United States Court of Appeals For the First Circuit
No. 18-1415
CARMEN RODRÍGUEZ-CARDI,
Plaintiff, Appellant,
v.
MMM HOLDINGS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
Juan R. Dávila-Díaz, with whom Enrique J. Mendoza-Méndez and Mendoza Law Offices were on brief, for appellant. Katherine González-Valentín, with whom Patricia M. Marvez- Valiente and Ferraiuoli LLC were on brief, for appellee.
August 26, 2019 TORRUELLA, Circuit Judge. Carmen Rodríguez-Cardi
("Rodríguez-Cardi") appeals the district court's order granting
MMM Holdings, Inc.'s ("MMM") motion for summary judgment on her
Age Discrimination in Employment Act ("ADEA") claim regarding the
termination of her employment. The district court determined that
the record was devoid of any evidence from which a reasonable jury
could infer that MMM's articulated reason for terminating
Rodríguez-Cardi's employment was pretextual, let alone a pretext
for age discrimination. After careful consideration, we affirm.
I. Background
A. Factual Background
On October 16, 2012, Rodríguez-Cardi began working with
TEAMS LLC as an Independent Promoter for MMM, which "operates a
[highly regulated] health insurance plan designed [for]
beneficiaries of Medicare Advantage." During her tenure as an
Independent Promoter, Rodríguez-Cardi regularly performed several
tasks for MMM, including generating "valid leads . . . through
authorized marketing activities," while adhering to Centers for
Medicare & Medicaid Services ("CMS") and MMM policies, procedures,
and rules. MMM Supervisor Roberto Rodríguez-Delgado ("Rodríguez-
Delgado"), who oversaw Rodríguez-Cardi's work during this period,
and MMM Sales Manager Brenda Real ("Real") eventually approached
Rodríguez-Cardi and encouraged her to apply for a sales position
-2- at MMM. After interviewing with Rodríguez-Delgado and Real, on
June 24, 2013, Rodríguez-Cardi accepted an offer to work as an
Outside Sales Representative ("OSR") at MMM. Under the terms of
her employment, Rodríguez-Cardi -- who was forty-six years old at
the time -- would report directly to Rodríguez-Delgado.
To sell MMM products, all OSRs must have a license issued
by the Puerto Rico Insurance Commissioner. Rodríguez-Delgado
assisted Rodríguez-Cardi -- who was unlicensed and said she did
not have enough money to pay the licensing fees -- with securing
her license by lending her the necessary funds.
At the outset of her employment, Rodríguez-Cardi
acknowledged receipt of MMM's Job Description for the OSR position,
the "Sales Representative or Independent Producers Agreement
Letter," and the MMM Employee Handbook. 1 She certified her
understanding that any "coordinated marketing" must be compliant
with all applicable state and federal laws and CMS policies. She
additionally acknowledged that she was expressly prohibited from
"solicit[ing] door-to-door for Medicare beneficiaries or through
other unsolicited means of direct contact, including calling a
1 As an Independent Promoter, Rodríguez-Cardi had already been exposed to the rigor of these policies and procedures through firsthand experience and various trainings, including guidance on CMS and Medicare Improvements for Patients & Providers Act ("MIPPA") regulations.
-3- beneficiary without the beneficiary initiating the contact."
Moreover, MMM's written Employee Counseling/Progressive Discipline
Policy provided that employees who "failed to meet MMM's . . . job
expectations or violated MMM's policies and/or CMS provisions"
could face either progressive discipline or immediate termination
depending on the circumstances.
Rodríguez-Cardi's OSR duties included "conducting
seminars and in-home sales presentations to eligible and potential
Medicare beneficiaries"; providing product information to
interested persons who had provided MMM with a valid written
authorization; visiting assigned providers to "generate sales
leads through referrals and to coordinate activities"; and
creating various reports (e.g., in-home reports, leads results
reports, and provider visit reports) which were due to Rodríguez-
Delgado each day at 7:30 a.m.
OSRs were required to meet with their supervisor each
month to discuss their job progress and performance, including
review of their Primary Responsibilities Form ("Hoja de
Responsabilidades Primarias," hereinafter "HRP"), which
memorializes the OSR's success in reaching their monthly quotas
and timeliness in submitting reports.
