United States Court of Appeals
For the First Circuit
No. 99-1810
MARIA D. FELICIANO DE LA CRUZ, ERASMO JIMENEZ,
AND THEIR CONJUGAL PARTNERSHIP,
Plaintiffs, Appellants,
v.
EL CONQUISTADOR RESORT AND COUNTRY CLUB
AND HUGH A. ANDREWS
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeannette M. López de Victoria for appellants.
Alfredo M. Hopgood-Jovet, with whom Javier Rivera-Carbone
and McConnell Validés were on brief, for appellees.
June 6, 2000
LIPEZ, Circuit Judge. The appellants, María D.
Feliciano de la Cruz, Erasmo Jiménez, and their conjugal
partnership, brought a claim in the district court for the
district of Puerto Rico accusing El Conquistador Resort and
Country Club, a resort hotel located on the east coast of Puerto
Rico, and Hugh A. Andrews, the resort's president, of
discharging Feliciano because of her Puerto Rican national
origin in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). 1 The
district court granted the defendants' motion for summary
judgment. We affirm.
I.
In late 1993, Feliciano went to work for El
Conquistador as the credit manager at the soon-to-be-opened
hotel in Fajardo, Puerto Rico. According to Feliciano, her
responsibilities included: (1) reviewing and approving credit or
billing authorizations for commercial accounts; (2) preparing
1Feliciano was born and raised in Puerto Rico, and the
parties treat that status as a “national origin” for purposes of
Title VII. The district court accepted this terminology. We
also accept it for the sake of convenience, without in any way
deciding the underlying status question. See Mulero-Rodriguez
v. Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996) (assuming that
Puerto Rican was a national origin for the purposes of a Title
VII disparate treatment claim); see also De la Concha v. Fordham
Univ., 5 F. Supp. 2d 188, 191 (S.D.N.Y. 1998) (same); Cartagena
v. Ogden Servs. Corp., 995 F. Supp. 459, 464 (S.D.N.Y. 1998)
(same).
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end-of-the-month "aging reports" summarizing accounts receivable
or debts that had not yet been collected; (3) training other
employees; (4) attending pre-convention meetings; (5) helping
the assistant controller with the monthly closing of accounts
receivable; and (6) assisting the general cashier. Six months
after she began the job, El Conquistador increased her salary by
$4,000, ahead of her scheduled performance review. Later,
Feliciano received a commendation letter from El Conquistador's
president, Hugh Andrews, and a "Pionero Certificate," thanking
her for her contributions to the hotel's first-year operations.
Just three days after receiving the Pionero Certificate and
thirteen months after she was hired, however, El Conquistador
abruptly terminated Feliciano's employment, replacing her with
a woman from the Philippines.
Feliciano then initiated this lawsuit, alleging that
El Conquistador fired her because she was Puerto Rican in
violation of Title VII, which makes it unlawful for an employer
to "discharge any individual . . . because of such individual's
. . . national origin." 42 U.S.C. § 2000e-2(a)(1). El
Conquistador moved for summary judgment, asserting that it
discharged Feliciano solely because her job performance failed
to meet its expectations. Concluding that Feliciano "failed to
provide any genuine and material facts directed toward proving
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an animus of discrimination on the basis of national origin,"
the district court granted El Conquistador's motion. Feliciano
contends that the court reached this ruling only because it
"engaged in impermissible weighing of the evidence and in effect
made credibility determinations in favor of El Conquistador."
The district court did not explicitly reference in its
decision the McDonnell Douglas-Burdine-Hicks burden-shifting
framework typically used in evaluating Title VII disparate
treatment claims. Nevertheless, its focus on Feliciano's
evidence of discriminatory animus is consistent with our prior
decisions in which summary judgment has tended to stand or fall
on whether the plaintiff adduced adequate evidence that the
employer's stated reason for its action was a pretext for
unlawful discrimination. See, e.g., Thomas v. Eastman Kodak
Co., 183 F.3d 38, 56 (1st Cir. 1999) cert. denied, 120 S.Ct.
