United States Court of Appeals For the First Circuit No. 23-1744
ERASTO ROMÁN MERCADO,
Plaintiff, Appellant,
v.
HYANNIS AIR SERVICE, INC., d/b/a Cape Air/Nantucket Airlines,
Defendant, Appellee,
TEXTRON AVIATION INC.; CAPE AIR CORP.; NANTUCKET AIRLINES, A,B,C INSURANCE COMPANIES,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. District Judge]
Before
Gelpí, Lipez, and Rikelman, Circuit Judges.
Eugenio W.A. Géigel-Simounet, with whom GS Law Offices P.C. was on brief, for appellant.
Tatiana Leal González, with whom Juan Felipe Santos, Ana B. Rosado-Frontanés, and Jackson Lewis LLC, were on brief, for appellee.
September 22, 2025 GELPÍ, Circuit Judge. About five months after he began
receiving treatment for a work-related injury, Plaintiff-Appellant
Erasto Román Mercado ("Román") received a letter from his employer,
Defendant-Appellee Hyannis Air Service Inc. ("Cape Air"),
informing him that he was terminated from his job as a cross train
agent.1 Román sued Cape Air in the U.S. District Court for the
District of Puerto Rico, alleging various state and federal claims.
The district court disposed of all of them -- some at the motion
to dismiss and others at the summary judgment stage.
In this appeal, Román challenges only the district
court's summary judgment ruling as to his retaliation claim under
Puerto Rico's Whistle-Blower Act, P.R. Laws Ann. Tit. 29 § 194
("Law 115"). We are hence called upon to determine whether a jury
should be the one who determines if Cape Air's reasons for Román's
termination were pretextual, and, ultimately, whether Cape Air
retaliated against him under Law 115. While the district court
believed that the issue should be resolved at the summary judgment
stage -- and so ruled -- we, however, see it differently. We thus
vacate the district court's entry of summary judgment as to Román's
Law 115 claim and remand for further proceedings.
1 A cross train agent at Cape Air performs a multifaceted role that involves customer service, operations, and ramp duties.
- 2 - I. BACKGROUND
A. Facts
Cape Air is an airline company headquartered in Hyannis,
Massachusetts. Among other locations across the continental
United States, Cape Air provides services in the Caribbean,
including Vieques, San Juan, and Mayagüez, Puerto Rico. In 2005,
Román began working for Cape Air as a cross train agent in the
Mayagüez station. He was one of three agents who were responsible
for, among other things, operations, checking in passengers,
working the counters, and working the ramp. Over a decade after
beginning his tenure with Cape Air, however, Román's employment
with the company took an unexpected turn.
On April 16, 2017, when, during a shift, Román opened
the top portion of the passengers' cabin door of the airplane to
let a customer disembark, the door's support suddenly unhinged,
hitting Román's forehead with significant force. Pilot Alberto
Espinosa, who was present when the incident occurred, filed a
"Flight Crew Analyst Incident Report" ("Form 3590"), which stated:
Maintenance NEED to do their job! The airplane's cabin door was worked on two days prior to the incident. After close inspection, I noticed that they forgot to install the locking safety clips on both the top and bottom strut sockets. It was just a matter of time before one popped off and let the door fall on someone, even a passenger.
