United States Court of Appeals

For the First Circuit 

No. 17-1491 

MARÍA I. VILLENEUVE, 

Plaintiff, Appellant, 

 v. 

AVON PRODUCTS, INC., 

 Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Daniel R. Domínguez, U.S. District Judge] 

Before

Torruella, Thompson, and Kayatta,

Circuit Judges. 

 Juan M. Frontera-Suau, with whom Kenneth Colón and Frontera 

Suau Law Offices, PSC were on brief, for appellant. 

 Elizabeth Pérez-Lleras, with whom Lourdes C. HernándezVenegas and Schuster Aguiló LLC were on brief, for appellee. 

March 19, 2019 
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THOMPSON, Circuit Judge. In this diversity case — 

governed by Puerto Rico law, as the parties agree (Puerto Rico is 

a "state" for diversity-jurisdiction purposes thanks to 28 U.S.C. 

§ 1332(e)) — María Villeneuve contests the district judge's orders 

jettisoning her discrimination claims against her former employer, 

Avon Products, Inc. (just "Avon" from now on). Detecting no 

reversible error, we affirm. 

HOW THE CASE GOT HERE 

Because the judge kicked out Villeneuve's claims on 

Avon's motions to dismiss and for summary judgment (the judge 

should have treated the first motion as a motion for judgment on 

the pleadings, for reasons we will get to), we sketch the pertinent 

events in the light most flattering to her cause. See, e.g., Small 

Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, 323 (1st Cir. 

2017); Estate of Bennett v. Wainwright, 548 F.3d 155, 159 (1st 

Cir. 2008). 

Villeneuve's Stint at Avon 

In January 1998, when she was 30 years old, Villeneuve 

started working as a "Caribbean Zone Manager" for Avon, a 

multinational cosmetics, fashion, and accessories company. 

Sometime in 2005 (the record does not say exactly when), she became 

a "District Zone Manager." And several years later, in May or 

June 2012, she became a "Caribbean Call Center Correspondent" 
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("Caribbean CCC," for short), though her salary was the same as 

her District Zone Manager salary. Avon terminated her employment 

effective July 11, 2014. She was 47 years old on the day Avon let 

her go. 

Villeneuve's Suit Against Avon 

Unhappy with this turn of events, Villeneuve filed this 

lawsuit against Avon in November 2014. Stripped to its essence, 

her complaint alleged that Avon had discriminated against her by 

firing her because of her age and because of her affectionate, 

"longstanding" relationship with an attorney "of a different 

gender" who had sued Avon "several" times before on behalf of other 

former Avon employees — a relationship that Avon knew about. 

Consistent with the judge and the parties, we refer to the claim 

involving her "longstanding affective partner" as the "sexualorientation-discrimination claim." According to her complaint, 

the discrimination in question violated two Puerto Rico statutes:

P.R. Laws Ann. tit. 29, § 185a — a law commonly called "Law 80"; 

and P.R. Laws Ann. tit. 29, § 146 — a law colloquially called "Law 

100."1 As relevant here, Law 80 requires an employer to 

1 Reader alert: Puerto Rico amended these laws by passing 

the "Labor Transformation and Flexibility Act," effective on 

January 26, 2017. The changes govern only prospectively, however 

— "[e]mployees hired before the effective date of this act," wrote 

the legislature, "shall continue to enjoy the same rights and 

benefits they enjoyed before, as expressly provided in the sections 

thereof." P.R. Laws Ann. tit. 29, § 121a. So the amendments are 
- 4 -

"[i]ndemni[fy]" the employee if the employer terminates her 

"without just cause." See P.R. Laws Ann. tit. 29, § 185a. And 

Law 100 outlaws employment practices that discriminate against 

persons on the basis of "age" or "sexual orientation." See P.R. 

Laws Ann. tit. 29, § 146. 

Avon's Partial Motion to Dismiss 

and the Judge's Ruling

After answering Villeneuve's complaint, Avon filed a 

motion to dismiss the sexual-orientation-discrimination claim 

against it — citing Fed. R. Civ. P. 12(b)(6).2 In its memo 

supporting its dismissal motion, Avon stressed how Law 100 forbids 

an employer from firing an employee because of the employee's 

sexual orientation. And Avon quoted a 2013 amendment to Law 100, 

which provides that "sexual orientation" 

[m]eans the ability of any person of having an emotional, 

affectional, or sexual attachment to persons of the 

other gender, the same gender, or more than one gender. 

. . . [T]o accomplish all the purposes provided herein, 

not relevant here. Which is why we simply discuss the law as it 

existed when the events at issue occurred — and as is the custom, 

"we use the present tense" when doing so. See Graham Cty. Soil & 

Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 

280, 283 n.1 (2010) (taking that tack in a similar situation).

2 Because Avon's answer generally denied all claims, the judge 

should have construed Avon's motion to dismiss as a motion for 

judgment on the pleadings under Fed. R. Civ. P. 12(c). See, e.g., 

Patrick v. Rivera-López, 708 F.3d 15, 18 (1st Cir. 2013). But 

this oversight does not matter for present purposes, since "[a] 

motion for judgment on the pleadings is treated much like a Rule 

12(b)(6) motion to dismiss." See Pérez-Acevedo v. Rivero-Cubano, 

520 F.3d 26, 29 (1st Cir. 2008). 
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this definition shall be interpreted as broadly as 

possible to extend the benefits thereof to any citizen 

who is a victim of discrimination, whether it is a onetime event or a pattern. 

