United States Court of Appeals For the First Circuit
No. 18-1852
HECTOR ZABALA-DE JESUS, et al.,
Plaintiff, Appellant,
v.
SANOFI-AVENTIS PUERTO RICO, INC., et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Thompson, Lipez, Barron, Circuit Judges.
Irma R. Valldejuli, with whom Antonio Moreda-Toledo and Moreda & Moreda, P.S.C. were on brief, for appellant. Anita Montaner-Sevillano, with whom Reinaldo L. Figueroa-Matos and McConnell Valdés LLC were on brief, for appellee.
May 13, 2020 BARRON, Circuit Judge. Hector Zabala-De Jesus
("Zabala") appeals from the District Court's 2018 grant of summary
judgment for Sanofi Aventis Puerto Rico, Inc. and Sanofi U.S.
Services, Inc. on Zabala's claim under the Age Discrimination and
Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.1 We affirm.
I.
We begin by reviewing the developments that led to
Zabala's suit. In doing so, we set forth only those facts that
the parties do not dispute on appeal, as those facts set the stage
for our consideration of the merits of Zabala's challenge to the
District Court's summary judgment ruling.
Sanofi Aventis Puerto Rico, which, for the sake of
convenience, we will refer to as "Sanofi Puerto Rico" in what
follows, is the Puerto Rico subsidiary of Sanofi, which is a life
sciences company that manufactures and markets pharmaceutical
products and medical devices. Sanofi Puerto Rico hired Zabala in
1997, when he was thirty-nine years old, to be a Product Manager
in its San Juan, Puerto Rico, office. In that role, Zabala was
responsible primarily for the company's cardiovascular products.
Over time, Zabala moved to other positions within Sanofi
Puerto Rico, which gave him responsibilities over other products.
1 The complaint references other parties but does not make specific allegations against them and they are not mentioned in the briefs or the District Court opinion. Thus, we do not discuss them further.
- 2 - For example, in 2000, Zabala became a Marketing Manager, which
brought the company's urology products in his purview. Then, in
2003, he was promoted to Senior Marketing Manager, from which
position he managed three cardiovascular pharmaceuticals, Plavix,
Avapro, and Avalide, that, collectively, accounted for 70 percent
of Sanofi Puerto Rico's sales.
In 2012, however, these three products lost their patent
protection, and Sanofi Puerto Rico reorganized its marketing
department. Soon thereafter, Zabala was reassigned to be the
Senior Marketing Manager of the Specialty Business Unit. Waleska
Rodriguez, the unit's director, became his new supervisor.
Zabala was responsible in this new role for a broad array
of Sanofi Puerto Rico's medical products and devices, including
oncology, renal, hematology, and bio-surgery products. Sanofi
Puerto Rico devoted over 18 percent of its 2012 marketing budget
to these products and devices.
After Sanofi Puerto Rico's major cardiovascular products
lost their patent protection, most of its sales revenue for the
period running from 2012 to 2013 came from its diabetes products.
In fact, by August of 2013, Sanofi Puerto Rico's diabetes
production portfolio represented almost 80 percent of the
company's total sales revenue. During this period, moreover, the
Diabetes Business Unit had the largest marketing budget and the
- 3 - most sales representatives of any unit. Angela Febles served as
the unit's director during that time.
In 2013, following the growth in sales revenue from
Sanofi's diabetes products, David Freeman, Sanofi Puerto Rico's
General Manager and Vice President, was tasked with determining
how to consolidate the Specialty and Diabetes Business Units.
Freeman assessed the operations of each of the units, met with the
respective unit supervisors, Rodriguez and Febles, and conducted
a business review of each unit. The assessment revealed that for
the year 2014, the Specialty Business Unit was expected to have a
marketing budget of $430,000 and sales revenue of $16 million,
while the Diabetes Unit was expected to have a marketing budget of
$5 million and sales revenue of $56 million.
Following this assessment, Freeman wrote a proposal,
entitled "Sanofi Puerto Rico Organizational Assessment and
Recommendation," which he presented in November 2013 to his
supervisor, Dennis Urbaniak, and Adriana Bury, a human resources
officer specifically responsible for Sanofi Puerto Rico.
