United States Court of Appeals For the First Circuit
No. 20-1972
FELIX J. LAHENS,
Plaintiff, Appellant,
v.
AT&T MOBILITY PUERTO RICO, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, U.S. Magistrate Judge]
Before
Howard, Chief Judge, Thompson, Circuit Judge, and Woodcock, District Judge.
Anibal Lugo-Miranda for appellant. Jose F. Benitez Mier, with whom Ricardo J. Casellas Santana and O'Neill & Borges LLC were on brief, for appellee.
March 16, 2022
Of the District of Maine, sitting by designation. WOODCOCK, District Judge. The Age Discrimination in
Employment Act ("ADEA") and Americans with Disabilities Act
("ADA") prohibit an employer from discriminating against an
employee based on his age or disability, respectively. Plaintiff-
appellant Felix Lahens alleges that his employer, AT&T Mobility
("AT&T"), terminated his employment because of his age and because
he received a liver transplant. We affirm the district court's
entry of summary judgment in favor of AT&T.
I. Background
On review of a district court's entry of summary
judgment, we view the record in the light most favorable to the
non-moving party, Felix Lahens, consistent with record support.1
Vélez-Ramírez v. Puerto Rico, 827 F.3d 154, 156 (1st Cir. 2016);
Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010).
The district court applied Local Rule 56(e), which permits 1
the court to "disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment," D.P.R.R. 56(e), to exclude Lahens' version of the facts here because Lahens failed to properly contest AT&T's statement of material fact. Accordingly our recitation does not include those additional, but excluded, facts. Furthermore, Lahens has waived any argument that the district court improperly applied Local Rule 56, because he raised this argument for the first time in his reply brief. United States v. Jurado-Nazario, 979 F.3d 60, 62 (1st Cir. 2020) ("[A]rguments raised for the first time in an appellate reply brief [are] ordinarily deemed waived." (alterations in Jurado-Nazario) (quoting United States v. Casey, 825 F.3d 1, 12 (1st Cir. 2016))). - 2 - A. The Parties
On March 4, 2013, at age fifty-seven, Felix Lahens began
working at DIRECTV as a Sales Training Manager. Lahens originally
applied for a position as a Sales Training Specialist, for which
he competed alongside Giancarlo Capelli. However, based on his
experience, DIRECTV instead hired Lahens as a higher-ranking Sales
Training Manager, which came with a larger salary and greater
benefits. DIRECTV hired Capelli as a Sales Training Specialist.
In May 2014, DIRECTV entered into a merger agreement with AT&T in
which DIRECTV became a wholly owned subsidiary of AT&T; however,
Lahens retained his position as Sales Training Manager.
As Sales Training Manager, Lahens was primarily
responsible for developing, administering, organizing, and
conducting employee training programs for DIRECTV's salesforce.
In this position, Lahens also supervised the Sales Training
Specialists, including Capelli and another employee, Wilfredo
Lugo. As an exempt employee, Sales Training Manager Lahens was
not required to record the number of hours he worked, nor to clock-
in and clock-out or use similar timekeeping methods. While
employed at AT&T, Lahens received periodic salary increases and
the Company never reduced his compensation and employee benefits.2
2There is no evidence on the record that Lahens' position, compensation, or benefits changed when DIRECTV merged with AT&T in 2014. - 3 - Beginning in December 2013, Lahens was supervised by
Senior Sales Manager, Madeline Cuestas. Upon Cuestas' resignation
in April 2015, AT&T's Sales and Marketing Executive Director,
Belkys Mata Mayor, temporarily supervised Lahens from April to May
2015. As a supervisor, Mata Mayor held staff meetings with her
direct reports. When employees in Mata Mayor's organization were
assigned to a special project, they were invited to attend the
part of the staff meeting where the assigned project would be
discussed.
In May 2015, AT&T's Senior Manager for Marketing and
Planning, Natcha Rodríguez Colón, began supervising Lahens.
Because Lahens no longer reported directly to Mata Mayor after
Rodríguez Colón became his supervisor, Lahens stopped attending
Mata Mayor's staff meetings in May 2015. Rodríguez Colón would
attend Mata Mayor's meetings and could relay pertinent information
to Mata Mayor regarding sales trainings. Even though Rodríguez
Colón was his official supervisor, Lahens continued to communicate
directly with Mata Mayor.
