Soto-Feliciano v. Villa Cofresi Hotels, Inc. , 779 F.3d 19 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2296
ADDIEL SOTO-FELICIANO,
Plaintiff, Appellant,
v.
VILLA COFRESÍ HOTELS, INC. AND SANDRA Y. CARO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez and Barron,
Circuit Judges.
Juan M. Frontera-Suau, with whom Carlos J. Jiménez-Torres and
Frontera Suau Law Offices, PSC, were on brief, for appellant.
Israel Roldán-González for appellees.
February 20, 2015
BARRON, Circuit Judge. More than a decade ago, Addiel
Soto-Feliciano began working in the kitchen at the Villa Cofresí
Hotel, a beachfront, family-run establishment in Rincón, Puerto
Rico. By January of 2010, Soto had become the hotel's head chef.
By March of that year, he had been fired. This appeal turns on the
events that led to that outcome. Soto alleges that a review of the
record reveals that he was fired because of his age and in
retaliation for his efforts to assert his rights against this
alleged discrimination. The District Court disagreed and granted
summary judgment for the defendants. We reverse.
I.
On November 4, 2010, Soto filed suit in federal court.
He named as defendants the Villa Cofresí Hotel and Sandra Caro, the
hotel's general manager in charge of human resources. Soto alleged
violations of the federal Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634, and Puerto Rico employment law, P.R. Laws Ann.
tit. 29, § 146 (anti-discrimination); id. § 185 (wrongful
termination). Soto sought back pay, lost benefits, compensatory
damages, liquidated damages, attorney's fees, and an order
directing the hotel to reinstate him and to cease discriminating
against him on account of age.
In September of 2013, the District Court granted summary
judgment for the defendants. The District Court then dismissed
Soto's federal claims with prejudice and his state-law claims
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without prejudice. Soto now appeals that judgment. We discuss the
relevant facts in connection with our analysis.
II.
We review the District Court's summary judgment ruling de
novo. Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st Cir.
2014). In doing so, we "consider[] the record and all reasonable
inferences therefrom in the light most favorable to the non-moving
part[y]." Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st
Cir. 2010). We may decide in favor of the moving party -- here,
the hotel and Sandra Caro -- "only if the record reveals 'that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.'" Avery v. Hughes, 661
F.3d 690, 693 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
III.
We begin with Soto's age discrimination claim under the
federal Age Discrimination in Employment Act. See 29 U.S.C.
§ 623(a)(1). In a case that relies only on indirect evidence of
discrimination, as Soto concedes this one does, we follow the
familiar three-stage framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). We do so even though the Supreme
Court "has not definitively decided whether the evidentiary
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
utilized in Title VII cases is appropriate in the ADEA context."
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009). And
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that is because our Circuit "has long applied the McDonnell Douglas
framework to ADEA cases." Vélez v. Thermo King de Puerto Rico,
Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009).
A.
The first stage of the inquiry concerns whether the
plaintiff has made a prima facie case of age discrimination. See
McDonnell Douglas, 411 U.S. at 802. The plaintiff's burden at this
stage is "modest." Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st
Cir. 2004). He need only make a prima facie case, not a winning
one. To make that threshold showing, the plaintiff must "show
that: 1) he was at least 40 years old at the time he was fired; 2)
he was qualified for the position he had held; 3) he was fired, and
4) the employer subsequently filled the position, demonstrating a
continuing need for the plaintiff's services." Vélez, 585 F.3d at
447.
A plaintiff who meets the "low standard of showing prima
facie discrimination," Zapata-Matos v. Reckitt & Colman, Inc., 277
F.3d 40, 44 (1st Cir. 2002), "in effect creates a presumption that
the employer unlawfully discriminated against the employee," St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). In
consequence of that presumption, at the second stage of the
inquiry, the burden of production shifts to the employer. To meet
that burden, "the employer must articulate a legitimate
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nondiscriminatory reason" for having taken the adverse employment
action. Zapata-Matos, 277 F.3d at 44.
If the employer offers such a reason, then we move to the
third and final stage of the inquiry. At this stage, the plaintiff
must "prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination." Vélez, 585 F.3d at 447-48
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000)). To defeat a motion for summary judgment, though, the
plaintiff need only show that his ability to meet that burden turns
on a genuine issue of material fact. See Burdine, 450 U.S. at 253
(distinguishing between "the plaintiff's ultimate and intermediate
burdens," respectively); Mesnick v. Gen. Elec. Co., 950 F.2d 816,
824-25 (1st Cir. 1991).
