP in place
regarding their daily cleaning.
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The third and final 2004 event also occurred in
September, when the personnel from Acevedo's department were
installing and setting up a new brush box for the packaging of a
lot of Gas-X Maximum Strength Soft Gels 50's. During the set-up,
they became aware that the positioning of the brushes inside the
brush box was not correct, so they changed it. They then installed
a new acrylic box in the brush box and evaluated the effect of the
acrylic box on the packaging operation. Although these actions did
not have a negative impact on the quality of Ex-Lax's product, both
actions were taken without the appropriate deviation approval from
the Production and Quality Assurance Departments and, therefore,
violated Ex-Lax's Change Control Procedure. The record reveals
that some of the personnel involved in this event may not have
received adequate training in the change control procedures. After
the brush box incident, all personnel, supervisors, and managers in
Acevedo's department were so trained.
Ceinos testified that he became aware of each of the 2004
incidents through their corresponding investigative and/or
unplanned deviation reports. He also indicated that he attributed
responsibility for each of the incidents to Acevedo based on his
general job description and responsibilities. Accordingly, Ceinos
recorded them in Acevedo's 2004 annual performance review, in which
he gave Acevedo a low overall rating of 1, or "partially met
expectations." As a result, Ex-Lax required that Acevedo complete
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a Performance Improvement Plan ("PIP"), lasting from March 22 to
June 22, 2005. The PIP identified Acevedo's specific performance
problems and outlined the personalized improvement plan that he was
expected to complete. According to the terms of the PIP, Ex-Lax
gave Acevedo ninety days to successfully complete the plan and
achieve a status of "fully meeting expectations" in order to retain
his current position at the company, with the caveat that Ex-Lax
always reserved the right to take appropriate action, including
termination, if Acevedo's improvement did not continue. Acevedo
complied with the requirements of his 2005 PIP, and Ceinos
subsequently rated him as "fully met expectations" in both the
mid-year and annual 2005 performance reviews.
In 2006 Ceinos again held Acevedo responsible for a
number of incidents which he deemed to have affected Acevedo's
performance. The first of these incidents involved a change in
equipment that resulted in Total Organic Carbon ("TOC") levels
above the acceptable limit in the purified water used for
production. As a result, Ex-Lax had to discard almost forty
thousand dollars' worth of manufactured products. The record
reflects that Acevedo was on vacation at the time this occurred and
that another employee, Angel Alsina ("Alsina"), was assigned
supervisory duties during his absence.
The second incident involved the potential contamination
of a chocolate batch after a fumigation (or "fogging") procedure
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was performed in the chocolate manufacturing area by Ecolab,
Ex-Lax's pest control services contractor. The company's Quality
Assurance and Compliance Departments had to decommission the batch
of chocolate prepared on the day of the fogging. Ex-Lax stated
that this represented a loss of just over ninety thousand dollars
to the company. The unplanned deviation report indicated that the
Ecolab employee who applied the insecticide may not have been given
clear instructions due to an inadequate written procedure
addressing what to do before, during, and after a pest control
activity takes place.
Third, and finally, based on two routine walks he took to
evaluate the plant's facilities, Ceinos found that there was a
general lack of cleanliness and organization in the spare parts
room, the machine shop, and the purified water room. Ultimately,
Acevedo received a mixed evaluation in his 2006 annual performance
review -- Ceinos's overall rating in the "objectives" portion
amounted to "fully met expectations," while his overall rating in
the "values and objectives" section reached only "partially met
expectations."
D. "Ageist" Remarks and Acevedo's Termination
Acevedo alleges that on two occasions, in August and
December of 2006, Ceinos commented to him that "the main problem at
the [Ex-Lax] plant[] were the persons who had been in the company
for a long time," because those persons "were not performing."
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Acevedo testified that Ceinos said this in the context of their
conversation about "the problems that had existed during the year"
and Ceinos's evaluation of his performance.
On February 23, 2007, Acevedo was terminated from his
employment at Ex-Lax, without prior notice and effective
immediately.3 Acevedo testified that, at the time of his
discharge, the reasons Ceinos gave for his termination were the
"fogging" incident, the purified water (or TOC) incident, and "the
disorganization of the rooms" -- in other words, the 2006
incidents. Ceinos testified that, although he never explicitly
warned Acevedo that these incidents could lead to his termination,
he had related to Acevedo that "too many incidents had occurred
with his department, that [they] were still having problems
[because] the department would not comply with the procedures," and
that the maintenance and engineering personnel "apparently[] were
not well trained."
E. Acevedo's Replacement
In February 2007, 34-year-old Mariely Rivera ("Rivera")
was hired to replace Acevedo as Maintenance and Engineering
Manager. Just as Acevedo had before her, Rivera reported directly
3
Although he was HR Manager at the time, José Pabellón
("Pabellón") could not explain why Acevedo did not receive prior
notice of his termination through a letter of dismissal. He also
did not remember whether Acevedo was placed on a progressive
discipline program prior to his termination. Pabellón testified
that he and Ceinos did not discuss Acevedo's dismissal, nor did
Pabellón recommend it.
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to Ceinos. Ceinos testified that Rivera's interview took place
before December of 2006, prior to Acevedo's dismissal.