Freeman's proposal recommended consolidating and combining the
Specialty Business Unit and Diabetes Business Unit into one new
unit. Accordingly, Freeman recommended that the responsibilities
of the Specialty Business Unit Director and Diabetes Business Unit
Director be consolidated into one position and that the
- 4 - responsibilities of each unit's Senior Marketing Manager position
be consolidated into one position as well.
This proposed consolidation, if effected, would have
meant that Sanofi Puerto Rico would have needed to retain only
either Febles or Rodriguez to fill the consolidated Director
position, and only either Zabala or Brenda Bonet, who had joined
Sanofi in 2007 as the Marketing Manager for Sanofi Puerto Rico's
Diabetes Business Unit, to fill the consolidated Senior Marketing
Manager position. When Freeman presented his proposal to Urbaniak
and Bury, he included his recommendation that Sanofi Puerto Rico
retain Bonet as the Marketing Manager of the new unit and Febles
as the unit's Director, thereby bypassing Zabala for the post and
leaving him without a job in the company. Finally, Freeman
proposed the creation of two new positions, a Business Intelligence
Manager who would be focused on market-trend analysis and
recommendations, and a Product Manager, who would be focused on
diabetes products.2
In November of 2013, Bury asked to meet with Freeman to
talk about his proposal to consolidate the positions. Bury told
Freeman that the plan to reduce the workforce and eliminate
2 The Product Manager role was meant to serve as a support for the newly consolidated Senior Marketing Position. Febles and Bonet had recommended that Freeman create the Product Manager position in order to support the launch of new diabetes products.
- 5 - positions would need to be cleared by Sanofi Puerto Rico and Sanofi
U.S. Services' internal legal team.
With respect to staffing, Bury and Freeman agreed that
the main criteria for the two new, consolidated roles would be
diabetes-market expertise and past performance in recent years.
Bury then explained that she supported Freeman's recommendation of
Febles for the new, consolidated Director role based on both
Febles's superior qualifications according to the agreed-upon
criteria and her seniority. Bury explained that Febles's seniority
would ensure that her selection would reduce legal risks under
Puerto Rico severance law. But, Bury told Freeman she would not
sign on to his recommendation to select Bonet rather than Zabala
for the new Business Unit Marketing Manager position until she had
personally reviewed Bonet and Zabala's qualifications, and, in
particular, their work experience and performance ratings.
To facilitate this review, Freeman asked Febles to write
up a comparison of Zabala's and Bonet's backgrounds and experience.
The resulting comparison, though very detailed, was favorable only
to Bonet, and it was occasionally incorrect and underinclusive in
discussing Zabala. Febles's comparison included a note that Bonet
was a woman over forty years old. It did not include Zabala's
gender or age. Febles told Freeman that she was missing
information on Zabala, but Freeman told her that Human Resources
could fill in the rest. Freeman then added some more information
- 6 - about both Zabala and Bonet, including that Bonet had "[e]xtensive
Diabetes expertise," that Zabala was an "[e]xperienced marketing
manager with 17 years working for Sanofi," and that Zabala was a
male over fifty years old.
In the comparison, Freeman also noted the candidates'
performance ratings over time. Throughout their tenure at Sanofi
Puerto Rico, Bonet and Zabala had been evaluated during Sanofi
Puerto Rico's biannual employee performance evaluations, which
included overall score summaries based on a one-to-nine scale,
with nine being the highest score an employee could receive.
In 2010, Zabala received an overall performance
evaluation of seven, which was lowered to a five in 2011, and to
a one in 2012. In 2013, Zabala's overall evaluation score in his
mid-year review before he was fired was a four.
Bonet's recent scores trended in the opposite direction.
In 2010, Bonet received an overall performance rating of a four,
which went up to an eight in 2011 and 2012. And, in 2013, Bonet
earned a five in her mid-year review.