1174 (2000); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181
F.3d 15, 20 (1st Cir. 1999). Although we add some legal context
and factual analysis to the district court's ruling, we conclude
as the district court did that summary judgment was appropriate.
II.
We review the district court's grant of summary
judgment de novo, evaluating the record in the light most
favorable to, and drawing all reasonable inferences in favor of,
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the nonmoving party. See Mulero-Rodriguez v. Ponte, Inc., 98
F.3d 670, 672 (1st Cir. 1996). We will uphold summary judgment
where "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 any material fact and
that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). Even in employment discrimination
cases "where elusive concepts such as motive or intent are at
issue," this standard compels summary judgment if the non-moving
party "rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
A. The Burden-Shifting Framework
Because Feliciano produces no direct evidence of
discrimination, we apply the familiar McDonnell Douglas-Burdine-
Hicks burden-shifting framework. See Dominguez-Cruz v. Suttle
Caribe, Inc., 202 F.3d 424, 429 (1st Cir. 2000). The Supreme
Court's opinion in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), established an allocation of the burden of
production and an order for the presentation of proof in Title
VII discriminatory-treatment cases "[w]ith the goal of
'progressively . . . sharpen[ing] the inquiry into the elusive
factual questions of intentional discrimination.'" St. Mary's
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Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8
(1981)). The plaintiff "carr[ies] the initial burden under the
statute of establishing a prima facie case of [national origin]
discrimination." McDonnell Douglas, 411 U.S. at 802. In
employment termination cases, a plaintiff establishes a prima
facie case by showing that: (1) the plaintiff is within a
protected class; (2) she was qualified for, and performing her
job at a level that met the employer's legitimate expectations;
(3) she was nevertheless dismissed; and (4) after her departure,
the employer sought someone of roughly equivalent qualifications
to perform substantially the same work. See Mulero-Rodriguez,
98 F.3d at 673; Lipsett v. University of Puerto Rico, 864 F.2d
881, 899 (1st Cir. 1988). Although El Conquistador suggests in
passing that Feliciano failed to establish a prima facie case,
the developed argumentation in its brief assumes the existence
of a prima facie case. We make the same assumption.
Once the plaintiff establishes a prima facie case, the
burden shifts to the employer to articulate some "legitimate,
nondiscriminatory reason" for its employment action. See
McDonnell Douglas, 411 U.S. at 802. "[T]he defendant must
clearly set forth, through the introduction of admissible
evidence, reasons for its actions which, if believed by the
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trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action."
Hicks, 509 U.S. at 507 (internal quotation marks and citation
omitted).
El Conquistador produced evidence that the hotel
suffered from a number of financial problems during Feliciano's
tenure as credit manager. For example, although she stated that
under ideal circumstances invoices should be mailed to hotel
guests within seven days of checkout, Feliciano admitted in her
deposition that "it always took more than seven (7) days,
sometimes several months, sometimes three (3), four (4) months"
for invoices to be mailed. The hotel carried substantial
uncollected debts, which Feliciano conceded had not reached an
"acceptable" level when she was discharged in November 1994.
She likewise stated that write-offs for bad debts in 1994 were
"kind of high." Because Feliciano was arguably responsible as
credit manager for at least some of these problems, El
Conquistador easily met its burden of producing a legitimate,
non-discriminatory reason for its employment action. See Ruiz
v Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1999)
(to rebut the plaintiff's prima facie case, an employer "need
only produce enough competent evidence, taken as true, to enable
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a rational factfinder to conclude that there existed a
nondiscriminatory reason for the challenged employment action").