Rodríguez-Delgado assessed Rodríguez-Cardi's job
performance in a probationary period evaluation dated
-4- September 23, 2013. The evaluation, which Rodríguez-Cardi received
and signed, concluded that she "presented doubts regarding MIPPA
regulation[s] and [that] her sales reports [contained] many
errors." Despite the concerns expressed in the evaluation,
however, Rodríguez-Cardi was given a regular employee position as
an OSR. Between August 2013 and February 2014, Rodríguez-Cardi's
monthly evaluations reflected her pervasive failure to meet job
expectations; her HRPs indicated that she was noncompliant with
between forty and sixty-seven percent of the performance
indicators each month. These unfulfilled performance indicators
included meeting sales, "Scope of Appointments," 2 and provider
visit quotas, as well as "daily arrival at the office."
On February 21, 2014, Rodríguez-Delgado issued a "Record
of Disciplinary Action" to Rodríguez-Cardi for her repeated
failure to timely submit her sales reports between December 2013
and February 2014. When discussing the Record of Disciplinary
Action with Rodríguez-Cardi, Rodríguez-Delgado informed her that
"her actions were affecting the daily process of the Sales
Department, generation of reports, quality calls, and audits," and
that continued underperformance would be met with "more severe
2 A Scope of Appointment is "a form that authorizes an MMM representative to approach potential affiliates or beneficiaries prior to giving an orientation and close sales."
-5- disciplinary measures resulting in [termination]." Rodríguez-
Cardi did not write any comments or objections on the Record of
Disciplinary Action despite having been given the opportunity to
do so.
After failing again to meet her monthly sales quotas in
October 2013 and February 2014, Rodríguez-Cardi was placed on an
Action Plan "to help her with her productivity and sales."3 On
March 17, 2014, Rodríguez-Delgado met with Rodríguez-Cardi and
informed her that she was not meeting the Action Plan's objectives
and that continued failure to comply would result in further
adverse disciplinary action, including termination. Rodríguez-
Cardi received and signed the "Action Plan Follow-Up." On
April 2, 2014, Rodríguez-Delgado met with Rodríguez-Cardi once
again, this time to discuss the "Action Plan Closing Memo," which
detailed her noncompliance with the Plan's objectives. The
following day, Rodríguez-Delgado issued Rodríguez-Cardi a "Final
Written Warning," which included a "Final Action Plan" -- a last-
ditch attempt to improve her sales numbers and overall
productivity.
3 Rodríguez-Cardi admitted that other sales representatives who failed to meet their sales quotas were "placed under the same action plan given to her."
-6- The MMM Scope of Appointment Policy MKT-0047 provides
that OSRs are strictly prohibited from any unsolicited contact
with potential enrollees. An OSR must have a "Scope of Appointment"
-- a specific written authorization -- issued by the Medicare
beneficiary or legal representative before the OSR can engage in
a sales presentation appointment. Pursuant to the Sales
Investigation Process Policy CMP-0046, the recommended
disciplinary action for unapproved door-to-door solicitation is
"immediate suspension or termination." Additionally, the MMM
Standards of Conduct for Sales and Marketing Activities dictate
that OSRs who call or visit "a beneficiary who was referred by a
friend, provider, provider's secretary, [or] any other third-party
without obtaining a [S]cope of [A]ppointment prior to contact and
member attestation form (testimonial)" should be terminated from
employment with MMM.
On March 14, 2014, CMS Caseworker E. Dumas referred a
beneficiary's complaint to MMM, which was reported through 1-800-
MEDICARE and alleged marketing misrepresentation. MMM Compliance
Auditor Specialist Frances Benítez Fernández ("Auditor Benítez")
commenced a compliance investigation regarding the complaint on
March 30, 2014. At the end of the investigation, on April 11,
2014, Auditor Benítez concluded in her Compliance Investigation
Report that Rodríguez-Cardi had "incurred in a door-to-door
-7- solicitation" by arriving at beneficiary Ms. Doe's 4 residence
"without prior and valid authorization." Finding that the "Scope
of Appointment" and "attestation" were improperly obtained --
Rodríguez-Cardi acquired them after appearing at Ms. Doe's
residence "without a proper prior contact" -- Auditor Benítez
recommended that Rodríguez-Cardi's employment be terminated.