B. Felix Lahens' Liver Transplant and Medical Leave
In August 2015, Lahens learned that he needed a liver
transplant. After he applied for medical leave under Puerto Rico's
Non-Occupational Temporary Disability Benefits Act (SINOT), AT&T
granted Lahens medical leave from August 24, 2015, until August
- 4 - 30, 2016. Lahens underwent a successful liver transplant on
January 29, 2016.
C. Felix Lahens' Return from Medical Leave
On April 4, 2016, Lahens returned from medical leave and
was reinstated as Sales Training Manager with the same
compensation, benefits, and other terms and conditions of
employment that he had prior to going on medical leave. On July
26, 2016, Lahens submitted a request for reasonable accommodation,
asking for time off to attend medical appointments and checkups
related to his liver transplant. The next day, DIRECTV's Human
Resources Business Partner, Bárbara Bravo, informed Lahens that he
did not need a reasonable accommodation because he could perform
all essential functions of his job without one. As an exempt
employee, Lahens had the flexibility to determine his daily and
weekly work schedule and could accommodate his work schedule to
attend medical appointments and checkups without prior
authorization. At no point before or after his transplant was
Lahens disciplined for violating any attendance rules or policies.
D. The January 9, 2017, Meeting and Internal Complaint
In December 2016, Lahens presented the "Compass"
program, which he believed would improve DIRECTV's current
salesforce training program, to Mata Mayor and Rodríguez Colón.
Lahens held a meeting on January 9, 2017, with his supervisees,
Capelli and Lugo, to discuss 2017 sales training plans, including
- 5 - his "Compass" program. During the meeting, Lahens asked Capelli
and Lugo if he could include their names in his proposed
presentation of the "Compass" program. Capelli and Lugo declined
to endorse the proposed presentation because they had not
participated in its creation and it did not include their input.
The participants at the meeting dispute what happened
next. Capelli and Lugo said that Lahens slammed his laptop shut,
used profanity, and left the room, allegations Lahens denied. On
January 11, 2017, Capelli filed an internal complaint based on
Lahens' conduct at the January 9, 2017, meeting. AT&T Mobility's
Human Resources department ("HR") investigated the complaint and
interviewed Capelli and Lugo. Capelli and Lugo told HR their
version of how Lahens reacted after they informed him that they
were uncomfortable adding their names to the "Compass" program.
On February 23, 2017, as part of the investigation
related to Capelli's internal complaint, HR interviewed Lahens.
During the interview, Lahens admitted that after Capelli and Lugo
declined to include their names in the proposed presentation of
the Compass Program the meeting "got heated." Lahens did not
recall what he said while leaving the meeting but admitted that he
"got a little bit excited" and that he confronted Capelli in an
"excited tone, but not aggressive." After reviewing the
investigation findings, Rodríguez Colón issued a written warning
to Lahens on March 10, 2017, citing his unprofessional behavior
- 6 - during the January 9 meeting with Capelli and Lugo. The written
warning did not adversely impact Lahens' compensation, benefits,
or any other term or condition of his employment.
E. Felix Lahens' First Discrimination Complaint
On March 15, 2017, Lahens sent an e-mail to Angel Rijos,
Senior Lead Investigator of AT&T's Asset Protection Department,
voicing his concerns about the legality of including competitors'
logos, ads, and promotional materials in DIRECTV's sales training
materials. On March 21, 2017, Lahens filed an internal complaint
against Rodríguez Colón alleging that she had retaliated against
him for voicing his legal concerns. He also alleged that Rodríguez
Colón issued him a written warning on March 10, 2017, because of
his age and disability.
HR opened an investigation into Lahens' internal
complaint conducted by Sandra Moreno, who did not know Lahens. On
March 24, 2017, Moreno interviewed Lahens who complained that he
felt underappreciated in his position after returning from his
liver transplant, that he had been denied a reasonable
accommodation, and that he felt he had been unjustly issued a
written warning in retaliation for complaining of possible
copyright law violations in DIRECTV's training materials.
