United States Court of Appeals

For the First Circuit

No. 10-2276

HERNÁN ACEVEDO-PARRILLA; NITZA I. MEDINA MARTÍNEZ;

 and the conjugal partnership composed between them,

Plaintiffs, Appellants,

v.

NOVARTIS EX-LAX, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Chief Judge,

Torruella and Lipez, Circuit Judges.

Vilma M. Dapena-Rodríguez, for appellants.

Enrique R. Padró-Rodríguez, with whom Pedro J. Manzano-Yates

and Fiddler, González & Rodríguez, P.S.C., were on brief for

appellee.

October 10, 2012
TORRUELLA, Circuit Judge. Plaintiff-Appellant Hernán

Acevedo-Parrilla ("Acevedo") appeals the district court's award of

summary judgment to his former employer, Novartis Ex-Lax ("Ex-Lax"

or "the company"), on his claims of age discrimination in violation

of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

§§ 621-634. Upon careful review of the record, we find that it

holds sufficient evidence from which a jury could conclude that the

company's reason for terminating Acevedo was pretextual, and that

the true reason for his termination was discriminatory based on his

age. We therefore reverse the district court's grant of summary

judgment and remand.

I. Background

Because our review is from a grant of summary judgment,

we set forth the background facts, as supported by the record, "in

the light most favorable to the non-moving party," in this case,

Acevedo. Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 444

(1st Cir. 2009).

A. Acevedo's History at Ex-Lax

Acevedo was born in 1951 and is a trained mechanical

engineer. For twenty years, from 1975 to 1995, Acevedo worked in

various posts as an engineer in the manufacturing, government, and

pharmaceutical sectors, a trajectory that included the assumption

of supervisory roles and exemplary performance evaluations. In

1996, the General Manager of Ex-Lax -- a pharmaceutical company

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that manufactures over-the-counter products, including laxatives --

approached Acevedo and offered him the position of Maintenance and

Engineering Manager at the company's site located in Humacao,

Puerto Rico. Acevedo accepted the position and held it for the

next eleven years, until he was terminated in 2007. At the time of

his termination, Acevedo was 56 years old.

Acevedo's main responsibility as the Maintenance and

Engineering Manager at Ex-Lax consisted of keeping the plant's

facilities in optimum condition, including facilities associated

with the company's production machinery, treatment plant,

landscaping, and building services. Acevedo's department also

provided engineering support to other departments in the company,

supervised major contract works, and oversaw the provision of

services such as pest control, cleaning, and sanitation by outside

contractors. In all, the job required that Acevedo supervise

approximately twelve employees, including a maintenance technician,

several mechanics, a stock room clerk, a groundskeeper, a packaging

engineer, and a facilities project engineer.

For most of his career at Ex-Lax, Acevedo received

positive performance reviews that fluctuated between overall

ratings of "fully met expectations" and "exceeding expectations."1

Ex-Lax's performance reviews contained both objective and

1

subjective evaluations, respectively titled the "Objectives" and

"Values and Behaviors" sections. For each performance review, the

employee's execution in various areas would be rated under both

sections. This entailed rating the accomplishment of specific

-3-
From 2000 to 2006, Acevedo was awarded performance bonuses of over 2

$10,000.00 in each of those years, except for 2004, when his bonus

totaled only $6,244.00. In 2007, the year of his termination, both

Acevedo's immediate supervisor at the time, Carlos Ceinos

("Ceinos"), and Ceinos's supervisor, Iván Martí ("Martí"), approved

a bonus of $13,166.00 for Acevedo's performance in 2006.

B. Ceinos's Superintendence as Site Leader

In 2003, Ex-Lax hired Ceinos for the position of Site

Leader, which made him responsible for overall operations at the

company's Puerto Rico site. As part of his duties, Ceinos

evaluated the performance of all of Ex-Lax's department managers,

including Acevedo. Ceinos was also charged with reviewing

"unplanned deviation reports" generated by investigation teams at

the site. These reports contained analyses of deviations from

Ex-Lax Standard Operating Procedures ("SOPs"), and were prepared in

order to determine the "root cause" of particular deviations,

establish appropriate corrective and preventive actions, and gauge

the impact of the deviation on Ex-Lax's products.

"objectives" (e.g., compliance with protocols) and the fulfillment

of particular qualities or "values" (e.g., competence and

leadership). Ratings were given on a scale of 1 through 3

(1 = "Partially Met Expectations," 2 = "Fully Met Expectations,"

and 3 = "Exceeded Expectations"), and were adjudicated for distinct

areas as well as tallied for an "Overall Rating."

As we will explain infra, Ex-Lax maintains that its bonuses are 2

not tied to the individual's performance per se, but rather respond

to a myriad of considerations, including the performance of the

company as a whole.

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According to Elizabeth Rodríguez ("Rodríguez"), Ex-Lax's

Human Resources ("HR") Manager from March 1997 to May 2005, upon

assuming the role of Site Leader, Ceinos asked Rodríguez to

investigate "the inclinations" of employees "who had reached 

retirement age" to determine "what their wishes were regarding

leaving the company." Rodríguez testified that this request was

part of Ceinos's new "recruitment plan," instituted for the purpose

of "proceed[ing] to substitute the persons who were of retirement

age." In order to qualify for retirement, employees had to have

accumulated at least five years of service with the company and be

55 years of age or older. Although Rodríguez stated that "[t]here

was no pressure as such" exerted upon employees to retire as part

of Ceinos's plan, she gave at least one example of an employee at

retirement age who chose not to retire after being asked and was

subsequently moved to another department, resulting in what

Rodríguez characterized as a "demotion."