Soon after the incident, Román alerted his
then-supervisor of what had transpired. Román nonetheless
- 3 - continued working until the end of his shift and then drove himself
to a nearby hospital where, after being evaluated, he was diagnosed
with unspecified superficial injury to the skull. Sometime later,
Román asked Cape Air for the incident report to seek medical
treatment with Puerto Rico's workers' compensation system: the
State Insurance Fund ("the Fund"). Cape Air, however, neither
gave him the report nor informed him that the same was necessary
to seek treatment from the Fund.2 Instead, Cape Air told him to
use his personal insurance. As a result, Román did not immediately
seek help at the Fund.3
Six months after the incident, on October 21, 2017,
Román went to the emergency room at a nearby hospital, where he
underwent an examination.4 Then over a year later, on November 29,
2018 -- after experiencing neck pain and numbness in his hands for
several months -- Román sought medical treatment. The
chiropractor ordered him to undergo a cervical magnetic resonance
2 While Cape Air did not file a Work Accident Report with the Fund immediately after the incident, it eventually did so in March 2019, upon discovering that it had never been filed with the Fund. Cape Air amended the report on May 23, 2019, to correct the case number. Cape Air admitted that the report should have been filed in 2017, right after Román's accident -- that is, almost two years earlier. 3 Román's supervisors never instructed him to avoid reporting
to the Fund, nor did they impose disciplinary actions or suggest that seeking medical treatment from the Fund would alter the terms of his employment. 4 After the examination, Román was referred to a neurological
evaluation.
- 4 - imaging ("MRI"), which showed that Román had C6-C7 stenosis, a
condition associated with pain and numbness. Román also visited
a physician on November 30, 2018, who referred Román to the Fund.
On that same date, Román reported to the Fund and began receiving
treatment.
Because Román could not continue working at the time,
Cape Air placed him on leave on December 5, 2018, under the Family
and Medical Leave Act ("FMLA"). The leave was set to expire on
February 27, 2019. From December 2018 to February 2019, Fund
personnel examined Román five times and placed him on rest until
February 13, 2019. About a week before his rest period ended,
however, Román had neck surgery. As a result, Fund personnel
examined him again on February 13, March 17, and April 29, 2019,
ultimately placing him on rest until June 12, 2019, with a
return-to-work date of June 13, 2019.
Meanwhile, at the time Román was receiving treatment at
the Fund, he informed Supervisor José Calo ("Calo") on April 29,
2019, that he would begin physical therapy in June 2019. The next
day, Calo emailed Elizabeth Kennelly ("Kennelly"), Cape Air's
Director of Benefits, stating his intention to have lunch with
Román at the end of the week. Calo intended to inform Román during
the lunch meeting that his employment with Cape Air would be
terminated. But the lunch meeting did not materialize. So, on
June 10, 2019, Kennelly sent Román a termination letter
- 5 - retroactively effective as of May 21, 2019: "You have failed to
keep us informed of your status. We made several attempts to
contact you via telephone, email and text and we have had no
response from you. This letter is to inform you that effective
5/21/2019, your employment with Cape Air is terminated."
At the time Kennelly sent the termination letter, she
knew that Román was receiving treatment with the Fund and that he
was to be on rest until June 12, 2019. It is undisputed that from
the time Román first reported to the Fund on November 30, 2018, to
the time Cape Air terminated him on May 21, 2019, Román could not
exercise his functions as a cross train agent for Cape Air.5
B. Procedural History
Román sued Cape Air and others6 in the U.S. District
Court for the District of Puerto Rico, alleging a slew of claims
under state and federal law, including the retaliation claim under
Law 115.7 The district court dismissed his claims, some for failure
5 Román's rest period was ultimately extended until July 23, 2020. Though Román also brought a cause of action against A,B,C 6
Insurance Companies and Textron Aviation Inc, the claims against them are not at issue in this appeal. 7 Román brought claims against defendants under (1) the Americans with Disabilities Act, 42 U.S.C. § 12101; (2) the FMLA, 29 U.S.C. § 2601; (3) the Federal Aviation Act of 1958, 42 U.S.C. § 101; (4) the Occupational Safety and Health Act, 29 U.S.C. § 651; (5) 42 U.S.C. §§ 1983 and 1985; (6) Puerto Rico Law 100 of June 30, 1959, P.R. Laws Ann. Tit. 29 § 146; (7) Puerto Rico Law 80 of May 30, 1976, P.R. Laws Ann. Tit. 29 § 185a ("Law 80"); (8) Puerto Rico's workers' compensation statute, Law 45 of April 18, 1935, as amended, P.R. Laws Ann. Tit. 11 § 1; and (9) Articles 1802 and
- 6 - to state a claim, and the remainder at the summary judgment stage.