Along with the performance ratings, Freeman sent the
rest of the updated comparison to Bury. Bury then reviewed the
two candidates and agreed with Freeman that the new, consolidated
position should go to Bonet and that Zabala should be let go. At
the time, Zabala was fifty-five years old and Bonet was forty-four
years old.
- 7 - After being let go from Sanofi, Zabala brought an age
discrimination claim against Sanofi Puerto Rico and Sanofi U.S.
Services in the United States District Court for the District of
Puerto Rico under the ADEA, 29 U.S.C. § 621, and a claim for age
discrimination under Puerto Rico law pursuant to P.R. Law No. 100
of June 30, 1959, P.R. Laws Ann. Tit. 29, § 146, and Article 1802
of the P.R. Civil Code, P.R. Laws Ann. Tit. 31, § 5141. The
District Court granted the defendants' motion to dismiss the Puerto
Rico law claims on March 13, 2017. The defendants then moved for
summary judgment on the ADEA claim, which the District Court
granted on July 30, 2018, and from which grant Zabala now appeals.
II.
Our review of the grant of summary judgment to the
defendants is de novo. See Conjugal P'ship Acevedo-Príncipe v.
United States, 768 F.3d 51, 54 (1st Cir. 2014). Summary judgment
is appropriate if the record, viewed in the light most favorable
to the nonmoving party -- here, Zabala -- "discloses 'no genuine
issue of material fact' and [thus] demonstrates that 'the moving
party is entitled to a judgment as a matter of law.'" Iverson
v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (quoting Federal
Rule of Civil Procedure 56(c)).
In considering a motion for summary judgment, "we must
disregard improbable or overly attenuated inferences, unsupported
conclusions, and rank speculation." Abbott v. Bragdon, 107 F.3d
- 8 - 934, 938 (1st Cir. 1997), vacated on other grounds, 524 U.S. 624
(1998). "We may affirm a grant of summary judgment 'on any ground
revealed by the record.'" Robinson v. Town of Marshfield, 950
F.3d 21, 24 (1st Cir. 2020) (quoting Santangelo v. N.Y. Life Ins.
Co., 785 F.3d 65, 68 (1st Cir. 2015)).
III.
The ADEA makes it "unlawful for an employer . . . to
discharge any individual or otherwise discriminate against any
individual . . . because of such individual's age." 29 U.S.C.
§ 623(a)(1). The ADEA's prohibition is "limited to individuals
who are at least 40 years of age." Id. § 631(a).
The employee who brings the ADEA claim bears the burden
of proving that the age discrimination that the statute bars was
the but-for cause of his termination. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009). To determine whether an ADEA claim
may survive summary judgment when there is no direct evidence of
such age discrimination, we apply a burden-shifting framework akin
to the one that the United States Supreme Court set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine
whether a claim of race discrimination in employment under Title
VII of the Civil Rights Act of 1964 may survive summary judgment.
See Robinson, 950 F.3d at 24-25 (applying the McDonnell-Douglas
framework to review a grant of summary judgment for the defendant
on an ADEA claim).
- 9 - The focus at the first step of the inquiry under this
burden-shifting framework is on whether the plaintiff has put forth
evidence from which a juror reasonably could find that a prima
facie case of age discrimination has been established. To pass
this first step of the inquiry, the plaintiff-employee must provide
evidence from which a juror reasonably could find that: (1) he is
at least forty years old; (2) his "work was sufficient to meet the
employer's legitimate expectations"; (3) his "employer took
adverse action against [him]"; and (4) "either younger persons
were retained in the same position upon [his] termination or the
employer did not treat age neutrally in taking the adverse action."
Del Valle-Santana v. Servicios Legales de P.R., Inc., 804 F.3d
127, 129–30 (1st Cir. 2015).
If the plaintiff succeeds in getting past this first
step of the inquiry, then, at the second step, the defendant must
proffer "a legitimate, nondiscriminatory reason for" the
employee's termination. Mesnick v. Gen. Elec. Co., 950 F.2d 816,
823 (1st Cir. 1991). If the defendant puts forth such a reason,
then, at the third step of the inquiry, the burden of production
shifts "back to the plaintiff, who must then show, by a
preponderance of the evidence, that the employer’s articulated
reason for the adverse employment action is pretextual and that
the true reason for the adverse action is discriminatory," for,
otherwise, the defendant is entitled to summary judgment. Gómez–
- 10 - González v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir.
