United States Court of Appeals 

For the First Circuit 

No. 18-1415 

CARMEN RODRÍGUEZ-CARDI, 

Plaintiff, Appellant, 

v. 

MMM HOLDINGS, INC., 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge] 

Before 

Howard, Chief Judge, 

 Torruella and Barron, Circuit Judges. 

Juan R. Dávila-Díaz, with whom Enrique J. Mendoza-Méndez and 

Mendoza Law Offices were on brief, for appellant. 

Katherine González-Valentín, with whom Patricia M. MarvezValiente and Ferraiuoli LLC were on brief, for appellee. 

August 26, 2019 
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TORRUELLA, Circuit Judge. Carmen Rodríguez-Cardi 

("Rodríguez-Cardi") appeals the district court's order granting 

MMM Holdings, Inc.'s ("MMM") motion for summary judgment on her 

Age Discrimination in Employment Act ("ADEA") claim regarding the 

termination of her employment. The district court determined that 

the record was devoid of any evidence from which a reasonable jury 

could infer that MMM's articulated reason for terminating 

Rodríguez-Cardi's employment was pretextual, let alone a pretext 

for age discrimination. After careful consideration, we affirm. 

I. Background

A. Factual Background

On October 16, 2012, Rodríguez-Cardi began working with 

TEAMS LLC as an Independent Promoter for MMM, which "operates a 

[highly regulated] health insurance plan designed [for] 

beneficiaries of Medicare Advantage." During her tenure as an 

Independent Promoter, Rodríguez-Cardi regularly performed several 

tasks for MMM, including generating "valid leads . . . through 

authorized marketing activities," while adhering to Centers for 

Medicare & Medicaid Services ("CMS") and MMM policies, procedures, 

and rules. MMM Supervisor Roberto Rodríguez-Delgado ("RodríguezDelgado"), who oversaw Rodríguez-Cardi's work during this period, 

and MMM Sales Manager Brenda Real ("Real") eventually approached 

Rodríguez-Cardi and encouraged her to apply for a sales position 
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at MMM. After interviewing with Rodríguez-Delgado and Real, on 

June 24, 2013, Rodríguez-Cardi accepted an offer to work as an 

Outside Sales Representative ("OSR") at MMM. Under the terms of 

her employment, Rodríguez-Cardi -- who was forty-six years old at 

the time -- would report directly to Rodríguez-Delgado. 

To sell MMM products, all OSRs must have a license issued 

by the Puerto Rico Insurance Commissioner. Rodríguez-Delgado 

assisted Rodríguez-Cardi -- who was unlicensed and said she did 

not have enough money to pay the licensing fees -- with securing 

her license by lending her the necessary funds. 

At the outset of her employment, Rodríguez-Cardi 

acknowledged receipt of MMM's Job Description for the OSR position, 

the "Sales Representative or Independent Producers Agreement 

Letter," and the MMM Employee Handbook. 1 She certified her 

understanding that any "coordinated marketing" must be compliant 

with all applicable state and federal laws and CMS policies. She 

additionally acknowledged that she was expressly prohibited from 

"solicit[ing] door-to-door for Medicare beneficiaries or through 

other unsolicited means of direct contact, including calling a 

 

1 As an Independent Promoter, Rodríguez-Cardi had already been 

exposed to the rigor of these policies and procedures through 

firsthand experience and various trainings, including guidance on 

CMS and Medicare Improvements for Patients & Providers Act 

("MIPPA") regulations. 
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beneficiary without the beneficiary initiating the contact." 

Moreover, MMM's written Employee Counseling/Progressive Discipline 

Policy provided that employees who "failed to meet MMM's . . . job 

expectations or violated MMM's policies and/or CMS provisions" 

could face either progressive discipline or immediate termination 

depending on the circumstances. 

Rodríguez-Cardi's OSR duties included "conducting 

seminars and in-home sales presentations to eligible and potential 

Medicare beneficiaries"; providing product information to 

interested persons who had provided MMM with a valid written 

authorization; visiting assigned providers to "generate sales 

leads through referrals and to coordinate activities"; and 

creating various reports (e.g., in-home reports, leads results 

reports, and provider visit reports) which were due to RodríguezDelgado each day at 7:30 a.m. 