On appeal, Román challenges only the district court's summary
judgment dismissal of his retaliation claim under Law 115,
contending that Cape Air fired him because he reported to the Fund:
a protected activity under Puerto Rico law.
The district court entered summary judgment as to
Román's retaliation claim under Law 115 on the ground that he
failed to establish causation. It concluded that the five-month
time span between Román's protected conduct (the initial report to
the Fund) and Cape Air's adverse action (dismissing Román from his
employment) was too lengthy to establish the requisite causal
connection. Relying on Calero-Cerezo v. United States Department
of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004), and Colburn v.
Parker Hannifin/Nichols Portland Division, 429 F.3d 325, 337-38
(1st Cir. 2005), the district court held that our precedent
foreclosed a finding of causation.
The district court alternatively concluded that, even if
Román had proven causation, his Law 115 claim still would falter
because Cape Air's proffered reasons for discharging him did not
appear to be pretextual. Román timely appealed.
1803 of the Puerto Rico Civil Code, P.R. Laws Ann. Tit. 31 §§ 5141 and 5142.
- 7 - II. DISCUSSION
A. Standard of Review
We review de novo a district court's order granting a
motion for summary judgment. Colburn, 429 F.3d at 329-30. In
doing so, we examine "the record in the light most favorable to
the nonmovant[,] . . . drawing all reasonable inferences in that
party's favor." Quintana-Dieppa v. Dep't of the Army, 130 F.4th
1, 7 (1st Cir. 2025) (quoting Dusel v. Factory Mut. Ins., 52 F.4th
495, 502-03 (1st Cir. 2022)).
To prevail on a motion for summary judgment, the moving
party "must demonstrate that 'there is no genuine dispute as to
any material fact' and that it 'is entitled to judgment as a matter
of law.'" Dusel, 52 F.4th at 503 (quoting Murray v. Kinder Nursing
Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015)). "Facts are material
when they have the 'potential to affect the outcome of the suit
under the applicable law.'" Cherkaoui v. City of Quincy, 877 F.3d
14, 23 (1st Cir. 2017) (quoting Sánchez v. Alvarado, 101 F.3d 223,
227 (1st Cir. 1996)). And disputes are "genuine when the evidence
is such 'that a reasonable jury could resolve the point in favor
of the nonmoving party.'" Quintana-Dieppa, 130 F.4th at 7 (quoting
Doe v. Trs. of Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018)).
But "the decisive criterion on a summary judgment motion
is not a comparative one." Greenburg v. P.R. Mar. Shipping Auth.,
835 F.2d 932, 936 (1st Cir. 1987). The rule governing summary
- 8 - judgment, Federal Rule of Civil Procedure 56, "does not ask which
party's evidence is more plentiful, or better credentialled, or
stronger." Id. "Rather, the rule contemplates an abecedarian,
almost one dimensional, exercise geared to determining whether the
nonmovant's most favorable evidence and the most flattering
inferences which can reasonably be drawn therefrom are sufficient
to create any authentic question of material fact." Id.
Defeating a motion for summary judgment in a retaliation
case does not require the plaintiff to "prove retaliation by a
preponderance of the evidence." Planadeball v. Wyndham Vacation
Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015). Indeed, summary
judgment has "no room for credibility determinations, no room for
the measured weighing of conflicting evidence such as the trial
process entails, no room for the judge to superimpose his own ideas
of probability and likelihood (no matter how reasonable those ideas
may be) upon the carapace of the cold record." Greenburg, 835
F.2d at 936. "All a plaintiff has to do is raise a genuine issue
of fact as to whether retaliation motivated the adverse employment
action." Planadeball, 793 F.3d at 175 (citation modified). If
so, the plaintiff is entitled to have the claim heard by a jury of
peers. We now turn to the merits of Román's claim.
