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 
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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. 
- 3 - 

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 
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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 
- 5 - 

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. 
- 6 - 

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 
- 7 - 

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. 
- 8 - 

 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 
- 9 - 

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). 
- 10 - 

 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–
- 11 - 

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 SotoFeliciano 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 
- 12 - 

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 
- 13 - 

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 
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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 
- 15 - 

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 
- 16 - 

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 PagesCahue 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 
- 17 - 

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.