United States Court of Appeals For the First Circuit
No. 00-2546
RAMÓN ZAPATA-MATOS,
Plaintiff, Appellant,
v.
RECKITT & COLMAN, INC., f/k/a L&F PRODUCTS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. Magistrate Judge]
Before
Boudin, Chief Judge, Kravitch,* Senior Circuit Judge, and Lynch, Circuit Judge.
Jane Becker Whitaker for appellant. Graciela J. Belaval with whom Martinez Odell & Calabria was on brief for appellee.
* Of the Eleventh Circuit, sitting by designation. January 14, 2002
LYNCH, Circuit Judge. Ramón Zapata-Matos was
terminated in 1993 from his position with L&F Products as
General Manager for all operations in Puerto Rico, Mexico, and
the Caribbean. He had been with the company since 1983 and had
received a number of promotions, although in 1992 the company
declined to create and promote him to a Regional Director's
position as he had requested. Zapata's employment was
terminated on September 28, 1993. He sued under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1994), saying
he had been discriminated against on the basis of his national
origin as a Puerto Rican.
In a thoughtful opinion and order, the magistrate judge
granted summary judgment for defendant L&F.1 The court concluded
that Zapata had "presented insufficient evidence from which a
rational fact finder could conclude that in failing to promote,
and subsequently terminating Zapata, L&F Products discriminated
1 L&F is now known as Reckitt & Colman, Inc.
-2- against him on the basis of his Puerto Rican heritage." We
agree, and affirm. In so doing we clarify what is meant by
evidence of pretext and the ultimate issue of discrimination.
I.
We review the grant of summary judgment de novo and
draw all reasonable inferences from the facts in plaintiff’s
favor. Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999).
The undisputed facts tell the story. Zapata was hired
in 1983, as a Manager for Givenchy Products, a division of
Sterling Products, Inc., itself a subsidiary of Eastman Kodak
Corporation. He was hired by a Sterling vice president with the
approval of Michael Gallagher, the company's President.
In 1989, Zapata was promoted to the position of General
Manager of L&F Products, Caribbean, also an Eastman Kodak
subsidiary. Gallagher, again, was involved in his appointment.
In addition, with Gallagher’s blessing, Zapata's
responsibilities were increased to include Mexico as well as
Puerto Rico and the Carribean. In recognition of his greater
responsibilities, Zapata received a salary increase, again with
Gallagher’s approval. Indeed, in 1992, Zapata's immediate
-3- supervisor stated that he anticipated promoting Zapata to
Regional Director in a year.2
In 1992, in light of his new responsibilities, Zapata
actively sought to be named Regional Director for L&F for Mexico
and the Caribbean. Gallagher told Zapata that he was not going
to create a Regional Director position for Zapata's region.
Nonetheless, Zapata continued to receive very positive
performance evaluations, and Gallagher rated his work as "very
good."
But a serpent lurked in this happy scene. The prices
charged by L&F for its goods in Puerto Rico were as much as 30%
lower than for the same goods on the U.S. mainland. This led
potential mainland buyers to buy from third party middlemen, who
bought low in Puerto Rico and resold stateside. The resale
prices were still lower than mainland prices. The company was
very concerned about this "diversion problem" and Zapata was
ordered at a meeting in Montvale, New Jersey early in 1992, and
later by memo dated July 8, 1992, to make Puerto Rico prices
2 He had earlier recommended that the company send Zapata to a management development program at a business school like Wharton or Harvard.
-4- equal to mainland U.S. prices. He balked and predicted this
strategy would cause the Caribbean Division to lose at least
$2.4 million in operating profits. He asked for time to present
an alternative plan. Zapata’s direct supervisor, A.J. Brown,
responded in a July 8, 1992 memo that while he was willing to
listen to alternatives, he would not change his position on
price parity. Brown told Zapata it was unfortunate he had to
"order" Zapata to do this, that Zapata had known of the urgency
of the problem for nine months, and that he should have come up
with a plan earlier. Gallagher was copied on the
correspondence.
In an August 1992 budget meeting, Zapata tried to get
the price parity directive reconsidered and expressed his fear
about the negative effect it would have on the Puerto Rican
market. According to Zapata, Gallagher responded "Fuck Puerto
Rico . . . . We’ve got to change and we’ve got to fix this
situation, because we don’t want this happening." Zapata says
this remark showed discrimination against Puerto Ricans. It is
the only such remark alleged.