Information provided by Ex-Lax in answers to

interrogatories reveals that, after 2003 -- the year in which

Ceinos became Site Leader -- the company hired approximately 140

employees, 114 of whom were less than forty years of age. In the

same period, Ex-Lax fired only 17 employees, 15 of whom were older

than forty.

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C. The 2004 and 2006 Incidents

Not long after Ceinos became Site Leader, Acevedo began

to experience performance problems at the company. Ceinos became

aware of a number of incidents involving Acevedo's department that

occurred from 2004 to 2006 and factored these into Acevedo's

performance reviews. In 2004, such events included (1) the

recorded presence of rodents in the chocolate manufacturing and

packaging areas, (2) the recorded presence of bacteria in two lots

of Ex-Lax's Gas-X Super Extra Strength Soft Gel 30's, and (3) a

packaging process deviation.

The first of these incidents transpired in January of

2004, when a rodent was found in the packaging area near the

chocolate line, causing production to be put on hold. A subsequent

investigation conducted by Ex-Lax personnel, and in which Acevedo

participated, determined that the rodent had likely entered the

packaging area during a building renovation that began on December

30, 2003, during which contractors accessed the plant through the

cafeteria's emergency exit door and the employees' entrance door. 

The investigation team found that these doors had remained open for

longer than necessary, but the resulting report did not

specifically mention a mistake or error on the part of Acevedo or

his department.

Later, in June of 2004, an employee from One Source,

Ex-Lax's building services contractor, found traces of ceiling tile

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on the floor of the chocolate manufacturing area. It was later

confirmed that this was the result of rodent activity in the

ceiling above the chocolate room. After the setting of traps and

the capture of one small rodent, a maintenance technician found a

hole in an unused exhaust fan in the ceiling of the Quality

Assurance Laboratory. The exhaust fan was immediately removed and

the hole sealed. A subsequent investigation concluded it was

highly probable that the rodent gained access through the

previously uncovered hole. The discovery of this latter rodent

activity caused the company to "reject," or decommission, a batch

of chocolate laxative.

The second 2004 event took place in September and

involved the detection through laboratory tests of a bacteria in

two lots of Ex-Lax's Gas-X Super Extra Strength Soft Gel 30's. 

This triggered the Quality Assurance Department's rejection and

disposal of the lots. An investigation team comprised of Ex-Lax

personnel, including Acevedo, later concluded that the bacteria

could have originated either from mold contamination in (closed and

unused) bathrooms located near the production area, or from the

fact that one of the operators who participated in the inspection

of the lots was confirmed to be sick at the time of the inspection. 

Acevedo indicated through testimony that contamination in the

bathrooms could have been prevented had there been an SOP in place

regarding their daily cleaning.

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The third and final 2004 event also occurred in

September, when the personnel from Acevedo's department were

installing and setting up a new brush box for the packaging of a

lot of Gas-X Maximum Strength Soft Gels 50's. During the set-up,

they became aware that the positioning of the brushes inside the

brush box was not correct, so they changed it. They then installed

a new acrylic box in the brush box and evaluated the effect of the

acrylic box on the packaging operation. Although these actions did

not have a negative impact on the quality of Ex-Lax's product, both

actions were taken without the appropriate deviation approval from

the Production and Quality Assurance Departments and, therefore,

violated Ex-Lax's Change Control Procedure. The record reveals

that some of the personnel involved in this event may not have

received adequate training in the change control procedures. After

the brush box incident, all personnel, supervisors, and managers in

Acevedo's department were so trained.

Ceinos testified that he became aware of each of the 2004

incidents through their corresponding investigative and/or

unplanned deviation reports. He also indicated that he attributed

responsibility for each of the incidents to Acevedo based on his

general job description and responsibilities. Accordingly, Ceinos

recorded them in Acevedo's 2004 annual performance review, in which

he gave Acevedo a low overall rating of 1, or "partially met

expectations." As a result, Ex-Lax required that Acevedo complete

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a Performance Improvement Plan ("PIP"), lasting from March 22 to

June 22, 2005. The PIP identified Acevedo's specific performance

problems and outlined the personalized improvement plan that he was

expected to complete. According to the terms of the PIP, Ex-Lax

gave Acevedo ninety days to successfully complete the plan and

achieve a status of "fully meeting expectations" in order to retain

his current position at the company, with the caveat that Ex-Lax

always reserved the right to take appropriate action, including

termination, if Acevedo's improvement did not continue. Acevedo

complied with the requirements of his 2005 PIP, and Ceinos

subsequently rated him as "fully met expectations" in both the

mid-year and annual 2005 performance reviews.

In 2006 Ceinos again held Acevedo responsible for a

number of incidents which he deemed to have affected Acevedo's

performance. The first of these incidents involved a change in

equipment that resulted in Total Organic Carbon ("TOC") levels

above the acceptable limit in the purified water used for

production. As a result, Ex-Lax had to discard almost forty

thousand dollars' worth of manufactured products. The record

reflects that Acevedo was on vacation at the time this occurred and

that another employee, Angel Alsina ("Alsina"), was assigned

supervisory duties during his absence.