See P.R. Laws Ann. tit. 29, § 151(7). With that foundation in 

place, Avon revealed its big argument — that Villeneuve's 

allegations of being "in a relationship with a lawyer who has sued 

Avon in the past" did not put her in a "protected class." In other 

words, because, according to Avon, Villeneuve "bases her" sexualorientation-discrimination claim "on the profession and conduct of 

the person she is dating, i.e., an attorney who has sued Avon," 

her allegations have "nothing to do with [her] sexual orientation" 

— which excludes her from the class protected by Law 100. And 

Avon saw no basis for extending Law 100's protections to cover 

such a situation. 

Villeneuve countered that because she alleged "Avon took 

into account the specific and affectionate relationship she had 

with said lawyer when deciding . . . her employment status at the 

company" — i.e., because she alleged this "affectionate and 

romantic relationship . . . was a motivating factor" in her firing 

— she had "protected status under Puerto Rico Law." Which is why, 

her argument continued, the judge had to deny Avon's partial motion 

to dismiss.

The judge, for his part, sided with Avon. Noting that 

Law 100 bans an employer from terminating an employee "because of" 
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the employee's "sexual orientation," the judge ruled that an 

employee's "being terminated because the employer disapproves of 

the professional legal conduct of the romantic partner . . . is 

not . . . a discriminating event within the law." So the judge 

granted Avon's motion and dismissed Villeneuve's sexualorientation-discrimination claim.

Avon's Motion for Summary Judgment 

and the Judge's Ruling 

Years of discovery ensued, culminating in Avon's moving 

for summary judgment on Villeneuve's remaining claims — age 

discrimination under Law 100 and unjust discharge under Law 80. 

Its summary-judgment submissions told the following story. 

At the time of her firing, Villeneuve worked as a 

Caribbean CCC at Avon's Call Center. Overseen by Carmen Miranda, 

the Head of the Avon Customer Care Department, the Call Center 

employed a number of Call Center Correspondents ("CCCs," from now 

on). But Villeneuve was the only Caribbean CCC there.

"[I]n charge of dealing with the Caribbean," 

Villeneuve's duties included training Avon's Puerto Rico and 

Caribbean "representatives" to "place orders online"; 

"perform[ing] welcome calls for new representatives"; "mak[ing] 

past-due collection calls to representatives in the Caribbean"; 

"handling calls in English" and "provid[ing] English materials" on 

"request." She was also required to be bilingual; to send emails 
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to representatives in the Caribbean reminding them of events 

happening in the Caribbean; and to travel within and outside Puerto 

Rico. CCCs, on the other hand, did not make calls on past-due 

orders; did not travel within or outside Puerto Rico; and only 

needed a basic knowledge of English. 

Concerned with Avon Puerto Rico's lack of growth, 

Adnauer Amorin, Avon's General Manager for Puerto Rico and Canada, 

ordered a reorganization — which required a reduction in personnel. 

Department heads in Puerto Rico had to achieve a certain level of 

savings, for example, with Miranda asked to shave $300,000 from 

the Customer Care Department's budget. And after reviewing the 

situation, Miranda concluded that the Caribbean CCC's workload did 

not justify what Avon was paying Villeneuve. So Avon terminated 

Villeneuve, abolishing the Caribbean CCC job and transferring her 

duties to other positions.

But Villeneuve was not the only person let go because of 

the reorganization, Avon was quick to point out. Several other 

employees in five departments — Customer Care, Sales, IT, Supply 

Chain, and Finance — lost their jobs too.3 Five firees were younger 

than Villeneuve, Avon added. And three were older. 

3 A point of clarification: Avon said in its summary-judgment 

memo that it had fired nine employees as part of the reorganization 

— something Avon repeats in its brief to us. Avon's Human Resource 

Manager, Claudia Cifuentes, did say that the reorganization 

resulted in Avon's firing "a total of 9 employees." But as the 
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Having said its piece on the facts, Avon made a 

multifaceted argument for why it should win at the summary-judgment 

stage (we highlight its main points). For starters, Avon contended 

that because Villeneuve had lost her job as part of "a bona fide

reorganization, . . . implemented to obtain cost savings, optimize 

the [c]ompany's resources," and "increase its profits and 

competitiveness," she could not establish a prima facie case of 

age discrimination under Law 100. Next, Avon argued that even 

assuming Villeneuve had a prima facie case, she could not show 

that the articulated rationale was pretextual. And because she 

was fired during a "bona fide reorganization," her "termination 

was with just cause" — which means (at least in Avon's view) that 

her Law 80 claim was a no-go.

Villeneuve's memo opposing summary judgment insisted 

that Avon got all the important things dead wrong. She claimed, 

for instance, that her duties as Caribbean CCC were "essentially 

the same" as the CCCs. She also claimed that they had the same 

direct supervisor; attended meetings called by that supervisor; 

got "the same training" on "Avon products and campaigns"; and 

"shared the same work schedule and the same evaluation performance 

district judge indicated, the supporting documents show that Avon 

fired a total of eight employees — five over the age of forty 

(including Villeneuve) and three under that age. 
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forms." And she claimed that a "substantially younger" Avon 

employee assumed her duties after her termination.