True to form, the company repeated its policy against
diversion in a memorandum dated November 13, 1992. As Zapata
-5- predicted, the raising of prices in Puerto Rico and the
Caribbean substantially hurt his Division’s sales. Zapata says
sales in Puerto Rico dropped by about 40%. He also says that
when he did the budget review in 1992 he was told by Gallagher
not to worry about the profit decline because they had the
Mexican market. Zapata felt he should "get Mexico growing."
Then, he says, by mid-year 1993 the emphasis was switched back
to Puerto Rico, and he was put under severe pressure to increase
profits. A goal of $500,000 in profits for the Division was set.
Zapata, in response, worked on what he called a
"reengineering plan" to downsize and eliminate the positions of
some key employees. Zapata says he was initially told not to
prepare a budget for 1993, but as the annual budget meeting for
the upcoming 1993 year -- to be held in Puerto Rico on September
26-28 -- approached, Zapata was reminded of needed financial
information by a September 20 memo from Peter Black, the Group
Vice President for North America. Zapata immediately met with
his key staff. On the same day, after the meeting, four of the
key staff members resigned: the managers for Marketing, Sales,
and Products. The four sent letters to the company.
-6- The magistrate judge’s opinion and order capture the
essence of the letters. Gloria Castillo, a Marketing Manager,
wrote that she could not "continue to work under the conditions
now prevailing at L&F Products, where decisions are taken
impulsively and the course of action is changed from day to
day." Edgardo De La Torre, a Sales Manager, wrote that he was
resigning due to "a series of irreconcilable differences with
the top management of L&F Products Caribbean." Yvette De Jesús,
a Product Manager, expressed her belief that "some of the
actions taken by the company could hamper [her] future
professional growth in this market." Sylvia Rivera, also a
Product Manager, stated that she was resigning due to "[t]he
atmosphere of instability and uncertainty that has prevailed in
L&F during the last few weeks."
After receiving these letters, Zapata spoke with the
four employees. Each expressed different reasons for leaving
the company, but none of the reasons stated to Zapata concerned
his own management style. Several of the employees indicated
that they were leaving the company due to the company’s new
pricing policy, which had resulted in monetary losses to the
Puerto Rico operation. In light of these four resignations,
-7- the review scheduled for September 26, 1993, did not take place.
The four resignations eliminated the top level of management
under Zapata in the Division. Zapata had planned to eliminate
two of the positions as part of his reengineering plan, but not
all four.
Caught by surprise by the four employees' resignation
letters, L&F sent its Vice President of Human Resources, Gary
Pearl, and Peter Black to Puerto Rico. Pearl and Black
interviewed those four employees and others. Black told Zapata
that the four employees were "renegades." Black also said they
had a "tough situation." Black did not, however, say what the
four employees had told him. After the interviews, Pearl and
Black recommended to Gallagher that Zapata be terminated
immediately. Pearl stated that he was told by the four
employees that Zapata’s management style was deficient and did
not foster an effective work atmosphere. Even more seriously,
Pearl stated that he was told Zapata "implemented plans contrary
to stated marketing and sales philosophies and strategies of the
parent company."
Gallagher agreed to terminate Zapata. Gallagher, who
had approved the hiring and promotion of Zapata in earlier
-8- years, and who thought Zapata's performance had been very good,
said at deposition:
The organization in Puerto Rico had resigned in a major and surprising move with a letter to Ramon that was faxed up to our offices from several of the senior managers, which indicated that they, the organization, had lost confidence in Ramon as their leader and didn’t want to work for the company any more. Obviously, this was a major concern to us, a surprise, and as I recall, Peter Black and Gary Pearl, who was vice president of HR, called down there, talked to some people and they went down there immediately, and in discussions with the people found out that the management style of Mr. Zapata was abusive, disrespectful, to the point that these people were very unhappy and decided to leave, and from what we could tell, the organization had lost confidence in Ramon; he was not managing the way we wanted our managers to manage.
Zapata was told the news on September 28, 1993. He
says he was given no reason for his termination. He was given
a severance package which included payment of his full regular
salary for six months. A September 27, 1993 letter addressed to
Black, and signed by more than twenty L&F employees, expressed
support for and solidarity with Zapata.
Faced with vacancies in the top management, L&F moved
a long-term manager within the corporate family, Kevin Dunn, in
to oversee the Caribbean and Mexican operations within a few
-9- months of Zapata's termination. Dunn had been Vice President of
Marketing of consumer products for L&F, and he took the position
of Regional Director for the Caribbean, Puerto Rico and Mexico
with L&F. The Puerto Rican and Mexican markets were later
separated and a Puerto Rican, Alberto Fernández Comas, was named
General Manager of the Puerto Rican market. Within a year, L&F
Products itself was sold.
