de la Garza Bizzard v. Sociedad Espanola

• Court: Court of Appeals for the First Circuit
• Decided: September 29, 1992
• Docket: 92-1454
• Status: Published

Opinion

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September 29, 1992    [NOT FOR PUBLICATION]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.
                              _________________________

                     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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3

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,
                                                 ___    ____

          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;
          _______  _____   ____________  _____  ______  _____   ___  _____

          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.
                 _____ ______

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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