Upon concluding its investigation, HR determined Lahens
had not been disciplined as a result of illegal discrimination or
retaliation but had instead been issued a written warning on March
- 7 - 10, 2017, for becoming disruptive and using profanity during a
business meeting. Moreno thus concluded there was no evidence to
substantiate the allegations in Lahens' internal complaint.
Moreno communicated the results of the investigation to Lahens on
May 18, 2017.
F. AT&T Mobility's Reorganization
Prior to AT&T and DIRECTV's merger, DIRECTV hired London
Consulting to perform an efficiency assessment of its operations.
As part of the assessment, London Consulting recommended the
elimination of certain positions, including the Sales Training
Manager position.
Upon integrating AT&T and DIRECTV's operations, AT&T
adopted London Consulting's recommendations for DIRECTV and
decided that AT&T Mobility Retail Sales Consultants would sell
DIRECTV services in addition to AT&T products and services. AT&T
did not adopt DIRECTV's sales training program after the
integration. As a result, AT&T decided there was no longer a need
for an independent DIRECTV salesforce team to sell DIRECTV's
services at distinct points of sale or door-to-door at the
prospective clients' homes or offices. Consequently, AT&T
implemented a reduction in force which eliminated DIRECTV's
salesforce positions within Puerto Rico, effective December 2016.
With the elimination of DIRECTV's sales force positions, there was
no longer a need to develop, organize, or coordinate training
- 8 - programs exclusively to increase DIRECTV sales in Puerto Rico.
Furthermore, AT&T already had an internal training team
responsible for developing, coordinating, and providing sales
training programs to its pre-integration salesforce. Upon
integration, this team, not the DIRECTV sales training team, would
train AT&T's salesforce.
G. AT&T's Reduction in Force
In July 2017, AT&T announced a surplus reduction in force
("RIF") as a result of these post-integration changes. As part of
the RIF, AT&T designated a group of DIRECTV directors--the
"Decisional Unit"--which, together with the AT&T Mobility HR
Business Partner, Militza Piñero, would consider AT&T's post-
integration needs to determine which positions would become
redundant. The DIRECTV directors assigned to the Decisional Unit
were Ayme Román Garcia, Mata Mayor, and Brenda Ponte Hernandez.
Because AT&T eliminated DIRECTV's salesforce, opted to
no longer sell DIRECTV's prepaid services, consolidated AT&T and
DIRECTV retail locations, and already had a team in place to train
Retail Sales Consultants to sell DIRECTV's services, the
Decisional Unit adopted London Consulting's recommendation to
eliminate certain positions. Consequently, AT&T eliminated seven
positions, including Lahens' Sales Training Manager position.
Based on a HR note dated March 17, 2017, Lahens' position was on
AT&T's list for surplus elimination as early as spring 2017. This
- 9 - HR note forms one of the bases of Lahens' argument that AT&T's
stated reason for his dismissal was a pretext.
H. Felix Lahens' Termination and Second Internal Complaint
On July 31, 2017, Lahens received a surplus notification
letter from AT&T indicating that AT&T was eliminating his Sales
Training Manager position as part of the RIF. AT&T notified Lahens
that his last day of employment would be September 29, 2017, and
that he would be eligible to receive severance benefits under the
applicable severance plan if he signed and returned a General
Release and Waiver.
On August 14, 2017, Lahens filed a second internal
complaint alleging that AT&T's decision to terminate his
employment was motivated by Mata Mayor's alleged practice of
excluding Lahens because of his age and disability. HR
investigated Lahens' complaint and interviewed Lahens about his
allegations. On September 13, 2017, the complaint investigator,
Eliza Pérez, contacted Lahens to inform him that the investigation
was complete and revealed no evidence that AT&T eliminated his
position because of his age. HR found that AT&T based its surplus
decisions on categorical position elimination, not on age or any
other protected category.
Following the devastation of Hurricane Maria in Puerto
Rico, AT&T informed Lahens and other employees who were impacted
by the RIF that AT&T was extending their last day of employment
- 10 - from September 29, 2017, to December 30, 2017, and that they would
continue to receive their full salary and benefits until that day,
whether they reported to work or not. AT&T continued to pay Lahens
his full compensation and benefits until December 30, 2017, when
his employment termination became effective.