II.
Before the district court, this case was governed by
the burden-shifting framework set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05 (1973).
Under the McDonnell Douglas framework, once the
plaintiff has met the low standard of showing prima facie
discrimination, the employer must articulate a legitimate
nondiscriminatory reason in response. Texas Dep't of Comty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Once that
reason is articulated, the presumption of discrimination drops
out of the picture, St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993), the McDonnell Douglas framework with its
presumptions and burdens disappears, and the sole remaining
-10- issue is of discrimination vel non. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Melendez-
Arroyo v. Cutler-Hammer De P.R. Co., Inc., 273 F.3d 30, 33 (1st
Cir. 2001).
The McDonnell Douglas framework having dropped out of
the case, "the ultimate burden is on [Zapata] to persuade the
trier of fact that [he was] treated differently because of [his
national origin]." Thomas v. Eastman Kodak Co., 183 F.3d 38, 56
(1st Cir. 1999). On summary judgment, the question is whether
plaintiff has produced sufficient evidence that he was
discriminated against due to his national origin to raise a
genuine issue of material fact. Melendez-Arroyo, 273 F.3d at
33; Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31
(1st Cir. 2000).
Reeves reinforced the prior law in this circuit that
even if the trier of fact disbelieves the nondiscriminatory
explanation given by the employer, the trier is not compelled to
find that the real reason was discrimination. 530 U.S. at 147;
Thomas, 183 F.3d at 57. That is because the ultimate question
is not whether the explanation was false, but whether
discrimination was the cause of the termination. We have
-11- adhered to a case by case weighing. Thomas, 183 F.3d at 58.
Nonetheless, disbelief of the reason may, along with the prima
facie case, on appropriate facts, permit the trier of fact to
conclude that the employer had discriminated. Reeves, 530 U.S.
at 146-47; Thomas, 183 F.3d at 57 ("[E]vidence showing that the
employer's articulated reason is false" can be sufficient to
overcome the third stage in the McDonnell Douglas framework, but
"there can be no mechanical formula . . . . everything depends
on the individual facts."). Ultimately, the question is one of
the sufficiency of plaintiff’s evidence. Id. at 61. As the
Supreme Court said in Reeves:
[A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.
530 U.S. at 148. The facts of each case are important. Thomas,
183 F.3d at 57.
We dispose of a preliminary matter where Zapata argues
that the magistrate judge used an erroneous standard. Zapata argues
that the magistrate judge incorrectly relied on Mesnick v. Gen. Elec.
Co, 950 F.2d 816 (1st Cir. 1991), in analyzing the question of pretext
-12- by focusing on the employer's belief about the truth of its stated
reason. In part, Mesnick states that in analyzing whether an
"employer's proffered reason is actually a pretext for discrimination
. . . . a court's 'focus must be on the perception of the
decisionmaker,' that is, whether the employer believed its stated
reason to be credible." 950 F.2d at 823-24 (quoting Gray v. New England
Tel. and Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986)) (emphasis
omitted).
We agree that the employer might believe its stated
reason for its action and honestly believe that the reason was
nondiscriminatory, while the jury might find that the same
reason was honestly held but conclude that it constituted
discrimination (e.g., stereotyping). To that extent, the
employer's good faith belief is not automatically conclusive;
but this refinement on Mesnick is likely to be rare and is in
any event irrelevant here. Conversely, there may be pretextual
explanations -- ones not honestly believed by the decisionmaker
-- which do not lead to liability because the actual unadmitted
reason still does not constitute discrimination.
With that clarification, we turn to the analysis of the
facts. Zapata's theory of discrimination was that this was a
glass-ceiling case: that at L&F a Puerto Rican could hold the
-13- title of General Manager but not the title of Regional Director.
The implications of the theory are that the company officials
engineered, or took advantage of, a situation where they could
terminate Zapata’s employment rather than promote him to
Regional Director. The proof, Zapata says, is that Dunn, an
Anglo, was named Regional Director, and he, Zapata, a Puerto
Rican, was not.
Plaintiff’s case resolves to three themes from the
evidence that he says permit the ultimate inference of
discrimination: one comment by Gallagher, the company president;
the fact that some months after Zapata's termination a non-
Puerto Rican assumed his duties, and held the Regional Director
title that Zapata had sought; and the fact that the company’s
stated reasons for his termination could be found to be untrue.
When these themes are moved from the abstract to the particulars
of the case, they prove to be unimpressive.