In October of 2007, an internal audit of Rivera's
department was conducted, which revealed persistent violations of
Ex-Lax's SOPs. These violations included the department's failure
to: follow proper documentation practices, conduct certain
procedures relating to the purified water system, complete cleaning
and sanitation in certain areas with the required frequency, and
complete certain pest control procedures on the required monthly
basis. Many of the same deficiencies would also be recorded in a
subsequent internal audit report dated May 2008. In addition,
Ex-Lax's records reveal a July 2007 unplanned deviation report
indicating that an increase in mold and yeast counts had been
detected in the packaging area. One of the root causes identified
for this deviation was "improper area cleaning and sanitation."
Notwithstanding these incidents, Rivera received an appraisal of
"fully met . . . expectations" in her 2007 annual performance
evaluation, signed by Ceinos. The evaluation did not reference any
of the aforementioned infractions relating to facilities
management.
In 2008, a string of incidents occurred in which animals,
including numerous insects, a lizard, and rats, entered the plant.
These were documented by investigation teams in at least four
separate unplanned deviation reports. The reports concluded that
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the entrance of the animals was caused by a major construction
project that was being conducted in the manufacturing area. Ceinos
admitted that he had knowledge of these incidents at the time.
Nonetheless, Rivera's testimony reflects that Ceinos did not
comment on the incidents in her performance evaluations that year,
and that no employee was held responsible for the same. Ceinos
awarded Rivera an overall manager appraisal equivalent to "fully
met expectations" in her 2008 annual performance review.
F. Procedural History
On February 12, 2008, Acevedo brought this suit against
Ex-Lax, asserting that his former employer terminated him due to
his age, in violation of the ADEA and various Puerto Rico statutes.
On March 25, 2009, Ex-Lax moved for summary judgment, arguing that
Acevedo failed to establish a prima facie case of age
discrimination because he could not show that he was fired despite
having met the company's legitimate work expectations. Ex-Lax also
contended that, even if Acevedo could make such a showing, he could
not put forth sufficient proof to establish that the company's
proffered reason for his termination -- failure to meet his
employer's legitimate work expectations -- was pretextual. Acevedo
opposed Ex-Lax's motion by reaffirming the pretextual nature of the
company's reasons for his dismissal and pointing to what he deemed
sufficient direct proof of discrimination. On September 30, 2010,
the district court granted Ex-Lax's summary judgment motion,
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dismissing both the federal and supplemental claims. See
Acevedo-Padilla v. Novartis Ex Lax, Inc., 740 F. Supp. 2d 293
(D.P.R. 2010). This timely appeal followed.
II. Discussion
A. Standard of Review
Our review of a district court's grant of summary
judgment is de novo, "resolving all evidentiary conflicts and
drawing all reasonable inferences in favor of the nonmoving party."
Sánchez-Rodríguez v. AT&T Mobility of P.R., Inc., 673 F.3d 1, 9
(1st Cir. 2012) (quoting Kuperman v. Wrenn, 645 F.3d 69, 73 (1st
Cir. 2011)) (internal quotation marks omitted). In so doing, we
"independently weigh[] the merits of [the] motion . . . without
deference to the reasoning of the district court." Hughes v.
Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir. 1994).
Summary judgment is properly granted only where the
movant -- in this case, Ex-Lax -- "shows that there is no genuine
dispute as to any material fact and [that it] is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). Thus, to
survive summary judgment, Acevedo must establish a genuine issue of
material fact as to whether his dismissal was motivated by age-
based discrimination. See Carroll v. Xerox Corp., 294 F.3d 231,
236 (1st Cir. 2002) ("Once the moving party has pointed to the
absence of adequate evidence supporting the nonmoving party's case,
the nonmoving party must come forward with facts that show a
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genuine issue for trial."). "A 'genuine' issue is one that could
be resolved in favor of either party, and a 'material fact' is one
that has the potential of affecting the outcome of the case."
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.
2004).
B. Compliance with Local Rule 56
As a preliminary matter, we note that in considering the
parties' filings in support of (and opposition to) Ex-Lax's motion
for summary judgment, the district court determined that both
Acevedo and Ex-Lax ran afoul of the District of Puerto Rico's
anti-ferret rule, Local Rule 56(c). See D.P.R. Civ. R. 56(c)
(requiring party opposing summary judgment to submit a separate,
short, and concise statement of material facts admitting, denying
or qualifying the corresponding facts that support the motion, with
record citations in support). Acevedo submitted an opposing
statement of material facts, but included additional information as
to each opposed fact that did not specifically correlate to
Ex-Lax's proposed facts. See id. (indicating that "opposing
statement may contain in a separate section additional facts")
(emphasis added); see also Carreras v. Sajo, García & Partners, 596
F.3d 25, 32 (1st Cir. 2010). Ex-Lax, in turn, acted in violation
of the local rule because it "cit[ed] numerous pages of [its] reply
when opposing [Acevedo's] facts, instead of providing concise and
specific responses." Acevedo-Padilla, 740 F. Supp. 2d at 299.
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As a result, the district court, in an appropriate
exercise of its discretion, ruled that it would disregard any
additional facts provided by Acevedo when denying or qualifying
Ex-Lax's statement of uncontested facts. Id. at 298-99. However,
to this determination it tacked on a ruling that the supplemental
facts properly included in Acevedo's separate section of
"additional facts" would nonetheless be "deemed admitted when
supported by the record." Id. The district court did not explain
what effect, if any, Ex-Lax's own transgression to the local rule
had on the court's analysis of the facts.