OSRs were required to meet with their supervisor each 

month to discuss their job progress and performance, including 

review of their Primary Responsibilities Form ("Hoja de 

Responsabilidades Primarias," hereinafter "HRP"), which 

memorializes the OSR's success in reaching their monthly quotas 

and timeliness in submitting reports. 

Rodríguez-Delgado assessed Rodríguez-Cardi's job 

performance in a probationary period evaluation dated 
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September 23, 2013. The evaluation, which Rodríguez-Cardi received 

and signed, concluded that she "presented doubts regarding MIPPA 

regulation[s] and [that] her sales reports [contained] many 

errors." Despite the concerns expressed in the evaluation, 

however, Rodríguez-Cardi was given a regular employee position as 

an OSR. Between August 2013 and February 2014, Rodríguez-Cardi's 

monthly evaluations reflected her pervasive failure to meet job 

expectations; her HRPs indicated that she was noncompliant with 

between forty and sixty-seven percent of the performance 

indicators each month. These unfulfilled performance indicators 

included meeting sales, "Scope of Appointments,"2 and provider 

visit quotas, as well as "daily arrival at the office." 

On February 21, 2014, Rodríguez-Delgado issued a "Record 

of Disciplinary Action" to Rodríguez-Cardi for her repeated 

failure to timely submit her sales reports between December 2013 

and February 2014. When discussing the Record of Disciplinary 

Action with Rodríguez-Cardi, Rodríguez-Delgado informed her that 

"her actions were affecting the daily process of the Sales 

Department, generation of reports, quality calls, and audits," and 

that continued underperformance would be met with "more severe 

 

2 A Scope of Appointment is "a form that authorizes an MMM 

representative to approach potential affiliates or beneficiaries 

prior to giving an orientation and close sales." 
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disciplinary measures resulting in [termination]." RodríguezCardi did not write any comments or objections on the Record of 

Disciplinary Action despite having been given the opportunity to 

do so. 

After failing again to meet her monthly sales quotas in 

October 2013 and February 2014, Rodríguez-Cardi was placed on an 

Action Plan "to help her with her productivity and sales."3 On 

March 17, 2014, Rodríguez-Delgado met with Rodríguez-Cardi and 

informed her that she was not meeting the Action Plan's objectives 

and that continued failure to comply would result in further 

adverse disciplinary action, including termination. RodríguezCardi received and signed the "Action Plan Follow-Up." On 

April 2, 2014, Rodríguez-Delgado met with Rodríguez-Cardi once 

again, this time to discuss the "Action Plan Closing Memo," which 

detailed her noncompliance with the Plan's objectives. The 

following day, Rodríguez-Delgado issued Rodríguez-Cardi a "Final 

Written Warning," which included a "Final Action Plan" -- a lastditch attempt to improve her sales numbers and overall 

productivity. 

 

3 Rodríguez-Cardi admitted that other sales representatives who 

failed to meet their sales quotas were "placed under the same 

action plan given to her."
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The MMM Scope of Appointment Policy MKT-0047 provides 

that OSRs are strictly prohibited from any unsolicited contact 

with potential enrollees. An OSR must have a "Scope of Appointment" 

-- a specific written authorization -- issued by the Medicare 

beneficiary or legal representative before the OSR can engage in 

a sales presentation appointment. Pursuant to the Sales 

Investigation Process Policy CMP-0046, the recommended 

disciplinary action for unapproved door-to-door solicitation is 

"immediate suspension or termination." Additionally, the MMM 

Standards of Conduct for Sales and Marketing Activities dictate 

that OSRs who call or visit "a beneficiary who was referred by a 

friend, provider, provider's secretary, [or] any other third-party 

without obtaining a [S]cope of [A]ppointment prior to contact and 

member attestation form (testimonial)" should be terminated from 

employment with MMM. 

