United States Court of Appeals

For the First Circuit

No. 02-1923

RAÚL RIVERA-APONTE, ET AL.,

Plaintiff, Appellant,

v.

RESTAURANT METROPOL #3, INC.

d/b/a RESTAURANT METROPOL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Selya and Lipez,

Circuit Judges.

William Santiago-Sastre, with whom Meléndez, Pérez, Morán &

Santiago, LLP were on brief, for appellants.

Guillermo J. Ramos-Luiña, with whom Rivera, Tulla & Ferrer,

were on brief, for appellee.

July 28, 2003
1 Additional appellants are Rivera's wife and children.

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TORRUELLA, Circuit Judge. Appellant Raúl Rivera Aponte1

("Rivera") challenges the district court's entry of summary

judgment in favor of his former employer, appellee Restaurant

Metropol #3, Inc. ("Metropol"), on Rivera's age discrimination

claim. We find that Rivera has failed to demonstrate a trial

worthy issue of discrimination under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621 et seq., and affirm the

district court's decision.

I. Standard of Review

We review the district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

non-moving party, and granting all reasonable inferences in his

favor. Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir.

2003). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c) (2003).

A "genuine issue" as to a "material fact" must be supported by

"such evidence that a reasonable jury, drawing favorable

inferences, could resolve it in favor of the nonmoving party."

Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st

Cir. 1999) (quotation omitted). We will affirm the district
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court's grant of summary judgment in favor of the employer unless

there is "evidence sufficient for a factfinder to reasonably

conclude that [the employer's] decision to terminate was driven by

a discriminatory animus." Mulero-Rodríguez v. Ponte, Inc., 98 F.3d

670, 673 (1st Cir. 1996). Finally, we may affirm the decision on

any grounds apparent in the record. Rosenberg, 328 F.3d at 17.

II. Background

Before Metropol opened on June 29, 1998, Rivera and

Alberto Nogueras, a busboy at the restaurant, had an altercation,

during which Rivera threw or accidentally dropped a tray full of

drinking glasses on Nogueras. Nogueras was cut by the glasses and

received twelve stitches at the hospital. The manager of the

restaurant interviewed employees regarding the incident; after

determining that Rivera was the aggressor, the manager fired Rivera

later that day.

At the time of his discharge, Rivera was fifty-five years

old and had been a waiter at Metropol for eight or nine years.

Rivera filed suit in June 1999, alleging age

discrimination under the ADEA and similar Puerto Rican statutes.

On June 3, 2002, the district court granted summary judgment for

Metropol on the federal ADEA claim, and dismissed Rivera's

commonwealth claims without prejudice. This appeal of the ADEA

claim followed.
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III. Discussion

The ADEA makes it unlawful for an employer to "discharge

any individual . . . because of such individual's age." 29 U.S.C.

§ 623(a)(1) (2003). In an ADEA wrongful discharge case, the

plaintiff must prove that he would not have been fired but for his

age. Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 25 (1st Cir.

1997). Where, as here, there is no evidence of direct

discrimination, the familiar McDonnell Douglas burden-shifting

framework governs. Id.; see McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-05 (1973).

A plaintiff makes a prima facie case of discrimination

under McDonnell Douglas by showing that (1) he was at least forty

years old; (2) he met the employer's legitimate job expectations;

(3) he was fired; and (4) the employer did not treat age neutrally.

Pages-Cahue v. Iberia Líneas Aéreas de España, 82 F.3d 533, 536

(1st Cir. 1996). The fourth element requires the plaintiff to

produce "evidence adequate to create an inference that an

employment decision was based on an illegal discriminatory

criterion." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,

312 (1996) (quotation omitted).

The initial prima facie case is not burdensome and raises

a rebuttable presumption of unlawful discrimination. Woodman v.

Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995). The burden

then shifts to the defendant to articulate a legitimate, non-
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discriminatory reason for the adverse employment action. Mesnick

v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). If the

employer makes this showing, the presumption of discrimination

disappears, and the burden shifts back to the employee. Id. The

plaintiff must then show, without resort to the presumption created

by the prima facie case, that the employer's explanation is a

pretext for age discrimination. Id.