B.
We start with the first stage of the inquiry. The
District Court concluded Soto made a prima facie case of age
discrimination that was strong enough to shift the burden of
production to the defendants. We agree.
Soto was at least forty years of age at the time of his
suspension and firing, which occurred on March 2 and March 10,
2010, respectively. And the record shows that, after firing Soto,
the hotel immediately divided his head-chef duties among Jesús
Vargas (who worked in the kitchen) and Soto's two previous direct
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supervisors, Héctor Pérez-Vélez (the restaurant and kitchen
manager) and Héctor Méndez (the food and beverage manager). The
record thus sufficiently supports Soto's contention that, at the
time of the firing, the hotel had a continuing need for Soto's
former duties. See Hidalgo v. Overseas Condado Ins. Agencies,
Inc., 120 F.3d 328, 333-34 (1st Cir. 1997) (plaintiff may
demonstrate continuing need for his services with evidence showing
that plaintiff's job functions were absorbed by several employees
of defendant); Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 760
(1st Cir. 1988) (same).
The record also provides sufficient support for Soto's
further contention that he was qualified for his job. The record
shows that Soto became head chef after working in the hotel's
kitchen for a number of years. The record then shows that Soto
held his job as head chef for at least a number of months. And,
finally, the record shows that prior to his suspension, Soto had
never received a formal written complaint from hotel management
about his performance during his seven years of employment at the
hotel. In light of the "low standard of showing prima facie
discrimination," Zapata-Matos, 277 F.3d at 44, that evidence
clearly suffices. See Meléndez v. Autogermana, Inc., 622 F.3d 46,
50-51 (1st Cir. 2010); Vélez, 585 F.3d at 448.
The defendants, however, contend Soto failed to make a
prima facie showing that he was qualified. Specifically, the
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defendants contend the record shows that Soto used profanity to
such an extent that it generated complaints from co-workers and
possibly also customers; that he expressed a bad attitude toward
his supervisors; that he was insubordinate to managers or
supervisors on at least a handful of occasions; that he frequently
arrived late for work; that he made at least one threatening remark
to a supervisor; and that he disrespected a fellow staff member's
religion. The defendants therefore contend that Soto failed to
meet "the employer's legitimate expectations," Meléndez, 622 F.3d
at 50, and thus cannot show that he was qualified for his job at
the time of his firing, see id.
But the defendants' challenge to Soto's prima facie
showing with respect to whether he was qualified cannot succeed.
As the District Court observed, the defendants rely on the same
evidence concerning Soto's misconduct to support a further argument
-- namely, that even if Soto made the required prima facie showing,
his suspension and firing had nothing to do with his age and
everything to do with his bad behavior on the job. Our precedents
make clear, however, that we may not credit the same evidence that
an employer puts forth to show its legitimate, nondiscriminatory
reason for firing an employee to defeat that same employee's prima
facie showing that he was qualified. "To do so would bypass the
burden-shifting analysis and deprive the plaintiff of the
opportunity to show that the nondiscriminatory reason was in
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actuality a pretext designed to mask discrimination." Vélez, 585
F.3d at 448 (quoting Wexler v. White's Fine Furniture, Inc., 317
F.3d 564, 574 (6th Cir. 2003) (en banc)).
We thus conclude that Soto has put forth a sufficient
prima facie case of age discrimination to survive summary judgment.
And so, we move on the final two stages of the inquiry.
C.
Soto concedes that the defendants, in response to his
prima facie showing, have met their burden of articulating a
nondiscriminatory reason for the suspension and firing: Soto's
alleged misconduct on the job. Soto thus challenges only the
defendants' contention -- and the District Court's conclusion --
that no rational jury could find that the defendants' asserted
nondiscriminatory reason for firing Soto was merely a pretext for
discriminating against him for being too old.
In evaluating Soto's contention at the summary judgment
stage, the critical question is "whether or not the plaintiff has
adduced minimally sufficient evidence to permit a reasonable
factfinder to conclude that he was fired because of his age."
Vélez, 585 F.3d at 452 (quoting Dávila v. Corporación de P.R. Para
La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007)). To make that
showing, a plaintiff must do more than merely "impugn the veracity
of the employer's justification." Mesnick, 950 F.2d at 824. A
plaintiff must "elucidate specific facts which would enable a jury
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to find that the reason given is not only a sham, but a sham
intended to cover up the employer's real motive: age
discrimination." Id. (quoting Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)).
