USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1877

GILBERTO MULERO-RODRIGUEZ,
GLADYS ORTIZ-MARGARYS,

Plaintiffs - Appellants,

v.

PONTE, INC. AND HAYDEE SABINES,

WIDOW OF PONTE,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_____________________

Kevin G. Little, with whom David Efr n and Law Offices David
_______________
___________
_________________
Efr n were on brief for appellants.
_____
Jay A. Garc a-Gregory, with
______________________

whom Juan C. Guzm n-Rodr guez

_________________________

and Fiddler Gonz lez & Rodr guez were on brief for appellees.
____________________________

____________________

October 28, 1996

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Appellants-Plaintiffs Gilberto

Mulero-Rodr guez

("Mulero")

Margarys, appeal

Inc. and Hayde

termination

Discrimination

his

spouse,

the district court's grant

to defendants Ponte,

wrongful

and

in

case

for

Employment

Act

The

Sabines ("Sabines") in this

their

suit

under

(the "ADEA"),

29

the

Age

U.S.C.

1964, 42 U.S.C.

Muleros also presented claims under Puerto

Rico Law

100, 29 L.P.R.A.

185(a), Law 80, 29

and

Puerto

Code

the

Ortiz-

of summary judgment

626(c), and Title VII of the Civil Rights Act of

2000e, et seq.
_______

Gladys

Rico Civil

tortious conduct provisions.

for

breach

For the reasons

L.P.R.A.

146,

of contract

and

stated herein, we

affirm in part and reverse in part.

BACKGROUND
BACKGROUND

As always,

in reviewing the district

court's grant of

summary

judgment, we

present

the facts,

district court opinion and order, see

___

Inc.,
____

891 F. Supp. 680, 682-83

favorable

to the

Corp., 51 F.3d
_____

Inc. is a

e.g., Woodman
____ _______

descent, the

v. Haemonetics
___________

Appellee Ponte,

principal place of

Puerto Rico and is incorporated there.

Cuban

the

Mulero Rodr guez v. Ponte,

________________
______

1087, 1089 n.1 (1st Cir. 1995).

of

here from

(D.P.R. 1995), in the light most

nonmovant, see,
___

corporation whose

two families

drawn

business is

in

It is owned by members of

Pontes

and

the

Sabines.

Appellant Mulero worked for Ponte, Inc. for 29 years, starting as

driver

manager

and

eventually

and director.

By

attaining the

positions

January of 1993,

responsibility for the day-to-day

of

general

he bore substantial

operations of Ponte, Inc., and

-2-

received compensation of some $150,000 per year.

Mar a

officers

1991.

She

Luisa Ponte

of Ponte, Inc.,

soon moved to

("Ponte"),

one of

the owners

began to work

at the

company in late

restrict Mulero's authority,

and

limiting

his

ability to hire and fire employees by requiring her approval

for

personnel actions.

During

the course

of 1992,

Ponte and

Mulero

clashed over a series of issues, relating to Mulero's job

performance,

employee

Mulero's interaction

bonuses,

control

over

with other employees.

inventory,

and

Mulero's employment

was terminated on January 26, 1993, by Sabines and her son-in-law

Jorge Redondo ("Redondo"),

Mulero

was

47

years

discrimination under

court

granted summary

who was not a

old.

The

the ADEA

appellants

and Title

judgment

Ponte, Inc., employee.

sued,

alleging

VII, and the

district

for Ponte,

Inc., and

Sabines.

This appeal followed.

DISCUSSION
DISCUSSION

A.
A.

Title VII and ADEA Claims

Title VII and ADEA Claims
_________________________

In the summary judgment context, we review the district

court's

grant of summary judgment

de novo, and
_______

"are obliged to

review

the record in the

party, and

to draw all

party's favor."

841 (1st

(1994);

reasonable inferences

to the nonmoving

in the

nonmoving

LeBlanc v. Great American Ins. Co., 6 F.3d 836,

_______
________________________

Cir. 1993), cert. denied,

____________

see, e.g.,
___ ____

Woods v.
_____

255, 259 (1st Cir. 1994).

can

light most favorable

be drawn from

__ U.S. __, 114

S. Ct. 1398

Friction Materials, Inc.,

________________________

30 F.3d

"An inference is reasonable only if it

the evidence without

-3-

resort to speculation."

Friezev. Boatmen'sBank of Belton,950 F.2d538, 541(8th Cir. 1991).