On March 14, 2014, CMS Caseworker E. Dumas referred a 

beneficiary's complaint to MMM, which was reported through 1-800-

MEDICARE and alleged marketing misrepresentation. MMM Compliance 

Auditor Specialist Frances Benítez Fernández ("Auditor Benítez") 

commenced a compliance investigation regarding the complaint on 

March 30, 2014. At the end of the investigation, on April 11, 

2014, Auditor Benítez concluded in her Compliance Investigation 

Report that Rodríguez-Cardi had "incurred in a door-to-door 
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solicitation" by arriving at beneficiary Ms. Doe's 4 residence 

"without prior and valid authorization." Finding that the "Scope 

of Appointment" and "attestation" were improperly obtained -- 

Rodríguez-Cardi acquired them after appearing at Ms. Doe's 

residence "without a proper prior contact" -- Auditor Benítez 

recommended that Rodríguez-Cardi's employment be terminated. 

MMM Human Resources Director Gloribel Rivera-Cabrera 

("Director Rivera") upheld Auditor Benítez's recommendation after 

evaluating Auditor Benítez's Compliance Investigation Report, 

Rodríguez-Cardi's record, training, and disciplinary and 

performance history, as well as applicable policies and procedures 

regarding disciplinary action. On April 16, 2014, MMM terminated 

Rodríguez-Cardi's employment.5 Her duties and assigned providers 

were distributed among eight other MMM employees, ranging in age 

from twenty-seven to forty years old. 

Rodríguez-Cardi contends that, prior to her termination, 

some of her colleagues called her "la mayor del grupo" ("the oldest 

in the group"). She additionally claims that two OSRs referred 

to her as "la vieja" ("the old lady"), called her hairstyle old-

 

4 Like the district court, we do not disclose the beneficiary's 

name for confidentiality reasons. 

5 Subsequently, in June 2014 and October 2015, MMM also terminated 

two other OSRs -- aged 29 and 34 -- who incurred in a violation of 

unsolicited contact with a beneficiary. 
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fashioned, and remarked that she had an "old woman's coat." 

Moreover, she says that these OSRs mocked her cell phone, which 

she had owned for twelve years and did not have internet access, 

and her car, a 1987 S.U.V. model, for being old. In her deposition, 

Rodríguez-Cardi claimed that she told Rodríguez-Delgado that 

coworkers "were making out of place comments" and "bothering" her; 

even so, she admitted that she had never formally complained about 

any alleged mistreatment or unwelcome age-related comments in 

writing. 

B. Procedural History

On November 25, 2014, Rodríguez-Cardi filed a complaint 

in the U.S. District Court for the District of Puerto Rico against 

MMM. In her amended complaint filed on January 29, 2015, RodríguezCardi asserted claims for: (1) age discrimination, hostile work 

environment, and retaliation under the ADEA, 29 U.S.C. § 621 et 

seq.; (2) age discrimination under Law 100 of June 30, 1959, as 

amended, P.R. Laws Ann. tit. 29, § 146 et seq., Puerto Rico's 

general antidiscrimination statute; (3) retaliation under Law 115 

of December 20, 1991, as amended, P.R. Laws Ann. tit. 29, § 194 et 

seq., Puerto Rico's general anti-retaliation statute; (4) unjust 

discharge under Law 80 of May 30, 1976, as amended, P.R. Laws Ann. 

tit. 29, § 185a et seq., Puerto Rico's Unjust Discharge Act; and 

(5) damages under Articles 1802 and 1803 of the Puerto Rico Civil 
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Code, P.R. Laws Ann. tit. 31, §§ 5141, 5142, Puerto Rico's general 

tort statute. On June 8, 2015, the district court granted MMM's 

motion to dismiss Rodríguez-Cardi's retaliation claims under the 

ADEA and Law 115. MMM then moved for summary judgment on 

Rodríguez-Cardi's remaining claims. 