MMM Human Resources Director Gloribel Rivera-Cabrera
("Director Rivera") upheld Auditor Benítez's recommendation after
evaluating Auditor Benítez's Compliance Investigation Report,
Rodríguez-Cardi's record, training, and disciplinary and
performance history, as well as applicable policies and procedures
regarding disciplinary action. On April 16, 2014, MMM terminated
Rodríguez-Cardi's employment.5 Her duties and assigned providers
were distributed among eight other MMM employees, ranging in age
from twenty-seven to forty years old.
Rodríguez-Cardi contends that, prior to her termination,
some of her colleagues called her "la mayor del grupo" ("the oldest
in the group"). She additionally claims that two OSRs referred
to her as "la vieja" ("the old lady"), called her hairstyle old-
4 Like the district court, we do not disclose the beneficiary's name for confidentiality reasons. 5 Subsequently, in June 2014 and October 2015, MMM also terminated two other OSRs -- aged 29 and 34 -- who incurred in a violation of unsolicited contact with a beneficiary.
-8- fashioned, and remarked that she had an "old woman's coat."
Moreover, she says that these OSRs mocked her cell phone, which
she had owned for twelve years and did not have internet access,
and her car, a 1987 S.U.V. model, for being old. In her deposition,
Rodríguez-Cardi claimed that she told Rodríguez-Delgado that
coworkers "were making out of place comments" and "bothering" her;
even so, she admitted that she had never formally complained about
any alleged mistreatment or unwelcome age-related comments in
writing.
B. Procedural History
On November 25, 2014, Rodríguez-Cardi filed a complaint
in the U.S. District Court for the District of Puerto Rico against
MMM. In her amended complaint filed on January 29, 2015, Rodríguez-
Cardi asserted claims for: (1) age discrimination, hostile work
environment, and retaliation under the ADEA, 29 U.S.C. § 621 et
seq.; (2) age discrimination under Law 100 of June 30, 1959, as
amended, P.R. Laws Ann. tit. 29, § 146 et seq., Puerto Rico's
general antidiscrimination statute; (3) retaliation under Law 115
of December 20, 1991, as amended, P.R. Laws Ann. tit. 29, § 194 et
seq., Puerto Rico's general anti-retaliation statute; (4) unjust
discharge under Law 80 of May 30, 1976, as amended, P.R. Laws Ann.
tit. 29, § 185a et seq., Puerto Rico's Unjust Discharge Act; and
(5) damages under Articles 1802 and 1803 of the Puerto Rico Civil
-9- Code, P.R. Laws Ann. tit. 31, §§ 5141, 5142, Puerto Rico's general
tort statute. On June 8, 2015, the district court granted MMM's
motion to dismiss Rodríguez-Cardi's retaliation claims under the
ADEA and Law 115. MMM then moved for summary judgment on
Rodríguez-Cardi's remaining claims.
On March 30, 2018, the district court entered an opinion
and order granting MMM's motion for summary judgment. Rodríguez-
Cardi v. MMM Holdings, Inc., No. 14-1854, 2018 WL 1725549, at *1
(D.P.R. Mar. 30, 2018). The district court determined that
Rodríguez-Cardi failed to provide any evidence to show that MMM's
"articulated reason for its decision to terminate [her was]
pretextual, much less a pretext to discriminate against [her]
because of her age." Id. at *9. Therefore, the district court
found, Rodríguez-Cardi failed to meet her burden under the burden-
shifting standard for ADEA employment claims. Id. at *8-9. The
district court further noted that the "same actor inference"
provided an additional ground to dismiss Rodríguez-Cardi's ADEA
claim. Id. at *10 n.31. According to the same actor inference,
"[i]n cases where the hirer and the firer are the same individual
and the termination of employment occurs within a relatively short
time span following the hiring, a strong inference exists that
discrimination was not a determining factor for the adverse action
taken by the employer." LeBlanc v. Great Am. Ins. Co., 6 F.3d
-10- 836, 847 (1st Cir. 1993) (quoting Proud v. Stone, 945 F.2d 796,
797 (4th Cir. 1991)).