______
_______________________

We will

uphold summary judgment where

depositions, answers to

file, together with

genuine issue as

is

the interrogatories,

affidavits, if

to any material fact and that

We are

court's logic,

ground."

and admissions

any, show that

entitled to a judgment as a matter

56(c).

not

restricted to

but can

Mesnick
_______

the

affirm on "any

there is

no

Fed. R. Civ. P.

scope of

the

district

independently sufficient

v. General Elec. Co., 950 F.2d 816,

__________________

every

on

the moving party

of law."

Cir. 1991), cert. denied, 504 U.S. 985 (1992).

____________

[n]ot

"the pleadings,

factual controversy

822 (1st

Of course,

bars a

litigant's access to the Rule 56 anodyne:

[T]he

mere

existence

of

some

alleged factual dispute between the

parties

will

not

defeat

an

otherwise properly supported motion

for

summary

requirement

judgment;

is

that

the

there be

no

genuine issue of material fact.

Medina-Mu oz v. R.J. Reynolds Tobacco Co., 896 F.2d

____________
___________________________

Cir. 1990)

(quoting Anderson
________

242, 247-48 (1986)).

most

trial because

flattering

factfinder

to

to

v. Liberty Lobby, Inc., 477

____________________

U.S.

the

resolve

An issue is

issue in

would

issue for

genuine if it "must

the evidence, viewed

nonmovant,

the

of setting

that there is a genuine

Fed. R. Civ. P. 56(e).

be decided at

(1st

The nonmovant bears the burden

forth "specific facts showing

trial."

5, 8

in the

permit

favor

Medina-Mu oz, 896 F.2d at 8 (citation omitted).

____________

of

light

rational

either party."

In the absence of direct evidence of discrimination, we

apply

the

familiar

burden-shifting

framework

of

McDonnell
_________

-4-

Douglass Corp. v.
______________

VII claims.

95-1867,

Green, 411 U.S. 792 (1973),

_____

See Ayala-Gerena
___ ____________

slip op. at

to ADEA and Title

v. Bristol Myers-Squibb Co., No.

_________________________

17 (1st Cir.

Sept. 5,

1996) (noting that

"direct

evidence

does

workplace"); see,
___

Espa a, 82
______

First,

that

Mulero (1)

include

e.g., Pages-Cahue
____ ___________

F.2d 533, 536-37

259.

Inc.'s

not

the plaintiffs

was within

legitimate performance

stray

remarks

in

the

v. Iberia L neas A reas de

________________________

(1st Cir. 1996); Woods,

_____

must establish a

a protected

prima facie

class; (2)

expectations;

30 F.3d at

(3) was

case

met Ponte,

adversely

affected; and (4) was replaced by another with similar skills and

qualifications.

15 (1st

See Smith v. Stratus Computer, Inc., 40 F.3d 11,

___ _____
______________________

Cir. 1994), cert. denied, __ U.S.

_____________

__, 115 S.

Ct. 1958

(1995); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.
____
______________________

1993).

produce a

Once they

do so, the

burden shifts to

valid and nondiscriminatory reason

Ponte, Inc., to

for the dismissal.

In the final

show

stage, the burden shifts back to

that Ponte, Inc.'s stated reason for Mulero's dismissal was

false and but a pretext for discrimination.

F.3d

at 260;

judgment

Medina-Mu oz,
____________

context,

Inc.'s

discriminatory

896 F.2d

plaintiffs,

evidence sufficient for a

Ponte,

the plaintiffs to

at 8.

the

In this

nonmovants,

summary

must

show

factfinder to reasonably conclude that

decision

animus.

as

See, e.g., Woods, 30

___ ____ _____

to

See
___

terminate

was

LeBlanc, 6 F.3d
_______

driven

at 843.

by

"Thus, a

district court's grant of summary judgment to an employer will be

upheld

if

the

record

is

devoid

of

adequate

direct

or

circumstantial evidence of the employer's discriminatory intent."

-5-

Pages-Cahue, 82 F.3d at 537.

___________

-6-

1.
1.

The Prima Facie Case

The Prima Facie Case
____________________

The parties agree

that only the second

prima facie case, i.e., that Mulero met Ponte,

____

job expectations, is in

dispute.

depositions

cited, and noting

affirmative

evidence

of

element of the

Inc.'s legitimate

Finding little support

that the

record did

satisfactory

in the

not include

performance,

such

as

evaluations or appraisals, the district court nonetheless assumed

that the plaintiffs satisfied the second element, on the basis of

Mulero's

long history

court's reasoning a

at

Ponte, Inc.

step further and

We take

the

district

find that plaintiffs

did,

indeed, fulfill the second element.