The second incident involved the potential contamination

of a chocolate batch after a fumigation (or "fogging") procedure

-9-
was performed in the chocolate manufacturing area by Ecolab,

Ex-Lax's pest control services contractor. The company's Quality

Assurance and Compliance Departments had to decommission the batch

of chocolate prepared on the day of the fogging. Ex-Lax stated

that this represented a loss of just over ninety thousand dollars

to the company. The unplanned deviation report indicated that the

Ecolab employee who applied the insecticide may not have been given

clear instructions due to an inadequate written procedure

addressing what to do before, during, and after a pest control

activity takes place.

Third, and finally, based on two routine walks he took to

evaluate the plant's facilities, Ceinos found that there was a

general lack of cleanliness and organization in the spare parts

room, the machine shop, and the purified water room. Ultimately,

Acevedo received a mixed evaluation in his 2006 annual performance

review -- Ceinos's overall rating in the "objectives" portion

amounted to "fully met expectations," while his overall rating in

the "values and objectives" section reached only "partially met

expectations."

D. "Ageist" Remarks and Acevedo's Termination

Acevedo alleges that on two occasions, in August and

December of 2006, Ceinos commented to him that "the main problem at

the [Ex-Lax] plant[] were the persons who had been in the company

for a long time," because those persons "were not performing." 

-10-
Acevedo testified that Ceinos said this in the context of their

conversation about "the problems that had existed during the year"

and Ceinos's evaluation of his performance.

On February 23, 2007, Acevedo was terminated from his

employment at Ex-Lax, without prior notice and effective

immediately. Acevedo testified that, at the time of his 3

discharge, the reasons Ceinos gave for his termination were the

"fogging" incident, the purified water (or TOC) incident, and "the

disorganization of the rooms" -- in other words, the 2006

incidents. Ceinos testified that, although he never explicitly

warned Acevedo that these incidents could lead to his termination,

he had related to Acevedo that "too many incidents had occurred

with his department, that [they] were still having problems

[because] the department would not comply with the procedures," and

that the maintenance and engineering personnel "apparently[] were

not well trained."

E. Acevedo's Replacement

In February 2007, 34-year-old Mariely Rivera ("Rivera")

was hired to replace Acevedo as Maintenance and Engineering

Manager. Just as Acevedo had before her, Rivera reported directly

Although he was HR Manager at the time, José Pabellón 3

("Pabellón") could not explain why Acevedo did not receive prior

notice of his termination through a letter of dismissal. He also

did not remember whether Acevedo was placed on a progressive

discipline program prior to his termination. Pabellón testified

that he and Ceinos did not discuss Acevedo's dismissal, nor did

Pabellón recommend it.

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to Ceinos. Ceinos testified that Rivera's interview took place

before December of 2006, prior to Acevedo's dismissal.

In October of 2007, an internal audit of Rivera's

department was conducted, which revealed persistent violations of

Ex-Lax's SOPs. These violations included the department's failure

to: follow proper documentation practices, conduct certain

procedures relating to the purified water system, complete cleaning

and sanitation in certain areas with the required frequency, and

complete certain pest control procedures on the required monthly

basis. Many of the same deficiencies would also be recorded in a

subsequent internal audit report dated May 2008. In addition,

Ex-Lax's records reveal a July 2007 unplanned deviation report

indicating that an increase in mold and yeast counts had been

detected in the packaging area. One of the root causes identified

for this deviation was "improper area cleaning and sanitation." 

Notwithstanding these incidents, Rivera received an appraisal of

"fully met . . . expectations" in her 2007 annual performance

evaluation, signed by Ceinos. The evaluation did not reference any

of the aforementioned infractions relating to facilities

management.

In 2008, a string of incidents occurred in which animals,

including numerous insects, a lizard, and rats, entered the plant. 

These were documented by investigation teams in at least four

separate unplanned deviation reports. The reports concluded that

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the entrance of the animals was caused by a major construction

project that was being conducted in the manufacturing area. Ceinos

admitted that he had knowledge of these incidents at the time. 

Nonetheless, Rivera's testimony reflects that Ceinos did not

comment on the incidents in her performance evaluations that year,

and that no employee was held responsible for the same. Ceinos

awarded Rivera an overall manager appraisal equivalent to "fully

met expectations" in her 2008 annual performance review.

F. Procedural History

On February 12, 2008, Acevedo brought this suit against

Ex-Lax, asserting that his former employer terminated him due to

his age, in violation of the ADEA and various Puerto Rico statutes. 

On March 25, 2009, Ex-Lax moved for summary judgment, arguing that

Acevedo failed to establish a prima facie case of age

discrimination because he could not show that he was fired despite

having met the company's legitimate work expectations. Ex-Lax also

contended that, even if Acevedo could make such a showing, he could

not put forth sufficient proof to establish that the company's

proffered reason for his termination -- failure to meet his

employer's legitimate work expectations -- was pretextual. Acevedo

opposed Ex-Lax's motion by reaffirming the pretextual nature of the

company's reasons for his dismissal and pointing to what he deemed

sufficient direct proof of discrimination. On September 30, 2010,

the district court granted Ex-Lax's summary judgment motion,

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dismissing both the federal and supplemental claims. See

Acevedo-Padilla v. Novartis Ex Lax, Inc., 740 F. Supp. 2d 293

(D.P.R. 2010). This timely appeal followed.