On March 30, 2018, the district court entered an opinion 

and order granting MMM's motion for summary judgment. RodríguezCardi v. MMM Holdings, Inc., No. 14-1854, 2018 WL 1725549, at *1 

(D.P.R. Mar. 30, 2018). The district court determined that 

Rodríguez-Cardi failed to provide any evidence to show that MMM's 

"articulated reason for its decision to terminate [her was] 

pretextual, much less a pretext to discriminate against [her] 

because of her age." Id. at *9. Therefore, the district court 

found, Rodríguez-Cardi failed to meet her burden under the burdenshifting standard for ADEA employment claims. Id. at *8-9. The 

district court further noted that the "same actor inference" 

provided an additional ground to dismiss Rodríguez-Cardi's ADEA 

claim. Id. at *10 n.31. According to the same actor inference, 

"[i]n cases where the hirer and the firer are the same individual 

and the termination of employment occurs within a relatively short 

time span following the hiring, a strong inference exists that 

discrimination was not a determining factor for the adverse action 

taken by the employer." LeBlanc v. Great Am. Ins. Co., 6 F.3d 
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836, 847 (1st Cir. 1993) (quoting Proud v. Stone, 945 F.2d 796, 

797 (4th Cir. 1991)). 

The district court also found that the lack of evidence 

of pretext warranted "dismissal as a matter of law" of RodríguezCardi's age discrimination claim under Law 100. Rodríguez-Cardi, 

2018 WL 1725549, at *11. Furthermore, the court determined that 

Rodríguez-Cardi's hostile work environment claim also failed 

because she provided insufficient evidence that she was harassed 

in a manner that was "sufficiently severe or pervasive to alter 

the conditions of [her] employment," considering the "totality of 

circumstances." Id. at *12. Finally, the court also dismissed 

Rodríguez-Cardi's Law 80 claim, finding that MMM terminated her 

"for reasons linked to the proper and normal operation of the 

establishment" rather than a "mere whim." Id. at *13. 

Accordingly, the court granted MMM's motion for summary judgment 

and dismissed all of Rodríguez-Cardi's remaining claims. Id. 

Rodríguez-Cardi timely appealed. 

On appeal, Rodríguez-Cardi challenges only the dismissal 

of her age discrimination claim under the ADEA. She argues that 

the district court misapplied the summary judgment standard and 

erred in holding that no reasonable factfinder could determine 

that MMM's reasons for terminating Rodríguez-Cardi were 

pretextual. 
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II. Discussion

We review a district court's grant of summary judgment 

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

nonmovant and resolving all reasonable inferences in that party's 

favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st 

Cir. 2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 

1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 

1990)). Summary judgment may be granted only when "there is no 

genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law." Ameen v. Amphenol Printed 

Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015) (citation omitted). 

"Facts are material when they have the 'potential to affect the 

outcome of the suit under the applicable law,'" Cherkaoui v. City 

of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v. 

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)), and "[a] dispute is 

'genuine' if 'the evidence about the fact is such that a reasonable 

jury could resolve the point in the favor of the non-moving 

party,'" Sánchez, 101 F.3d at 227 (quoting Rivera–Muriente v. 

Agosto–Alicea, 959 F.2d 349, 352 (1st Cir. 1992)).6

 

6 The district court clearly employed the correct standard of 

review for summary judgment. Rodríguez-Cardi's contentions to the 

contrary, implying that a "debate" over any issue must be tried 

before a jury, lack merit. 
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In a wrongful discharge case under the ADEA, the 

plaintiff bears the burden of proving that her age was the 

"determinative factor in [her] discharge, that is, that [she] would 

not have been fired but for [her] age." Freeman v. Package 

Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988). Where, as here, 

the plaintiff does not have direct evidence of discrimination, we 

apply the burden-shifting framework outlined in McDonnell Douglas 

Corporation v. Green, 411 U.S. 792, 802-05 (1973), which has been 

adopted for ADEA cases. Woodman v. Haemonetics Corp., 51 F.3d 

1087, 1091 (1st Cir. 1995). 