On a motion for summary judgment, however, we must
consider the facts in the light most favorable to the non-moving
party, which in this case is Soto. See Portrio Corp., 602 F.3d at
40. And we must keep in mind that "where a plaintiff in a
discrimination case makes out a prima facie case" of age
discrimination, as Soto has done, "and the issue becomes whether
the employer's stated nondiscriminatory reason is a pretext for
discrimination, courts must be 'particularly cautious' about
granting the employer's motion for summary judgment." Hodgens v.
General Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998).
Despite these admonitions, the District Court still found
that Soto had failed to make a minimally sufficient showing that
the defendants' claimed nondiscriminatory reason for firing him was
in fact a pretext for age discrimination. And thus the District
Court refused to put Soto's case to the jury. The District Court
reached that conclusion in two steps.
The District Court first determined that the record
contained only one piece of evidence both that could be considered
and that showed that age discrimination was the defendants' real
motive for firing Soto. The District Court then compared that
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evidence concerning the defendants' discriminatory motive to the
competing evidence that the defendants had put forth regarding
their concerns with Soto's misconduct. And, finally, the District
Court concluded that this evidence of the defendants' concern with
Soto's misconduct overwhelmed the evidence regarding the
defendants' discriminatory motive to such an extent that the
defendants were entitled to summary judgment. We review each step
in the District Court's analysis.
1.
We start with the District Court's treatment of Soto's
evidence of discriminatory motive. In assessing that evidence, the
District Court considered only Soto's allegations regarding
comments by Sandra Caro, the hotel's head of human resources and a
member of the Caro family, which owned and operated the hotel.
According to Soto's deposition, Sandra Caro commented
negatively on Soto's age in a meeting that she had with him on
February 18, 2010. Specifically, Sandra Caro told Soto: "I
understand that you are old to work at the cooking line and that
your co-workers are also saying that you are old to work at the
cooking line." Soto further testified that Sandra Caro said to him
at that meeting: "You are no longer capable to work at the line
because you are old. I am going to bring in a new chef. Maybe I
can let you work only in banquets. You need some long vacations
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because you are old and slow at the line. We at the Hotel Villa
Cofresí are moving up, not down."
As the District Court acknowledged, however, Soto also
offered evidence of similar age-related comments that another hotel
employee had made. Soto testified that his direct kitchen
supervisor, Héctor Pérez, made these age-related remarks
"continually" during the summer of 2009. According to Soto, Pérez,
the hotel's restaurant and kitchen manager, said to Soto throughout
this period: "Fool you are too old"; "[f]ool, you are too slow."
And while Pérez, unlike Sandra Caro, is not a named defendant, he
was Soto's direct supervisor in the hotel kitchen. That makes his
remarks, like hers, relevant to Soto's discrimination claim. See
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433-34 (1st
Cir. 2000) (conduct of a supervisor may substantiate plaintiff's
case at third McDonnell Douglas stage, even if not named as a
defendant).
But the District Court refused to consider Pérez's
remarks because Soto's complaint did not reference them. The
District Court based that decision on our prior statement that
"summary judgment is not a procedural second chance to flesh out
inadequate pleadings." Fleming v. Lind–Waldock & Co., 922 F.2d 20,
24 (1st Cir. 1990). Fleming, however, does not oblige a plaintiff
to set forth in the complaint every fact of relevance to an
otherwise properly pled claim, let alone every fact of relevance to
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an as-yet-unfiled summary judgment motion that aims to defeat that
same claim. And, unlike the plaintiff in Fleming, Soto is not
introducing a new theory of liability in referencing Pérez's
remarks. He is merely augmenting the evidentiary basis for the
very same age discrimination claim that he had already sufficiently
pled.
Thus, we must consider both Sandra Caro's and Héctor
Pérez's remarks in assessing the strength of Soto's showing
regarding the defendants' discriminatory motive. For as we have
explained before, "evidence of age-related comments could support
an inference of pretext and discriminatory animus."
Domínguez-Cruz, 202 F.3d at 433; see also Mesnick, 950 F.2d at 824
("comments by decisionmakers which denigrate those over forty" may
constitute "circumstantial evidence that may be mined by a
plaintiff" in age discrimination suits).