Mulero

During that

posts

of

was at

time, he

general

Ponte, Inc.,

rose from

manager

and

for almost

being a

director,

thirty years.

driver to holding

with

the

the

attendant

promotions

and pay raises.

We have previously

found that such

evidence supports an inference that an employee's job performance

was

adequate to meet an employer's needs, even when the evidence

did not extend

Keisling
________

Cir.

all the way to

the time of

the discharge.

v. SER-Jobs for Progress, Inc., 19 F.3d

____________________________

See
___

755, 760 (1st

1994); see also Woodman, 51 F.2d at 1092; Stratus Computer,

________ _______
________________

40 F.3d at

15 n.4; Woods, 30 F.2d at 261.

_____

We do so again here,

and so find that plaintiffs established their prima facie case.

2.
2.

The

Ponte, Inc.'s Reason for Dismissal

Ponte, Inc.'s Reason for Dismissal
__________________________________

parties

do

not

articulated a non-discriminatory

namely, that

he "made

contest

that

defendants

reason for Mulero's

poor hiring decisions;

have

discharge,

argued repeatedly

-7-

with, threatened and vandalized

company's

accountant,

the automobile belonging to, the

Luis Caceiro

[("Caceiro")]; inadequately

controlled inventory; permitted his children inappropriate access

to the

company's

Mulero Rodr guez,

________________

resources; and

misallocated bonus

891 F. Supp. at 685.

payments."

We therefore turn to the

final step of the McDonnell Douglass framework.

__________________

3.
3.

In

stated

their

reason

discrimination,

Pretext for Discrimination

Pretext for Discrimination
__________________________

effort

to demonstrate

for

Mulero's

dismissal

the

plaintiffs weave

that

was

a tale

Ponte,

pretext

for

of discriminatory

comments, pretextual business decisions, and favoritism.

little substance in the

Inc.'s

story, the district court held

Finding

that the

plaintiffs did not meet their burden of demonstrating pretext and

unlawful animus, in either the

now

weigh

ultimate

in

the evidence

ADEA or the Title VII claim.

for each

in

on the

question, [and] scrapping the burden-shifting framework

favor of considering the evidence

F.2d at

turn, "focus[ing]

We

827.

Like the district court,

as a whole."

Mesnick, 950
_______

we find that much of the

Muleros' evidence

merely "reflects the

existence of differences

of

opinion between Mulero and others at the company with respect

to

wide variety

Rodr guez, 891 F.

_________

content

review

of issues

affecting

Supp. at 686.

the company."

Mulero
______

However, because we find

more

in the plaintiffs' case than did the district court, our

of the

inferences in

record

leads us

their favor,

evidence to fulfill the

to

conclude that,

the Muleros have

taking

all

offered sufficient

third McDonnell Douglass requirement and

__________________

-8-

survive summary

judgment.

court's grant of

Accordingly, we

summary judgment

reverse the district

on their Title

VII and

ADEA

claims.

a.
a.

The

against

The National Origin Discrimination Claim

The National Origin Discrimination Claim

plaintiffs contend

because he

Inc., were

Cuban and

noted above, at

is Puerto

that Mulero

Rican, and

preferred to

this stage

was discriminated

the owners

have a Cuban

of our analysis,

introduce sufficient evidence to support

of Ponte,

employee.

the Muleros

two findings:

As

"must

(1) that

the employer's articulated reason for laying off the plaintiff is

a pretext, and (2) that the true

reason is discriminatory."

Udo

___

v. Tomes, 54 F.3d 9, 13 (1st

_____

one set of evidence

F.3d at

1092

Cir. 1995).

The Muleros rely

to establish both findings.

(noting that

plaintiff may

upon

See Woodman, 51
___ _______

rely on

the

same

evidence for both findings); see also Udo, 54 F.3d at 13.

________ ___

We

defendants

turn

In

the

question

weighing whether

evidence for

reasons pretextual,

Ponte, Inc.'s

of

the Muleros

a reasonable factfinder

we remember

reasons

to

whether the decisionmakers

to be real.

to

pretext.

The

spell out a series of reasons for Mulero's dismissal,

listed above.

enough

first

fire

that the

have presented

to deem

issue is

Mulero were

real,

the cited

not whether

but

merely

-- Sabines and Ponte -- believed them

See Woodman, 51 F.3d at 1093.

___ _______

As the district court

noted,

the

defendants support

deposition testimony

with

their

reasons

and sworn statements.

with substantial

The Muleros counter

evidence challenging the veracity of many of the underlying

-9-

reasons,

but with little evidence that Sabines and Ponte did not

actually believe

leads us

to

them.

conclude

Nonetheless, our

that

the Muleros

review of

have

indeed

the record

produced

evidence sufficient

for a

reasonable factfinder to

find Ponte,

Inc.'s cited reasons pretextual.