II. Discussion

A. Standard of Review

Our review of a district court's grant of summary

judgment is de novo, "resolving all evidentiary conflicts and

drawing all reasonable inferences in favor of the nonmoving party." 

Sánchez-Rodríguez v. AT&T Mobility of P.R., Inc., 673 F.3d 1, 9

(1st Cir. 2012) (quoting Kuperman v. Wrenn, 645 F.3d 69, 73 (1st

Cir. 2011)) (internal quotation marks omitted). In so doing, we

"independently weigh[] the merits of [the] motion . . . without

deference to the reasoning of the district court." Hughes v.

Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir. 1994).

Summary judgment is properly granted only where the

movant -- in this case, Ex-Lax -- "shows that there is no genuine

dispute as to any material fact and [that it] is entitled to

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

survive summary judgment, Acevedo must establish a genuine issue of

material fact as to whether his dismissal was motivated by agebased discrimination. See Carroll v. Xerox Corp., 294 F.3d 231,

236 (1st Cir. 2002) ("Once the moving party has pointed to the

absence of adequate evidence supporting the nonmoving party's case,

the nonmoving party must come forward with facts that show a

-14-
genuine issue for trial."). "A 'genuine' issue is one that could

be resolved in favor of either party, and a 'material fact' is one

that has the potential of affecting the outcome of the case." 

Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.

2004).

B. Compliance with Local Rule 56

As a preliminary matter, we note that in considering the

parties' filings in support of (and opposition to) Ex-Lax's motion

for summary judgment, the district court determined that both

Acevedo and Ex-Lax ran afoul of the District of Puerto Rico's

anti-ferret rule, Local Rule 56(c). See D.P.R. Civ. R. 56(c)

(requiring party opposing summary judgment to submit a separate,

short, and concise statement of material facts admitting, denying

or qualifying the corresponding facts that support the motion, with 

record citations in support). Acevedo submitted an opposing

statement of material facts, but included additional information as

to each opposed fact that did not specifically correlate to

Ex-Lax's proposed facts. See id. (indicating that "opposing

statement may contain in a separate section additional facts")

(emphasis added); see also Carreras v. Sajo, García & Partners, 596

F.3d 25, 32 (1st Cir. 2010). Ex-Lax, in turn, acted in violation

of the local rule because it "cit[ed] numerous pages of [its] reply

when opposing [Acevedo's] facts, instead of providing concise and

specific responses." Acevedo-Padilla, 740 F. Supp. 2d at 299.

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As a result, the district court, in an appropriate

exercise of its discretion, ruled that it would disregard any

additional facts provided by Acevedo when denying or qualifying

Ex-Lax's statement of uncontested facts. Id. at 298-99. However,

to this determination it tacked on a ruling that the supplemental

facts properly included in Acevedo's separate section of

"additional facts" would nonetheless be "deemed admitted when

supported by the record." Id. The district court did not explain

what effect, if any, Ex-Lax's own transgression to the local rule

had on the court's analysis of the facts.

Our review of the district court's application of Local

Rule 56 is for abuse of discretion. Carreras, 596 F.3d at 31. ExLax generally points to this ruling by the district court to

support its position on appeal, but it does not appear to us that

the district court's ruling had any practical effect on its summary

judgment determination. Indeed, the district court ultimately

relied on Acevedo's separate section of additional facts, as

references to that document can be found throughout the opinion;

but it did so only "when supported by the record, and not properly

controverted by Ex-Lax." Acevedo-Padilla, 740 F. Supp. 2d at 299. 

We can discern no error by the district court and, for purposes of

this appeal, we have likewise only considered those facts

("additional" or otherwise) properly presented and supported, per

Local Rule 56.

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C. Acevedo's Age Discrimination Claim

1. The ADEA and McDonnell Douglas

The ADEA provides that it is unlawful for an employer to

"refuse to hire or to discharge any individual or otherwise

discriminate against [him] with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's age." 29 U.S.C. § 623(a)(1). A plaintiff asserting

a claim under the ADEA has the burden of establishing "that age was

the 'but-for' cause of the employer's adverse action." Gross v.

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

is not required to proffer direct evidence of discrimination, and

may meet his burden through circumstantial evidence. To be sure,

we have acknowledged that "ADEA plaintiffs rarely possess 'smoking

gun' evidence to prove their employers' discriminatory

motivations." Vélez, 585 F.3d at 446 (quoting Arroyo-Audifred v.

Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008)). In

the absence of direct evidence of age discrimination, we evaluate

ADEA claims under the three-stage burden-shifting framework of

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).4

Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012).

