Hernán ACEVEDO-PARRILLA; Nitza I. Medina Martínez; and the conjugal partnership composed between them, Plaintiffs, Appellants, v. NOVARTIS EX-LAX, INC., Defendant, Appellee.
No. 10-2276.
United States Court of Appeals, First Circuit.
Heard March 6, 2012. Decided Oct. 10, 2012.
Enrique R. Padró-Rodríguez, with whom Pedro J. Manzano-Yates and Fiddler, González & Rodríguez, P.S.C., were on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.
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“),
I. Background
Because our review is from a grant of summary judgment, we set forth the background facts, as supported by the record,
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 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 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 Stan-
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.
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 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 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 setup, 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 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.
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.” 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 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 sani-
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 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, 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 non-moving 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.”
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.
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.
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
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 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-
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.” Vélez, 585 F.3d at 448 (quoting Wexler, 317 F.3d at 574); see also Meléndez, 622 F.3d at 51.
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. 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] violat-
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 v. Suttle Caribe, Inc., 202 F.3d 424, 431 (1st Cir. 2000). 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)).
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
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 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. 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 to exercise th[at] function.” Cei-
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 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 in the employer‘s proffered legitimate reasons’ such that a factfinder could ‘infer that the employer did not act for the asserted nondiscriminatory 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
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, 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 (re-
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. 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
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 “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
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-Munoz, 896 F.2d at 10. In addition to the 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
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.” Alvarez-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 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.