First, defendants present evidence that complaints made

by

Ponte, Inc., salesmen over

the

a shortage of

inventory acted as

"catalyst" for the decision to terminate Mulero.

that

They argue

Ponte and Sabines met with the complaining salesmen in late

1992, because the salesmen were concerned about a shortage in the

inventory

Mulero

its

still had

Defendants

about

and

present

impact

the responsibility

clients

Defendants

well as

and

for buying

deposition testimony

the meeting, as

salesmen.

on their

of

complaints with Mulero, and that the

the inventory.

Sabines and

sworn statements

further attest

commissions.

Ponte

by two

of the

that they brought

up the

complaints "were the straws

that broke the camel's back."

However, the

complaints were false.

in fact

Appellants' Brief at 12.

Muleros

have offered

evidence that

the

Mulero's deposition testimony states that

a shortage of inventory was

a regular occurrence at the

end of every calendar year, because the company ceased purchasing

between

December 1

taken. Although

Sabines

that

and January

15 so

he

testified that

he was

behind in

that inventory

in

1992 he

taking

could be

discussed

the inventory,

with

he also

testified that it was in fact finished in time and that he had no

recollection

of

Sabines

or

Ponte

-10-

--

or

the

salesmen

--

complaining about

point out

produced

a shortage

that, although they

Mulero's testimony,

The Muleros

requested them, Ponte,

also

Inc., has

based thereon.

In sum,

giving credence to

a rational factfinder could

find that there

in fact no shortage of inventory beyond the standard end-of-

year freeze

on purchases.

This casts doubt on whether Ponte and

Sabines actually believed the

have

inventory.

no business records in any way reflecting a shortage or

lost sales or income

was

of

served

conclusion

as

the

catalyst

complaints, and whether they could

for

Mulero's

dismissal.

The

is not an inevitable one, but as the issues centering

on

the salesmen's

complaints involve

real issues

of fact,

it

should be left to the factfinders.

Second,

according to

Ponte's testimony,

the salesmen

also complained that when they asked for merchandise Mulero would

tell them to go ask Sabines

they found this attitude

or Ponte.

to be problematic, as Mulero

buying and selling authority.

he ever

salesmen's

still had

Mulero testified, however, that if

said that, it was because he

the salesmen.

The defendants argue that

was no longer in charge of

Clearly, an issue of fact exists as to whether the

complaints

Mulero's dismissal, as

on

this

it is

point are

real

unresolved what the

reason

for

scope of

his

responsibility was.

Finally, Ponte attests that

she started working at the

company because

mother, Sabines.

she

of complaints about Mulero's conduct made to her

Mulero, however, testified

that Ponte told him

was starting work at Ponte, Inc., "in order to relieve [him]

-11-

of some work."

Mulero Deposition,

although he said they

While

this

is

at 102.

At the same

were not needed, she hired

hardly

condemning

evidence,

time,

labor lawyers.

the

reasonable

factfinder could see Ponte's dissimulation regarding

her motives

for becoming active in the company and her contemporaneous hiring

of

attorneys as

further

proffered reasons

(noting that

refusing

reason to

disbelieve the

defendants'

Cf. Sinai, 3
___ _____

F.3d at 474

for firing Mulero.

fact that employer "advanced

different reasons for

to hire appellant at different times could have led the

jury simply to disbelieve" the employer).

Having

enough evidence

determined

that

the

Muleros

regarding pretext to defeat

have marshalled

summary judgment on

that point, we turn to the question of whether they can show that

the real

evidence

reason

in

was national

the

origin discrimination.

plaintiffs'

argument

that

The

Mulero

key

was

discriminated against because he is Puerto Rican is his testimony

that

Luis Caceiro repeatedly commented to Mulero that Mulero was

the only

that

Puerto Rican

"[h]ad

the

comment

defendants, it might

required to

running a

Cuban company.

been

attributable

have sufficed to satisfy

escape dismissal

Acknowledging

at this stage,"

to

the

the low threshold

Mulero-Rodr guez,
________________

891 F. Supp. at 685, the district court dismissed the evidence of

Caceiro's comment

and granted

The court found that

to show

that

influenced

the defendants

summary judgment.

Mulero had not offered sufficient

Caceiro was

in

any way

the decision-makers --

-12-

a decision-maker

evidence

--

or

regarding Mulero's dismissal.