Here, the age-related comments at issue, if credited, are
especially supportive of the age discrimination claim. Soto is not
relying on age-related comments that put down those over forty
years of age in general. Nor is he relying on age-related comments
that are at best ambiguous as to whether they reflect an intent to
target the statutorily protected class. Cf. Hodgens, 144 F.3d at
171-72 (noting that employer's remarks about employee's "absences"
were not clearly aimed at absences protected by the Family Medical
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Leave Act, as the majority of the employee's absences were not so
protected).
Soto is instead relying on age-related comments that were
directed at him in particular and that asserted that he was too old
to continue to do his job. And, Soto contends, those comments came
not simply from fellow employees but from Sandra Caro, "the key
decisionmaker regarding his termination," Domínguez-Cruz, 202 F.3d
at 433, and Héctor Pérez, "the plaintiff's direct supervisor," id.
Moreover, Soto alleges that Sandra Caro made her age-
related remarks in a context that should give rise to particular
concern. Soto contends she made these comments while speaking with
him about his job performance, and that she did so immediately
before she stated that she was thinking of hiring a new chef in his
stead.
And, finally, Soto was suspended less than two weeks
later, making the allegedly discriminatory remarks temporally
proximate to, rather than remote from, the adverse employment
action. Such temporal proximity, we have held, itself provides
support for the inference that a discriminatory motive explains the
subsequent suspension and firing. Cf. DeCaire v. Mukasey, 530 F.3d
1, 19 (1st Cir. 2008), as corrected (July 10, 2008) ("[T]emporal
proximity alone can suffice to 'meet the relatively light burden of
establishing a prima facie case of retaliation.'" (quoting
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Mariani–Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d
216, 224 (1st Cir. 2007))).
Thus, no great inferential leap would be necessary for a
jury to find from these comments that the defendants fired Soto due
to his age, at least if these comments were considered on their
own. See Hodgens, 144 F.3d at 171 ("Statements by supervisors
carrying the inference that the supervisor harbored animus against
protected classes of people or conduct are clearly probative of
pretext."). With such evidence of discriminatory motive in the
record, a rational jury would not have to rely on a "tenuous
insinuation" to find that the employer's asserted reason for firing
Soto "was actually a pretext for age discrimination." Mesnick, 950
F.2d at 826 (emphasis in original). This case, therefore, is not
one in which the "vast majority of [plaintiff's] evidence related
to pretext . . . [but] had nothing at all to do with age or with
the employer's true motives." Id.
There remains, though, the issue whether, despite this
evidence of discriminatory motive, the defendants' showing
regarding Soto's alleged misconduct -- and the role that Soto's
misconduct played in the decision to fire him -- still entitles the
defendants to summary judgment. The District Court reached that
very conclusion. The District Court found that the evidence that
the defendants fired Soto for his misconduct was so strong that it
overwhelmed any inference of discriminatory motive that the record
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might otherwise permit a jury to draw. But Soto argues that the
evidence on which the District Court relied in this regard is not,
in fact, that strong. And so, we now turn to what the record shows
on that point.
2.
To challenge the defendants' contention that Soto's
misconduct motivated the adverse employment action, Soto relies
chiefly on what the record does not show. But to understand why
the holes Soto highlights in the defendants' account might matter,
we first need to lay out the case for the defendants' contention
that the decision to fire Soto had nothing to do with his age and
instead resulted entirely from his misconduct. We will then be in
a position to evaluate Soto's contention that the record reveals
potentially significant gaps and inconsistencies in the defendants'
proof on that point -- gaps and inconsistencies, Soto contends,
that would permit a rational jury to find that the defendants'
claimed misconduct-based reason for firing him is in fact a
pretext.
To make the case that misconduct drove the decision to
dismiss Soto, the defendants contend that Soto had been verbally
warned about his loud use of profanity in the kitchen on a number
of occasions prior to his suspension and firing. The defendants
also say Soto had been admonished verbally for being late to work.
Against that background, the defendants then claim Soto engaged in
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the following string of bad behavior in the days immediately
leading up to his suspension on March 2, 2010, and his firing days
later.
The first event occurred on February 17, 2010, Ash
Wednesday. Soto allegedly made a disrespectful remark on that day
to a Catholic waiter who had asked not to be given meat in
accordance with his faith. The next day, Sandra Caro met with Soto
about his constant use of profanity in the kitchen. At that
meeting, Sandra Caro also raised her concern about Soto's remark to
the waiter, who had complained about that remark to his supervisor.