B. The Law 115 Retaliation Claim
Román argues that the district court erred in granting
Cape Air's motion for summary judgment on his Law 115 retaliation
- 9 - claim because genuine issues of material fact exist regarding the
reason for the termination. In so claiming, Román advances three
contentions: first, that the district court erroneously held that
he failed to establish a causal connection between his reporting
to the Fund and his termination; second, that the district court
erred in concluding that he did not show that his dismissal was
pretextual; and third, that the district court misapplied the
summary judgment mechanism.
Law 115 prohibits employers from discharging,
threatening, or discriminating against an employee who offers,
among other things, any "information before a legislative,
administrative, or judicial forum in Puerto Rico." P.R. Laws Ann.
Tit. 29, § 194a(a). That statutory proscription extends, as
interpreted by the Puerto Rico Supreme Court, to an employer's
retaliation premised upon an employee seeking benefits with the
Fund. See Santana-Colón v. Houghton Mifflin Harcourt Publ'g Co.,
81 F. Supp. 3d 129, 136 (D.P.R. 2014) (citing Feliciano Martes v.
Sheraton, 2011 PRSC 97). To prevail on such a retaliation claim,
the plaintiff must first establish -- "through direct or
circumstantial evidence" -- the prima facie case. P.R. Laws Ann.
Tit. 29, § 194a(c). This requires the plaintiff to show that
(1) he participated in a protected activity; (2) the employer took
adverse employment action against him; and (3) there was a causal
connection between the protected activity and the adverse
- 10 - employment action. See P.R. Laws Ann. Tit. 29, § 194a(c); see
also Santana-Colón, 81 F. Supp. 3d at 136. Once the plaintiff
meets that burden, the employer must provide a "non-discriminatory
legitimate reason for the discharge." P.R. Laws Ann. Tit. 29,
§ 194a(c). If the employer provides a legitimate reason, then the
burden shifts back to the plaintiff to "demonstrate that the
alleged reason provided by the employer was a mere pretext for the
discharge." Id.
Law 115's statutorily enacted burden-shifting approach
espouses the same principles as the familiar McDonnell Douglas
framework, which federal courts employ to evaluate Title VII
retaliation claims. See generally McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 793 (1973); see also Calero-Cerezo, 355 F.3d
at 26 (stating that if the plaintiff establishes "a prima facie
showing of retaliation, the McDonnell Douglas burden-shifting
approach is employed, and defendant must articulate a legitimate,
non-retaliatory reason for its employment decision," and "if the
defendant meets this burden, the plaintiff must [then] show that
the proffered legitimate reason is in fact a pretext"). This is
so because "[a]ny law or regulation of Puerto Rico that regulates
employer-employee relationships and that refers to an issue that
is similar to an issue regulated by an act of the United States
Congress . . . [must] be interpreted consistently with said
federal regulations, unless the Puerto Rico law expressly requires
- 11 - a different interpretation." P.R. Laws Ann. Tit. 29, § 122l. And
thus, "[w]hen applying the provisions of any discrimination or
retaliation in the workplace law, the provisions of federal
legislation and regulations as well as the judicial
interpretations thereof of courts with jurisdiction in Puerto Rico
shall be recognized, in order to ensure consistency in
interpretations." P.R. Laws Ann. Tit. 29, § 123a.
To that end, "federal courts have consistently treated
a claim under Law 115 the same as a claim pursuant to Title VII's
antiretaliation provision." Rivera-Rivera v. Medina & Medina,
Inc., 898 F.3d 77, 98 (1st Cir. 2018) (citation modified); see
also Rodríguez-Severino v. UTC Aerospace Sys., 52 F.4th 448, 465
(1st Cir. 2022) ("Substantively, Title VII antiretaliation law and
the antiretaliation provisions under Puerto Rico Law 115 largely
overlap."). Accordingly, in determining whether a plaintiff has
established a prima facie case and demonstrated that the employer's
reasons in taking the adverse action against him were pretextual
under Law 115, we look for guidance in our body of cases
interpreting Title VII's antiretaliation provision. See id.