Finally, on March 1, 2019, well after Lahens'
termination, Capelli, who had previously occupied the Sales
Training Specialist position, was transferred to the Senior
Training Mgr/Instructor position. The Senior Training
Mgr/Instructor position is not the same as the Sales Training
Manager position at AT&T and lacks supervisory responsibilities.
I. The Discrimination Complaint
On March 27, 2018, Lahens filed a complaint with the
Antidiscrimination Unit of the Puerto Rico Department of Labor and
Human Resources ("ADU") alleging that AT&T discriminated against
him due to his age and disability. Lahens thereafter received a
right to sue letter on October 2, 2019, and filed a complaint in
the United States District Court for the District of Puerto Rico
on October 16, 2018. In the complaint Lahens alleged disability
discrimination under the ADA and age discrimination under the
ADEA.3
3 Lahens also proceeded with a retaliation claim under Title VII of the Civil Rights Act of 1964 and with alleged violations of 1 L.P.R.A. § 501 (Law 44); 29 L.P.R.A. § 146 (Law 100); 29 L.P.R.A. - 11 - On September 8, 2020, the district court4 granted summary
judgment in favor of AT&T and dismissed the complaint. Lahens v.
AT&T Mobility P.R., Inc., No. 18-1776(MEL), 2020 U.S. Dist. LEXIS
163861 (D.P.R. Sept. 8, 2020). The district court concluded that
all allegedly discriminatory acts predating May 31, 2017, were
time-barred.5 Id. at *31-33. The district court thereafter
concluded that Lahens failed to make out prima facie cases of
discrimination under either the ADA or ADEA and failed to show
that AT&T's stated reason for his termination was pretextual. Id.
at *38-59. The district court dismissed with prejudice Lahens'
federal claims (ADA, ADEA, and Title VII retaliation) and their
respective state counterparts (Puerto Rico Laws 44, 100, and 115).
Id. at *46, 59-60, 62-63, 65. The district court declined to
exercise supplemental jurisdiction over the Puerto Rico Article
1802 and Law 80 claims and dismissed them without prejudice. Id.
at 66.
§ 185a (Law 80); 28 L.P.R.A. § 194 (Law 115); and Article 1802 of the Puerto Rico Civil Code. 4 On March 13, 2019, the parties filed a consent to proceed
before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). 5 The district court found that Lahens filed an administrative
charge with the ADU on March 27, 2018, and that the 300-day period under 42 U.S.C. § 2000e-5(e)(1) allowed the capture of events from May 31, 2017, onward. Id. at 31-32 In addition, the district court also found there was "[n]o evidence or argument . . . proffered to demonstrate that the continuing violation doctrine applie[d] to this case." Id. at *31-36. Lahens has not challenged on appeal this part of the district court's ruling. - 12 - On September 25, 2020, AT&T filed a motion for
reconsideration requesting that the district court dismiss all
claims with prejudice. On December 17, 2020, the district court
granted AT&T's motion for reconsideration and dismissed with
prejudice the Puerto Rico Article 1802 and Law 80 claims. Lahens
v. AT&T Mobility P.R., Inc., No. 18-1776(MEL), 2020 U.S. Dist.
LEXIS 238974 (D.P.R. Dec. 17, 2020). Lahens appeals the district
court's grant of summary judgment, and district court's grant of
AT&T's motion for reconsideration on Lahens' Law 80 and Article
1802 claims.
II. Discussion
On a motion for summary judgment, the movant must
demonstrate that "there is no genuine dispute as to any material
fact" and is therefore "entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a); see also Murray v. Kindred Nursing Ctrs. W.
LLC, 789 F.3d 20, 25 (1st Cir. 2015). On appeal, we review a
district court's grant of summary judgment de novo, "drawing all
reasonable inferences in favor of the non-moving party while
ignoring conclusory allegations, improbable inferences, and
unsupported speculation." Pruco Life Ins. Co. v. Wilmington Trust
Co., 721 F.3d 1, 6-7 (1st Cir. 2013) (internal quotation marks
omitted) (quoting Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325
(1st Cir. 2009)). We may affirm the grant of summary judgment "on
any basis apparent in the record." Id. at 7.