Under the McDonnell Douglas framework, a plaintiff 

alleging an ADEA claim for discriminatory firing has the initial 

burden to set forth a prima facie case by showing that (i) she was 

at least forty years old at the time of her termination; (ii) she 

was qualified for the position she held and was meeting the 

employer's reasonable expectations; (iii) she was terminated from 

her employment; and (iv) "the employer subsequently filled the 

position, demonstrating a continuing need for the plaintiff's 

services." Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447–

48 (1st Cir. 2009). If the plaintiff establishes her prima facie 

case, the burden shifts to the employer to articulate a legitimate, 

nondiscriminatory reason for its action. Id. at 447. If the 

employer articulates such a reason, the burden shifts back to the 
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plaintiff, who must then show, by a preponderance of the evidence, 

that the employer's proffered reason for the adverse employment 

action was pretextual, and "that age was the 'but-for' cause of 

the employer's adverse action." Id. at 447–48 (quoting Gross v. 

FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). 

On appeal, the parties assume -- as the district court 

did below -- that Rodríguez-Cardi had successfully established a 

prima facie case of age discrimination, which MMM properly rebutted 

by articulating a legitimate, nondiscriminatory reason for 

Rodríguez-Cardi's termination -- to wit, her ongoing performance 

problems. The parties' arguments are thus limited to the pretext 

inquiry of the burden-shifting framework. Likewise, we limit our 

analysis accordingly. 

To defeat MMM's summary judgment motion, Rodríguez-Cardi 

had to produce sufficient evidence to support an inference that 

MMM's proffered reason was pretextual and that she was in fact 

terminated because of her age. Rodríguez-Cardi advances various 

contentions she claims would allow a reasonable jury to determine 

-- contrary to the district court's conclusions -- that MMM's 

reason for terminating her was pretextual. 

First, Rodríguez-Cardi argues that MMM's articulated 

reason for her termination -- her allegedly unsolicited door-todoor contact with Ms. Doe, a Medicare beneficiary -- is false, 
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which constitutes evidence of pretext. According to RodríguezCardi, MMM's investigation of Ms. Doe's complaint -- which 

Rodríguez-Cardi claims was related to the cost of the health plan 

as opposed to her alleged unsolicited contact -- was "flawed" 

because: Auditor Benítez did not know that Ms. Doe lived in a 

retirement home and "sales representatives [are] allowed to visit 

[] retirement home[s] for propaganda, sales and business 

purposes"; it was Ms. Doe who approached Rodríguez-Cardi, not the 

other way around; and Rodríguez-Cardi then completed the required 

documentation. Based on these facts, Rodríguez-Cardi contests 

MMM's interpretation of its policies and procedures and claims 

that she did not violate any of their provisions. Rodríguez-Cardi 

further argues that determining whether MMM "believed" its reason 

for terminating her employment "to be real" is inextricably 

intertwined with motive and intent, and summary judgment is 

improper "when motive and intent play[] leading roles." 

Contrary to Rodríguez-Cardi's contentions, summary 

judgment is not necessarily improper just because a case involves 

motive or intent. See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 

896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where elusive 

concepts such as motive or intent are at issue, summary judgment 

may be appropriate."); see also Mesnick, 950 F.2d at 822, 829 

(affirming summary judgment due to "plaintiff's failure to adduce 
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evidence supporting an inference of discriminatory or retaliatory 

motive"). Because pretext "means something worse than a business 

error," Ronda-Pérez v. Banco Bilbao Vizcaya Argentaria-P.R., 404 

F.3d 42, 45 (1st Cir. 2005) (quoting Kulumani v. Blue Cross Blue 

Shield Ass'n, 224 F.3d 681, 684 (7th Cir. 2000)), the factfinding 

inquiry at the pretext stage of the ADEA burden-shifting framework 

"focuses on 'whether the employer believed its stated reason to be 

credible,'" and not on whether the employer was right. Woodman, 

51 F.3d at 1093 (emphasis in original) (quoting Goldman v. First 

Nat'l Bank of Boston, 985 F.2d 1113, 1118 (1st Cir. 1993)); see 

also Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 41 (1st Cir. 