Sandra Caro told Soto in the course of their discussion that he was
"slow" and was taking longer to prepare meals and that she wanted
to know what the problem was. The defendants say Soto responded
that working in the kitchen could be stressful, and that the heat
and the volume of work could get to be too much.
The defendants next allege that, on February 23, Sandra
Caro requested to speak with Soto. The defendants claim, however,
that Soto responded by telling her over the phone that he had
nothing to say to her. The defendants next assert that after
Héctor Pérez asked Soto to prepare some fish on February 26, Soto
responded by saying that Pérez, who was Soto's direct supervisor,
should peel the fish himself. And, finally, the defendants claim
that Soto made a threatening remark to that same supervisor on
February 27. Specifically, the defendants allege that Soto told
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Pérez to be careful with what the Caro siblings told him to do or
say, and added that "[y]ou are a Christian man, and when something
explodes, you too could get dirty."
This sequence of events culminated in a March 2, 2010,
letter that the hotel sent to Soto. That letter informed Soto of
his suspension. In giving the reasons for the suspension, the
letter expressly referenced Soto's misconduct, including the two
incidents of alleged insubordination (telling Sandra Caro he had
nothing to say to her and telling Héctor Pérez to peel the fish
himself) and the one supposedly threatening remark (to Pérez). The
hotel then notified Soto of his termination eight days later. At
no time was Soto's age referenced as a reason for either decision.
Nor, the District Court noted, did Soto assert that age
discrimination was the true reason for the suspension when he
received the March 2 letter and responded to it in writing.
In finding this evidence strongly supportive of the
defendants' case for summary judgment on the pretext issue, the
District Court emphasized that Soto does not deny either that he
had been verbally admonished for poor behavior in the past or that
the specific incidents cited in the March 2 letter occurred. The
District Court did acknowledge Soto's contention that the March 2
letter misconstrued the exchanges between him and Sandra Caro and
Héctor Pérez, respectively. Soto contended that the letter took
these exchanges out of context. But the District Court nonetheless
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concluded that Soto failed to provide any basis for finding that
the defendants did not believe those incidents were serious enough
to warrant his suspension and firing. And, the District Court
ruled, it was the defendants' belief that mattered, not Soto's view
of how justified those beliefs might have been.
Soto responds as follows. He contends that if his
conduct were truly such a source of concern as to place his
continued employment in jeopardy, then concerns about these
incidents would have been properly raised prior to March 2, when
the suspension letter first referenced them. And yet, Soto argues,
the record shows these incidents were not raised until that letter.
Soto thus contends that the defendants' asserted reason for
dismissing him, though nondiscriminatory, is not in fact the true
explanation for his suspension and firing and was asserted only as
a cover.
We find that the gaps in the defendants' account that
Soto identifies raise a genuine issue of material fact concerning
pretext. For example, the record shows that complaints about
Soto's conduct were never documented in writing or placed in Soto's
personnel file. And that was the case even though the District
Court found that it was hotel policy to follow that course for
lodging such complaints. The record further indicates that, with
respect to complaints about Soto, the hotel did not follow its
acknowledged policy of "progressive discipline," in which verbal
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warnings are followed by written ones. Instead, Soto was suspended
for two incidents of alleged insubordination and one alleged threat
without first having been warned about those instances at all.
Of course, these last three incidents did occur in the
days just prior to Soto's suspension. And that timing may offer an
explanation for the hotel's failure to document them formally. But
Soto points out that the complaints about his alleged
insubordination and threatening comment were also not mentioned
during the meeting he had with hotel management on February 28,
2010, even though that meeting post-dates these incidents, and even
though Soto used the meeting to raise his concerns that the hotel
was discriminating against him because of his age.
That meeting was attended by all of the hotel's senior
staff, including all four Caro siblings (who together owned and
operated the hotel). Soto testified in his deposition that he
explained to those assembled that, days earlier, on February 18,
Sandra Caro had called him "old" and "slow" and that he felt
discriminated against. Soto also testified that he had said the
same thing in a discussion with Fernando Caro (the general manager
in charge of finance) on February 20. And, finally, Soto testified
that, at that same February 28 meeting with the Caro family, he
informed the group that he had visited the Department of Labor
concerning his employment at the hotel (though he does not assert
whether he told the group that, while there, he visited the Anti-
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Discrimination Unit, which handles age-discrimination complaints).
Soto points out, however, that even though he had just directly
confronted those at the meeting with his concerns that he was being
discriminated against because of his age, those present made no
reference during the meeting to the later-asserted,
nondiscriminatory grounds for his dismissal.