- 13 - A. Time-Barred Claims
On appeal, Lahens did not challenge the district court's
conclusion that it could only consider allegedly discriminatory
acts post-dating May 31, 2017, in its summary judgment analysis
and at oral argument, Lahens' counsel confirmed that Lahens could
not recover for any discrimination occurring before May 31, 2017.
See Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003) ("[P]arties
are bound by their attorneys' representations . . . and courts are
entitled to take those representations at face value." (internal
citation omitted)). Lahens therefore has waived any argument that
his pre-May 31, 2017, claims are not time-barred. See United
States v. Mayendía-Blanco, 905 F.3d 26, 32 (1st Cir. 2018) ("[I]t
is a well-settled principle that arguments not raised by a party
in its opening brief are waived." (citing Landrau-Romero v. Banco
Popular de P.R., 212 F.3d 607, 616 (1st Cir. 2000))).
Despite this concession, on appeal, Lahens identifies
the following events as evidence of age and disability
discrimination: (1) his effective demotion from Sales Training
Manager to Sales Training Specialist upon his return from medical
leave in April 2016, after which he allegedly no longer supervised
Capelli and Lugo; (2) Mata Mayor's alleged refusal to supervise
Lahens after he returned from medical leave because of his age and
disability; (3) Mata Mayor's exclusion of Lahens from her
supervisory meetings due to his age and disability, beginning in
- 14 - 2015 when Lahens became aware of his medical condition; (4) AT&T's
refusal to grant a reasonable accommodation upon Lahens' return
from medical leave in 2016; (5) Mata Mayor's alleged decision to
fire Lahens which he claims occurred as early as March 2017; (6)
Mata Mayor's alleged strategic promotion of Capelli to protect him
from the RIF, thereby bypassing Lahens for the job; and (7)
Rodríguez Colón's alleged retaliation against Lahens for voicing
his concerns about copyright issues at AT&T. Each of these claims
is time-barred because the underlying conduct or events occurred
prior to May 31, 2017.
The elimination of the time-barred acts leaves as
Lahens' only potentially viable claim his contention that he was
terminated because of his age and disability. On July 31, 2017,
AT&T notified Lahens that his position was to be eliminated
effective September 29, 2017, although he was not officially
terminated until December 30, 2017, meaning that his termination
took place within the statute of limitations.
B. ADEA Claim
Pursuant to the ADEA, an employer may not "discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." Suarez v. Pueblo
Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000) (quoting 29 U.S.C.
§ 623(a)(1)). The plaintiff bears the "burden of proving that his
- 15 - years were the determinative factor in his discharge, that is,
that he would not have been fired but for his age." Dávila v.
Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 15 (1st
Cir. 2007) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823
(1st Cir. 1991)). When "an employee lacks direct evidence that
the employer's actions were motivated by age animus, the McDonnell
Douglas burden-shifting framework" applies. Suarez, 229 F.3d at
53 (citing Mesnick, 950 F.2d at 823).
Under step-one of this framework, the plaintiff must
establish a prima facie case of age discrimination. Mesnick, 950
F.2d at 823 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). To do so, the plaintiff must prove: "(i) he was
at least forty years old at the time of his termination; (ii) he
was meeting the employer's legitimate performance expectations;
(iii) he was terminated from his employment; and (iv) 'the employer
did not treat age neutrally or that younger persons were retained
in the same position.'" Zampierollo-Rheinfeldt v. Ingersoll-Rand
de P.R., Inc., 999 F.3d 37, 50 (1st Cir. 2021) (quoting LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993)). The
plaintiff's prima facie burden is "not onerous." Mesnick, 950
F.2d at 823 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981)).
The burden then shifts to the employer to show "a
legitimate, non-discriminatory reason" for the adverse employment
- 16 - action. Zampierollo-Rheinfeldt, 999 F.3d at 51 (internal
quotation marks omitted) (quoting Theidon v. Harvard Univ., 948
F.3d 477, 495 (1st Cir. 2020)). Assuming the employer meets this
burden of production, the burden of persuasion shifts back to the
employee "to show, by a preponderance of the evidence, that the
reason offered by the employer is merely a pretext and the real
motivation for the adverse job action was age discrimination."
Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir.
2007) (citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091-92
(1st Cir. 1995)).