The district court also found that the lack of evidence
of pretext warranted "dismissal as a matter of law" of Rodríguez-
Cardi's age discrimination claim under Law 100. Rodríguez-Cardi,
2018 WL 1725549, at *11. Furthermore, the court determined that
Rodríguez-Cardi's hostile work environment claim also failed
because she provided insufficient evidence that she was harassed
in a manner that was "sufficiently severe or pervasive to alter
the conditions of [her] employment," considering the "totality of
circumstances." Id. at *12. Finally, the court also dismissed
Rodríguez-Cardi's Law 80 claim, finding that MMM terminated her
"for reasons linked to the proper and normal operation of the
establishment" rather than a "mere whim." Id. at *13.
Accordingly, the court granted MMM's motion for summary judgment
and dismissed all of Rodríguez-Cardi's remaining claims. Id.
Rodríguez-Cardi timely appealed.
On appeal, Rodríguez-Cardi challenges only the dismissal
of her age discrimination claim under the ADEA. She argues that
the district court misapplied the summary judgment standard and
erred in holding that no reasonable factfinder could determine
that MMM's reasons for terminating Rodríguez-Cardi were
pretextual.
-11- II. Discussion
We review a district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
nonmovant and resolving all reasonable inferences in that party's
favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st
Cir. 2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990)). Summary judgment may be granted only when "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Ameen v. Amphenol Printed
Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015) (citation omitted).
"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 "[a] dispute is
'genuine' if 'the evidence about the fact is such that a reasonable
jury could resolve the point in the favor of the non-moving
party,'" Sánchez, 101 F.3d at 227 (quoting Rivera–Muriente v.
Agosto–Alicea, 959 F.2d 349, 352 (1st Cir. 1992)).6
6 The district court clearly employed the correct standard of review for summary judgment. Rodríguez-Cardi's contentions to the contrary, implying that a "debate" over any issue must be tried before a jury, lack merit.
-12- In a wrongful discharge case under the ADEA, the
plaintiff bears the burden of proving that her age was the
"determinative factor in [her] discharge, that is, that [she] would
not have been fired but for [her] age." Freeman v. Package
Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988). Where, as here,
the plaintiff does not have direct evidence of discrimination, we
apply the burden-shifting framework outlined in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-05 (1973), which has been
adopted for ADEA cases. Woodman v. Haemonetics Corp., 51 F.3d
1087, 1091 (1st Cir. 1995).
Under the McDonnell Douglas framework, a plaintiff
alleging an ADEA claim for discriminatory firing has the initial
burden to set forth a prima facie case by showing that (i) she was
at least forty years old at the time of her termination; (ii) she
was qualified for the position she held and was meeting the
employer's reasonable expectations; (iii) she was terminated from
her employment; and (iv) "the employer subsequently filled the
position, demonstrating a continuing need for the plaintiff's
services." Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447–
48 (1st Cir. 2009). If the plaintiff establishes her prima facie
case, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its action. Id. at 447. If the
employer articulates such a reason, the burden shifts back to the
-13- plaintiff, who must then show, by a preponderance of the evidence,
that the employer's proffered reason for the adverse employment
action was pretextual, and "that age was the 'but-for' cause of
the employer's adverse action." Id. at 447–48 (quoting Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).
On appeal, the parties assume -- as the district court
did below -- that Rodríguez-Cardi had successfully established a
prima facie case of age discrimination, which MMM properly rebutted
by articulating a legitimate, nondiscriminatory reason for
Rodríguez-Cardi's termination -- to wit, her ongoing performance
problems. The parties' arguments are thus limited to the pretext
inquiry of the burden-shifting framework. Likewise, we limit our
analysis accordingly.
To defeat MMM's summary judgment motion, Rodríguez-Cardi
had to produce sufficient evidence to support an inference that
MMM's proffered reason was pretextual and that she was in fact
terminated because of her age. Rodríguez-Cardi advances various
contentions she claims would allow a reasonable jury to determine
-- contrary to the district court's conclusions -- that MMM's
reason for terminating her was pretextual.
