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USCA1 Opinion
September 29, 1992 [NOT FOR PUBLICATION]
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No. 92-1454
CECILIA DE LA GARZA BLIZZARD,
Plaintiff, Appellant,
v.
SOCIEDAD ESPANOLA DE AUXILIO MUTUO
Y BENEFICENCIA DE PUERTO RICO,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Boyle,* District Judge.
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Jose E. Fernandez-Sein, with whom Nachman & Fernandez-Sein
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was on brief, for appellant.
R. Alex Fleming, with whom Lespier & Munoz Noya was on
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brief, for appellee.
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*Chief Judge, United States District Court for the District of
Rhode Island, sitting by designation.
Per Curiam. This is a failure-to-hire suit brought
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pursuant to the federal Age Discrimination in Employment Act
(ADEA), 29 U.S.C. 621-634 (1988). The complaint also
asserted pendent claims under Puerto Rico law. The district
court granted summary judgment in the defendant's favor on the
ADEA claim and on an age discrimination claim brought pursuant to
Puerto Rico Law No. 100, 29 L.P.R.A. 146 (1985). De La Garza
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Blizzard v. Sociedad Espanola, Etc., 787 F. Supp. 31 (D.P.R.
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1992).1 Plaintiff appeals. We affirm.
This case is governed in the first instance by the
burden-shifting framework of McDonell Douglas Corp. v. Green, 411
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U.S. 792, 802-05 (1973). Here, although the lower court
questioned whether the plaintiff had established a prima facie
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case, we assume arquendo, favorably to plaintiff, that the first
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burden, plaintiff's demonstration of a prima facie case, was
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met. The next burden -- articulating a legitimate,
nondiscriminatory basis for the adverse employment decision --
belongs to the employer. See, e.g., Hebert v. Mohawk Rubber Co.,
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872 F.2d 1104, 1110 (1st Cir. 1989). This burden, too, was
satisfied: the defendant supplied evidence that the job was
offered to the plaintiff, but that she "failed unqualifiedly to
accept the position or report for work. . . , " De La Garza
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Blizzard, 787 F. Supp. at 32-33, thus leaving the defendant no
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choice but to hire another person.
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1The district court dismissed other pendent claims without
prejudice, there being no remaining federal question. 787 F.
Supp. at 34. The plaintiff does not contest this ruling.
2
This brings us to the third, and last, step. The court
below found this step dispositive. It premised its order, inter
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alia, on a finding that plaintiff "failed to demonstrate . . .
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[or] suggest a discriminatory animus on the part of the
defendant." Id. at 33. On appeal, plaintiff has been unable to
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cast the slightest doubt upon this finding. That ends the case.
When, as here, the focus is on what we have termed "the ultimate
question," that is, "whether, on all the evidence of record, a
rational factfinder could conclude that age was a determining
factor in the employer's decision" to fire (or not to hire) the
affected individual, Mesnick v. General Elec. Co., 950 F.2d 816,
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825 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992), the
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plaintiff must produce some probative evidence of a
particularized discriminatory animus in order to survive summary
judgment. Id. at 825-26. The evidence produced must be
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sufficiently sturdy so that "a rational jury could infer, without
the most tenuous insinuation," that the employer's professed
reason for taking the adverse employment action "was actually a
pretext for age discrimination." Id. at 826 (emphasis in
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original). The record before us contains no such evidence.
The inference of discrimination that the plaintiff asks
us to draw is too attenuated to be taken seriously. Indeed, the
documented facts of record here, viewed in the light most
congenial to plaintiff's cause, have less heft than evidence that
we have judged in other, comparable cases to weigh too little.
See, e.g., id.; Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
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F.2d 5, 9-10 (lst Cir. 1990); Menzel v. Western Auto Supply Co.,
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848 F.2d 327, 329-30 (1st Cir. 1988); Dea v. Look, 810 F.2d 12,
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15 (lst Cir. 1987). At bottom, the plaintiff is arguing that it
was unnecessary for her to produce evidence of discriminatory
animus per se because such animus can (and should) be inferred
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from a showing of pretext, without more. Because this argument
flies in the teeth of settled circuit precedent, see, e.g.,
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Mesnick, supra; Medina-Munoz, supra; Menzel, supra; Dea, supra;
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see also Connell v. Bank of Boston, 924 F.2d 1169, 1175 (lst
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Cir.), cert. denied, 111 S. Ct. 2828 (1991), it must be rejected.
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We refuse to linger over the Law 100 claim. In the
district court, plaintiff argued the ADEA and Law 100 claims as
an indivisible unit. See Plaintiff's Opposition to Motion for
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Summary Judgment (March 16, 1992). She cannot now be heard to
complain that the Law 100 claim should be judged by a different
standard. See Mesnick, 950 F.2d at 829 n.11; see also McCoy v.
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Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir.
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1991) ("It is hornbook law that theories not raised squarely in
the district court cannot be surfaced for the first time on
appeal."), cert. denied, 112 S.Ct. 1939 (1992).
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We need go no further.2 Because we, like the district
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2Plaintiff asserts that she made out a question of pretext
vel non by her assertion that she was willing to accept the job
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if offered, and that the district court mistakenly held to the
contrary. If this is so - and it appears to us that plaintiff
misreads the district court's opinion - it is beside any relevant
point. To survive summary judgment, an age discrimination
plaintiff must adduce evidence of both pretext and discriminatory
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court, are unable to find in this record any evidence fairly
probative of age discrimination, and because we are both unable
and unwilling to alter clear circuit precedent, we affirm the
judgment below. The ADEA, after all, "does not stop a company
from discharging an employee for any reason (fair or unfair) or
for no reason, so long as the decision to fire does not stem from
the person's age." Freeman v. Package Machinery Co., 865 F.2d
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1331, 1341 (1st Cir. 1988). By the same token, the ADEA does
not prohibit an employer from refusing to hire an applicant for
any reason (fair or unfair) or for no reason, so long as age does
not creep into the calculus.
Affirmed.
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animus. See text and cases, supra. Absent any showing of the
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latter, a dispute about the former, even if genuine, is not
material. See, e.g., Rivera-Muriente v. Agosto-Alicea, 959 F.2d
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349, 352 (lst Cir. 1992) (a "material" fact "is one susceptible
of altering the outcome of the litigation"). Hence, summary
judgment was appropriate, notwithstanding the dispute about
pretext.
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Document Info
Docket Number： 92-1454
Filed Date： 9/29/1992
Precedential Status： Precedential
Modified Date： 9/21/2015