Once the employer offers a nondiscriminatory reason for
its action, the burden shifts back to the plaintiff to show that
the reason proffered was "a coverup" for a "discriminatory
decision." McDonnell Douglas, 411 U.S. at 805. At this third
step in the burden-shifting analysis, "the McDonnell Douglas
framework falls by the wayside," Mesnick v. General Elec. Co.,
950 F.2d 816, 824 (1st Cir. 1991), because the plaintiff's
burden of producing evidence to rebut the employer's stated
reason for its employment action "merges with the ultimate
burden of persuading the court that she has been the victim of
intentional discrimination." Burdine, 450 U.S. at 256.2 Thus,
we are left to decide whether Feliciano has met her burden of
persuasion: that is, whether the evidence she offered to show
2
Our focus on El Conquistador's motive or intent in
discharging Feliciano responds to Feliciano's theory of the
case--namely, that El Conquistador's decision to fire her was
motivated by anti-Puerto-Rican bias. This is not a case, like
Thomas v. Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999), cert.
denied, 120 S.Ct. 1174 (2000), in which the plaintiff alleged
that the employer's decision-making process was affected by
discriminatory stereotypes or other types of unconscious
national-origin bias. As we pointed out in Thomas, "[t]he
ultimate question is whether the employee has been treated
disparately 'because of [national origin].' This is so
regardless of whether the employer consciously intended to base
the evaluations on [national origin], or simply did so because
of unthinking stereotypes or bias." Id. at 58.
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that El Conquistador discharged her because she is Puerto Rican
created a genuine dispute as to material fact.
B. Pretext and Discriminatory Animus
It is the settled law of this circuit that to survive
a motion for summary judgment on a Title VII disparate treatment
claim, a plaintiff must produce evidence that: (1) the
employer's articulated reason for laying off the plaintiff is a
pretext; and (2) the true reason is discriminatory animus. See
Thomas, 183 F.3d at 56. This standard is sometimes described as
a "pretext-plus" standard, in contrast to the standard
applicable in those jurisdictions in which evidence of pretext
without more is sufficient to defeat a motion for summary
judgment. See id. at 56-57. The "pretext-plus" standard,
however, "does not necessarily require the introduction of
additional evidence beyond that required to show pretext." Id.
at 57 (internal quotation marks and citations omitted). The
same evidence used to show pretext can support a finding of
discriminatory animus if it enables a factfinder "reasonably to
infer that unlawful discrimination was a determinative factor in
the adverse employment action." Id. (internal quotation marks
and citations omitted). There is simply "no mechanical formula"
for determining whether the plaintiff's evidence of pretext and
discriminatory animus suffices to forestall summary judgment.
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See id. In evaluating whether summary judgment was proper,
therefore, we must weigh all the circumstantial evidence of
discrimination, including the strength of the plaintiff's prima
facie case and the employer's proffered reasons for its action,
mindful that "everything depends on individual facts." Id.
We consider first Feliciano's attack on El
Conquistador's declaration that it discharged her because she
was not adequately performing her job. In evaluating whether El
Conquistador's stated reason for firing her was pretextual, the
question is not whether Feliciano was actually performing below
expectations, but whether El Conquistador believed that she was.
See Mulero-Rodriguez, 98 F.3d at 674; Goldman v. First National
Bank of Boston, 985 F.2d 1113, 1118 (1st Cir. 1993). To show
that El Conquistador did not believe that her job performance
was unsatisfactory, Feliciano offered evidence that the
financial problems at the hotel were not her fault, and that El
Conquistador had indicated to her that she was doing a good job.
According to Feliciano, the hotel's financial problems were
caused by an inexperienced and improperly trained hotel staff,
a bug in the computer system, a failure of the finance
department to obtain "spec sheets" for group activities and
banquets that presumably would have facilitated timely billing,
and a failure to provide backups for the banquet checks. She
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contended that the hotel ignored her requests to hire additional
billing coordinators and hotel staff to help improve billing.
She maintained that the high percentage of bad checks and aging
accounts receivable were attributable to the resort's group
contract policies rather than her performance. Finally,
Feliciano cited her salary raise, commendation letter, and
Pionero Certificate, as further evidence that El Conquistador
did not believe that she was performing her job
unsatisfactorily.