We conclude that Lahens has failed to establish a triable
issue of fact on his ADEA claim. Lahens may have met the "not
onerous" burden of showing a prima facie case of age discrimination
because five out of seven employees terminated in the RIF were at
least forty years old. See Zampierollo-Rheinfeldt, 999 F.3d at 57
(concluding that summary judgment was inappropriate where three
out of four employees terminated in a RIF were at least forty years
old and there was direct evidence of discrimination); but see
LeBlanc, 6 F.3d at 844 (holding that the plaintiff did not make
out a prima facie age discrimination case where two out of three
employees terminated in a RIF were members of a protected class).
But we need not decide this issue because Lahens did not
demonstrate that AT&T's stated reason for his termination was a
pretext.
- 17 - i. Pretext
When analyzing pretext under the ADEA we "focus . . . on
the perception of the decisionmaker." Mesnick, 950 F.2d at 824
(quoting Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 256
(1st Cir. 1986)). In other words, we assess "whether the employer
believed its stated reason [for termination] to be credible." Id.
The plaintiff must therefore "elucidate specific facts which would
enable a jury 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)). A plaintiff may
establish pretext "by showing 'such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions' in the
employer's offered reasons for the termination 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.'" Bonefont-Igaravidez v. Int'l Shipping
Corp., 659 F.3d 120, 124 (1st Cir. 2011) (quoting Gómez-González
v. Rural Opportunities, Inc., 626 F.3d 654, 662-63 (1st Cir.
2010)).
To show pretext, Lahens points to a HR personnel entry
dated March 17, 2017, referencing a meeting between members of
AT&T's HR Department and AT&T's legal team where they discussed
Lahens' March 17, 2017, email to Rijos about potential copyright
- 18 - violations in the Company's training materials. This HR note
states that Lahens' position had been earmarked for elimination in
the RIF, which he argues is evidence that AT&T's justification for
terminating his position was merely pretextual. Lahens further
argues pretext based on allegations that Mata Mayor "distanced
herself from [him]," excluded him from upper management staff
meetings, while including Capelli in those meetings, and saved
Capelli's position from termination.
We cannot consider these allegations in our analysis on
this point. Arguments that Mata Mayor distanced herself from
Lahens, excluded him from meetings, and saved Capelli's position
from termination are time-barred because the alleged conduct
occurred prior to May 31, 2017.
Lahens' only remaining potentially viable claim—that he
was terminated because of his age—is without merit as none of the
facts alleged could lead a reasonable factfinder to conclude that
the RIF was not only a sham, but a sham designed to cover up
discrimination. From our reading of the record, DIRECTV
contemplated reducing its operations as early as 2015, when it
retained London Consulting to perform an efficiency assessment of
its operations, which AT&T later adopted in the merger. London
Consulting thereafter recommended that DIRECTV, and later, AT&T,
eliminate the Sales Training Manager position nationwide. This
recommendation was based on how AT&T would integrate DIRECTV's
- 19 - services. When AT&T and DIRECTV merged, AT&T eliminated the
DIRECTV sales training program but retained its own sales team.
The Decisional Unit responsible for making final RIF decisions,
which included Mata Mayor and several other directors,6 thereafter
adopted London Consulting's recommendation to eliminate multiple
positions, including Lahens' position.
Importantly, the Decisional Unit acted pursuant to
London Consulting's recommendations. There is nothing in the
record suggesting that Lahens' termination was anything but a
legitimate business decision consistent with the recommendations
of an outside consultant. See Dunn v. Trs. of Bos., 761 F.3d 63,
71-72 (1st Cir. 2014)(stating that "in deciding which employees to
lay off, an employer can 'determine which of [them] would best
meet its ongoing business needs,' including by considering their
'particular expertise'" (quoting Sullivan v. Liberty Mut. Ins.