Our review of the district court's application of Local
Rule 56 is for abuse of discretion. Carreras, 596 F.3d at 31. Ex-
Lax generally points to this ruling by the district court to
support its position on appeal, but it does not appear to us that
the district court's ruling had any practical effect on its summary
judgment determination. Indeed, the district court ultimately
relied on Acevedo's separate section of additional facts, as
references to that document can be found throughout the opinion;
but it did so only "when supported by the record, and not properly
controverted by Ex-Lax." Acevedo-Padilla, 740 F. Supp. 2d at 299.
We can discern no error by the district court and, for purposes of
this appeal, we have likewise only considered those facts
("additional" or otherwise) properly presented and supported, per
Local Rule 56.
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C. Acevedo's Age Discrimination Claim
1. The ADEA and McDonnell Douglas
The ADEA provides that it is unlawful for an employer to
"refuse to hire or to discharge any individual or otherwise
discriminate against [him] with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age." 29 U.S.C. § 623(a)(1). A plaintiff asserting
a claim under the ADEA has the burden of establishing "that age was
the 'but-for' cause of the employer's adverse action." Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). Such a plaintiff
is not required to proffer direct evidence of discrimination, and
may meet his burden through circumstantial evidence. To be sure,
we have acknowledged that "ADEA plaintiffs rarely possess 'smoking
gun' evidence to prove their employers' discriminatory
motivations." Vélez, 585 F.3d at 446 (quoting Arroyo-Audifred v.
Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008)). In
the absence of direct evidence of age discrimination, we evaluate
ADEA claims under the three-stage burden-shifting framework of
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).4
Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012).
In the first of the three McDonnell Douglas stages, the
plaintiff has the initial burden of establishing a prima facie case
of discrimination. In an ADEA action this requires a showing
"[1] that he or she was at least 40 years old at the time of
discharge; [2] that he or she was qualified for the position but
[3] was nevertheless fired; and [4] the employer subsequently
filled the position." Id. (citing Vélez, 585 F.3d at 447). Doing
so "gives rise to an inference that the employer discriminated due
to the plaintiff's advanced years." Mesnick v. Gen. Elec. Co., 950
F.2d 816, 823 (1st Cir. 1991). If the plaintiff is able to
establish a prima facie case, the burden shifts in the second stage
to the employer, who "must then produce a legitimate,
non-discriminatory reason for termination." Cameron, 685 F.3d at
48. If the employer is able to do this, "the ball returns to the
4
Although Acevedo claims that certain statements made by Ceinos
in August and December of 2006 constituted ageist remarks, on
appeal he does not characterize his testimony about those remarks
as "direct" evidence of age discrimination sufficient to carry his
burden "that age was the 'but-for' cause" of his dismissal from Ex-
Lax. Gross, 557 U.S. at 177. Nor, as Ex-Lax points out, does he
contest the district court's determination that "[the] two isolated
comments . . . are not direct evidence of [age] discrimination."
Acevedo-Padilla, 740 F. Supp. 2d at 313. Acevedo's argument is
specifically that Ceinos's remarks were evaluated by the district
court in isolation, rather than as part of the totality of the
evidence suggesting pretext. Accordingly, we proceed with the
McDonnell Douglas burden-shifting framework and evaluate the
evidence of Ceinos's remarks infra, as part of the pretext
analysis.
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plaintiff's court, in which [he] must prove by a preponderance of
the evidence that [the] defendant's alleged nondiscriminatory
reason was in fact a pretext for discrimination." Goncalves v.
Plymouth Cnty. Sheriff's Dep't, 659 F.3d 101, 105 (1st Cir. 2011).
2. The Prima Facie Case
As the district court noted, Acevedo is a person over
forty years of age, who was fired by his employer and subsequently
replaced by someone younger. He therefore neatly satisfies three
of the four prongs in the prima facie case. The only contentious
question on appeal is whether Acevedo meets the second prong: that
he was qualified for the position that he held. We linger briefly
here to clarify some points that might have been obfuscated by the
district court's analysis.
Ex-Lax's theory of the case is that Acevedo's termination
was a lawful business decision, unrelated to his age, that was
based on Acevedo's failure to comply with the company's established
quality control standards and, hence, with its legitimate job
expectations. In particular, Ex-Lax points to the 2004 and 2006
incidents that occurred in the Maintenance and Engineering
Department, memorialized in unplanned deviation reports, and on
which Ceinos allegedly based his termination decision. This
constitutes Ex-Lax's alleged nondiscriminatory reason for
dismissing Acevedo, which comes into play at the second stage of
our McDonnell Douglas burden-shifting analysis, discussed infra.
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However, Ex-Lax argued before the district court that these facts,
if believed, meant Acevedo also failed the second prong of the
prima facie case.
Although the district court ultimately determined that
Acevedo had established a prima facie case under the ADEA, it did
so only after considering Ex-Lax's alleged reason for dismissal,
assessing Acevedo's proffered counterpoints, and concluding that it
was unclear whether Acevedo had been responsible for several of the
pointed-to incidents. Acevedo-Padilla, 740 F. Supp. 2d at 314-15.
This constituted error on the district court's part. See Vélez,
585 F.3d at 448 (finding as error that the district court "accepted
for the purpose of the prima facie analysis [the employer's] stated
reason for firing [the plaintiff] as proof that he was not
qualified for the . . . job"); Meléndez v. Autogermana, Inc., 622
F.3d 46, 51 (1st Cir. 2010) (holding that "we cannot consider the
employer's alleged nondiscriminatory reason for taking an adverse
employment action when analyzing the prima facie case") (quoting
Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir.