On this record, we believe Soto has shown inconsistencies
in the defendants' case sufficient to support an inference of
pretext. See Gómez-González v. Rural Opportunities, Inc., 626 F.3d
654, 662-63 (1st Cir. 2010) ("Pretext can be shown by such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons." (quoting Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997))). In context,
the hotel's failure to raise the incidents of alleged misconduct
either through the established disciplinary processes or at the
meeting on February 28 permits a jury to doubt the likelihood that
the cited incidents truly were the basis for the decision to
suspend and fire Soto. And that inference is made more plausible
by Soto's testimony that the relevant decision maker had less than
two weeks earlier told Soto that he was too old for his job, that
she had heard as much from Soto's co-workers, and that she was
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considering getting a new chef to replace him. Further, the gaps
in the defendants' account that Soto identifies must be considered
against the additional testimony Soto gave that his direct
supervisor in the kitchen, Héctor Pérez, had made similarly
discriminatory comments repeatedly months before.
3.
Given the evidence in the record, Soto's defense against
the motion for summary judgment does not "rest[] merely upon
conclusory allegations, improbable inferences, and unsupported
speculation." Hodgens, 144 F.3d at 167 (quoting Smith v. Stratus
Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994)). Instead, Soto has
set forth a plausible competing account of the proper inference to
draw about what transpired in the last two weeks of February 2010.
Whether Soto's misconduct motivated the ultimate employment
decision (as the defendants assert), or whether that misconduct
took on significance only after the decision to terminate Soto on
the basis of age had been made (as Soto contends), is not a
question for us to decide at this stage of the case. A rational
jury could draw either inference, regardless of which may be the
stronger of the two. But we may not supplant the jury's role by
weighing the strength of those competing inferences for ourselves.
See Mulero–Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir.
1996) (reversing grant of summary judgment and noting that
"determinations of motive and intent, particularly in
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discrimination cases, are questions better suited for the jury"
(quoting Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 34
(1st Cir. 1990))). We therefore reverse the District Court's
decision granting summary judgment on Soto's age discrimination
claim.
IV.
Soto also claims that the defendants suspended and fired
him in retaliation for his efforts to redress the alleged age
discrimination. That claim, too, states a cause of action under
the Age Discrimination in Employment Act. See 29 U.S.C. §§ 623(a),
(d). Because Soto's case for retaliation, like his one for
discrimination, rests on indirect evidence of the defendants'
impermissible motive, we follow the same framework that we used to
assess Soto's age discrimination claim, "albeit with slight
modifications" to account for the retaliation claim's distinct
focus. Mesnick, 950 F.2d at 827.
A.
Under this modified framework, the first stage of the
inquiry requires the plaintiff to "make a prima facie showing that
(i) he engaged in ADEA-protected conduct, (ii) he was thereafter
subjected to an adverse employment action, and (iii) a causal
connection existed between the protected conduct and the adverse
action." Id. In the retaliation context, too, the plaintiff's
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burden at this initial stage is a lenient one. See Garayalde-Rijos
v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014).
If the plaintiff makes a prima facie showing of
impermissible retaliation, then, at the second stage, as in the
discrimination context, the burden of production shifts to the
defendant. To meet that burden, the defendant must offer a
legitimate, non-retaliatory reason for the adverse employment
action. Muñoz v. Sociedad Española de Auxilio Mutuo y
Beneficiencia de Puerto Rico, 671 F.3d 49, 55 (1st Cir. 2012).
And if the defendant does offer such a reason, then the
inquiry moves to the third and final stage. At this stage, "the
plaintiff must assume the further burden of showing that the
proffered reason is a pretext calculated to mask retaliation."
Harrington v. Aggregate Indus.-Ne. Region, Inc., 668 F.3d 25, 31
(1st Cir. 2012). To defeat summary judgment, however, a plaintiff
need not prove retaliation by a preponderance of the evidence. A
plaintiff bears only the lighter burden of showing that a genuine
issue of material fact exists about whether retaliation was the
true motive for the adverse employment action in question. See
Mesnick, 950 F.2d at 828.
B.
We begin with Soto's prima facie showing of retaliation
-- and, in particular, with the evidence that he puts forth that he
engaged in conduct that the ADEA protects from retaliatory
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measures. Soto relies on evidence that he engaged in two types of
protected conduct: informal complaints to his employer about the
age discrimination he claimed to suffer and more formal (though
incomplete) steps to redress such discrimination.