2013) ("[M]ere questions regarding the employer's business 

judgment are insufficient to raise a triable issue as to pretext." 

(alteration in original) (quoting Acevedo-Parrilla v. Novartis ExLax, Inc., 696 F.3d 128, 140 (1st Cir. 2012))). Accordingly, to 

survive summary judgment, "[i]t is not enough for [RodríguezCardi] merely to impugn the veracity of the employer's 

justification" or to point to flaws in MMM's investigation. 

Mesnick, 950 F.2d at 824. Instead, she "must 'elucidate specific 

facts which would enable a jury to find that the reason given is 

not only a sham, but a sham intended to cover the employer's real 

motive: age discrimination.'" Id. (quoting Medina-Muñoz, 896 F.2d 

at 9). This she cannot do. 
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Rodríguez-Cardi has not pointed us to any evidence in 

the record from which a reasonable jury might infer that Auditor 

Benítez's investigation was cloaked in age-based animus. Nor has 

she pointed us to evidence on the record to dispute Director 

Rivera's testimony that she honestly believed the veracity of both 

the Compliance Investigation Report and Rodríguez-Cardi's 

documented history of poor performance, and that she relied on 

that belief in making her decision to recommend Rodríguez-Cardi's 

termination. In fact, as the district court noted, RodríguezCardi "does not even suggest that [Auditor] Benítez or [Director] 

Rivera were motivated by any illegal or inappropriate animus when 

conducting the investigation, when evaluating the findings of the 

investigation, and does not contest her prior disciplinary action 

and history of performance productivity problems." RodríguezCardi, 2018 WL 1725549, at *10. Although she challenges the 

accuracy of MMM's investigation and interpretation of its own 

policies and procedures, when faced with employment decisions that 

lack a clear discriminatory motive, "[c]ourts may not sit as super 

personnel departments, assessing the merits -- or even the 

rationality -- of employers' nondiscriminatory business 

decisions." Mesnick, 950 F.2d at 825. 

Next, Rodríguez-Cardi avers that MMM changed its 

reasoning for her termination from her "unsolicited contact" with 
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Ms. Doe to her poor performance record, which she argues "is 

evidence of pretext." Rodríguez-Cardi claims that at the time of 

her termination, she was told that she was being fired for the 

"allege[d] unsolicited contact" and "[n]othing else." Two out of 

three witnesses deposed in this case,7 Rodríguez-Cardi argues, 

mentioned only the unsolicited contact as the grounds for her 

termination. Because MMM did not allege termination based on her 

performance until it filed its answer to her complaint, RodríguezCardi's argument goes, these "[c]hanging explanations raise[] 

genuine issue[s] of material fact with regard to the veracity of 

the non-discriminatory reason articulated."

While Rodríguez-Cardi correctly points out that an 

employer's "[c]hanging explanations" for an adverse employment 

action can be evidence of pretext, she has not provided any 

evidence to show that MMM has changed its reasoning for her 

termination. See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 

424, 431-32 (1st Cir. 2000) ("[W]hen a company, at different times, 

gives different and arguably inconsistent explanations [for an 

employee's termination], a jury may infer that the articulated 

reasons are pretextual."). In their depositions, RodríguezDelgado, Auditor Benítez, and Director Rivera all testified that 

 

7 Rodríguez-Cardi and three witnesses (Rodríguez-Delgado, Auditor 

Benítez, and Director Rivera) were deposed. 
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MMM's reasoning for terminating Rodríguez-Cardi's employment was 

based on the outcome of the Compliance Investigation Report, which 

concluded that Rodríguez-Cardi had engaged in a grave violation of 

federal regulations by initiating an unsolicited contact with a 

potential Medicare beneficiary. Director Rivera's testimony that 

she also considered Rodríguez-Cardi's poor performance record in 

addition to the Compliance Investigation Report hardly shows that 

MMM changed its reasoning for her termination; if anything, it 

provides support to MMM's claim that it completed a thorough review 

of Rodríguez-Cardi's record before making a final decision. 