2010) (quoting Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 470
(1st Cir. 2010)).
Notably, "[t]o satisfy this burden with respect to
pretext, the plaintiff must 'elucidate specific facts which would
enable a jury to find that the reason given' by the defendant for
the adverse employment action 'is not only a sham, but a sham
intended to cover up the employer's real motive: age
discrimination.'" Robinson, 950 F.3d at 25 (quoting Soto-
Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 25 (1st Cir.
2015)). Thus, at this third step, the plaintiff must point to
evidence that creates a genuine issue of disputed material fact as
to whether the proffered reason was a pretext for an age-based
motive. See id.
We agree with Zabala that he satisfied his burden to
make out a prima facie case, and we have no doubt that Sanofi put
forward a legitimate, nondiscriminatory reason for its decision to
terminate Zabala's employment by hiring Bonet for the new,
consolidated post: namely, that there was a business-related
reason to create that single consolidated position and that Bonet's
past experience with diabetes products and strong recent
performance reviews made her more qualified to fill that new post
than Zabala. See Dávila v. Corporación de P.R. para la Difusión
Pública, 498 F.3d 9, 16 (1st Cir. 2007) ("The employer's burden is
- 11 - not a burden of persuasion; the employer need do no more than
articulate a reason which, on its face, would justify a conclusion
that the plaintiff was let go for a nondiscriminatory motive.").
Nor does Zabala dispute that such a reason, if not a pretext for
discrimination, would qualify as a legitimate, nondiscriminatory
one. Thus, our focus is on whether Zabala has put forth evidence
that suffices to create a genuine issue of disputed material fact
as to whether the employer's proffered reason for selecting Bonet
over him for the new, consolidated position was a pretext for age
discrimination. See id. at 17 ("For a[n] . . . employee to
withstand summary judgment in an age discrimination case, there
must be some significantly probative evidence from which the
factfinder can infer that the employer discharged the employee
because of his age.").
Zabala's chief contention as to pretext is that the
evidence supportably showed that Freeman and Bury had already
decided to choose Bonet when they settled on the selection criteria
of experience specific to the diabetes market and superior
performance evaluations for the past few years and that, in
consequence, a juror could reasonably conclude that Freeman and
Bury chose the criteria to make sure that Bonet would be selected.
Zabala points in this regard to "the chronological order of
events," and, specifically, to the fact that Bury undertook the
- 12 - comparison between Bonet and Zabala only after Freeman had already
recommended the selection of Bonet.
But, the record is "uncontested" that Freeman's original
reason for proposing Bonet over Zabala was that "he preferred her
'because of her expertise in diabetes and proven record and
capabilities in the diabetes market.'" Zabala puts forth no
evidence, moreover, to show that Freeman chose those criteria in
forming his original preference for Bonet to cover up the fact
that he preferred her because she was younger than Zabala. Nor do
we see how, in the absence of any such evidence, there would be
any basis for a juror to conclude from the nature of those criteria
that they were sham criteria rather than legitimate job-related
criteria that Freeman reasonably thought pertinent to a
candidate's ability to do the job. After all, diabetes experience
was obviously a potentially relevant criterion, given the
importance of diabetes products to Sanofi's revenues, and superior
recent performance reviews obviously may bear on a candidate's
relative qualification for a position.
There also is nothing in the record on which a juror
reasonably could rely to find that Freeman did not believe that
Bonet did in fact have more experience than Zabala with diabetes
products and better recent performance reviews. We note in this
regard that nothing in the record indicates that Bonet's upward
trajectory in her evaluation scores from 2010 to 2012, and Zabala's
- 13 - corresponding downward trajectory, resulted from ratings that were
given to them in anticipation that Sanofi Puerto Rico was going to
consolidate, such that a juror would have any basis for finding
that the reviews themselves had been rigged in Bonet's favor to
advantage her in the event of a consolidation.