First, Rodríguez-Cardi argues that MMM's articulated
reason for her termination -- her allegedly unsolicited door-to-
door contact with Ms. Doe, a Medicare beneficiary -- is false,
-14- which constitutes evidence of pretext. According to Rodríguez-
Cardi, MMM's investigation of Ms. Doe's complaint -- which
Rodríguez-Cardi claims was related to the cost of the health plan
as opposed to her alleged unsolicited contact -- was "flawed"
because: Auditor Benítez did not know that Ms. Doe lived in a
retirement home and "sales representatives [are] allowed to visit
[] retirement home[s] for propaganda, sales and business
purposes"; it was Ms. Doe who approached Rodríguez-Cardi, not the
other way around; and Rodríguez-Cardi then completed the required
documentation. Based on these facts, Rodríguez-Cardi contests
MMM's interpretation of its policies and procedures and claims
that she did not violate any of their provisions. Rodríguez-Cardi
further argues that determining whether MMM "believed" its reason
for terminating her employment "to be real" is inextricably
intertwined with motive and intent, and summary judgment is
improper "when motive and intent play[] leading roles."
Contrary to Rodríguez-Cardi's contentions, summary
judgment is not necessarily improper just because a case involves
motive or intent. See Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where elusive
concepts such as motive or intent are at issue, summary judgment
may be appropriate."); see also Mesnick, 950 F.2d at 822, 829
(affirming summary judgment due to "plaintiff's failure to adduce
-15- evidence supporting an inference of discriminatory or retaliatory
motive"). Because pretext "means something worse than a business
error," Ronda-Pérez v. Banco Bilbao Vizcaya Argentaria-P.R., 404
F.3d 42, 45 (1st Cir. 2005) (quoting Kulumani v. Blue Cross Blue
Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000)), the factfinding
inquiry at the pretext stage of the ADEA burden-shifting framework
"focuses on 'whether the employer believed its stated reason to be
credible,'" and not on whether the employer was right. Woodman,
51 F.3d at 1093 (emphasis in original) (quoting Goldman v. First
Nat'l Bank of Boston, 985 F.2d 1113, 1118 (1st Cir. 1993)); see
also Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 41 (1st Cir.
2013) ("[M]ere questions regarding the employer's business
judgment are insufficient to raise a triable issue as to pretext."
(alteration in original) (quoting Acevedo-Parrilla v. Novartis Ex-
Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012))). Accordingly, to
survive summary judgment, "[i]t is not enough for [Rodríguez-
Cardi] merely to impugn the veracity of the employer's
justification" or to point to flaws in MMM's investigation.
Mesnick, 950 F.2d at 824. Instead, she "must '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 the employer's real
motive: age discrimination.'" Id. (quoting Medina-Muñoz, 896 F.2d
at 9). This she cannot do.
-16- Rodríguez-Cardi has not pointed us to any evidence in
the record from which a reasonable jury might infer that Auditor
Benítez's investigation was cloaked in age-based animus. Nor has
she pointed us to evidence on the record to dispute Director
Rivera's testimony that she honestly believed the veracity of both
the Compliance Investigation Report and Rodríguez-Cardi's
documented history of poor performance, and that she relied on
that belief in making her decision to recommend Rodríguez-Cardi's
termination. In fact, as the district court noted, Rodríguez-
Cardi "does not even suggest that [Auditor] Benítez or [Director]
Rivera were motivated by any illegal or inappropriate animus when
conducting the investigation, when evaluating the findings of the
investigation, and does not contest her prior disciplinary action
and history of performance productivity problems." Rodríguez-
Cardi, 2018 WL 1725549, at *10. Although she challenges the
accuracy of MMM's investigation and interpretation of its own
policies and procedures, when faced with employment decisions that
lack a clear discriminatory motive, "[c]ourts 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.
Next, Rodríguez-Cardi avers that MMM changed its
reasoning for her termination from her "unsolicited contact" with
-17- Ms. Doe to her poor performance record, which she argues "is
evidence of pretext." Rodríguez-Cardi claims that at the time of
her termination, she was told that she was being fired for the
"allege[d] unsolicited contact" and "[n]othing else." Two out of
three witnesses deposed in this case, 7 Rodríguez-Cardi argues,
mentioned only the unsolicited contact as the grounds for her
termination. Because MMM did not allege termination based on her
performance until it filed its answer to her complaint, Rodríguez-
Cardi's argument goes, these "[c]hanging explanations raise[]
genuine issue[s] of material fact with regard to the veracity of
the non-discriminatory reason articulated."