In the first of the three McDonnell Douglas stages, the

plaintiff has the initial burden of establishing a prima facie case

of discrimination. In an ADEA action this requires a showing

"[1] that he or she was at least 40 years old at the time of

discharge; [2] that he or she was qualified for the position but

[3] was nevertheless fired; and [4] the employer subsequently

filled the position." Id. (citing Vélez, 585 F.3d at 447). Doing

so "gives rise to an inference that the employer discriminated due

to the plaintiff's advanced years." Mesnick v. Gen. Elec. Co., 950

F.2d 816, 823 (1st Cir. 1991). If the plaintiff is able to

establish a prima facie case, the burden shifts in the second stage

to the employer, who "must then produce a legitimate,

non-discriminatory reason for termination." Cameron, 685 F.3d at 

48. If the employer is able to do this, "the ball returns to the

Although Acevedo claims that certain statements made by Ceinos 4

in August and December of 2006 constituted ageist remarks, on

appeal he does not characterize his testimony about those remarks

as "direct" evidence of age discrimination sufficient to carry his

burden "that age was the 'but-for' cause" of his dismissal from ExLax. Gross, 557 U.S. at 177. Nor, as Ex-Lax points out, does he

contest the district court's determination that "[the] two isolated

comments . . . are not direct evidence of [age] discrimination." 

Acevedo-Padilla, 740 F. Supp. 2d at 313. Acevedo's argument is

specifically that Ceinos's remarks were evaluated by the district

court in isolation, rather than as part of the totality of the

evidence suggesting pretext. Accordingly, we proceed with the

McDonnell Douglas burden-shifting framework and evaluate the

evidence of Ceinos's remarks infra, as part of the pretext

analysis.

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plaintiff's court, in which [he] must prove by a preponderance of

the evidence that [the] defendant's alleged nondiscriminatory

reason was in fact a pretext for discrimination." Goncalves v.

Plymouth Cnty. Sheriff's Dep't, 659 F.3d 101, 105 (1st Cir. 2011).

2. The Prima Facie Case

As the district court noted, Acevedo is a person over

forty years of age, who was fired by his employer and subsequently

replaced by someone younger. He therefore neatly satisfies three

of the four prongs in the prima facie case. The only contentious

question on appeal is whether Acevedo meets the second prong: that

he was qualified for the position that he held. We linger briefly

here to clarify some points that might have been obfuscated by the

district court's analysis.

Ex-Lax's theory of the case is that Acevedo's termination

was a lawful business decision, unrelated to his age, that was

based on Acevedo's failure to comply with the company's established

quality control standards and, hence, with its legitimate job

expectations. In particular, Ex-Lax points to the 2004 and 2006

incidents that occurred in the Maintenance and Engineering

Department, memorialized in unplanned deviation reports, and on

which Ceinos allegedly based his termination decision. This

constitutes Ex-Lax's alleged nondiscriminatory reason for

dismissing Acevedo, which comes into play at the second stage of

our McDonnell Douglas burden-shifting analysis, discussed infra. 

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However, Ex-Lax argued before the district court that these facts,

if believed, meant Acevedo also failed the second prong of the

prima facie case.

Although the district court ultimately determined that

Acevedo had established a prima facie case under the ADEA, it did

so only after considering Ex-Lax's alleged reason for dismissal,

assessing Acevedo's proffered counterpoints, and concluding that it

was unclear whether Acevedo had been responsible for several of the

pointed-to incidents. Acevedo-Padilla, 740 F. Supp. 2d at 314-15. 

This constituted error on the district court's part. See Vélez,

585 F.3d at 448 (finding as error that the district court "accepted

for the purpose of the prima facie analysis [the employer's] stated

reason for firing [the plaintiff] as proof that he was not

qualified for the . . . job"); Meléndez v. Autogermana, Inc., 622

F.3d 46, 51 (1st Cir. 2010) (holding that "we cannot consider the

employer's alleged nondiscriminatory reason for taking an adverse

employment action when analyzing the prima facie case") (quoting

Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir.

2003) (en banc)). A plaintiff is not required, at the prima facie

stage, to disprove the defendant's proffered nondiscriminatory

reason for taking an adverse employment action. We have explained

that doing so "bypass[es] the burden-shifting analysis and

deprive[s] the plaintiff of the opportunity to show [such] reason

was in actuality a pretext designed to mask discrimination." 

-20-
Vélez, 585 F.3d at 448 (quoting Wexler, 317 F.3d at 574); see also

Meléndez, 622 F.3d at 51 (same).

A plaintiff's prima facie burden under the "qualified"

prong of the prima facie case, see Cameron, 685 F.3d at 48, is met

if he presents "evidence which, if believed, prove[s] that he was

doing his chores proficiently." Freeman v. Package Mach. Co., 865

F.2d 1331, 1335 (1st Cir. 1988) (finding the second prong met

despite "defendant's adamantine insistence that plaintiff's job

performance was not up to snuff"); see also Hebert v. Mohawk Rubber

Co., 872 F.2d 1104, 1112 (1st Cir. 1989) (finding plaintiff's prima

facie burden met where, despite employer's challenge of his account

regarding the "adequacy of his job performance," plaintiff "adduced

a quantum and quantity of evidence of his competence . . .

sufficient to prevail if a jury believed his version of the facts

and disbelieved defendant's"). In this case, the record reflects

that Acevedo is a trained mechanical engineer with prior, wellrated experience in the manufacturing and pharmaceutical sectors,

including experience as a supervisor. Moreover, before his

termination from Ex-Lax, Acevedo had a long history of employment

at the company, spanning an eleven-year period, with overall

positive reviews. We find that these facts are enough to meet what

we have regularly described as a "low standard" for the prima facie

showing in a discrimination case. Vélez, 585 F.3d at 447 (quoting

Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.