2003) (en banc)). A plaintiff is not required, at the prima facie
stage, to disprove the defendant's proffered nondiscriminatory
reason for taking an adverse employment action. We have explained
that doing so "bypass[es] the burden-shifting analysis and
deprive[s] the plaintiff of the opportunity to show [such] reason
was in actuality a pretext designed to mask discrimination."
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Vélez, 585 F.3d at 448 (quoting Wexler, 317 F.3d at 574); see also
Meléndez, 622 F.3d at 51 (same).
A plaintiff's prima facie burden under the "qualified"
prong of the prima facie case, see Cameron, 685 F.3d at 48, is met
if he presents "evidence which, if believed, prove[s] that he was
doing his chores proficiently." Freeman v. Package Mach. Co., 865
F.2d 1331, 1335 (1st Cir. 1988) (finding the second prong met
despite "defendant's adamantine insistence that plaintiff's job
performance was not up to snuff"); see also Hebert v. Mohawk Rubber
Co., 872 F.2d 1104, 1112 (1st Cir. 1989) (finding plaintiff's prima
facie burden met where, despite employer's challenge of his account
regarding the "adequacy of his job performance," plaintiff "adduced
a quantum and quantity of evidence of his competence . . .
sufficient to prevail if a jury believed his version of the facts
and disbelieved defendant's"). In this case, the record reflects
that Acevedo is a trained mechanical engineer with prior, well-
rated experience in the manufacturing and pharmaceutical sectors,
including experience as a supervisor. Moreover, before his
termination from Ex-Lax, Acevedo had a long history of employment
at the company, spanning an eleven-year period, with overall
positive reviews. We find that these facts are enough to meet what
we have regularly described as a "low standard" for the prima facie
showing in a discrimination case. Vélez, 585 F.3d at 447 (quoting
Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.
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2002)); see also Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st
Cir. 2004) (describing standard as "modest").
3. Ex-Lax's Explanation and Acevedo's Showing of
Discrimination
Acevedo having triggered the "rebuttable presumption that
[Ex-Lax] violated the ADEA," Ex-Lax now has "the burden of
production -- as distinguished from the burden of proof -- . . . to
articulate a legitimate, nondiscriminatory basis for its adverse
employment action." González, 304 F.3d at 68-69. We have already
discussed Ex-Lax's contention that Acevedo's termination was a
business decision unrelated to his age. Ex-Lax argues that the
decision was based on Acevedo's supervisor's understanding --
reflected in Ceinos's deposition testimony -- that Acevedo
consistently failed to comply with the duties and objectives of his
position, particularly with regard to the observance of quality
control standards in connection with the plant's equipment and
facilities. Ex-Lax's briefing points to all of the previously
referenced 2004 and 2006 incidents, which were recorded in
investigative and unplanned deviation reports, and which it
contends "were within the scope of Acevedo's responsibilities" and
"had a negative impact on the plant's operations." We have no
trouble finding on this basis that Ex-Lax has articulated a
legitimate, nondiscriminatory reason for firing Acevedo. See,
e.g., Dávila v. Corp. de P.R. Para La Difusión Pública, 498 F.3d 9,
16 (1st Cir. 2007) (finding that sworn statement by director of
-22-
employer's legal division that appellant was terminated due to poor
work performance "by itself, provide[d] sufficient basis for the
district court's conclusion that the [employer] articulated a
nondiscriminatory motive for the appellant's discharge").
Thus, we reach "the third and final phase of burden-
shifting," at which point "the McDonnell Douglas framework falls by
the wayside." Mesnick, 950 F.2d at 824. The court's focus now
turns to "the ultimate issue," which is whether -- after assessing
all of the evidence on the record in the light most favorable to
Acevedo -- "[he] has raised a genuine issue of fact as to whether
the termination of [his] employment was motivated by age
discrimination." Domínguez-Cruz, 202 F.3d at 431. In order to
meet this burden, "[Acevedo] must offer some minimally sufficient
evidence, direct or indirect, both of pretext and of [Ex-Lax's]
discriminatory animus." Mesnick, 950 F.2d at 825 (emphasis added).
We first consider Acevedo’s attestation of pretext,
"having in mind that courts should exercise particular caution
before granting summary judgment for employers on such issues as
pretext, motive, and intent." Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (citing Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)).
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a. Acevedo's Evidence of Pretext
Acevedo argues that Ex-Lax's stated reasons for his
dismissal betray the element of pretext because they are both
internally inconsistent and incompatible with Acevedo's performance
record. On this point Acevedo has met the "minimally sufficient"
standard to proceed with his case. We have consistently stated
that mere questions regarding the employer's business judgment are
insufficient to raise a triable issue as to pretext. See Webber v.
Int'l Paper Co., 417 F.3d 229, 238 (1st Cir. 2005) ("[A]n
employee's opinion of the efficacy of an employment decision,
standing alone, cannot supplant the employer's business
judgment")). However, Acevedo has presented here more than a
simple disagreement with the correctness of Ceinos's decisions; he
has proffered evidence sufficient to raise an issue of fact as to
whether Ceinos himself truly believed Acevedo's performance was
unsatisfactory. See, e.g., Gray v. New England Tel. & Tel. Co.,
792 F.2d 251, 256 (1st Cir. 1986) (explaining that "in assessing
pretext . . . [the court's] focus must be on the perception of the
decisionmaker, i.e., whether [the decisionmaker] perceived the
plaintiff as violating . . . company policies and whether this
perception was credible and reasonable").