While Rodríguez-Cardi correctly points out that an
employer's "[c]hanging explanations" for an adverse employment
action can be evidence of pretext, she has not provided any
evidence to show that MMM has changed its reasoning for her
termination. See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d
424, 431-32 (1st Cir. 2000) ("[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."). In their depositions, Rodríguez-
Delgado, Auditor Benítez, and Director Rivera all testified that
7 Rodríguez-Cardi and three witnesses (Rodríguez-Delgado, Auditor Benítez, and Director Rivera) were deposed.
-18- MMM's reasoning for terminating Rodríguez-Cardi's employment was
based on the outcome of the Compliance Investigation Report, which
concluded that Rodríguez-Cardi had engaged in a grave violation of
federal regulations by initiating an unsolicited contact with a
potential Medicare beneficiary. Director Rivera's testimony that
she also considered Rodríguez-Cardi's poor performance record in
addition to the Compliance Investigation Report hardly shows that
MMM changed its reasoning for her termination; if anything, it
provides support to MMM's claim that it completed a thorough review
of Rodríguez-Cardi's record before making a final decision.
("That is what is normally done in these cases, all the criterias
[sic] are evaluated. All these criterias [sic] are taken into
consideration for any termination, even when the breach . . . was
a recommendation of termination . . . ."). Additionally,
Rodríguez-Delgado noted in his deposition that Rodríguez-Cardi,
prior to her termination, "had several write-ups that [he] had to
document." Accordingly, the record does not contain evidence from
which a reasonable jury could infer that MMM changed its reasoning
for terminating Rodríguez-Cardi, capable of supporting the
conclusion that MMM's articulated reason is pretextual.
Rodríguez-Cardi next contends that she was "not being
treated the same way [as] similarly situated employees." As an
OSR, Rodríguez-Cardi claims, she was subjected to the "worst
-19- cases," among which she includes "potential affiliates [who]
already had better health plans that would never change to MMM"
and "the farthest cases" from the office. Moreover, she asserts,
providers were "removed from her list," and she "was the only sales
person that was not given the clients list for the Open Enrollment
season." As the "disparity of treatment afforded to [her] is
evident," her argument goes, "pretext and discrimination can be
inferred."
It is true that evidence of an employer's more favorable
treatment of "similarly situated employees" can be evidence of
pretext. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43-
44 (1st Cir. 2001). Yet, Rodríguez-Cardi fails again to point to
any evidence on the record showing that she was treated differently
than other OSRs similarly situated. Her claim that she was given
the "worst cases," which were the "farthest" from the office and
involved clients who already had better insurance, is unsupported
by the record. Moreover, Rodríguez-Cardi admitted that "all other
[OSRs] also complained about [Rodríguez-Delgado's] alleged
preference [for] three or four" coworkers in assigning cases, which
undercuts her argument that she alone was treated less favorably.
Additionally, the record reveals that, because as an Independent
Promoter Rodríguez-Cardi had worked the leads of potential
affiliates prior to her employment as an OSR, MMM did not provide
-20- her with the client list for Open Enrollment based on its
understanding that a conflict of interest would exist if as an OSR
she worked the leads that she had generated as an Independent
Promoter, thus receiving double compensation. Rodríguez-Cardi
does not provide evidence to contest MMM's explanation that it did
not provide her the client list for Open Enrollment pursuant to
company policy, based on her prior work as an Independent Promoter
and potential conflicts of interest. Nor does she point to
evidence that other OSRs were allowed to work the leads that they
had previously generated as Independent Promoters. Consequently,
Rodríguez-Cardi has not shown that similarly situated employees
were treated more favorably than her in order to support an
inference of pretext.
In addition, Rodríguez-Cardi argues that she was subject
to age-related "derogatory comments, jokes and offensive
language," which violated MMM's Anti-Discrimination Policy, yet
MMM did nothing to address the situation. According to Rodríguez-
Cardi, this constitutes evidence of pretext because MMM failed to
follow its own policy.
Evidence that the employer deviated from its standard
procedure or policies in taking an adverse employment action
against a plaintiff may be relevant to the pretext inquiry.
