Appellant Raúl Rivera Aponte 1 (“Rivera”) challenges the district court’s entry of summary judgment in favor of his former employer, appellee Restaurant Metro-pol # 3, Inc. (“Metropol”), on Rivera’s age discrimination claim. We find that Rivera has failed to demonstrate a trial worthy issue of discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and affirm the district court’s decision.
I. Standard of Review
We review the district court’s grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party, and granting all reasonable inferences in his favor.
Rosenberg v. City of Everett,
II. Background
Before Metropol opened on June 29, 1998, Rivera and Alberto Nogueras, a busboy at the restaurant, had an altercation, during which Rivera threw or accidentally dropped a tray full of drinking glasses on Nogueras. Nogueras was cut by the glasses and received twelve stitches at the hospital. The manager of the restaurant interviewed employees regarding the incident; after determining that Rivera was the aggressor, the manager fired Rivera later that day.
At the time of his discharge, Rivera was fifty-five years old and had been a waiter at Metropol for eight or nine years.
Rivera filed suit in June 1999, alleging age discrimination under the ADEA and similar Puerto Rican statutes. On June 3, 2002, the district court granted summary judgment for Metropol on the federal ADEA claim, and dismissed Rivera’s commonwealth claims without prejudice. This appeal of the ADEA claim followed.
III. Discussion
The ADEA makes it unlawful for an employer to “discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1) (2003).' In an ADEA wrongful discharge case, the plaintiff must
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prove that he would not have been fired but for his age.
Serrano-Cruz v. DFI P.R., Inc.,
A plaintiff makes a prima facie case of discrimination under
McDonnell Douglas
by showing that (1) he was at least forty years old; (2) he met the employer’s legitimate job expectations; (3) he was fired; and (4) the employer did not treat age neutrally.
Pages-Cahue v. Iberia Líneas Aéreas de España,
The initial prima facie case is not burdensome and raises a rebuttable presumption of unlawful discrimination.
Woodman v. Haemonetics Corp.,
A. Legitimate, Non-discriminatory Reason
We assume arguendo that Rivera can establish a prima facie case. Metropol offers a legitimate, non-discriminatory reason for discharging Rivera: Rivera assaulted and injured another employee while at work.. Rivera had received a copy of Metropol’s employment manual, which warns that an employee’s attack, aggression, assault, or threat of aggression against a supervisor or fellow employee justifies Metropol’s immediate termination of that employee. Rivera’s behavior violated Metropol’s rules of conduct, and the restaurant took swift disciplinary action. The restaurant has met its burden of production and the ultimate burden now rests with Rivera to prove his discharge was motivated by discriminatory animus.
See Mesnick,
B. Evidence of Discrimination
Now that the burden has shifted back to Rivera, he must come forward with sufficient evidence to permit a reasonable fact-finder to conclude that his employer’s stated reason for discharge was a pretext for age discrimination. After considering his arguments and reviewing the record, we find that he has not shown that a genuine issue exists as to the reason for his termination.
First, Rivera asserts that the pretermination investigation was cursory — evidenced by the fact that Rivera was never allowed to explain his side of the story— and therefore Metropol’s reason for terminating him was pretextual. Metropol responds that it determined, based on one interview and Nogueras’ actual (and undisputed) injuries, that Rivera was the aggressor, and it sought to 'take swift action to deter further workplace violence. Whether a termination decision was wise or done in haste is irrelevant, so long as the decision was not made with discriminatory animus.
Gray v. New Eng. Tel. & Tel. Co.,
Second, Rivera contends Metropol discriminated against older workers, sometimes referring to employees as “imbé-ciles” or “corpses.” Such “stray workplace remarks” are generally insufficient, standing on their own, to establish discriminatory animus.
González v. El Día, Inc.,
Rivera also offers the affidavit of a former employee who worked at Metropol for three years, beginning at age sixty, then left and later sought re-employment at age sixty-three or sixty-four. The owner told him “we are too old for this,” and he was not rehired. We do not think this evidence reveals age-based animus. The owner’s statement uses “we,” which is different than saying “you are too old for the job;” such ambiguity weakens Rivera’s claim that the statement reveals age animus.
See González,
Finally, Rivera alleges that other employees were involved in altercations at work but not fired. Metropol counters that some of those incidents were unknown to supervisors, and none of the other incidents resulted in personal injuries requiring medical treatment. After reviewing the record, we agree that the incidents proffered by Rivera are of a significantly less severe nature (a few punches without injury exchanged in one incident, obscene words and shoving in another, and a piece of silverware thrown in a third); therefore, these examples fail to show disparate treatment.
See Rodríguez-Cuervos v. Wal-Mart Stores, Inc.,
IV. Conclusion
After reviewing the record, we find that Rivera has failed to demonstrate sufficient evidence to permit a reasonable fact-finder to conclude that his termination was a pretext for age discrimination. The district court’s decision is affirmed.
Affirmed.
Notes
. Additional appellants are Rivera’s wife and children.