To begin, while it is undisputed that Acevedo's job
description encompassed a duty to oversee the general upkeep of the
plant's facilities, there are material issues of fact as to whether
-24-
Acevedo was to blame for four of the incidents involving plant
facilities that the company has cited as triggers for his
termination. The district court noted as much in its opinion and
order, which pinpointed as problematic for Ex-Lax's position the
record surrounding: the 2004 microbial incident, for which more
than one possible cause was identified in the unplanned deviation
report; the 2004 packaging process deviation, which had no negative
effect on the quality of Ex-Lax's products; the 2006 TOC incident,
during which Acevedo was not on duty; and the 2006 fogging
incident, which the investigation report concluded was due to
inadequate written procedures for pest control operations.5 See
Acevedo-Padilla, 740 F. Supp. 2d at 314-15. We must resolve all
evidentiary conflicts and draw all reasonable inferences in favor
of Acevedo at this stage. See Sánchez-Rodríguez, 673 F.3d at 9.
The fact that there is uncertainty regarding whether Acevedo was
responsible for the pointed-to incidents indicates that there is a
question for a jury to resolve as to whether the employer did in
fact rely on these incidents in making its termination decision.
5
We note that there is a question raised by Acevedo whether he
was directly responsible for developing the applicable written
procedures referenced in the report. While Ceinos testified that
the head of each department submits procedures to the Quality
Assurance Department for its approval, suggesting that Acevedo was
responsible for developing the same for his department during his
tenure, both Acevedo and his replacement, Rivera, testified that
they were only responsible for "administering" and "implementing"
such procedures, as determined by Quality Assurance. It is also
telling that the job description for the position does not include
any mention of SOP development.
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See Domínguez-Cruz, 202 F.3d at 432-33 (inconsistencies in
employer's performance explanation, including doubts "whether
[plaintiff] was directly responsible for two of the alleged
violations," deemed relevant to finding of pretext).
Furthermore, "[p]roof that the defendant's explanation is
unworthy of credence is . . . one form of circumstantial evidence
that is probative of intentional discrimination." Williams v.
Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000))
(internal quotation marks omitted). In particular, Acevedo has
sufficiently demonstrated potential inconsistencies in Ceinos's
testimony as to both the microbial and TOC incidents. A reasonable
factfinder could conclude that these inconsistencies call into
question Ceinos's reasons for terminating Acevedo, namely, that
Acevedo was not complying with the duties and responsibilities of
his position. For instance, regarding the 2004 microbial incident,
Ceinos stated that it was Acevedo's responsibility to have an SOP
in place to ensure that the bathrooms remained adequately cleaned.
However, Ceinos also stated that he could not recall whether there
was in fact an SOP in place at the time the incident occurred. In
addition, with regard to the 2006 TOC incident, Ceinos testified
that he held Acevedo accountable despite the fact that he was off
duty on that day, because Acevedo was ultimately responsible for
"mak[ing] sure that [the person he put in charge] [was] qualified
-26-
to exercise th[at] function." Ceinos nonetheless later
acknowledged that Alsina -- the person who was put in charge and
actually authorized the change in equipment -- "is a very qualified
person" who still works for Ex-Lax. The employer's contemporaneous
beliefs are a vital consideration because "[i]n assessing pretext,
a court's 'focus must be on the perception of the decisionmaker,'
that is, whether the employer believed its stated reason to be
credible." Mesnick, 950 F.2d at 824 (quoting Gray, 792 F.2d at
256); see Feliciano de la Cruz v. El Conquistador Resort & Country
Club, 218 F.3d 1, 7 (1st Cir. 2000) ("[T]he question is not whether
[the plaintiff] was actually performing below expectations, but
whether [the employer] believed that [he] was.").
Acevedo also argues that pretext may be inferred from
Ceinos's reliance on the microbial incident and the packaging
process deviation of 2004 because both incidents had been
previously addressed through Acevedo's 2005 PIP. According to
Rodríguez's deposition testimony, under Ex-Lax's HR policy, if an
employee succeeded at a PIP, the factors that led to the PIP could
not be used in support of a termination decision. See Kouvchinov
v. Parametric Tech. Corp., 537 F.3d 62, 68-69 (1st Cir. 2008)
(noting that "pretext can be demonstrated through a showing that an
employer has deviated inexplicably from one of its standard
business practices," yet finding the principle inapplicable in the
specific case, where plaintiff did not show existence of a standard
-27-
policy or practice). On the other hand, the PIP itself indicated
the possibility of adverse action, including dismissal, against
Acevedo if his improvement did not continue. This evidence
presents a contested issue of material fact as to Ex-Lax's
disciplinary procedures, and it should be for a jury to decide
whether Rodríguez's testimony about the PIP procedure is credible.
It is undisputed, however, that Acevedo successfully
complied with the 2005 PIP, was rated as having "fully met
expectations" in both the mid-year and annual 2005 performance
reviews, and -- despite the 2006 incidents that Ceinos points to --
received a bonus of $13,166.00 for his performance in 2006 that was
approved by Ceinos himself.6 These seemingly incongruous facts
might lead a reasonable juror to disbelieve Ceinos's contention
that his decision to terminate Acevedo was based purely on a poor
performance record. See Santiago-Ramos, 217 F.3d at 56 (a
plaintiff "can . . . establish pretext by showing 'weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
6
Against this proposition, Ex-Lax argues that its bonuses "are
not based exclusively on each employee's performance;" rather, they
are "based on the performance of Ex-Lax's facility in Puerto Rico,"
the organization as a whole, "and the performance of the division."