The Comment About Puerto Rico
Gallagher's comment is best analyzed in context.
Zapata sold L&F products in Puerto Rico at prices up to 30%
lower than prices charged to retail outlets in the mainland of
the United States. This led potential U.S. buyers to buy from
-14- secondary sellers in Puerto Rico (such as K-Mart), still at
lower prices than U.S. prices, thus diverting profits to third
parties. Concerned about the losses to its United States
markets, the company, on July 8, 1992, directly ordered Zapata
to raise prices to the same level as in the continental United
States. Zapata resisted but was again ordered to have the new
prices in place by September 1, 1992. Nonetheless, later in
August, Zapata again tried to get the company President, Michael
Gallagher, to change course because his sales in Puerto Rico
would decline if prices rose. An obviously frustrated Gallagher
responded "Fuck Puerto Rico . . . . We’ve got to change and
we’ve got to fix this situation, because we don’t want this
happening." The comment was clearly directed to Zapata’s view
that the company’s concerns about mainland market losses should
be subordinate to Zapata’s concern about his division. No
rational fact finder could, in this context, conclude that this
comment expressed discrimination against the company’s Puerto
Rican employees.
The Replacement
When the four top employees resigned and the company
fired Zapata, it was left without management for its Puerto
-15- Rican operations. In early 1994, a long-term company employee,
Kevin Dunn, was named Regional Director of L&F Products for the
Caribbean and Mexico. Dunn thus took over Zapata’s
responsibilities, and received the title that Zapata wanted.
Dunn, however, was already a Vice President at L&F, a
position higher in rank than the one of Regional Director, when
the company looked to him to fill the void at L&F. Under these
circumstances, we think no rational inference of discrimination
against Puerto Ricans can be drawn from Dunn’s assumption of
these responsibilities as Regional Director. Further, when a
new permanent manager was named to cover the Puerto Rican
market, it was Alberto Fernández Comas, a Puerto Rican who was
hired from outside the company.
The Stated Reason as Pretext
An assertion of pretext requires an examination of the
employer’s articulated reason for termination. Where and when
that reason is articulated has significance. In Dominguez-Cruz
v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000), this court
found sufficient evidence of pretext to survive summary judgment
where the reasons given at termination and in contemporaneous
documents appeared to be inconsistent with the defendant's
-16- answer to the complaint and with deposition testimony. Further,
the depositions themselves appeared to be inconsistent. All of
this was buttressed by extrinsic evidence that undercut the
proffered reason. Id. at 431-32.
In this case, by contrast, no reasons were given at
termination and no contemporaneous documents stating a reason at
the time of termination have been introduced. No reasons are
given in the answer to the complaint, save for a pleading that
plaintiff was terminated for just cause. We thus turn to the
explanations that the managers involved gave at their
depositions for terminating Zapata. Those explanations,
described above, are themselves consistent and not contradicted
by either contemporaneous documents or statements made at
termination, or statements made later. Further, the
explanations are quite credible in light of the preceding
events.
Zapata argues that the four L&F employees who resigned
right before his termination did not make negative comments
about his management style to the decisionmakers, because
neither the four employees nor the management voiced these
complaints to him. That is not a serious argument. It is human
-17- nature for a person not to tell someone to his face about
complaints he has just made about him. And management did not
give him any reasons, he says.
More serious is the argument that nothing in the prior
work history suggests that Zapata was a poor manager. A trier
of fact could reasonably think that this raises questions about
the sudden emergence, albeit in a time of extreme pressure, of
a managerial style problem on Zapata’s part. On the other hand,
a trier of fact could much more readily conclude that the
employer’s explanation was not a pretext, was quite true,3 and
was reinforced by two facts: four top employees had just
resigned rather than work with Zapata in a difficult period, and
the company well knew Zapata had been balking at the directives
from the parent company.
The question on summary judgment is whether the slight
suggestion of pretext present here, absent other evidence from
which discrimination can be inferred, meets plaintiff’s ultimate
burden. We hold it cannot. This case fits into the category
3 Zapata also did not, by deposition testimony or affidavits from the four former employees, refute the management's assertions about the employees' reasons for resignation.
-18- Reeves described of plaintiff creating (at best) a weak issue of
fact as to pretext on the face of strong independent evidence
that no discrimination occurred. 530 U.S. at 148. Considering,
as Reeves, 530 U.S. at 158, mandates, the strength of
plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and other evidence
supporting the employer's case, the employer is entitled to
judgment as a matter of law.
Affirmed.
-19-