Moving from the facts to the law, Villeneuve complained 

that Avon had not carried its burden under Law 80 of showing just 

cause for her termination, principally because it based its "bona

fide reorganization" theory on inadmissible hearsay evidence.4 And 

even if the evidence were admissible, the evidence in no way 

indicates Avon faced a decrease in sales or revenues so substantial 

as to "put[] at risk the continuity of the business," thus 

necessitating a reorganization — or so she protested. She also 

argued that Avon failed to give her seniority preference over her 

coworkers in "the same occupational classification." As for the 

Law 100 matter, Villeneuve contended that Avon's proffered 

4 Convinced the evidence was inadmissible, Villeneuve moved 

to strike numerous paragraphs in Avon's statement of uncontested 

facts (a statement submitted by Avon in support of its summaryjudgment motion) — we note for future reference, however, that 

under Fed. R. Civ. P. 56(c)(2), a party may simply object in her 

memo to evidence she thinks is inadmissible; "[t]here is no need 

to make a separate motion to strike." Fed. R. Civ. P. 56(c)(2) 

advisory committee's note to 2010 amendment. Villeneuve also 

separately moved to "strike and/or deny" Avon's summary-judgment 

motion for providing "incomplete" English translations of several 

Puerto Rico Supreme Court cases cited in Avon's summary-judgment 

memo. The judge entered an electronic order saying that because 

these motions to strike "are directly intertwined with [Avon's] 

pending" summary-judgment motion, he would "address[]" them "in 

ruling on the motion for summary judgment forthwith." 
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explanation was merely a pretext for unlawful age discrimination, 

especially since a younger employee assumed her former duties.

With the issues teed up for decision, the district judge 

ruled this way. The judge first decided that Avon's evidence 

established Villeneuve was a legitimate casualty of a bona fide

reorganization — legitimate, because Avon ordered the 

reorganization to combat the Puerto Rico operation's "lack of 

growth and to generate savings," not to discriminate against her 

on age grounds. On the age-discrimination point, the judge found 

that a "bona fide reorganization" led to the firing of eight 

employees — three of whom "were less than 40 years old" at the 

time (including one who was 29), while Villeneuve (don't forget) 

was 47. So "Avon's bona fide reorganization was not motivated by 

age discrimination, but [by] economic reasons," and was thus done 

with just cause. Villeneuve also showed "no evidence" of pretext, 

the judge added. Ultimately, because she "failed to show a prima

facie case of age discrimination under Law 100," and because 

"Avon's reorganization was performed 'with good cause' under Law 

80," the judge granted Avon's summary-judgment motion.5

5 The judge, though, did not expressly rule on Villeneuve's 

motions to strike paragraphs from Avon's statement of uncontested 

facts. But his summary-judgment decision did rely on paragraphs 

that Villeneuve wanted stricken. While "it is plainly the better 

practice for a trial court to rule explicitly on every substantial 

motion, it has long been accepted that a trial court may 

implicitly deny a motion by entering judgment inconsistent with 
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OUR TAKE 

Dissatisfied with the judge's dismissal and summaryjudgment rulings, Villeneuve appeals. She and Avon make an array 

of arguments in support of their positions. And we address them 

below, adding more details as we go along. But first, a quick 

primer on the workings of the statutory system in vogue when she 

filed her complaint (see our first footnote for an explanation of 

all this). 

Law 80 and Law 1006

Law 80 

Law 80 creates a right of action for at-will employees 

fired "without just cause." See P.R. Laws Ann. tit. 29, § 185a. 

Stressing that just cause cannot be founded on "the mere whim of 

the employer," id. § 185b, Law 80 says that a dismissal is for 

just cause when, for example, the employee "indulges in a pattern 

of improper or disorderly conduct," id. § 185b(a); there are 

"[t]echnological or reorganization changes as well as changes of 

style, design, or the nature of the product made or handled by the 

[company]," id. § 185b(e); or there are "[r]eductions in employment 

it." In re Grand Jury Subpoena, 274 F.3d 563, 577 (1st Cir. 2001).

And that is essentially what the judge did with Villeneuve's motion 

to strike various paragraphs in Avon's statement of uncontested 

facts.

6 Each case of ours mentioned in this part of the opinion 

interpreted and applied Puerto Rico law.
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made necessary by a reduction in the anticipated or prevailing 

volume of production, sales, or profits at the time of the 

discharge," id. § 185b(f).7 For ease of reference, we will refer 

to the last two provisions — the ones relevant here — as, 

respectively, "provision (e)" and "provision (f)." Anyhow, if the 

employer fires "employees for one of those . . . reasons, . . . 

the employer must give preference to those employees with greater 

seniority over those with less seniority within the same 

occupational classification." Carrasquillo-Ortiz v. Am. Airlines, 

Inc., 812 F.3d 195, 196 (1st Cir. 2016). 