Here, the parties do not dispute the first two elements
of the retaliation prima facie case: that Román engaged in
protected conduct and that Cape Air took adverse employment action
against him. What the parties do dispute, however, is whether
Román brought forth evidence of causation.
- 12 - Cape Air argues that Román's claims fail at the summary
judgment stage because he did not establish a causal connection
between his protected activity (reporting to the Fund) and the
adverse action (the termination), which occurred five months
later. In Cape Air's view, the five-month time gap is not
sufficient to establish a temporal connection. And, in the
alternative, Cape Air contends that Román's case independently
fails because he did not demonstrate that Cape Air's reasons for
the termination were pretextual.8 Cape Air maintains that Román's
inability to return to work after exhausting his FMLA leave as
well as the need to have a third cross train agent to run the
operations were legitimate justifications to discharge him, which
he, in turn, could not rebut. On these grounds, Cape Air posits
that Román's failure to prove causation and pretext warrants
affirmance of the district court's entry of summary judgment.
8 Cape Air also argues that Román's failure to appeal the district court's dismissal of his wrongful discharge claim under Law 80, the statute governing wrongful termination claims, precludes a finding of retaliation under Law 115 -- the statute governing retaliation claims. But we disagree. While Román does not challenge the district court's finding that he has not shown pretext in the context of his Law 80 claim, he does challenge that finding in the context of his Law 115 claim. We therefore do not see how he waived his challenge to the district court's pretext determination. Of course, because Román has not appealed the dismissal of his Law 80 claim, our holding here is necessarily limited to his Law 115 claim. That is, the district court's conclusion that Román is not entitled to proceed to a jury on his Law 80 claims remains undisturbed.
- 13 - Close temporal proximity between the protected conduct
and the adverse employment action may suffice at the prima facie
stage to evidence causation between the protected activity and the
adverse action. See Stratton v. Bentley Univ., 113 F.4th 25, 45
(1st Cir. 2024); see also Kinzer v. Whole Foods Mkt., Inc., 99
F.4th 105, 117 (1st Cir. 2024) (noting that the timing of the
"termination alone is sufficient to meet the relatively light
burden of establishing a prima facie case of retaliation" (citation
modified)). But those "cases that accept mere temporal
proximity . . . as sufficient evidence of causality to establish
a prima facie case uniformly hold that the temporal proximity must
be 'very close.'" Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (citation omitted). And when relying solely on
temporal proximity, we have found that a lapse of four months
between the protected conduct and the adverse employment action
does not constitute the "very close" time frame required to
establish causation. See Colburn, 429 F.3d at 338 (concluding
that no retaliatory motive may be inferred because the plaintiff
was terminated almost four months after engaging in the protected
conduct). So, because Román was terminated five months after he
reported to the Fund, Cape Air argues that close temporal proximity
is absent here and, therefore, Román cannot establish his prima
face case.
- 14 - Although close temporal proximity alone between the
protected conduct and the adverse employment action may, at times,
suffice to prove causation between the two events, a plaintiff
need not always demonstrate close temporal proximity to
demonstrate the nexus. We have explained that "[t]emporal
proximity is [only] one factor from which an employer's bad motive
can be inferred." Stratton, 113 F.4th at 49 (quoting Carrero-Ojeda
v. Autoridad De Energía Eléctrica, 755 F.3d 711, 720 (1st Cir.