("That is what is normally done in these cases, all the criterias 

[sic] are evaluated. All these criterias [sic] are taken into 

consideration for any termination, even when the breach . . . was 

a recommendation of termination . . . ."). Additionally, 

Rodríguez-Delgado noted in his deposition that Rodríguez-Cardi, 

prior to her termination, "had several write-ups that [he] had to 

document." Accordingly, the record does not contain evidence from 

which a reasonable jury could infer that MMM changed its reasoning 

for terminating Rodríguez-Cardi, capable of supporting the 

conclusion that MMM's articulated reason is pretextual. 

Rodríguez-Cardi next contends that she was "not being 

treated the same way [as] similarly situated employees." As an 

OSR, Rodríguez-Cardi claims, she was subjected to the "worst 
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cases," among which she includes "potential affiliates [who] 

already had better health plans that would never change to MMM" 

and "the farthest cases" from the office. Moreover, she asserts, 

providers were "removed from her list," and she "was the only sales 

person that was not given the clients list for the Open Enrollment 

season." As the "disparity of treatment afforded to [her] is 

evident," her argument goes, "pretext and discrimination can be 

inferred." 

It is true that evidence of an employer's more favorable 

treatment of "similarly situated employees" can be evidence of 

pretext. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43-

44 (1st Cir. 2001). Yet, Rodríguez-Cardi fails again to point to 

any evidence on the record showing that she was treated differently 

than other OSRs similarly situated. Her claim that she was given 

the "worst cases," which were the "farthest" from the office and 

involved clients who already had better insurance, is unsupported 

by the record. Moreover, Rodríguez-Cardi admitted that "all other 

[OSRs] also complained about [Rodríguez-Delgado's] alleged 

preference [for] three or four" coworkers in assigning cases, which 

undercuts her argument that she alone was treated less favorably. 

Additionally, the record reveals that, because as an Independent 

Promoter Rodríguez-Cardi had worked the leads of potential 

affiliates prior to her employment as an OSR, MMM did not provide 
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her with the client list for Open Enrollment based on its 

understanding that a conflict of interest would exist if as an OSR 

she worked the leads that she had generated as an Independent 

Promoter, thus receiving double compensation. Rodríguez-Cardi 

does not provide evidence to contest MMM's explanation that it did 

not provide her the client list for Open Enrollment pursuant to 

company policy, based on her prior work as an Independent Promoter 

and potential conflicts of interest. Nor does she point to 

evidence that other OSRs were allowed to work the leads that they 

had previously generated as Independent Promoters. Consequently, 

Rodríguez-Cardi has not shown that similarly situated employees 

were treated more favorably than her in order to support an 

inference of pretext. 

In addition, Rodríguez-Cardi argues that she was subject 

to age-related "derogatory comments, jokes and offensive 

language," which violated MMM's Anti-Discrimination Policy, yet 

MMM did nothing to address the situation. According to RodríguezCardi, this constitutes evidence of pretext because MMM failed to 

follow its own policy. 

Evidence that the employer deviated from its standard 

procedure or policies in taking an adverse employment action 

against a plaintiff may be relevant to the pretext inquiry. 

See Acevedo-Parrilla, 696 F.3d at 142-43 (noting that, where the 
-22- 

employer had fired the plaintiff without first implementing 

progressive discipline and obtaining approval by the Human 

Resources Department, the employer's failure to adhere to a policy 

requiring "progressive disciplinary program" and that "all 

disciplinary actions (including termination)" be approved by the 

Human Resources Department was relevant to the plaintiff's burden 

of demonstrating pretext); Brennan v. GTE Gov't Sys. Corp., 

150 F.3d 21, 29 (1st Cir. 1998) (finding that evidence that 

employer had not followed its standard procedure for laying off 

employees during reduction in force was "directly relevant to 

[laid-off employee's] burden of demonstrating pretext"). The 

rationale is that if an employer has a policy or procedure that 

governs a specific situation but fails to adhere to the same in 

taking an adverse employment action against an employee, then it 

might be inferred that the reason articulated for taking the 

adverse employment action against the employee was not true. Yet, 

Rodríguez-Cardi points to no evidence indicating that MMM's AntiDiscrimination Policy covered the situations that led to her 