Helpfully, Puerto Rico's Supreme Court has explained 

that provision (e) "allows the dismissal of employees without 

having to pay the compensation . . . if that decision is made as 

part of a [c]ompany's reorganization that is so required." Zapata–

Berríos v. J.F. Montalvo Cash & Carry, Inc., 189 P.R. Dec. 414, 

426 (2013) (certified partial translation provided on appeal by 

Villeneuve, our docket entry number 47-2). Or put slightly 

differently, employers

can modify the way [they] do[] business through some 

type of change directed to optimizing [their] resources 

and increasing the profits, be it [by] eliminating 

positions, creating others new or merging some already 

existing as a vehicle to face financial or competition 

problems, as long as it is a bona fide restructuring. 

7 The statute provides other examples too. 
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Id.

As for provision (f), Villeneuve plays up the following 

from Zapata–Berríos. "[T]he economic situation caused by the 

reduction in production, sales or profits in a [c]ompany," Puerto 

Rico's top court said, "can lead . . . employer[s] to take measures 

to limit the costs, such as reducing the workforce." Id. But 

that "does not mean that every reduction in sales or profits will 

translate in[to] just cause for a dismissal" — rather, provision 

(f) "will only apply to those situations in which the referenced 

reduction is substantial to the point that it threatens the 

continuity of the company." Id.; see also id. at 426-27 

(emphasizing that "[s]uch reduction in sales, profits, or real or 

foreseen production must be significant to the degree that it 

threatens the stability and economic solvency of the business").8

8 Now is a good a time to discuss Villeneuve's gripe about 

Avon's use of partially translated cases in its summary-judgment 

memo. She first argues that Avon's failure to give the judge full 

translations of these cases should cause us to reverse his summaryjudgment ruling. The problem for her, however, is that the judge 

did not use these cases in his summary-judgment analysis. See 

generally Dávila v. Corporación de P.R. para la Difusión Pública, 

498 F.3d 9, 16 (1st Cir. 2007) (finding no reversible error where 

the "untranslated" documents had no "bearing on the district 

court's ratio decidendi"). Battling on, she also argues that the 

parts of Zapata–Berríos she had translated for this appeal (quoted 

above) cut the legs out from under the judge's summary-judgment 

decision (for what it's worth, Villeneuve relied on these snippets 

of Zapata–Berríos in her papers opposing summary judgment, but 

without giving the judge any English translations). The problem 

with this line of argument is that the translated pieces on which 
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 Law 80 operates through the following burden-shifting 

regime. The plaintiff has the initial burden of showing that the 

employer actually or constructively fired her, and of alleging 

that her firing was not justified. See, e.g., Echevarría v. 

AstraZeneca Pharm. LP, 856 F.3d 119, 140 (1st Cir. 2017); ÁlvarezFonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 28 (1st 

Cir. 1998). If she does that, the burden shifts to the employer 

to show just cause for the firing. See, e.g., Echevarría, 856 

F.3d at 140; González v. El Día, Inc., 304 F.3d 63, 75 (1st Cir. 

2002). And if the employer does that, the burden shifts back to 

the plaintiff to rebut the employer's showing. See Echevarría, 

856 F.3d at 140.

Construing Puerto Rico law, we recently described what 

an employer must show "to establish just cause under Law 80." See 

Pérez v. Horizon Lines, Inc., 804 F.3d 1, 9 (1st Cir. 2015). "[A]n 

employer," we said, "need only demonstrate that it had a reasonable

basis to believe" that the case's circumstances fit within an 

example of just cause listed in the statute. See id. (emphasis 

added).9 To our minds, Law 80's language forbidding "an employer 

she pins her hopes are of no help to her, for reasons we discuss 

later.

9 Pérez dealt with the improper-or-disorderly-conduct 

example. Id. at 9-10. But nothing in Pérez limits its application 

to that example. 
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[from] act[ing] on a 'whim'" suggests "that a 'just' discharge is 

one where an employer provides a considered, non-arbitrary reason 

for an employee's termination that bears some relationship to the 

[company's] operation." Id. at 9. We then noted that Puerto 

Rico's high court

has . . . resisted reading Law 80 to impose statutory 

penalties "just because an employer makes an error of 

judgment," since such a rigid reading (which would seem 

to require courts to regularly review the merits of 

companies' internal investigations) would go "beyond the 

letter and spirit of the law." 

Id. at 9-10 (quoting Narvaez v. Chase Manhattan Bank, 120 P.R. 

Dec. 731, 20 P.R. Offic. Trans. 766, 773 (1988)). We emphasized 

as well that we judges do not serve "as [a] super personnel 

department[], assessing the merits — or even the rationality — of 

employers' nondiscriminatory business decisions." Id. at 10 

(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 

1991)). And wrapping up, we wrote that while "Law 80 undoubtedly 

circumscribes the reason for which an employer may terminate an 

employee[,] . . . we do not read the statute to require a factfinder 

to regularly review the objective accuracy of an employer's 

conclusions." Id. (footnote omitted). 

Law 100 

Among other things, Law 100 prohibits discrimination in 

employment because of age or sexual orientation. See P.R. Laws 

Ann. tit. 29, § 146. And "sexual orientation" again "[m]eans the
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ability of any person of having an emotional, affectional, or 

sexual attachment to persons of the other gender, the same gender, 

or more than one gender" — a definition courts should "interpret[] 

as broadly as possible." See P.R. Laws Ann. tit. 29, § 151(7). 