Co., 825 N.E.2d 522, 538 (Mass. 2005))). While Lahens may perceive
6 Mata Mayor was a member of the Decisional Unit, however, Lahens fails to present evidence that she was in charge of the Decision Unit, or that it was solely her decision to terminate his position. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007) ("When assessing a claim of pretext in an employment discrimination case, an inquiring court must focus on the motivations and perceptions of the actual decisionmaker." (citing Dávila, 498 F.3d at 16)). Nor does Lahens allege that other members of the Decisional Unit were biased against him in any way. See id. (holding that the termination of an employee was not pretextual when there was no evidence of complicity between the actual decisionmaker and another supervisor shown to have discriminatory animus). - 20 - the result as "unfair," it is well established that we "may not
sit as super personnel departments, assessing the merits--or even
the rationality--of employers' nondiscriminatory business
decisions." Mesnick, 950 F.2d at 825 (citing Furnco Const. Corp.
v. Waters, 438 U.S. 567, 578 (1978)). The record reflects non-
pretextual grounds for a reasoned business decision, and in
following London Consulting's recommendations, the record does not
support the conclusion that the Decisional Unit terminated Lahens
for anything other than credible business justifications. See
Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007)
("[T]he plaintiff must show that the decisionmaker did not believe
in the accuracy of the reason given.").
Nor is the March 17, 2017, HR note suggesting that AT&T
decided to terminate Lahens' position as early as March 2017 of
"such strength and quality as to permit a reasonable finding that
the . . . [termination] was obviously or manifestly unsupported."
Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir.
1997) (alterations and emphasis in Ruiz) (quoting Brown v. Trs. of
Bos. Univ., 891 F.2d 337, 346 (1st Cir. 1989)). The March 2017 HR
note states: "Ana then brought up as an FYI that [Lahens] is on
the list for an upcoming surplus because his position is being
eliminated. Zahira stated that at this time that [we] should
proceed as business as usual." This statement makes no reference
to Lahens' age and is consistent with other evidence on the record
- 21 - that Lahens' position was eliminated because of the post-
integration surplus.7 Looking at the March 2017 HR note, no
reasonable juror would be able to conclude that Lahens was
terminated because of his age and not because of the RIF.
What is more, AT&T implemented the RIF evenhandedly and
eliminated surplus positions without regard to the age of any
employee. Along with Lahens' position, AT&T eliminated the
following positions: Associate Tech Network Services (age 39),
Lead Public Relations Manager (age 44), Post-Venta Prepago
Coordinator (age 40), Sales Merchandise Supervisor (age 40), and
Trade Marketing Specialist (age 39). All these individuals were
younger than Lahens (and two were under the ADEA's forty-year-old
threshold), which further confirms that AT&T did not base RIF
decisions on age and Lahens was not singled out for discriminatory
reasons. See Brader v. Biogen Inc., 983 F.3d 39, 57 (1st Cir.
2020) (holding that evidence that the employer also terminated
other employees as part of a reduction in force and new business
strategy weighs against a finding of pretext); Suarez, 229 F.3d at
55 (concluding that plaintiff had not alleged discrimination where
"changes were administered even-handedly" to similarly situated
This note further contradicts Lahens' argument that it was 7
Mata Mayor's decision, in particular, to terminate him as early as March 2017. The note makes no reference to Mata Mayor's involvement in the surplus decision. - 22 - individuals). Nor is there any suggestion that Lahens was offered
a different severance package than other terminated employees.
The district court correctly determined that there was
no genuine dispute that AT&T's non-discriminatory justification
for terminating Lahens was not pretextual.
C. ADA Claim
Lahens' ADA claim fails for similar reasons.8 To succeed
in an ADA claim absent direct evidence of discrimination, a
plaintiff must make out a prima facie case of disability
discrimination and, under the McDonnell Douglas burden shifting
framework, show that the employer's non-discriminatory reason for
dismissal was pretextual. Ramos-Echevarría v. Pichis, Inc., 659
F.3d 182, 186-87 (1st Cir. 2011). Raising the same arguments he
brought in his ADEA claim, Lahens fails to present evidence that
raises a genuine dispute as to whether the RIF was merely a pretext
for dismissing him because of his liver transplant. We affirm the
district court's grant of summary judgment on Lahens' ADA claim
for the same reasons we affirm the district court's grant of
summary judgment on his ADEA claim: the record simply does not
support his disability discrimination claim.