While we acknowledge that "a company is ordinarily in the best
position to assess the meaning of its own [policies]," Vélez, 585
F.3d at 450, it appears on this record that Ex-Lax has not
presented evidence to support its assertions about the bonus
policy. Given this lack of evidence, "a reasonable trier of fact"
might "infer that [Ex-Lax] would not have sent [Acevedo] even
generic commendations if it were truly dissatisfied with [his] job
performance." Feliciano de la Cruz, 218 F.3d at 7.
-28-
in the employer's proffered legitimate reasons' such that a
factfinder could 'infer that the employer did not act for the
asserted non-discriminatory reasons.'" (quoting Hodgens, 144 F.3d
at 168)).
Acevedo raises an additional, correlative argument that
his dismissal deviated from Ex-Lax's policy requiring adherence to
a progressive disciplinary program. Both Rodríguez and Pabellón
testified that Ex-Lax disciplinary actions normally followed
successive steps, beginning with an orientation to the employee,
followed by a series of verbal and written warnings, a potential
suspension, and ultimately ending with dismissal. Pursuant to this
policy, all disciplinary actions (including termination) had to be
approved by the HR Department, and supervisors had to prepare
informative memorandums indicating the reasons for termination
prior to an employee's dismissal. None of these steps were taken
in Acevedo's case. "[E]vidence that standard procedure was not
followed is directly relevant to [Acevedo's] burden of
demonstrating pretext." Brennan v. GTE Gov't Sys. Corp., 150 F.3d
21, 29 (1st Cir. 1998). We acknowledge, as the district court did,
see Acevedo-Padilla, 740 F. Supp. 2d at 318, that other testimony
by Pabellón suggested that Ex-Lax's progressive disciplinary policy
did not apply to exempt (or management) employees, who were
allegedly routinely chastised through memorandums and/or
performance reviews. This was arguably the method employed in
-29-
Acevedo's case, but it does not answer the question why the
decision to dismiss Acevedo did not require submission of the
reasons for termination to the HR Department, a step that, in
Pabellón's estimation, did apply to all employees. See Lattimore
v. Polaroid Corp., 99 F.3d 456, 467 (1st Cir. 1996) (holding, in a
case involving allegations that defendant-employer had "deviated
from its established policies and practices," that "evidence of
pretext," although "thin, disputed and susceptible to varying
interpretations, . . . is sufficient to create a jury question").
Without much question, Acevedo has offered at least
"minimally sufficient evidence" that the reasons given by Ex-Lax
for his discharge were pretextual. Mesnick, 950 F.2d at 825.
b. Acevedo's Evidence of Discriminatory Intent
While the above evidence could support the conclusion
that Ex-Lax's explanations for Acevedo's discharge were pretextual,
this is not enough for Acevedo to defeat summary judgment; he must
also show that the pretextual reasons were "intended to cover up
the employer's real motive: age discrimination." Id. at 824. We
find that Acevedo's proof, taken in the aggregate, is sufficient to
raise a question of material fact regarding whether the true reason
behind his termination was age discrimination.
First, we consider Acevedo's argument that certain
comments made to him by Ceinos in August and December of 2006
constituted ageist remarks. Acevedo contends, and Ex-Lax concedes,
-30-
that Ceinos told him that the problem at Ex-Lax lay in the fact
that employees "who had been in the company for a long time[] were
not performing." Acevedo's testimony reflects that the context of
these remarks concerned "the problems that existed at the company
during the year" and an evaluation that Ceinos would be conducting
of Acevedo's work. Acevedo maintains that Ceinos was specifically
referring to the older employees who worked in the maintenance
group, and that these comments, combined with their proximity to
his dismissal, connote a discriminatory intent. Ex-Lax, in turn,
argues that Ceinos's remarks were unrelated to the decisional
process itself, were not reasonably proximate to the date of
Acevedo's discharge, and do not necessarily imply an illegal
animus.
"It is settled that statements made by decisionmakers can
evidence age discrimination," Kelley v. Airborne Freight Corp., 140
F.3d 335, 347 (1st Cir. 1998), and Ceinos was certainly the
decisionmaker in Acevedo's case. See id. at 341, 347 (remark that
it would be a good time "to get rid of some of the older mediocre
managers" had a "direct bearing on age discrimination because [the
speaker] made the decision to terminate"). While the remarks in
this case were arguably non-discriminatory -- i.e., Ceinos did not
allude to Acevedo's or any employee's actual age when he made the
comment -- to the extent that the comments were made in reference
to Acevedo's performance and focused on his department, they could
-31-
also be interpreted by a reasonable factfinder as referring to the
older employees who had remained longer on the job.7 See Hodgens,
144 F.3d at 167, 171 ("Statements by supervisors carrying the
inference [of] . . . animus against protected classes of people or
conduct are clearly probative of pretext, . . . even if that
inference is not the only one that could be drawn from the
comment.") (emphasis added) (citations omitted).
Moreover, in evaluating such remarks made by a
decisionmaker, this court has considered their temporal proximity
and causal connection to the decision to discharge. Cf. Meléndez,
622 F.3d at 54-55 (affirming plaintiff's inability to establish
that employer's remarks exhibited discriminatory animus because of
failure to prove that comments were temporally and causally
connected to his termination). Drawing all inferences in the light
most favorable to Acevedo, the remarks were made, at most, six
months prior to his termination and expressed Ceinos's displeasure
at older employees' long tenure at the company. A jury could
therefore infer that Ceinos's statements were temporally and
causally related to Acevedo's discharge. See, e.g., Walton v.