2014)). In other words, temporal proximity is not the only way to
prove causation. Indeed, a "plaintiff can still succeed on a
retaliation claim despite a lack of proximity" between the
protected conduct and the adverse action. Soni v. Wespiser, 404
F. Supp. 3d 323, 333 (D. Mass 2019). "So long as the plaintiff
can link the adverse action to the protected activity sufficient
to create an inference to support a causal connection, the passage
of time in and of itself is not fatal to his or her retaliation
claim." Saxena v. Univ. of Mass. Med. Sch., 442 F. Supp. 3d 395,
404 (D. Mass 2020).9 The district court legally erred in treating
9Consider the implications if close temporal proximity becomes the sole condition for demonstrating causation. Under such a rule, an employer's retaliatory conduct becomes immune from antiretaliation suit merely because of the passage of time. If, for instance, an employer wants to retaliate against an employee who engaged in a protected activity, the employer may simply wait four or five months before taking adverse employment action against the employee, thereby frustrating the purpose of the antiretaliation statute.
- 15 - the temporal proximity factor as a necessary condition of
establishing causation.
Nothing in the summary judgment record before us
establishes that Román seeks to prove causation only through
temporal proximity between reporting to the Fund and Cape Air's
decision to fire him. In fact, Román admits that there was no
close temporal proximity between the two events.
When the plaintiff does not rely on mere temporal
proximity alone to establish causation, we may consider, as have
other circuits, "the circumstances as a whole, including any
intervening antagonism by the employer, inconsistencies in the
reasons the employer gives for its adverse action, and any other
evidence suggesting that the employer had a retaliatory animus
when taking the adverse action." Kengerski v. Harper, 6 F.4th
531, 542 n.9 (3d Cir. 2021) (quoting Daniels v. Sch. Dis. Of
Phila., 776 F.3d 181, 196 (3d Cir. 2015)); see Adebiyi v. S.
Suburban Coll., 98 F.4th 886, 892 (7th Cir. 2024) ("Relevant
circumstantial evidence [of causation] may include 'suspicious
timing, ambiguous statements of animus, evidence other employees
were treated differently, or evidence the employer's proffered
reason for the adverse action was pretextual.'" (citation
omitted); Kwan v. Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir.
2013) ("A plaintiff may prove that retaliation was a but-for cause
of an adverse employment action by demonstrating weaknesses,
- 16 - implausibilities, inconsistencies, or contradictions in the
employer's proffered legitimate, nonretaliatory reasons for its
action."); Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38
(1st Cir. 2003) (describing the various ways in which a plaintiff
may establish causation other than pointing to temporal
proximity). Thus, Cape Air's decision to fire Román from his job
five months after he reported to the Fund is not in and of itself
fatal to his retaliation claim.
Now, once an employee established the prima facie case,
the burden then shifts to the employer to provide a
"non-discriminatory legitimate reason for the discharge." P.R.
Laws Ann. Tit. 29, § 194a(c). Here, there is no doubt that Cape
Air articulated legitimate nondiscriminatory reasons for
terminating Román's employment. First, Cape Air claimed that it
terminated Román because it did not know when he would return to
his post. And second, Cape Air explained that the termination was
warranted because it needed a third operational agent. Both
reasons are sufficient to meet the burden at the second stage of
the burden-shifting framework, so we turn to whether Cape Air's
alleged reason for the discharge amounted to mere pretext.
As with causation, our pretext inquiry focuses on
"whether there exist such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
decisionmaker's proffered legitimate reasons for its action that
- 17 - a reasonable factfinder could rationally find them unworthy of
credence." O'Horo v. Bos. Med. Ctr. Corp., 131 F.4th 1, 15 (1st
Cir. 2025) (citation modified). Since an employer's
inconsistencies or contradictions in terminating an employee
may -- in particular circumstances -- establish both causation and
pretext, we turn to assess whether Cape Air provided inconsistent
or contradictory reasons in terminating Román's employment. See
Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.10 (1981)
(noting that evidence of causation can prove pretext); see also
Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 32 (1st
Cir. 2015) (stating that if the plaintiff shows pretext, "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 [employer's] decision to fire him"); Franchina v.
City of Providence, 768 F. Supp. 3d 312, 320 (D.R.I. 2024) ("A
plaintiff who establishes pretext has also established 'but-for'
causation . . . ." (citation omitted)).