See Medina-Mu oz, 896 F.2d at 10 ("The biases of one who

___ ____________

neither

makes nor

influences the

are not

probative

in

Woods, 30
_____

F.3d at

an

challenged personnel decision

employment

258.

The

discrimination case.");

district court

although not determinative, it "need

see also
_________

also noted

that,

not ignore" the absence

of

any evidence that defendants were aware of his Puerto Rican birth

and heritage during his lengthy career at Ponte, Inc.

Review of the record in the light most favorable to the

Muleros,

however,

leads

us

to

conclude

that

reasonable

factfinder could in fact

reasonably infer that Caceiro was

position to influence Ponte,

away

Mulero's

authority

responsibility to

Caceiro.

Inc.'s decision-making.

over

the

She also

salesmen,

in a

Ponte took

giving

the

shifted Mulero's inventory

duties to Caceiro, proposing to computerize the inventory system.

When she changed the bonus system, Caceiro's bonus was increased.

According to Mulero, Ponte

trusted Caceiro's word over Mulero's.

Finally, as the district court noted, Ponte "learned from Caceiro

about Caceiro's conflicts with Mulero."

Supp. at 685.

the

Given the favor with which Caceiro was treated and

responsibilities

reasonably be thought

Ponte's

Mulero Rodr guez, 891 F.

________________

given

him,

to have

decision-making.

on this

been in a

While

this is

record

Caceiro

position to

not

the

may

influence

inevitable

conclusion,

jury could

was

the

it is a

reasonable one.

infer that, based

only Puerto

Rican

Accordingly, a reasonable

on Caceiro's comments

running a

Cuban

that Mulero

company, national

origin animus played a role in the decision to terminate Mulero's

-13-

employment, and

so the district court erred

judgment on the Muleros' Title VII claim.1

in granting summary

b.
b.

The Age Discrimination Claim

The Age Discrimination Claim

The district

demonstrate

court

genuine issues

found the

of

record insufficient

material fact

regarding whether

Mulero's discharge was due to age-based animus.

comment Ponte

before

his

to

It

focused on a

made to Mulero in April of 1992, some eight months

discharge,

salespeople,

that he

was

"too

old

to handle"

the

and so was to be relieved of his supervisory duties

over the sales

force.

The court

found that this

statement was

followed by no additional evidence of age-related bias, and that,

standing alone, it was too remote in time for a sufficient

to exist between

review

Muleros

it and

the decision to

the record de novo.

________

have produced

As

terminate Mulero.

we have already

enough evidence

nexus

We

found that the

to support a

finding of

pretext, we turn

directly to

the question of

whether they

can

show that the real reason was age discrimination.

There is no question that statements like Ponte's, when

made by a decision-maker, can be evidence of age

See, e.g., Mesnick,

___ ____ _______

Rico, 922 F.2d

____

950 F.2d

at 824; Olivera
_______

43, 49 (1st Cir. 1990).

discrimination.

v. Nestl
Puerto
______________

Granted, Ponte made the

____________________

We note that the district court's recognition

been

promoted

over

undoubtedly knew of
As the

29-year

period

his Puerto Rican

district court

found, only

acknowledged decision maker,

in

that Mulero had

which

origin is not
in late

begin to

defendants

conclusive.

1991 did Ponte,

work at the

company.

an

jury

could infer from this and the policy changes she instituted

that

Ponte was

according

to

a
her

"new
own

broom"

and

wanted

prejudices, which

ignored.

-14-

had

to

"sweep
heretofore

clean"

been

comment in

relation to Mulero's ability to

handle the salesmen,

but "an employer's willingness

to consider impermissible factors

such

engaging in one set of presumably

as . . . age . . . while

neutral

employment

decisions .

. .

might

tend to

support an

inference that such impermissible considerations may have entered

into another

here,

an

area of ostensibly neutral

employee's termination."

employment decisions --

Conway
______

Corp., 825 F.2d 593, 597-98 (1st Cir. 1987).

_____

v. Electro Switch
_______________

However,

standing alone,

decision to

Co.,
___

30

we

agree

with

it is too remote

terminate Mulero.

F.3d

507,

512

the

district

court

that,

in time to be

linked with the

See Birkbeck v.
___ ________

Marvel Lighting
_______________

(4th

Cir.