Under Law 100, a plaintiff must first establish a prima facie case 

by showing the employer actually or constructively fired her, and 

by alleging the employer did so discriminatorily. See Baralt v. 

Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir. 2001). If she 

satisfies these modest requirements, a rebuttable presumption of 

discrimination arises, shifting the burden to the employer to prove 

it had "just cause" for the firing, see id., with just cause's 

meaning drawn from Law 80, see Pérez, 804 F.3d at 8 n.4 (noting 

that Law 100's burden-shifting regime largely mimics Law 80's). 

If the employer establishes just cause, the presumption vanishes 

and the plaintiff must prove that the employer's stated reason was 

merely a pretext for unlawful discrimination. See García-García 

v. Costco Wholesale Corp., 878 F.3d 411, 423 (1st Cir. 2017); 

Pérez, 804 F.3d at 8 n.4; see also Álvarez-Fonseca, 152 F.3d at 28 

(noting that in such circumstances, "[t]he plaintiff must prove 

that, even if the dismissal was justified," the employer still 

infracted "Law 100 because the dismissal was motivated by 

discriminatory animus instead of or in addition to the legitimate 
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reasons for dismissal").10 But if the employer does not establish 

just cause, it must prove that the firing was not motivated by 

illegal discrimination. See, e.g., Baralt, 251 F.3d at 16; 

Álvarez-Fonseca, 152 F.3d at 28. 

The Judge's Dismissal Ruling

Standard of Review 

Because Avon filed its Rule 12(b)(6) motion after filing 

its answer to Villeneuve's suit, the judge should have treated the 

motion as a Rule 12(c) motion. See Pérez-Acevedo, 520 F.3d at 29. 

No matter, we say. And that is because under either rule, we 

review the judge's order dismissing Villeneuve's sexualorientation-discrimination claim with fresh eyes (what the law 

calls "de novo" review), keeping in mind the following points. 

Dismissal is proper if — after accepting all wellpleaded facts as true and viewing them in the light most favorable 

to Villeneuve — the complaint fails to allege a plausible right to 

relief. See, e.g., Doe v. Brown Univ., 896 F.3d 127, 130 (1st 

Cir. 2018); Díaz–Nieves v. United States, 858 F.3d 678, 688-89 

(1st Cir. 2017); Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 

10 "'[P]retext'" generally "means deceit used to cover one's 

tracks." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 

684 (7th Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods., 

Inc., 530 U.S. 133 (2000)); see also Black's Law Dictionary 1380 

(10th ed. 2014) (defining pretext as "[a] false or weak reason or 

motive advanced to hide the actual or strong reason or motive").
- 18 -

(1st Cir. 2016); Pérez-Acevedo, 520 F.3d at 29. Plausibility 

demands that the factual allegations "be enough to raise a right 

to relief above the speculative level." Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). And we gauge plausibility by 

drawing not only on "judicial experience," but also on "common 

sense." See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 

Also, "[a]lthough a plaintiff must plead enough facts to make 

entitlement to relief plausible in light of the evidentiary 

standard that will pertain at trial — in a discrimination case, 

the prima facie standard — she need not plead facts sufficient to 

establish a prima facie case." Rodríguez-Reyes v. MolinaRodríguez, 711 F.3d 49, 54 (1st Cir. 2013). And ultimately, we 

can affirm the order on any basis evident from the record. See, 

e.g., Doe, 896 F.3d at 130. 

Now for our analysis of the judge's handling of 

Villeneuve's sexual-orientation-discrimination claim. 

Sexual-Orientation-Discrimination Claim 

 Villeneuve plausibly pled that Avon fired her. But she 

did not plausibly plead that her firing constituted sexualorientation discrimination in violation of Law 100, even after 

accepting her complaint's well-pleaded facts as true and 
- 19 -

construing them in the light most pleasing to her. Our reason for 

thinking so is straightforward.

Remember: Law 100 bars employers from firing employees 

because of the employees' "sexual orientation" — i.e., it forbids 

companies from discriminating against workers because of the 

workers' "ability" to have "an emotional, affectional, or sexual 

attachment to persons of the other gender, the same gender, or 

more than one gender." See P.R. Laws Ann. tit. 29, § 151(7). 

Remember too: Villeneuve alleged Avon canned her "because of her 

longstanding affective relationship with a lawyer" — "a person of 

a different gender than her" — who "had filed several federal cases 

of employment discrimination and/or unjust dis[charge] against 

[Avon]." And therein lies the rub: Villeneuve's key allegation 

is not that Avon fired her "because of" her "ability" to have "an 

emotional, affectional, or sexual attachment to [a] person[] of 

the other gender." It is that Avon fired her because of her 

companion's litigious involvement with the company. So she has 

not plausibly pled sexual-orientation discrimination in her 

discharge.