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2002)); see also Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st

Cir. 2004) (describing standard as "modest").

3. Ex-Lax's Explanation and Acevedo's Showing of 

Discrimination

Acevedo having triggered the "rebuttable presumption that

[Ex-Lax] violated the ADEA," Ex-Lax now has "the burden of

production -- as distinguished from the burden of proof -- . . . to

articulate a legitimate, nondiscriminatory basis for its adverse

employment action." González, 304 F.3d at 68-69. We have already

discussed Ex-Lax's contention that Acevedo's termination was a

business decision unrelated to his age. Ex-Lax argues that the

decision was based on Acevedo's supervisor's understanding --

reflected in Ceinos's deposition testimony -- that Acevedo

consistently failed to comply with the duties and objectives of his

position, particularly with regard to the observance of quality

control standards in connection with the plant's equipment and

facilities. Ex-Lax's briefing points to all of the previously

referenced 2004 and 2006 incidents, which were recorded in

investigative and unplanned deviation reports, and which it

contends "were within the scope of Acevedo's responsibilities" and

"had a negative impact on the plant's operations." We have no

trouble finding on this basis that Ex-Lax has articulated a

legitimate, nondiscriminatory reason for firing Acevedo. See,

e.g., Dávila v. Corp. de P.R. Para La Difusión Pública, 498 F.3d 9,

16 (1st Cir. 2007) (finding that sworn statement by director of

-22-
employer's legal division that appellant was terminated due to poor

work performance "by itself, provide[d] sufficient basis for the

district court's conclusion that the [employer] articulated a

nondiscriminatory motive for the appellant's discharge").

Thus, we reach "the third and final phase of burdenshifting," at which point "the McDonnell Douglas framework falls by

the wayside." Mesnick, 950 F.2d at 824. The court's focus now

turns to "the ultimate issue," which is whether -- after assessing

all of the evidence on the record in the light most favorable to

Acevedo -- "[he] has raised a genuine issue of fact as to whether

the termination of [his] employment was motivated by age

discrimination." Domínguez-Cruz, 202 F.3d at 431. In order to

meet this burden, "[Acevedo] must offer some minimally sufficient

evidence, direct or indirect, both of pretext and of [Ex-Lax's]

discriminatory animus." Mesnick, 950 F.2d at 825 (emphasis added).

We first consider Acevedo’s attestation of pretext,

"having in mind that courts should exercise particular caution

before granting summary judgment for employers on such issues as

pretext, motive, and intent." Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (citing Hodgens v.

Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)).

-23-
a. Acevedo's Evidence of Pretext

Acevedo argues that Ex-Lax's stated reasons for his

dismissal betray the element of pretext because they are both

internally inconsistent and incompatible with Acevedo's performance

record. On this point Acevedo has met the "minimally sufficient"

standard to proceed with his case. We have consistently stated

that mere questions regarding the employer's business judgment are

insufficient to raise a triable issue as to pretext. See Webber v.

Int'l Paper Co., 417 F.3d 229, 238 (1st Cir. 2005) ("[A]n

employee's opinion of the efficacy of an employment decision,

standing alone, cannot supplant the employer's business

judgment")). However, Acevedo has presented here more than a

simple disagreement with the correctness of Ceinos's decisions; he

has proffered evidence sufficient to raise an issue of fact as to

whether Ceinos himself truly believed Acevedo's performance was

unsatisfactory. See, e.g., Gray v. New England Tel. & Tel. Co.,

792 F.2d 251, 256 (1st Cir. 1986) (explaining that "in assessing

pretext . . . [the court's] focus must be on the perception of the

decisionmaker, i.e., whether [the decisionmaker] perceived the

plaintiff as violating . . . company policies and whether this

perception was credible and reasonable").

To begin, while it is undisputed that Acevedo's job

description encompassed a duty to oversee the general upkeep of the

plant's facilities, there are material issues of fact as to whether

-24-
Acevedo was to blame for four of the incidents involving plant

facilities that the company has cited as triggers for his

termination. The district court noted as much in its opinion and

order, which pinpointed as problematic for Ex-Lax's position the

record surrounding: the 2004 microbial incident, for which more

than one possible cause was identified in the unplanned deviation

report; the 2004 packaging process deviation, which had no negative

effect on the quality of Ex-Lax's products; the 2006 TOC incident,

during which Acevedo was not on duty; and the 2006 fogging

incident, which the investigation report concluded was due to

inadequate written procedures for pest control operations. See 5

Acevedo-Padilla, 740 F. Supp. 2d at 314-15. We must resolve all

evidentiary conflicts and draw all reasonable inferences in favor

of Acevedo at this stage. See Sánchez-Rodríguez, 673 F.3d at 9. 

The fact that there is uncertainty regarding whether Acevedo was

responsible for the pointed-to incidents indicates that there is a

question for a jury to resolve as to whether the employer did in

fact rely on these incidents in making its termination decision. 