Soto points in this regard to his testimony that, on
February 20, 2010, he approached Fernando Caro (the hotel's general
manager in charge of finance) to discuss the discriminatory remarks
that Soto contends Sandra Caro made to him in their meeting two
days before. Soto claims he told Fernando Caro that Sandra Caro
had said Soto was "[too] old to work at the line" in the kitchen
and that he considered her comments to be discriminatory. Soto
also claimed he asked Fernando Caro for a meeting with hotel
management to discuss these comments.
Next, Soto points to the fact that he went to the Puerto
Rico Department of Labor five days after his February 20 discussion
with Fernando Caro. During this February 25 visit, moreover, Soto
went to the Department's Anti-Discrimination Unit in addition to
another office, though he did not file any grievance with the
Department.
Finally, Soto points to the comments he made at the
February 28 meeting with the hotel's management team. Soto
testified that, during that meeting, he narrated what had been said
in his February 18 sit-down with Sandra Caro. He also testified
that he explained to the whole group that he felt discriminated
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against on the basis of her comments. And, lastly, he testified
that he told at least one of the members of the Caro family that he
had visited the Department of Labor earlier that week.
Soto thus contends that, through the evidence of his
complaints to hotel management and his visit to the Anti-
Discrimination Unit at the Department of Labor, he has made a prima
facie showing that he engaged in protected conduct. And we agree.
See Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 84 (1st
Cir. 2006) (informal complaint to management may constitute
protected conduct); Hernandez-Torres v. Intercontinental Trading,
Inc., 158 F.3d 43, 47 (1st Cir. 1998) (assuming that informal
complaint to internal personnel department may constitute protected
conduct); see also Sumner v. U.S. Postal Serv., 899 F.2d 203, 209
(2d Cir. 1990) (acceptable forms of protected activity under Title
VII's analogous clause include not only formal charges of
discrimination, but also "informal protests of discriminatory
employment practices, including making complaints to management").
With respect to Soto's prima facie case of retaliation,
that leaves only whether Soto demonstrated a causal connection
between his protected conduct and the adverse employment action
that followed. See Mesnick, 950 F.2d at 827. The defendants
contend Soto has not made that showing, and the District Court
agreed. But rather than address the defendants' arguments on this
point in connection with the prima facie case, where Soto's burden
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is lowest, see Garayalde-Rijos, 747 F.3d at 24, we move directly to
see whether Soto has raised a genuine issue of material fact that
the defendants' stated grounds for firing him were in fact a
pretext for retaliatory animus. If he has met this showing, then
he necessarily has met the lesser burden that he bears at the prima
facie stage of showing a causal connection between his protected
conduct and the decision to fire him. See Wells v. Colorado Dep't
of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003) (noting that, for
retaliation claims, third element of prima facie case and third
McDonnell Douglas stage are "not easily distinguishable" (quoting
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3rd Cir.
2000))).
C.
Soto does not dispute that the defendants have
articulated a legitimate, non-retaliatory reason for his suspension
and termination. The reason is the same one that the defendants
gave in response to Soto's prima facie showing of age
discrimination: that Soto was insubordinate, made a threatening
remark to another employee, and that his conduct was in other
respects inappropriate. And so the issue comes down, once again,
to pretext and the true motivation for Soto's suspension and
firing. See Mesnick, 950 F.2d at 827 ("As in the discrimination
context proper, courts confronted by summary judgment motions must
at this [final stage] focus on the ultimate question": whether "the
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employer's proffered reason is a pretext masking retaliation for
the employee's opposition to a practice cast into doubt by the
ADEA.").
We have already described, in connection with our
evaluation of Soto's discrimination claim, certain gaps and
inconsistencies in the evidence the defendants put forth regarding
their concern about Soto's misconduct. We see no reason to reach
a different conclusion about the potential weaknesses in that same
evidence now that we are evaluating Soto's retaliation claim. We
thus need not repeat our reasons for concluding that the
incongruities in the defendants' account of their misconduct-based
reasons for firing Soto could give rise to an inference of pretext.
That said, as with the claim of age discrimination, Soto
must show more than that the defendants' asserted reason for taking
adverse action against him was not the real reason. He must show
that the reason given was a cover for retaliation, as it is
retaliation that the ADEA forbids. See id. Mindful that Soto may
make the required showing circumstantially, id. at 828, we look to
see if Soto has raised a genuine issue of material fact about
whether the defendants' claim that they fired Soto for his bad
behavior was merely a cover for their retaliation against his
efforts to redress their discrimination.