Thus, we see no basis for concluding that a juror could
reasonably find from the chronology to which Zabala attributes
such significance that his employer's proffered reason for acting
as it did in choosing Bonet over Zabala was a cover for a preference
to hire her because she was younger. Hence, that ground for
concluding that he can meet his burden with respect to showing
pretext at the third step of the burden-shifting inquiry is not a
viable one.
Zabala does briefly assert that the fact that Febles and
Freeman listed the respective ages of Bonet and Zabala in the
comparison sent to Bury is itself evidence from which a jury could
find that the selection of Bonet was based on age discrimination,
rather than the nondiscriminatory-qualification-based reason that
was proffered. But, "[i]solated, ambiguous remarks are
insufficient, by themselves, to prove discriminatory intent,"
Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 329 (1st Cir.
1996); see also Paul v. Murphy, 948 F.3d 42, 54 (1st Cir. 2020)
(finding that a supervisor's remark to an employee that "[y]ou are
64 no 65," does not alone provide a basis "from which a reasonable
- 14 - juror could find that she was discriminated against based on her
age"); Alberti v. Univ. of P.R., 818 F. Supp. 2d 452, 479 (D.P.R.
2011), aff'd sub nom. Alberti v. Carlo-Izquierdo, 548 F. App'x 625
(1st Cir. 2013) ("Reference to protected status without reflecting
bias is not evidence of discrimination."). And, here, the record
shows that the references to the age of the two candidates in the
write-ups that were given to Bury were of just that kind.
In Febles's original email to Freeman, she included the
fact that Bonet was a woman over forty years old but did not
reference Zabala's gender or age. Before Freeman forwarded the
information to Bury, he then added that Zabala was a male over
fifty years old. In her deposition, Febles explained that she
included the information on Bonet because she thought that it was
relevant that Bonet was a member of two protected classes, but she
did not include anything on Zabala because she did not know his
age. There is thus no basis for finding on this record that,
because the age of both candidates was set forth by the person who
was providing information about the candidates to the ultimate
decision maker, that decision maker's selection was based on the
fact that one was younger than the other.
Zabala next takes issue with the fact that he was never
offered the position of Business Intelligence Manager. But, it is
uncontested that Zabala did not apply for the position even though
Sanofi emailed all of its employees, including Zabala, and informed
- 15 - them of the opening of the position in November of 2013 and
provided them an opportunity to apply for it. Zabala does not
explain how his former employer's failure to offer him specifically
a job that he did not apply for when he had the opportunity to do
so indicates that the defendants' reason for choosing Bonet was
pretextual, let alone based on age discrimination. See Pages-
Cahue v. Iberia Lineas Aereas de España, 82 F.3d 533, 539 (1st
Cir. 1996) (noting that "employers face no . . . obligation" to
offer "transfers or relocations" when reducing their labor force).
Finally, Zabala asserts that age discrimination was a
common practice at Sanofi Puerto Rico. To support that contention,
he relies in part on evidence of two instances in which Sanofi
Puerto Rico chose to employ or to continue to employ the younger
of two individuals. In one of those instances, though, the age
differential was just one year. And, in any event, he points to
no evidence that those decisions were made based on age, as he
fails to show that the individual who was not selected in either
instance was similarly situated to the one who was. In addition,
Zabala points to the fact that 77 percent of new hires after 2013
were younger than fifty years old. But, he does not identify any
evidence to show that less than 77 percent of Sanofi Puerto Rico's
job applicants after 2013 were younger than fifty years old and
thus that the ages of Sanofi Puerto Rico's hires were not
proportional to the overall applicant pool. Accordingly, Zabala
- 16 - fails to put forth evidence from which a juror reasonably could
find any discriminatory pattern in Sanofi's employment practices.
See Bennett v. Saint-Gobian Corp., 507 F.3d 23, 30 (1st Cir. 2007)
(noting that a plaintiff "cannot rely exclusively on bald
assertions, unsupported conclusions, or optimistic surmises").
IV.
For these reasons, we affirm the District Court's grant
of summary judgment.
- 17 -