We note that there is a question raised by Acevedo whether he 5

was directly responsible for developing the applicable written

procedures referenced in the report. While Ceinos testified that

the head of each department submits procedures to the Quality

Assurance Department for its approval, suggesting that Acevedo was

responsible for developing the same for his department during his

tenure, both Acevedo and his replacement, Rivera, testified that

they were only responsible for "administering" and "implementing"

such procedures, as determined by Quality Assurance. It is also

telling that the job description for the position does not include

any mention of SOP development.

-25-
See Domínguez-Cruz, 202 F.3d at 432-33 (inconsistencies in

employer's performance explanation, including doubts "whether

[plaintiff] was directly responsible for two of the alleged

violations," deemed relevant to finding of pretext).

Furthermore, "[p]roof that the defendant's explanation is

unworthy of credence is . . . one form of circumstantial evidence

that is probative of intentional discrimination." Williams v.

Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000))

(internal quotation marks omitted). In particular, Acevedo has

sufficiently demonstrated potential inconsistencies in Ceinos's

testimony as to both the microbial and TOC incidents. A reasonable

factfinder could conclude that these inconsistencies call into

question Ceinos's reasons for terminating Acevedo, namely, that

Acevedo was not complying with the duties and responsibilities of

his position. For instance, regarding the 2004 microbial incident,

Ceinos stated that it was Acevedo's responsibility to have an SOP

in place to ensure that the bathrooms remained adequately cleaned. 

However, Ceinos also stated that he could not recall whether there

was in fact an SOP in place at the time the incident occurred. In

addition, with regard to the 2006 TOC incident, Ceinos testified

that he held Acevedo accountable despite the fact that he was off

duty on that day, because Acevedo was ultimately responsible for

"mak[ing] sure that [the person he put in charge] [was] qualified

-26-
to exercise th[at] function." Ceinos nonetheless later

acknowledged that Alsina -- the person who was put in charge and

actually authorized the change in equipment -- "is a very qualified

person" who still works for Ex-Lax. The employer's contemporaneous

beliefs are a vital consideration because "[i]n assessing pretext,

a court's 'focus must be on the perception of the decisionmaker,'

that is, whether the employer believed its stated reason to be

credible." Mesnick, 950 F.2d at 824 (quoting Gray, 792 F.2d at

256); see Feliciano de la Cruz v. El Conquistador Resort & Country

Club, 218 F.3d 1, 7 (1st Cir. 2000) ("[T]he question is not whether

[the plaintiff] was actually performing below expectations, but

whether [the employer] believed that [he] was.").

Acevedo also argues that pretext may be inferred from

Ceinos's reliance on the microbial incident and the packaging

process deviation of 2004 because both incidents had been

previously addressed through Acevedo's 2005 PIP. According to

Rodríguez's deposition testimony, under Ex-Lax's HR policy, if an

employee succeeded at a PIP, the factors that led to the PIP could

not be used in support of a termination decision. See Kouvchinov

v. Parametric Tech. Corp., 537 F.3d 62, 68-69 (1st Cir. 2008)

(noting that "pretext can be demonstrated through a showing that an

employer has deviated inexplicably from one of its standard

business practices," yet finding the principle inapplicable in the

specific case, where plaintiff did not show existence of a standard

-27-
policy or practice). On the other hand, the PIP itself indicated

the possibility of adverse action, including dismissal, against

Acevedo if his improvement did not continue. This evidence

presents a contested issue of material fact as to Ex-Lax's

disciplinary procedures, and it should be for a jury to decide

whether Rodríguez's testimony about the PIP procedure is credible.

It is undisputed, however, that Acevedo successfully

complied with the 2005 PIP, was rated as having "fully met

expectations" in both the mid-year and annual 2005 performance

reviews, and -- despite the 2006 incidents that Ceinos points to --

received a bonus of $13,166.00 for his performance in 2006 that was

approved by Ceinos himself. These seemingly incongruous facts 6

might lead a reasonable juror to disbelieve Ceinos's contention

that his decision to terminate Acevedo was based purely on a poor

performance record. See Santiago-Ramos, 217 F.3d at 56 (a

plaintiff "can . . . establish pretext by showing 'weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions

Against this proposition, Ex-Lax argues that its bonuses "are 6

not based exclusively on each employee's performance;" rather, they

are "based on the performance of Ex-Lax's facility in Puerto Rico,"

the organization as a whole, "and the performance of the division." 

While we acknowledge that "a company is ordinarily in the best

position to assess the meaning of its own [policies]," Vélez, 585

F.3d at 450, it appears on this record that Ex-Lax has not

presented evidence to support its assertions about the bonus

policy. Given this lack of evidence, "a reasonable trier of fact"

might "infer that [Ex-Lax] would not have sent [Acevedo] even

generic commendations if it were truly dissatisfied with [his] job

performance." Feliciano de la Cruz, 218 F.3d at 7.

-28-
in the employer's proffered legitimate reasons' such that a

factfinder could 'infer that the employer did not act for the

asserted non-discriminatory reasons.'" (quoting Hodgens, 144 F.3d

at 168)).