The district court treated the temporal proximity factor
as a necessary condition of establishing causation. Likewise, in
finding that Román failed to show that Cape Air's justifications
for taking the adverse action were pretextual, the district court
gave no weight to Cape Air's shifting explanations of Román's
termination. A careful review of the record in the light most
favorable to Román, however, reveals material inconsistencies
- 18 - regarding Cape Air's reasons for the discharge. And, at the
summary judgment stage, changing, adding, or contradicting the
reasons for discharging an employee supports a showing of pretext
and causation. See Collazo-Rosado v. Univ. of P.R., 765 F.3d 86,
93 (1st Cir. 2014) ("One way to establish pretext is to show that
the [employer] gave 'different and arguably inconsistent
explanations' for their actions.'" (emphases added) (quoting
Domínguez-Cruz v. Shuttle Caribe, Inc., 202 F.3d 424, 432 (1st
Cir. 2000))).
Once an employer provides a reason for the termination,
subsequent explanations that are inconsistent with or contradict
the formally stated justification support an inference that the
employer's proffered reason was pretextual. See Rodríguez Cardi
v. MMM Holdings, Inc., 936 F.3d 40, 49 (1st Cir. 2019) ("[W]hen a
company, at different times, gives different and arguably
inconsistent explanations [for an employee's termination], a jury
may infer that the articulated reasons are pretextual."
(alterations in original) (quoting Domínguez-Cruz, 202 F.3d at 431
32)); see also Soto-Feliciano, 779 F.3d at 32. Here, Cape Air has
provided inconsistent and contradictory explanations for Román's
termination. In Román's termination letter, Cape Air stated: "You
have failed to keep us informed of your status. We have made
several attempts to contact you via telephone, email and text and
we have had no response from you. This letter is to inform you
- 19 - that effective 5/21/2019, your employment with Cape Air is
terminated . . . ." Now, before us, Cape Air asserts that it
terminated Román due to its "operational needs." This proffered
explanation is nowhere to be found in the termination letter.
Cape Air argues that its "operational needs" explanation
is not inconsistent with the termination letter because that letter
did not state why Román was being terminated. Rather, Cape Air
contends that the letter simply says that Román failed to inform
his employer about his status and that the subsequent sentence
about termination should not be read in conjunction with the
preceding sentence. But a reasonable factfinder plainly could
read the letter as telling Román that he was being terminated
because he "failed to keep [Cape Air] informed of [his] status."
We thus agree with Román that Cape Air has provided shifting
explanations for his termination, which "surely supports a finding
that the reason it ultimately settled on was fabricated." Vélez
v. Thermo King de P.R., Inc., 585 F.3d 441, 449 (1st Cir. 2009).
Moreover, Cape Air's contradictions do not end there.
In its brief, Cape Air states that it decided to fire Román in May
2019, after he failed to respond to Supervisor Calo's messages.
Cape Air's counsel also reiterated this assertion during oral
argument. Yet the evidence elsewhere suggests that Cape Air began
considering Román's termination as early as February 2019, and
that it decided to terminate him about two months later, in April
- 20 - 2019. In a deposition, Calo admitted, for instance, that he began
discussing terminating Román at the end of February, which was
just about the same time that Román's FMLA leave was set to expire.
Those contradictions underscore the dubiousness of Cape Air's
assertion that Román’s failure to respond to Supervisor Calo in
May 2019 was a reason for his termination.
While a factfinder at trial could infer that Cape Air's
justification bears ample relationship with its business
operation, we cannot affirm, at the summary judgment stage, that
Román did not establish a prima facie case of retaliation, and
that Cape Air's reasons for the termination did not amount to
pretext.
III. CONCLUSION
For the reasons stated, we vacate the district court's
decision as to Román's Law 115 claim and remand for further
proceedings consistent with this opinion.
It is so ordered.
- 21 -