termination or that MMM's alleged deviation from its AntiDiscrimination Policy (i.e., its failure to investigate RodríguezCardi's alleged complaints) had any bearing in the termination 

decision or was even relevant to it. 
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Finally, Rodríguez-Cardi contends that the district 

court failed to consider the "totality of the circumstances" of 

her case and, instead, "segregated [her] evidence" and "ignored 

the vast majority of it as irrelevant." The district court did 

no such thing. It carefully analyzed Rodríguez-Cardi's arguments 

and the evidence she offered to support her claims and correctly 

concluded that the record was devoid of evidence from which a 

reasonable jury could conclude that MMM's stated reason for 

terminating Rodríguez-Cardi's employment was a mere pretext of age 

discrimination. Reviewing de novo we reach the same conclusion. 

The totality of the circumstances shows that Rodríguez-Cardi had 

a meticulously recorded (and uncontested) history of poor 

performance, and that she had been issued a Final Written Warning, 

which notified her that further underperformance could lead to 

termination. The record also shows that MMM conducted a 

compliance investigation into allegations that Rodríguez-Cardi 

initiated unsolicited contact with a beneficiary, which MMM 

considers a serious infraction. Finally, the record demonstrates 

that at the end of the investigation, Auditor Benítez recommended 

termination of Rodríguez-Cardi's employment, which Director Rivera 

upheld after reviewing the Compliance Investigation Report and 

examining Rodríguez-Cardi's past performance. The totality of the 

circumstances, rather than proving Rodríguez-Cardi's pretextual 
-24- 

argument, instead show a lack of foundation for Rodríguez-Cardi's 

claim.8

 

8 Rodríguez-Cardi also challenges the district court's conclusion 

that the "same actor inference" supports dismissal of her age 

discrimination claim inasmuch as Rodríguez-Delgado was the person 

that hired Rodríguez-Cardi and then fired her only ten months 

later. See LeBlanc, 6 F.3d at 847 ("[I]n cases where the hirer 

and the firer are the same individual and the termination of 

employment occurs within a relatively short time span following 

the hiring, a strong inference exists that discrimination was not 

a determining factor for the adverse action taken by the employer." 

(quoting Stone, 945 F.2d at 797)). Rodríguez-Cardi urges this 

court to limit the application of the same actor inference, as she 

claims other courts have done, but does not provide adequate 

reasoning to support her argument. We thus deem her argument 

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 

1990) ("It is not enough merely to mention a possible argument in 

the most skeletal way, leaving the court to do counsel's work, 

create the ossature for the argument, and put flesh on its 

bones."). We further note that although Rodríguez-Cardi cites 

several cases she claims support her argument that the same actor 

inference should be limited, those cases are inapposite in light 

of her concession that Rodríguez-Delgado both hired and fired her 

within a ten-month span, see, e.g., Quinby v. WestLB AG, No. 04-

7406, 2007 WL 1153994, at *8 (S.D.N.Y. Apr. 19, 2007) (refusing to 

apply the same actor inference because there were disputed facts 

as to whether the plaintiff had been hired and fired by the same 

person and four years had passed between the plaintiff's hiring 

and her termination), or were conveniently cited out of context, 

see, e.g., Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443 

(11th Cir. 1998) (cited by Rodríguez-Cardi for the proposition 

that the court had "decline[d] to accord to th[e] same actor 

factual circumstance a presumption that discrimination necessarily 

was absent" from the employer's decision, but omitting that the 

court nonetheless allowed a "permissible inference that no 

discriminatory animus motivated [the employer's] actions") 

(emphasis in original) (internal quotation marks omitted). 
-25- 

III. Conclusion

For the foregoing reasons, we affirm the district 

court's order. 

Affirmed.