We of course take seriously our duty to interpret the 

definition of sexual orientation "broadly" to achieve the 

statute's "purposes." See P.R. Laws Ann. tit. 29, § 151(7). But

an employee's being in an affectionate relationship with a lawyer 
- 20 -

who has sued the employer simply is not a protected class under 

the statute. And to hold otherwise (as Villeneuve says we should) 

would require us to create indirectly what the Puerto Rico 

legislature did not provide directly — something we have no power 

to do. See, e.g., P.R. Laws Ann. tit. 31, § 14 (proclaiming that 

"[w]hen a law is clear and free from all ambiguity, the letter of 

the same shall not be disregarded, under the pretext of fulfilling 

the spirit thereof"); Warner Lambert Co. v. Tribunal Superior, 1 

P.R. Offic. Trans. 527, 559 (1973) (stating that because "[n]o 

ambiguity in the letter of the law []or doubts about the 

legislative intention exist," a court's "enlarg[ing]" a statute's 

definition "by judicial construction . . . would be tantamount to 

subverting the true sense and purpose of the statute").

And because Villeneuve's sexual-orientationdiscrimination claim does not cross the plausibility line, we must 

let the judge's dismissal of that claim stand.

The Judge's Summary-Judgment Ruling

Standard of Review 

We examine the judge's summary-judgment decision afresh. 

See Rivera-Corraliza v. Puig-Morales, 794 F.3d 208, 214 (1st Cir. 

2015). Viewing the facts and inferences in the light most friendly 

to Villeneuve, see Delgado-Caraballo v. Hosp. Pavía Hato Rey, Inc., 

889 F.3d 30, 34-35 (1st Cir. 2018), we ask whether Avon has shown 
- 21 -

"there is no genuine dispute as to any material fact and . . . is 

entitled to judgment as a matter of law," see Fed. R. Civ. P. 

56(a). And as always, we can affirm the judge's decision on any 

ground found in the record, including a ground the judge did not 

rely on. See Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 92 

(1st Cir. 2014). 

Unjust-Discharge Claim 

Because Villeneuve met her opening burden under Law 80 

— she showed that Avon fired her, and she alleged that her firing 

was not justified — the burden is now on Avon to show that it had 

an adequate justification for letting her go. See, e.g., 

Echevarría, 856 F.3d at 140. And it is to that subject we turn. 

Discussing provision (e) of Law 80, the Puerto Rico 

Supreme Court has made crystal clear that an employer is off the 

liability hook if it made a discharge decision "as part of a 

[c]ompany[] reorganization that is so required." See Zapata–

Berríos, 189 P.R. Dec. at 426. Thus, to again quote Puerto Rico's 

high court, an employer 

can modify the way it does business through some type of 

change directed to optimizing its resources and 

increasing the profits, be it [by] eliminating 

positions, creating others new or merging some already 

existing as a vehicle to face financial or competition 

problems, as long as it is a bona fide restructuring. 

Id.
- 22 -

And given the summary-judgment evidence, a 

reorganization under provision (e) is precisely the situation 

here. Worried about Avon Puerto Rico's rate of growth, Avon 

initiated some cost-saving measures — among them, having 

Department-Head Miranda slash $300,000 from the Customer Care 

Department's budget. As part of her cost-savings analysis, Miranda 

concluded both that the Caribbean CCC position did not have enough 

work to justify the expense of paying Villeneuve and that persons 

in other positions could do what Villeneuve was doing. So Avon 

eliminated the Caribbean CCC position, with Miranda herself making 

the decision. Which meant that Villeneuve — who was the only 

Caribbean CCC — lost her job because of the reorganization, as did 

several others, including a 29-year-old CCC.

Villeneuve tries to beat back this bona-fiderestructuring conclusion with several arguments. None is 

convincing, however.

Relying on Zapata–Berríos, Villeneuve first says that no 

bona fide reorganization occurred because "[o]nly those situations 

in which the decrease in sales or revenues . . . put[] at risk the 

continuity of the business qualify as just cause under [provision] 

(f) of . . . Law 80." Admittedly, Zapata–Berríos did note that 

provision (f) applies when "the referenced reduction is 

substantial to the point that it threatens the continuity of the 
- 23 -

company." 89 P.R. Dec. at 427. But Zapata–Berríos did not use 

the threatens-the-company's-continuity lingo in discussing 

provision (e). See id. at 426-27. And as we just noted, the 

Villeneuve/Avon situation falls within the ambit of provision (e). 

So her provision-(f)-centric theory carries no weight.11

Arguing everything but the proverbial kitchen sink, 

Villeneuve also complains that much of the evidence Avon offered 

— especially concerning its financial condition — constituted 

inadmissible hearsay. Whether this is so we need not decide 

because, as we just discussed, Avon's defense under provision (e) 

requires no evidence of dire financial circumstances. Rather, it 

merely requires proof that the employer let the employee go in a 

bona fide reorganization. And on that front, we have these 

paragraphs from Miranda's statement made under penalty of perjury 

(pursuant to 28 U.S.C. § 1746), which drew no hearsay challenge 

from Villeneuve:

11. I decided that as part of achieving the 

required savings [for Avon Puerto Rico], the Caribbean 

Business would be restructured. . . . Therefore, the 

position of Caribbean [CCC] would be eliminated. I 

believed that the workload associated with the position 

at that time was not enough to justify its salary, and 

11 The district judge concluded that Avon conducted its 

reorganization under provisions (e) and (f). But given our ability 

to affirm the judge on any basis supported by the record, see 

Collazo-Rosado, 765 F.3d at 92, we can and do ground our decision 

on provision (e). 
- 24 -

the duties could be successfully consolidated with other 

positions.

12. In addition, amongst others, as part of the 

reorganization I decided to terminate one [CCC] 

position, corresponding [to an employee] who was . . . 