1994)

(finding

that

discriminatory comment made over two years prior to discharge was

not

Inc.,
____

evidence of

986 F.2d

made almost

age discrimination);

1020, 1026

a year before

Phelps v.
______

(6th Cir.) (holding

layoff were

Yale Security,
______________

that statements

too far removed

to have

influenced decision), cert. denied, 510 U.S. 861 (1993); see also
____________
________

Cooley v. Carmike Cinemas, Inc.,

______
______________________

1994)

(listing timing

evidenced

of

remarks

discrimination); Frieze

25 F.3d 1325,

as

factor in

1330 (6th

Cir.

whether

they

v. Boatmen's Bank

of Belton,

______

950

F.2d 538,

[Ponte] made

541 (8th

such

Cir. 1991).

statement on

supports this conclusion."

If,

establish

decision

however,

the needed

to

fire

the

nexus

Mulero,

_________________________

Indeed, "[t]he

only

one

occasion

fact that

further

Birkbeck, 30 F.3d at 512.

________

Muleros

have offered

between Ponte's

the statement

-15-

may

evidence

statement and

become

to

the

pivotal.

Unlike the district court,

Specifically,

altered

at the

Mulero's

we find such

time she

supervisory

changes, including the method

In the

past, bonuses had

basis;

she switched

made the

duties,

"too old"

Ponte

comment and

instituted

in April on

merit-based system.

that she changed the system

record.

other

by which bonuses were apportioned.

been awarded

to a

a nexus in the

for two reasons.

to provide an incentive to new

employees.

a seniority

Ponte testified

First,

she wanted

Second, she felt that

the old employees gave all their loyalty to Mulero, and that they

knew that

bonus.

no matter what they

did, they would still

Thus the change was designed

and "attitude problems."

system, Mulero's bonus

get a good

to change their work habits

Ponte Deposition, at 61.

Under the new

was decreased -- Ponte testified that she

did

not believe Mulero deserved the bonus he had previously been

receiving --

while those

of several newer

employees, including

the younger Caceiro, were increased.

The

viewed in

business

policy change

several ways.

decision --

See LeBlanc, 6
___ _______

which we

its existence, however.

appellant,

First,

F.3d at 845.

the multiple reasons

were pretextual).

bonus system

the change in the

will not

That

Cf. Sinai,
___ _____

does not mean we

must ignore

its failure to

spouses of

easily have found

Second, although the

bonus, it did not change his base

system was a

3 F.3d at 474 (finding

against hiring

that jury could

can be

normally second-guess.

employer advanced for

including policy

employees, meant

regarding the

salary.

that

hire

current

the reasons

change reduced Mulero's

At the same time, the

-16-

bonus was

old

bonus

part of Mulero's expected compensation.

system was

based on

seniority,

Mulero's case, seniority could serve as

sum,

the evidence

conclusive:

regarding the

not age

Finally, the

--

but in

a proxy for his age.

bonus system

is

In

anything but

it can be viewed as a reasonable measure in the face

of a perceived problem, or as a method used to strip away part of

Mulero's compensation and

those who

hurt those employees

had been there the

longest.

loyal to him

Thus it

--

is prime fodder

for a jury.

It

old"

also serves

comment is

needed

strong evidence.

nexus between

change, as in

Mulero's purpose

it

The

and Mulero's

this context

here.

Ponte's "too

Muleros have

dismissal

we find the

found the

in the

combination of

bonus

Ponte's

"too old" comment with the change in the bonus system disfavoring

long-term --

Thus we

and therefore

think there

is a

often older --

material issue

employees troubling.

as to

whether Ponte,

Inc.'s real reason for firing Mulero was rooted in discriminatory

animus.

Cf.
___

Conway, 825
______

made eight months before

F.2d at 598

(holding that statement

employee was dismissed and one

made at

least

ten months before were

and,

thus,

properly

not too remote

admitted

discriminatory atmosphere

may have participated

at

trial

from the dismissal

as

where he who made

in the decision to fire

evidence

course,

evidence on
judgment

and

the

full

her and the other

presentation

both sides might

show

that the

of

alter this
plaintiffs

fell just short and would be subject to a

-17-

the first statement

refused to block her termination).

Of

of

directed

verdict.

judgment

stage,

But
with the

draw all reasonable

of the party
we

think

at

the summary
obligation to

inferences in

opposing summary

that this

case

favor

judgment,

could

not be

dismissed against [the] defendants.

Rubinovitz
__________

v.

Accordingly, and

Rogato,
______

60

F.3d

906,

with a nod to the

912

(1st

Cir.

1995).

premise that "determinations

of motive

and intent, particularly in

questions

better suited for the

discrimination cases, are

jury,"

Petitti
_______

v. New England
___________

Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990), we reverse the
________________

district court's grant of summary

judgment on the Muleros'

ADEA

claim.