El Conquistador counters that, because the $4,000
salary increase was a routine adjustment, not a merit-based
raise, which came seven months before Feliciano's termination,
it proves nothing about the hotel's view of the adequacy of
Feliciano's performance at the time she was fired. El
Conquistador insists that the letter of commendation and the
Pionero Certificate did not demonstrate that it believed
Feliciano was performing satisfactorily because they expressed
no individualized praise of Feliciano, but only generic
recognition sent to numerous hotel employees. It also disputes
her explanation of the reasons for the hotel's financial
problems.
We agree with Feliciano that, viewed in the light most
favorably to her, her explanations of the hotel's problems,
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coupled with the salary raise and commendations, would permit a
reasonable trier of fact to infer that El Conquistador did not
actually believe that Feliciano was doing her job poorly.
Although Feliciano undoubtedly had responsibility as credit
manager for many of the areas in which the hotel suffered
financial problems--e.g., uncollected debts, aging accounts,
untimely billing--her explanations of these problems, if true,
might absolve her of blame. For example, it would be
unreasonable to hold her responsible for a malfunctioning
computer system, a failure of the banquet staff to deliver "spec
sheets," a hotel's general policies regarding group contracts,
or a failure of the hotel to hire adequate staff to keep pace
with billing. Moreover, although Feliciano acknowledged that
her job included training other employees, it would be
unreasonable to assume that this meant training all of the
employees implicated in the numerous problems she described.
It is also reasonable to infer that El Conquistador
would not have sent Feliciano even generic commendations if it
were truly dissatisfied with her job performance and that the
company would have formally communicated its dissatisfaction in
some way before terminating her employment. In short, although
the evidence of pretext is thin and disputed, Feliciano survives
summary judgment on that issue because a reasonable trier of
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fact could find that El Conquistador did not believe that
Feliciano's job performance was unsatisfactory, and hence fired
her for some other reason.
In this case, however, the evidence of pretext only
suggests that El Conquistador fired her for some reason
unrelated to performance. It does not shed any light on what El
Conquistador's true reason for firing her was, let alone show
that the reason was discrimination based on Feliciano's Puerto
Rican origin. Indeed, even if a rational trier of fact could
infer from the evidence of pretext that El Conquistador's
decision to fire Feliciano was "unfair" (because she continued
to perform her job well), that proof is not sufficient to state
a claim under Title VII. See Smith v. Stratus Computer, Inc.,
40 F.3d 11, 16 (1st Cir. 1994). Title VII was not designed to
transform courts into "super personnel departments, assessing
the merits--or even the rationality--of employers'
nondiscriminatory business decisions." Mesnick, 950 F.2d at
825. To obtain relief under Title VII, the evidence must permit
a factfinder reasonably to infer that unlawful discrimination
was a determinative factor in the employer's decision. See
Thomas, 183 F.3d at 57. Although "[e]vidence of [national
origin] animus need not be of the smoking gun variety, . . . the
totality of the circumstances must permit a reasonable inference
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that the employer's justification for the challenged action was
a pretext for . . . discrimination." Goldman, 985 F.2d at 1119
(emphasis added) (internal quotation marks and citation
omitted).
As proof of discrimination, Feliciano argues: (1) that
prior to her termination there were other Puerto Rican employees
at her same level in El Conquistador's finance department who
"were replaced by Americans or foreigners”; 3 (2) that El
Conquistador's executive committee was "comprised entirely of
non-Puerto Ricans”; (3) that her replacement, a Filipino woman,
was hired prior to her termination; and (4) that these facts
make this case indistinguishable from our decision in Olivera v.
Nestle Puerto Rico, Inc., 922 F.2d 43 (1st Cir. 1990), a case in
which we reversed the entry of summary judgment after finding
sufficient evidence of discriminatory animus (there, age
discrimination), see id. at 49-50.