7
The district court determined that Acevedo's stated perception
regarding Ceinos's comments was "self-serving" and "conclusory,"
because he failed to submit a particular page from his deposition
transcript. Acevedo-Padilla, 740 F. Supp. 2d at 313 n.12. We
understand, however, that the same inference can be drawn from the
testimony that was properly submitted, and we therefore need not
disregard the possibility that a reasonable factfinder would
interpret the remarks as referring to the older maintenance and
engineering employees.
-32-
Nalco Chem. Co., 272 F.3d 13, 25 (1st Cir. 2001) (finding that
decisionmaker's remark made some time in 1997 was "directly related
and temporally proximate" to termination occurring in February
1998).8
Second, Acevedo contends that the company treated him
differently from his younger replacement, Rivera, which constitutes
evidence of age discrimination. Indeed, "[a]n employer's disparate
treatment of employees in response to behavior that legitimately
offends the employer can provide evidence of discriminatory
animus." Vélez, 585 F.3d at 451. However, "[t]o successfully
allege disparate treatment, a plaintiff must show 'that others
similarly situated to him in all relevant respects were treated
differently by the employer.'" Kosereis v. Rhode Island, 331 F.3d
207, 214 (1st Cir. 2003) (quoting Conward v. Cambridge Sch. Comm.,
171 F.3d 12, 20 (1st Cir. 1999)).
Because Rivera replaced Acevedo as Maintenance and
Engineering Manager, it is clear that the two were similarly
situated at the company. That is, it is undisputed that Rivera
8
We are by no means suggesting that these remarks, which also are
susceptible to a benign interpretation, are, on their own,
sufficient to sustain Acevedo's burden; but we do find that they
may be considered in conjunction with other evidence, discussed
herein, to determine if the aggregate proof satisfies the
plaintiff's burden on summary judgment to raise an issue of fact
regarding discriminatory motive. Cf. Straughn v. Delta Air Lines,
Inc., 250 F.3d 23, 36 (1st Cir. 2001) (holding that stray remarks
may be considered evidence of bias only in combination with other
evidence and if they were temporally close and causally related to
the adverse employment decision).
-33-
came into the same responsibilities that Acevedo had prior to his
termination. Despite this, Rivera was not reprimanded or
disciplined for incidents that Acevedo contends were similar to the
problems that arose during his tenure. For instance, in 2007,
after Rivera took charge of the Maintenance and Engineering
Department, an internal audit of the department revealed persistent
violations of the company's SOPs and good manufacturing practices.
These included departmental failures to follow procedures involving
the purified water system, complete cleaning and sanitation
adequately, and execute pest control procedures with the required
frequency. A July 2007 unplanned deviation report also indicated
that an increase in mold and yeast counts had been detected in the
packaging area due to "improper area cleaning and sanitation," and
unplanned deviation reports from 2008 reflected various instances
in which pests, such as insects, a lizard, and rats, entered the
plant. Despite admitting his knowledge of these events at the time
they occurred, Ceinos did not hold Rivera accountable for them in
her performance evaluations, nor were any other employees
reprimanded for the same. We find that, based on this evidence, a
jury could infer that the disparate treatment alleged by Acevedo
existed, "exposing the pretextual nature of [Ex-Lax's] proffered
explanation for firing [Acevedo] and revealing that [Ex-Lax's] true
motivation was age discrimination." Vélez, 585 F.3d at 451.
-34-
The district court rejected Acevedo's disparate treatment
argument because it found Rivera's infractions regarding the 2008
pest incidents were not comparable to Acevedo's. See Acevedo-
Padilla, 740 F. Supp. 2d at 318.9 Along the same lines, Ex-Lax
argues that Rivera was not "similarly situated" to Acevedo because
the problems under Rivera's governance that were reflected in the
internal audit and unplanned deviation reports of 2007 and 2008
were distinguishable from the kinds of deficiencies Ceinos had
previously held Acevedo accountable for. However, these are issues
of fact and credibility, and Acevedo has presented sufficient
evidence to allow a jury to decide whether the incidents were
similar enough to support his allegation of disparate treatment.
A reasonable factfinder could infer that the difference in Ceinos's
treatment of Acevedo and Rivera, who was a much younger
replacement, tends to prove the employer's discriminatory animus
toward Acevedo. See, e.g., id. at 451-52 (where four employees,
including the plaintiff, admitted to stealing property from the
employer, but only the plaintiff was fired, a jury could
9
For reasons that are not clear from its opinion, the district
court did not refer to any of the evidence proffered by Acevedo
supporting his allegations of Rivera's negligence beyond the 2008
pest incidents. Specifically, the district court failed to
consider the 2007 and 2008 internal audit reports reflecting
violations of Ex-Lax's SOPs during Rivera's tenure, or the 2007
unplanned deviation report indicating that mold and yeast had been
detected in the packaging area while Rivera was manager. However,
Acevedo's allegations are supported by the record and were properly
briefed by the parties. Accordingly, we have considered them on de
novo review.
-35-
"reasonably distrust" the employer's given reason for the firing
and conclude that it was a pretext for age discrimination); see
Mesnick, 950 F.2d at 824 ("deployment of younger replacements" may
be considered as probative, circumstantial evidence of age
discrimination (citing Hebert, 872 F.2d at 1115)).