29 years old at the time. 

See generally In re Martínez-Cátala, 129 F.3d 213, 218 (1st Cir. 

1997) (explaining that such a statement "has the same effect as an 

affidavit"). Avon used these paragraphs in crafting its statement 

of uncontested facts, again without triggering a hearsay challenge 

from Villeneuve. See generally Vélez v. Awning Windows, Inc., 375 

F.3d 35, 41-42 (1st Cir. 2004) (holding that a court must take 

facts in the moving party's statement of uncontested facts as 

"true" if the opposing party does not object). Ultimately, these 

aspects of Miranda's testimony show Avon "had a reasonable basis 

to believe" Avon Puerto Rico needed a reorganization, see Pérez, 

804 F.3d at 9 — thus supporting the bona fides of that 

reorganization and bringing the case's situation within the 

provision (e) example of just cause listed in Law 80, see ZapataBerríos, 189 P.R. Dec. at 426 (stressing that provision (e) lets 

employers change how they do "business through some type of change 

directed to optimizing [their] resources and increasing the 

profits, be it [by] eliminating positions, creating others new or 

merging some already existing as a vehicle to face financial or 

competition problems, as long as it is a bona fide restructuring"). 
- 25 -

Hence, Villeneuve's hearsay arguments cannot carry the day for 

her.

As a fallback, Villeneuve thinks Miranda lacked personal 

knowledge about these facts. But we think otherwise. We say this 

because paragraph 28 of Avon's statement of uncontested facts 

provides: "Commercial Director for Avon in Puerto Rico, Rodrigo 

Echeandía, met with . . . Miranda[] to discuss the reorganization 

. . . ." And paragraph 30 adds: "Miranda was tasked with reaching 

savings totaling $300,000.00 in the Customer Care Department." 

Enough then about hearsay personal knowledge.

Contending that the Caribbean CCC and the CCC jobs were 

one and the same, Villeneuve next argues that Avon violated Law 80 

by firing her even though she had more seniority than some of the 

CCCs Avon did not fire. Not so, we conclude.

Law 80, recall, declares that if an employer fires an 

employee for a restructuring reason like that found in provision 

(e), then "the employer must give preference to those employees 

with greater seniority over those with less seniority within the 

same occupational classification." See Carrasquillo-Ortiz, 812 

F.3d at 196. While the parties agree on little else, they agree 

that in sorting out a job's occupational classification, an 

inquiring court must focus on factors like:

(i) the functions and duties of the position; (ii) the 

requirements for filling the position, including the 
- 26 -

necessary knowledge and skills as well as the academic 

background; (iii) [the] manner of compensation[;] and 

(iv) the way in which the work is performed. 

See Díaz Fontánez v. Wyndham Hotel Corp., 155 P.R. Dec. 364, 371 

n.12 (2001) (certified partial translation provided by Avon, 

district court docket entry number 56-1).

Silhouetted against this precedential backdrop, the 

summary-judgment record adequately supports the conclusion that 

the Caribbean CCC and the CCC posts were not within the same 

occupational classification, despite both being part of the Call 

Center. We say this because: (i) the Caribbean CCC had to deal 

with emails from Caribbean representatives, make past-due calls, 

send reminders of special Caribbean events, and provide field 

support — the CCC had none of these duties; (ii) the Caribbean CCC 

had to have an associate's degree in communications or 

administration plus be bilingual — the CCC had neither requirement; 

(iii) the Caribbean CCC had a higher salary than the CCC; and 

(iv) the Caribbean CCC had to travel outside Puerto Rico — again, 

the CCC had no such requirement. Yes, Villeneuve sometimes did 

tasks that CCCs did. And sometimes persons from a temp agency 

worked temporarily as CCCs and covered for her when she was absent 

— Anna Ovalle was one such person. Even so, "Avon deemed the 

Caribbean [CCC] position as separate and distinct from the [CCC] 

position" — a quote lifted from statements made by Department-Head 
- 27 -

Miranda and Human-Resources-Manager Cifuentes, made under penalty 

of perjury.12

Unfazed, Villeneuve thinks she should still win on this 

issue because "there is no contemporaneous evidence with the 

reorganization in question that Avon performed any analysis as to 

the alleged occupational classification differentiation." But 

hers is a one-sentence suggestion (which she basically repeats in 

her reply brief), made with no supporting authority, and so is 

waived. See, e.g., Mount Vernon Fire Ins. Co. v. VisionAid, Inc., 

875 F.3d 716, 727 n.11 (1st Cir. 2017); Rezende v. Ocwen Loan 

Servicing, LLC, 869 F.3d 40, 43 (1st Cir. 2017) (finding that a 

litigant "waived" an "argument by failing to cite any authority 

whatsoever in support of his conclusory assertion"). 

Having debunked Villeneuve's many Law 80-based 

arguments, we end this longish part of our opinion by upholding 

the judge's decision to grant summary judgment for Avon on her 

unjust-discharge claim.

12 Cifuentes did not make any force-reduction decisions — 

Miranda did, but only for the Customer Care Department. The 

department heads, though, had to tell Cifuentes which positions in 

their departments would be affected. 
- 28 -

Age-Discrimination Claim 

Villeneuve showed Avon actually terminated her 

employment. And, as now relevant, she alleged Avon discharged her 

because of her age. But as we just explained, Avon showed it had 

just cause for acting as it did. So the burden fell on her to 

show Avon's given reason was a pretext for age discrimination. 