3 Feliciano insists that, with respect to the Puerto Rican
employees dismissed from El Conquistador's finance department,
El Conquistador failed to comply with her request for production
of personnel files. Feliciano does not, however, challenge any
discovery rulings in this appeal. Even if she had, such
arguments would be waived because Feliciano failed to raise them
in the district court. See Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999) (stating that the
court of appeals will not reverse an order granting summary
judgment on the basis of arguments not made in the trial court).
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More specifically, Feliciano claimed that El
Conquistador terminated "Messrs. Guzmán, Arenas and Rivera
[Aponte], all Puerto Rican nationals who were former
Conquistador finance department employees," and replaced them
with non-Puerto Ricans. The record does not support this
assertion. Feliciano testified in her deposition that, at the
time she left El Conquistador, Mr. Guzmán was still working with
the company. Feliciano said that she became aware that Guzmán
was asked to resign when he told her so, but she produced no
admissible evidence to confirm this hearsay. She stated that
she did not know "for a fact" whether Rivera Aponte was asked to
resign. She did not think that Arenas was terminated. Rather,
she thought that he had retired from the company.
Feliciano's allegation that El Conquistador's executive
committee was comprised entirely of non-Puerto Ricans is equally
flawed. In November 1994, the committee had two Puerto Rican
members; in October 1998 three Puerto Ricans sat on that body.
Indeed, at various times the executive committee had members
from the United States, Sweden, Hong Kong, Lebanon, Mexico,
Colombia, India, as well as Puerto Rico. Likewise, the fact
that Feliciano's replacement was a recent company hire provides
no evidence of discriminatory animus.
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There are crucial differences between this case and the
Olivera age discrimination case relied upon by Feliciano. In
Olivera, we concluded that "the employer's articulated reasons
for its action [of discharging the plaintiff] were convincingly
refuted." Id. at 49 (emphasis added). There, the plaintiff
produced evidence that of eight people fired as part of a
reorganization, four or five of them were over forty and all but
one were replaced within two years by persons under thirty. See
id. Moreover, the employer "had told plaintiff more than once
that '[he] had to get rid of several of [plaintiff's]
subordinates because they were not performing according to his
opinion up to standards because of their age.'" Id. Finally,
the employer offered a retirement inducement package aimed at
employees over fifty-eight. See id.
Here, Feliciano offers no evidence that El Conquistador
fired Puerto Ricans in greater proportion than non-Puerto
Ricans, engaged in a pattern of firing Puerto Ricans and
replacing them with non-Puerto Ricans, or adopted corporate
policies discriminatory toward Puerto Ricans. There is no
evidence of statements by El Conquistador's management or
officers indicating a bias against Puerto Ricans, and no
evidence that El Conquistador's evaluation of her performance
was infected by stereotyped thinking or other types of
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unconscious national-origin bias. Thus, if we remanded for
trial, the jury "would be left to guess at the reasons behind
the pretext." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 10 (1st Cir. 199o). Under such circumstances, summary
judgment is proper. See Lattimore v. Polaroid Corp., 99 F.3d
456, 467-68 (1st Cir. 1996) (upholding summary judgment where
"[s]ubmitting the issue of discriminatory intent to a jury on
this record would amount to nothing more than an invitation to
speculate"); see also Connell v. Bank of Boston, 924 F.2d 1169,
1178 (1st Cir. 1991) ("[T]he question is not whether there is
literally no evidence favoring the non-movant, but whether there
is any upon which a jury could properly proceed to find a
verdict in that party's favor.") (internal quotation marks and
citations omitted).4
Affirmed.
4The district court also granted summary judgment in favor
of the defendants on claims brought pursuant to 42 U.S.C. §§
1981, 1983, and 1985. The appellants do not challenge the
dismissal of any of these claims on appeal.
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Feliciano De La Cruz v. El Conquistador Resort & Country Club
Court: Court of Appeals for the First Circuit
Date filed: 2000-07-28
Citations: 218 F.3d 1
Copy CitationsCombined Opinion