See Acevedo-Parrilla, 696 F.3d at 142-43 (noting that, where the
-21- employer had fired the plaintiff without first implementing
progressive discipline and obtaining approval by the Human
Resources Department, the employer's failure to adhere to a policy
requiring "progressive disciplinary program" and that "all
disciplinary actions (including termination)" be approved by the
Human Resources Department was relevant to the plaintiff's burden
of demonstrating pretext); Brennan v. GTE Gov't Sys. Corp.,
150 F.3d 21, 29 (1st Cir. 1998) (finding that evidence that
employer had not followed its standard procedure for laying off
employees during reduction in force was "directly relevant to
[laid-off employee's] burden of demonstrating pretext"). The
rationale is that if an employer has a policy or procedure that
governs a specific situation but fails to adhere to the same in
taking an adverse employment action against an employee, then it
might be inferred that the reason articulated for taking the
adverse employment action against the employee was not true. Yet,
Rodríguez-Cardi points to no evidence indicating that MMM's Anti-
Discrimination Policy covered the situations that led to her
termination or that MMM's alleged deviation from its Anti-
Discrimination Policy (i.e., its failure to investigate Rodríguez-
Cardi's alleged complaints) had any bearing in the termination
decision or was even relevant to it.
-22- Finally, Rodríguez-Cardi contends that the district
court failed to consider the "totality of the circumstances" of
her case and, instead, "segregated [her] evidence" and "ignored
the vast majority of it as irrelevant." The district court did
no such thing. It carefully analyzed Rodríguez-Cardi's arguments
and the evidence she offered to support her claims and correctly
concluded that the record was devoid of evidence from which a
reasonable jury could conclude that MMM's stated reason for
terminating Rodríguez-Cardi's employment was a mere pretext of age
discrimination. Reviewing de novo we reach the same conclusion.
The totality of the circumstances shows that Rodríguez-Cardi had
a meticulously recorded (and uncontested) history of poor
performance, and that she had been issued a Final Written Warning,
which notified her that further underperformance could lead to
termination. The record also shows that MMM conducted a
compliance investigation into allegations that Rodríguez-Cardi
initiated unsolicited contact with a beneficiary, which MMM
considers a serious infraction. Finally, the record demonstrates
that at the end of the investigation, Auditor Benítez recommended
termination of Rodríguez-Cardi's employment, which Director Rivera
upheld after reviewing the Compliance Investigation Report and
examining Rodríguez-Cardi's past performance. The totality of the
circumstances, rather than proving Rodríguez-Cardi's pretextual
-23- argument, instead show a lack of foundation for Rodríguez-Cardi's
claim.8
8 Rodríguez-Cardi also challenges the district court's conclusion that the "same actor inference" supports dismissal of her age discrimination claim inasmuch as Rodríguez-Delgado was the person that hired Rodríguez-Cardi and then fired her only ten months later. See LeBlanc, 6 F.3d at 847 ("[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." (quoting Stone, 945 F.2d at 797)). Rodríguez-Cardi urges this court to limit the application of the same actor inference, as she claims other courts have done, but does not provide adequate reasoning to support her argument. We thus deem her argument waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."). We further note that although Rodríguez-Cardi cites several cases she claims support her argument that the same actor inference should be limited, those cases are inapposite in light of her concession that Rodríguez-Delgado both hired and fired her within a ten-month span, see, e.g., Quinby v. WestLB AG, No. 04- 7406, 2007 WL 1153994, at *8 (S.D.N.Y. Apr. 19, 2007) (refusing to apply the same actor inference because there were disputed facts as to whether the plaintiff had been hired and fired by the same person and four years had passed between the plaintiff's hiring and her termination), or were conveniently cited out of context, see, e.g., Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443 (11th Cir. 1998) (cited by Rodríguez-Cardi for the proposition that the court had "decline[d] to accord to th[e] same actor factual circumstance a presumption that discrimination necessarily was absent" from the employer's decision, but omitting that the court nonetheless allowed a "permissible inference that no discriminatory animus motivated [the employer's] actions") (emphasis in original) (internal quotation marks omitted).
-24- III. Conclusion
For the foregoing reasons, we affirm the district
court's order.
Affirmed.
-25-