Finally, we examine Acevedo's contention that a series of
employment decisions made by Ex-Lax beginning in 2003 constitute an
"invidious pattern of age-related discharges or forced early
retirements" that hints at discriminatory animus on the part of Ex-
Lax. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10
(1st Cir. 1990). Acevedo first points to the following statistics,
gathered from Ex-Lax's employment records: (1) after Ceinos became
Site Leader in 2003, the company hired approximately 140 employees,
114 of whom were younger than 40 years of age; (2) in the same
period, 17 employees were fired, 15 of whom were over 40 years old.
We have clarified that statistics, when considered in isolation and
outside of context, are not probative of age discrimination. See,
e.g., Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 385 (1st Cir.
2000) (noting that appellant's burden to show employer's
discriminatory animus cannot be carried "simply by a comparison of
ages within a sample that lacks statistical significance"). In
this vein, Ex-Lax argues that Acevedo's reliance on the company's
hiring data is unsound because, as the district court found,
Acevedo "failed to provide information regarding the pool of
-36-
applicants or the composition of the relevant labor market."
Acevedo-Padilla, 740 F. Supp. 2d at 318; see LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) ("[T]he fact that
recently hired [employees] are younger than [the plaintiff] is not
necessarily evidence of discriminatory intent, but may simply
reflect a younger available work force."). We cannot argue with
this reasoning because our case law makes clear that Acevedo should
have introduced evidence regarding the relevant labor market in
order to put Ex-Lax's hiring data into context. Id. (failure to
indicate "whether 'qualified older employees were available or
applied for those jobs'" noted as "flaw[] in the statistical
evidence" that recent hires were younger than the plaintiff for
discriminatory reasons) (quoting Simpson v. Midland–Ross Corp., 823
F.2d 937, 943 (6th Cir. 1987)). Notwithstanding, it is relatively
straightforward for one to draw statistical significance from the
separately adduced fact that, after Ceinos's arrival in 2003,
almost all of the fired employees -- 15 out of a total of 17 people
-- were over forty years of age. A reasonable inference may be
drawn from this evidence for the existence of the kind of pattern
suggested by Acevedo.
In any event, this is not the only proof relied upon by
Acevedo to substantiate his theory that his termination was part of
a greater "pattern of age-related discharges or forced
retirements." Medina-Muñoz, 896 F.2d at 10. In addition to the
-37-
reasonable inference that may be drawn from the documented firings
that occurred at the plant soon after Ceinos's arrival, Acevedo
offers the testimony of Rodríguez, who indicated that, upon
beginning work as Site Leader in 2003, Ceinos instituted a new
"recruitment plan" with the purpose of "substitut[ing] the persons
who were of retirement age." As part of the recruitment plan,
Rodríguez stated that Ceinos asked her to investigate how long
employees at or nearing retirement age planned to stay at the
company. She explained that although in effectuating this plan, HR
did not pressure employees to retire, at least one employee at
retirement age who was asked to retire early, and chose not to, was
subsequently moved to another department and effectively demoted.
Ceinos, in contrast, averred that it was Rodríguez who
brought to his attention a concern that there were a substantial
number of employees in key positions that were near retirement age,
and that this situation could result in a number of key positions
being vacant simultaneously. As a result, Ceinos contends that he
asked Rodríguez to prepare a plan to prevent this potential
situation from coming to fruition. See Wallace v. O.C. Tanner
Recognition Co., 299 F.3d 96, 101 (1st Cir. 2002) (noting that
"company officials are permitted to gather information relevant to
personnel planning without raising the specter of age
discrimination").
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We acknowledge that "[an] offer of early retirement . . .
is not, by itself, evidence of . . . discriminatory animus" and
that "[s]omething more must be shown that would tie the decision to
offer early retirement to discrimination." Álvarez-Fonseca v.
Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27 (1st Cir. 1998).
Notwithstanding, on a motion for summary judgment, we must draw all
inferences in favor of the non-movant. See Hodgens, 144 F.3d at
156. A jury could find that the statistics, considered in
conjunction with the recruitment plan about which Rodríguez
testified -- and the rest of the plaintiff's circumstantial proof
-- discredit Ceinos's stated reason for the discharge. See Hebert,
872 F.2d at 1114-15 (finding that plaintiff defeated summary
judgment, after considering "admittedly weak" data proffered by
plaintiff that beginning of supervisor's tenure coincided with
dismissals of workers in protected class, where plaintiff's case
for pretext did not rest on "general pattern data alone," and
relied on other "suggestive scraps of circumstantial evidence").
III. Conclusion
In sum, based on the totality of the record, we conclude
that there was sufficient evidence presented on summary judgment
from which a jury could draw the permissible inference that Ex-
Lax's claimed reasons for terminating Acevedo were pretextual and
that the decision was the result of discriminatory animus. We are
particularly moved to this conclusion by inconsistencies between
-39-
Ex-Lax's stated reasons for dismissal and Acevedo's performance
record at the company, the lack of credibility that may be ascribed
by a jury to certain of Ceinos's justifications for dismissal, and,
most importantly, the fact that in response to arguably similar
conduct by Acevedo's younger replacement, Ex-Lax took no
disciplinary action.
Because Acevedo's proffer on summary judgment is
sufficient to raise a genuine issue of material fact as to whether
discrimination motivated the adverse employment action -- a
question that a jury, and not this court, should solve -- we must
reverse the district court's determination in Ex-Lax's favor and
remand.
Reversed and Remanded.
-40-