A final note.

Without pointing

to a specific example,

the

Muleros argue that the district court misapplied the summary

judgment standard by founding its

its

acceptance

of

the

grant of summary judgment upon

defendants'

testimonial

evidence

as

"substantial," see Mulero Rodr guez, 891 F. Supp. at 685, and its
___ ________________

rejection of contrasting testimony.

(noting

that, in

summary

record and draw all

We

disagree.

regarding

the

judgment, reviewing

district

defendants' rebuttal

court must

view

framework,

the

and

defendants

court's

in the

was

comment

second step

was made

of the

merely describing

with

reasons.

See Mulero Rodr guez, 891 F. Supp. at 685 ("Defendants,

___ ________________

the ball, run quite

supported

the

strength

now tossed

which

at 836

reasonable inferences in nonmovant's favor).

First, the

McDonnell Douglass
___________________

See LeBlanc, 6 F.3d

___ _______

their asserted

a distance with it.").

Second,

although we reverse the court below, we find no misapplication of

the summary judgment standard in this difficult case.

Indeed, we

-18-

remind

appellants

that

"the

mere existence

factual dispute between the parties

properly supported motion

is that

there

be

of

issue

alleged

will not defeat an otherwise

for summary judgment; the

no genuine
_______

some

of material
________

requirement

fact."

See
___

Anderson, 477 U.S. at 247-48.

________

In

making their

allegation, the Muleros

the district court should not have

testimony because

of their

self-incrimination.

not

raised below,

requiring a

and so,

734 (1st Cir.

however, the

1996).

is not an

issue was

exceptional case

norm, the Muleros

are precluded

See Villafa e-Neriz v. FDIC, 75 F.3d

___ _______________
____

Even if the

argument were raised

727,

below,

privilege is largely

The Muleros' argument goes to credibility, and

is well established that

reasonable

privilege against

retort that this

defendants' invocation of the

irrelevant here.

it

as this

deviation from the

from raising it here.

credited Sabines' and Ponte's

invocation of the

The defendants

contend that

the nonmovants are

entitled to all

inferences in a summary judgment case, whether or not

the moving

party invoked their privilege.

Muleros misapprehend the nature of the

Fifth

Amendment

parties

does

not

adverse

inferences

1248 (1st

Cir.

318 (1976), see FDIC v. Elio,

___ ____
____

1994),

but

inferences, especially as regards

they refused to testify about.

F.3d

case law they cite:

"the

against

in civil actions when they refuse to testify," Baxter v.

______

Palmigiano, 425 U.S. 308,

__________

1239,

forbid

At the same time, the

515, 518

(1st Cir.

nor

does

mandate
_______

such

topics unrelated to the issues

Cf. Serafino
___ ________

1996) (noting

-19-

it

39 F.3d

v. Hasbro, Inc., 82
____________

that "assertion

of the

privilege may

Indeed,

sometimes disadvantage a party" (emphasis added)).

_________

to hold otherwise would

seem to go

against the premise

that the Fifth Amendment "'guarantees . . . the right of a person

to remain silent .

silence.'"

Id.
___

. . and to suffer

no penalty . . .
_______

at 517 (quoting Spevack v. Klein,

_______
_____

514 (1967) (emphasis added)).

for such

385 U.S. 511,

Therefore, we do not find that the

district court misapplied Baxter v. Palmigiano.

______
__________

-20-

B.
B.

Discovery
Discovery
_________

The Muleros next contend that the district court abused

its discretion

discovery.2

in refusing the

See
___

review district

parties' joint motion

Ayala-Gerena, Slip
____________

court's pre-trial

discretion).

They argue

that

Op. at

to extend

5 (noting

that we

discovery order for

protracted discovery

abuse of

disputes,

interruptions in the discovery process, and an early cutoff date3

made the

they

requested four-month extension essential.

continue, was

contest

the

prejudicial impact

testimonial

evidence

on

The result,

their ability

presented

in

the

to

summary

judgment motion.

However, the

the

Muleros did not

district court's denial of

extension

mention

of

the

the

discovery

need for

seek reconsideration

of

the parties' stipulation for the

period.

further discovery

Nor

in

did

the appellants

their part

of the

Proposed

Pretrial

"discovery

[had]

Order;

long

indeed,

since

they

cited

closed"

in

the

fact

arguing

defendants' summary judgment motion was untimely

that

that

the

and contravened

____________________

The Muleros do not seem to address their argument to either of

the Magistrate Judge's two orders

Nonetheless,
clarification

we note that, although they

of one

(which was denied),

either

order

regarding discovery deadlines.

aspect

of the

they did not

regarding

the

Fed. R.

judge's

Civ.