The District Court ruled that Soto did not put forth
enough evidence. The District Court found that Soto had offered
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nothing regarding the defendants' retaliatory motive beyond the
fact that he had engaged in protected conduct soon before the
defendants suspended and ultimately fired him. The District Court
then noted that while such temporal proximity may support an
inference of retaliation, a coincidence of timing does not
automatically do so. And, further, the District Court concluded,
such a timing-based inference would be unreasonable here because of
the substantial evidence showing that the defendants had a
legitimate reason to fire Soto that was completely unrelated to the
steps Soto had taken to redress the alleged age discrimination.
In our view, however, Soto's evidence of retaliatory
motive, while not as strong as his evidence of discriminatory
motive, rests on more than temporal proximity alone. Soto points
out that he directly informed hotel management of his concerns
about age discrimination on a number of occasions in the days prior
to his suspension. And thus Soto argues not only that there was a
temporal connection between his independent actions to protect his
rights and the suspension and firing that followed, but also that
the defendants knew that he had taken such steps and were concerned
that he had done so.
Specifically, Soto points to the evidence concerning his
conversation with Fernando Caro on February 20, in which he raised
his concerns about age discrimination, and his meeting with a
number of members of the Caro family on February 28, in which he
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raised those concerns again. With respect to the visit to the
Department of Labor on February 25, Soto notes (and the District
Court acknowledged) that he informed Luis López (a fellow co-
worker) and Evelyn Caro (the hotel's human resource supervisor)
that he had gone to the Department of Labor "to seek orientation
about his rights as an employee." In addition, Soto testified that
he informed Rita Caro, who signed the March 2 letter informing him
of his suspension, that he had gone to the Department "to ask for
counseling."
Moreover, Soto notes that the record contains evidence
showing that Rita Caro (who was in charge of customer services at
the hotel and was one of co-signers of the March 2 suspension
letter) had specifically asked Soto why he had visited the
Department of Labor. And Soto emphasizes that Rita Caro asked him
that question only days before informing him of his suspension for
allegedly non-age-related reasons.
True, Soto was at best equivocal about whether he told
anyone in hotel management that he had gone to the Anti-
Discrimination Unit during his visit to the Department of Labor.
But the record certainly permits the inference that the defendants
-- who suspended Soto just two days after he informed those
assembled of his visit -- believed Soto had gone to the Department
to address his by then well-known concerns about the hotel's age
discrimination.
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In this regard, Soto's contention that the hotel manager
who signed the March 2 suspension letter had inquired about Soto's
visit to the Department of Labor takes on particular significance.
For on Soto's account, it is no mere coincidence that she made that
inquiry at a time when she knew Soto was concerned about age
discrimination -- and just days before she took action to sever
Soto's ties to the hotel in a letter that was careful to set forth
misconduct as the basis for his suspension. Instead, on Soto's
view, that inquiry is reflective of the hotel management's concern
with his efforts to take action against the hotel's alleged
discrimination.
We thus find that the record gives rise to competing
plausible inferences from which a rational jury could find for
Soto. According to Soto, the defendants' true concerns about his
continued employment were not based on the incidents involving his
alleged misconduct -- none of which was formally documented or even
raised directly with Soto in accord with the hotel's recognized
disciplinary process -- but rather were based on his increasingly
assertive efforts to address the hotel's discrimination. And, for
that reason, we must reverse the District Court's summary judgment
order on Soto's retaliation claim.
V.
After granting summary judgment for the defendants on
both the federal age discrimination and retaliation claims, the
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District Court dismissed without prejudice all of Soto's Puerto
Rico law claims. Because we conclude the District Court erred in
granting summary judgment on the federal claims, we vacate the
dismissal of the pendent state law claims and remand them for
further consideration.
VI.
In concluding that the District Court gave insufficient
consideration to Soto's side of the story, we do not mean to
suggest that a discriminatory or retaliatory motive in fact
underlay the defendants' decision to suspend and then fire Soto.
We hold only that there is a triable issue of fact as to whether
the defendants' stated grounds for taking adverse employment
actions against Soto were in fact a pretext for the discrimination
and retaliation the ADEA bars. The District Court's judgment is
therefore vacated. We remand for further proceedings. No costs
are awarded.
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