See García-García, 878 F.3d at 423; Pérez, 804 F.3d at 8 n.4. She 

makes several potential pretext arguments. But they all come up 

short.

For example, Villeneuve contends that no bona fide

workforce reduction occurred because Avon did not eliminate the 

Caribbean CCC post — rather, she says, Avon simply replaced her 

with Anna Ovalle, who was much younger than she was. So, she goes 

on, Avon's stated ground for the firing was a pretextual cover for 

age discrimination. Color us unconvinced. Ovalle — a temporary 

employee from a temp agency who had previously covered for 

Villeneuve during Villeneuve's vacations — did perform 

Villeneuve's old duties after the firing, while also performing 

"those of a [CCC]." But — and it is big "but" — Ovalle did this 

during a transition period in which Avon worked on distributing 

Villeneuve's former responsibilities to other Avon employees, "the 

Specialist for District Managers and the WEB Specialist, with 

support from the Campaign Administration Area," to quote Miranda's 
- 29 -

statement. Which kiboshes Villeneuve's Avon-replaced-me-withOvalle thesis.

Somewhat relatedly, Villeneuve asserts that Avon's 

reorganization reason was pretextual because Avon's explanation of 

what happened to her duties after the firing shifted over time. 

For support, she points to Avon's response to interrogatory number 

14 — an interrogatory that asked Avon to "[i]dentify the employee 

and/or employees" who "perform[ed] all and/or some of the duties 

[she] performed . . . as Caribbean [CCC]." Responding, Avon first 

objected because the interrogatory did "not specify" a "time 

period." And then Avon answered that after her termination "due 

to the reorganization," Villeneuve's "duties were distributed to, 

and absorbed by, Francisca Mendoza, District Sales Manager 

Specialist, and Carmen Rivera, former Web Specialist, as backup to 

Francisca Mendoza." Basically yelling "Gotcha!" at Avon, 

Villeneuve asserts that the deposition of a former supervisor shows 

a contradiction because the supervisor testified that Ovalle 

performed Villeneuve's duties for some (unspecified) time. But we 

see no contradiction because, as Miranda explained, Ovalle simply 

filled in while Avon transitioned those duties to others.

Ever persistent, Villeneuve also complains that some 

temporary employees from the temp agency made "water cooler 

comments" about her age — for instance, one time, after she said 
- 30 -

she did not like singer and Avon spokesperson "Fergie" (then of 

the group "the Black Eyed Peas"), they said she was "an old lady" 

who "listen[s] to the Bee Gees." And when she talked to her 

supervisors about this, they said, "Well, there is a generation 

gap," adding "these guys have kids" and "[y]ou have grown-ups."13

But the kicker for her is that none of these people had a part in 

the firing decision. And she makes no case-based effort to explain 

how these non-decisionmakers' remarks are sufficient to prove 

pretext. See González, 304 F.3d at 69 (emphasizing that "stray

workplace remarks, as well as statements made either by 

nondecisionmakers or by decisionmakers not involved in the 

decisional process, normally are insufficient, standing alone, to 

establish either pretext or the requisite discriminatory animus" 

(internal quotation marks omitted)). We thus deem this facet of 

her pretext argument waived for lack of development. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

Still searching for a persuasive pretext theory, 

Villeneuve writes that right before she got fired, she "notice[d]" 

that Avon "had been hiring younger people and firing older people." 

The "people" she is referring to are or were temporary employees.

13 Labeling the comment-makers "immature," these supervisors 

also told Villeneuve to pay no mind to them — advice she herself 

called "wise." 
- 31 -

Anyway, conspicuously absent from her is any indication of the 

applicant pool — we do not know, for example, whether older workers 

even applied for these positions. See LeBlanc v. Great Am. Ins. 

Co., 6 F.3d 836, 848 (1st Cir. 1993) (emphasizing that "the fact 

that recently hired [employees] are younger than [the plaintiff] 

is not necessarily evidence of discriminatory intent, but may 

simply reflect a younger available work force"). Also 

conspicuously absent from her is any mention of the circumstances 

surrounding the firings. Which devastates this aspect of 

Villeneuve's pretext theory, given that she cannot defeat a 

summary-judgment motion with "conclusory allegations" or 

"unsupported speculation." See Medina-Muñoz v. R.J. Reynolds 

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); see also Gómez v. Stop 

& Shop Supermarket Co., 670 F.3d 395, 398 (1st Cir. 2012) (holding 

that "[a]ssumptions" made in a brief "are not a substitute for 

evidence" needed to avoid summary judgment). 

With Villeneuve's pretext arguments out of the way, we 

uphold the judge's decision to grant summary judgment for Avon on 

her age-discrimination claim. 

FINAL WORDS 

Having found Villeneuve's arguments wanting, we affirm 

the judge's rulings dismissing her sexual-orientationdiscrimination claim and granting summary judgment for Avon on her 
- 32 -

unjust-discharge and age-discrimination claims. We also award 

Avon its costs on this appeal. See Fed. R. App. P. 39(a)(2).