P. 72(a)

second magistrate's

in fact

discovery

argument regarding the Magistrate

See
___

order

file an objection
deadline,

and

so

to

any

Judge's order has been waived.

(party

order within ten days);

filed a motion seeking

must object

Pagano v. Frank,
______
_____

to

magistrate

983 F.2d 343,

345-46 (1st Cir. 1993).

The

seven

discovery cutoff date

months

after the

was set

defendants

February 11, 1994.

-21-

for September

answered

12, 1994,

the complaint

on

Local Rule

Further,

Summary

Motion

312.

the

Plaintiffs'

Muleros'

Judgment and

Proposed Pretrial

Opposition

their

Surreply in

for Summary Judgment are

a Rule 56(f) motion

Defendants'

Motion

Further Opposition

both silent as

court denial of additional time for

need for additional discovery.

to

Order, at

23.

for

to

to the district

discovery, as well as to any

Finally, the Muleros did not file

requesting additional discovery in

order to

oppose

the Motion for Summary Judgment.

In these circumstances,

the Muleros have well and fully waived their right to

issue on appeal.

See Correa
___ ______

argue this

v. Hospital San Francisco, 69

______________________

F.3d

1184, 1195 (1st Cir. 1995) (noting that failure to raise an issue

in the final pretrial

order generally constitutes waiver), cert.

_____

denied, __ U.S. __, 116 S. Ct. 1423 (1996); Beaulieu

______
________

F.2d

1351,

1352

(1st Cir.

1989)

("[I]t

is

v. IRS, 865
___

a party's

first

obligation to seek any relief that might fairly have been thought

available in the district court before seeking it on appeal.").

C.
C.

Finally, the

erred

in entering

The Supplemental Claims

The Supplemental Claims
_______________________

Muleros

argue that

judgment on

supplemental Puerto Rico law claims.

the

the

merits on

district

the

court

Muleros'

They argue that the summary

judgment

motion focused solely on the Title VII and ADEA claims,

such that the Puerto Rico law claims were not even the subject of

the motion.

Muleros'

Accordingly, they

federal

dismissed

the

prejudice

to

law claims,

supplemental

their

being

posit,

the

Puerto

refiled

-22-

when it

district

Rico

in

court should

law

dismissed

court

claims

of

the

have

without

competent

jurisdiction.

The

properly

defendants contest

raised before

this

that

the issue

court, as

the

has not

Muleros failed

been

to

designate the dismissal of the supplemental claims as an issue on

appeal, and so the appeal

App. P.

10(b)(3).

should be deemed waived.

See
___

Fed. R.

Specifically, the Muleros' first stated issue

was that the court below erred in granting the motion for summary

judgment

and dismissing

the

action "as

issues of material fact requiring

1.

trial."

there existed

genuine

Appellants' Brief, at

The second stated issue regarded

the discovery continuance.

We agree with the defendants that the

issues as presented do not

encompass the question whether the Puerto Rico law

have been dismissed.

claims should

Moreover,

encompassed

deemed

even

if

the question

waived.

The

now raised,

defendants'

specifically

requests

federal

state

and

the Muleros'

law

summary

statement

of issues

it would still

have been

Motion

judgment

claims,

as

for Summary

as

did

Judgment

regards

their

Reply

both

the

to

the

plaintiffs' Opposition, such that the district court did have the

Puerto Rico

and

law claims in front of

it.

The Muleros' Opposition

Surreply, however, remained silent as to the Puerto Rico law

claims:

they

argued neither

that the

Puerto Rico

law claims

should be dismissed without

prejudice, as they do now,

the

its

court

these

In

should exercise

claims.

Nor did

these circumstances,

supplemental

they file a

we find

nor that

jurisdiction over

motion for reconsideration.

that

the Muleros

have indeed

-23-

waived this argument.

Technology,
__________

See McCoy
___ _____

950 F.2d 13, 22

U.S. 910 (1992).

v. Massachusetts Institute of
___________________________

(1st Cir. 1991),

cert. denied, 504

____________

-24-

CONCLUSION
CONCLUSION

For the

reasons presented above, the

denial of the joint motion to extend discovery

opinion

of

reversed as
reversed
________

the

district

court granting

district court's

is affirmed.
affirmed
________

summary

judgment

The

is

to the Title VII and ADEA claims, and affirmed as to

affirmed
________

the pendent Puerto

Rico Law claims.

We remand

this case to the

district court for proceedings consistent with this decision.

-25-