A. Legitimate, Non-discriminatory Reason

We assume arguendo that Rivera can establish a prima

facie case. Metropol offers a legitimate, non-discriminatory

reason for discharging Rivera: Rivera assaulted and injured another

employee while at work. Rivera had received a copy of Metropol's

employment manual, which warns that an employee's attack,

aggression, assault, or threat of aggression against a supervisor

or fellow employee justifies Metropol's immediate termination of

that employee. Rivera's behavior violated Metropol's rules of

conduct, and the restaurant took swift disciplinary action. The

restaurant has met its burden of production and the ultimate burden

now rests with Rivera to prove his discharge was motivated by

discriminatory animus. See Mesnick, 950 F.2d at 823.

B. Evidence of Discrimination

Now that the burden has shifted back to Rivera, he must

come forward with sufficient evidence to permit a reasonable factfinder to conclude that his employer's stated reason for discharge
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was a pretext for age discrimination. After considering his

arguments and reviewing the record, we find that he has not shown

that a genuine issue exists as to the reason for his termination.

First, Rivera asserts that the pre-termination

investigation was cursory -- evidenced by the fact that Rivera was

never allowed to explain his side of the story -- and therefore

Metropol's reason for terminating him was pretextual. Metropol

responds that it determined, based on one interview and Nogueras'

actual (and undisputed) injuries, that Rivera was the aggressor,

and it sought to take swift action to deter further workplace

violence. Whether a termination decision was wise or done in haste

is irrelevant, so long as the decision was not made with

discriminatory animus. Gray v. New Eng. Tel. & Tel. Co., 792 F.2d

251, 255 (1st Cir. 1986). Rivera's bare assertion that Metropol's

reason for terminating him was pretext is insufficient: the

restaurant's reason was compelling, and our thorough review of the

record reveals that Rivera lacks any evidence that the real reason

for his termination was age discrimination. See Ruiz v. Posadas de

San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997) ("[Plaintiff]

must do more than cast doubt on the rationale proffered by the

employer, . . . the evidence must be of such strength and quality

as to permit a reasonable finding that the termination was

obviously or manifestly unsupported.").
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Second, Rivera contends Metropol discriminated against

older workers, sometimes referring to employees as "imbéciles" or

"corpses." Such "stray workplace remarks" are generally

insufficient, standing on their own, to establish discriminatory

animus. González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002).

Rivera does not specify who made these comments, when they were

made, or to whom they were directed. The lack of a direct

connection between the words and the employment action

significantly weakens their probative value. Schuster v. Lucent

Techs., Inc., 327 F.3d 569, 576 (7th Cir. 2003). Given Metropol's

compelling stated reason for Rivera's termination, these stray

remarks do not permit the inference that the real reason for

Rivera's termination was age discrimination. See Williams v.

Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).

Rivera also offers the affidavit of a former employee who

worked at Metropol for three years, beginning at age sixty, then

left and later sought re-employment at age sixty-three or sixtyfour. The owner told him "we are too old for this," and he was not

rehired. We do not think this evidence reveals age-based animus.

The owner's statement uses "we," which is different than saying

"you are too old for the job;" such ambiguity weakens Rivera's

claim that the statement reveals age animus. See González, 304

F.3d at 70. Also, the fact the employee was hired for the first

time at age sixty demonstrates Metropol's willingness to have older
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employees on its staff. Metropol introduced evidence that more

than two-thirds of its male employees are over forty-five. This is

not the hallmark of an employer who discriminates against older

workers.

Finally, Rivera alleges that other employees were

involved in altercations at work but not fired. Metropol counters

that some of those incidents were unknown to supervisors, and none

of the other incidents resulted in personal injuries requiring

medical treatment. After reviewing the record, we agree that the

incidents proffered by Rivera are of a significantly less severe

nature (a few punches without injury exchanged in one incident,

obscene words and shoving in another, and a piece of silverware

thrown in a third); therefore, these examples fail to show

disparate treatment. See Rodríguez-Cuervos v. Wal-Mart Stores,

Inc., 181 F.3d 15, 21 (1st Cir. 1999) ("[A] claim of disparate

treatment based on comparative evidence must rest on proof that the

proposed analogue is similarly situated in all material respects.")

(quotation omitted).

IV. Conclusion

After reviewing the record, we find that Rivera has

failed to demonstrate sufficient evidence to permit a reasonable

fact-finder to conclude that his termination was a pretext for age

discrimination. The district court's decision is affirmed.

Affirmed.