8 All of the facts underpinning Lahens' ADA claim, all but his termination, that is, are time-barred: Lahens made his request for reasonable accommodation on July 26, 2016, and was denied on July 27, 2016. Both the request and denial predated May 31, 2017. - 23 - D. Commonwealth Law Claims
Lahens argues that the district court erred in
dismissing his Puerto Rico law claims with prejudice. At oral
argument Lahens stated that a favorable appellate outcome would
necessarily revive his Commonwealth claims that the district court
dismissed with prejudice in its order granting summary judgment
and its order granting AT&T's motion for reconsideration. We
disagree.
Law 44 and Law 100 are the Puerto Rico law analogues of
the ADA and ADEA, respectively, and require the same elements of
proof. See, e.g., Torres v. House of Representatives of the
Commonwealth of P.R., 858 F. Supp.2d 172, 194 (D.P.R. 2012) ("[Law
44] was modeled after the ADA. It was intended to harmonize Puerto
Rico law with the federal statutory provisions of the ADA. Thus,
the elements of proof for a claim under Law 44 are essentially the
same as for a claim under the ADA." (internal citations omitted));
Varela Teron v. Banco Santander de P.R., 257 F. Supp. 2d 454, 462
(D.P.R. 2003) ("Law No. 100 is the Puerto Rico equivalent of the
federal ADEA."). To the extent that Lahens has failed to make out
valid ADA and ADEA claims, he similarly cannot succeed on his Law
44 and Law 100 claims.
Our analysis of Lahens' ADA and ADEA claims similarly
dispenses with his Law 115 claim, which is the Puerto Rico
equivalent of Title VII's antiretaliation provision. See Wirshing
- 24 - v. Banco Santander de P.R., 254 F. Supp. 3d 271, 277 (D.P.R. 2015).
Because Lahens failed to meet his burden of showing that AT&T's
stated reason for his dismissal was pretextual he cannot
successfully allege that he was retaliated against in violation of
Law 115. See Salgado-Candelario v. Ericsson Caribbean, Inc., 614
F. Supp. 2d 151, 177 (D.P.R. 2008) ("Inasmuch as plaintiff has
failed to make [a showing that the alleged reason for her
termination was a pretext], plaintiff's retaliation claim under
Law 115 fails.").
Similarly, under Law 80, Puerto Rico's wrongful
discharge statute, a plaintiff who cannot meet his burden to show
pretext under the McDonnell Douglas framework cannot make out a
claim for wrongful discharge under Law 80 because the employer has
"good cause" for the termination. See Acevedo v. Stericycle of
P.R., Inc., No. 19-1652 (JAG), 2020 U.S. Dist. LEXIS 39720, at *12
(D.P.R. Mar. 6, 2020) ("[A]n employer's legitimate,
nondiscriminatory reason proffered to sustain its burden under the
McDonnell Douglas framework constitute[s] good cause under Law No.
80." (citing Sanchez Borgos v. Venegas Constr. Corp., No. 07-
1592(SEC), 2009 U.S. Dist. LEXIS 28180, at *20 (D.P.R. Mar. 31,
2009))); Sanchez Borgos, 2009 U.S. Dist. LEXIS 28180, at *20
("These economic reasons [resulting in a reduction in force and a
reduction in operations] are understandable, and constitute good
cause both under ADEA, Law 115, and Law 80.").
- 25 - Given the outcome of this appeal, our analysis above
disposes with Lahens' Law 80 claim.
Finally, to the extent that Lahens appeals his Article
1802 claim, we deem it waived. Unlike the Law 44, 80, 100, and
115 claims, the district court's dismissal with prejudice of the
Article 1802 claim did not rest on the coterminous merits of the
federal claims. Instead, the district court ruled that Lahens
could not proceed with an Article 1802 claim grounded on the same
facts underpinning his statutory employment claims and, therefore,
the statutory claims superseded his Article 1802 claim. On this
point, Lahens may not rely on appeal on the coterminous federal
statutory employment arguments because the issues presented by the
Article 1802 claim are not coterminous with the federal issues.
Lahens failed to mention a basis for challenging the
district court's ruling that the employment statutes superseded
his Article 1802 claim. Specifically, Lahens provides no
supporting argument that the district court improperly barred his
Article 1802 claim or that AT&T committed tortious conduct separate
from his employment claims and therefore waives this issue on
appeal. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that it is a "settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").
- 26 - III. Conclusion
Affirmed. Each party is to bear its own litigation
costs.
- 27 -