Acevedo raises an additional, correlative argument that

his dismissal deviated from Ex-Lax's policy requiring adherence to

a progressive disciplinary program. Both Rodríguez and Pabellón

testified that Ex-Lax disciplinary actions normally followed

successive steps, beginning with an orientation to the employee,

followed by a series of verbal and written warnings, a potential

suspension, and ultimately ending with dismissal. Pursuant to this

policy, all disciplinary actions (including termination) had to be

approved by the HR Department, and supervisors had to prepare

informative memorandums indicating the reasons for termination

prior to an employee's dismissal. None of these steps were taken

in Acevedo's case. "[E]vidence that standard procedure was not

followed is directly relevant to [Acevedo's] burden of

demonstrating pretext." Brennan v. GTE Gov't Sys. Corp., 150 F.3d

21, 29 (1st Cir. 1998). We acknowledge, as the district court did,

see Acevedo-Padilla, 740 F. Supp. 2d at 318, that other testimony

by Pabellón suggested that Ex-Lax's progressive disciplinary policy

did not apply to exempt (or management) employees, who were

allegedly routinely chastised through memorandums and/or

performance reviews. This was arguably the method employed in

-29-
Acevedo's case, but it does not answer the question why the

decision to dismiss Acevedo did not require submission of the

reasons for termination to the HR Department, a step that, in

Pabellón's estimation, did apply to all employees. See Lattimore

v. Polaroid Corp., 99 F.3d 456, 467 (1st Cir. 1996) (holding, in a

case involving allegations that defendant-employer had "deviated

from its established policies and practices," that "evidence of

pretext," although "thin, disputed and susceptible to varying

interpretations, . . . is sufficient to create a jury question").

Without much question, Acevedo has offered at least

"minimally sufficient evidence" that the reasons given by Ex-Lax

for his discharge were pretextual. Mesnick, 950 F.2d at 825.

b. Acevedo's Evidence of Discriminatory Intent

While the above evidence could support the conclusion

that Ex-Lax's explanations for Acevedo's discharge were pretextual,

this is not enough for Acevedo to defeat summary judgment; he must

also show that the pretextual reasons were "intended to cover up

the employer's real motive: age discrimination." Id. at 824. We

find that Acevedo's proof, taken in the aggregate, is sufficient to

raise a question of material fact regarding whether the true reason

behind his termination was age discrimination.

First, we consider Acevedo's argument that certain

comments made to him by Ceinos in August and December of 2006

constituted ageist remarks. Acevedo contends, and Ex-Lax concedes,

-30-
that Ceinos told him that the problem at Ex-Lax lay in the fact

that employees "who had been in the company for a long time[] were

not performing." Acevedo's testimony reflects that the context of

these remarks concerned "the problems that existed at the company

during the year" and an evaluation that Ceinos would be conducting

of Acevedo's work. Acevedo maintains that Ceinos was specifically

referring to the older employees who worked in the maintenance

group, and that these comments, combined with their proximity to

his dismissal, connote a discriminatory intent. Ex-Lax, in turn,

argues that Ceinos's remarks were unrelated to the decisional

process itself, were not reasonably proximate to the date of

Acevedo's discharge, and do not necessarily imply an illegal

animus.

"It is settled that statements made by decisionmakers can

evidence age discrimination," Kelley v. Airborne Freight Corp., 140

F.3d 335, 347 (1st Cir. 1998), and Ceinos was certainly the

decisionmaker in Acevedo's case. See id. at 341, 347 (remark that

it would be a good time "to get rid of some of the older mediocre

managers" had a "direct bearing on age discrimination because [the

speaker] made the decision to terminate"). While the remarks in

this case were arguably non-discriminatory -- i.e., Ceinos did not

allude to Acevedo's or any employee's actual age when he made the

comment -- to the extent that the comments were made in reference

to Acevedo's performance and focused on his department, they could

-31-
also be interpreted by a reasonable factfinder as referring to the

older employees who had remained longer on the job. See Hodgens, 7

144 F.3d at 167, 171 ("Statements by supervisors carrying the

inference [of] . . . animus against protected classes of people or

conduct are clearly probative of pretext, . . . even if that

inference is not the only one that could be drawn from the

comment.") (emphasis added) (citations omitted).

Moreover, in evaluating such remarks made by a

decisionmaker, this court has considered their temporal proximity

and causal connection to the decision to discharge. Cf. Meléndez,

622 F.3d at 54-55 (affirming plaintiff's inability to establish

that employer's remarks exhibited discriminatory animus because of

failure to prove that comments were temporally and causally

connected to his termination). Drawing all inferences in the light

most favorable to Acevedo, the remarks were made, at most, six

months prior to his termination and expressed Ceinos's displeasure

at older employees' long tenure at the company. A jury could

therefore infer that Ceinos's statements were temporally and

causally related to Acevedo's discharge. See, e.g., Walton v.

The district court determined that Acevedo's stated perception 7

regarding Ceinos's comments was "self-serving" and "conclusory,"

because he failed to submit a particular page from his deposition

transcript. Acevedo-Padilla, 740 F. Supp. 2d at 313 n.12. We

understand, however, that the same inference can be drawn from the

testimony that was properly submitted, and we therefore need not

disregard the possibility that a reasonable factfinder would

interpret the remarks as referring to the older maintenance and

engineering employees.

-32-
Nalco Chem. Co., 272 F.3d 13, 25 (1st Cir. 2001) (finding that

decisionmaker's remark made some time in 1997 was "directly related

and temporally proximate" to termination occurring in February

1998).8

Second, Acevedo contends that the company treated him

differently from his younger replacement, Rivera, which constitutes

evidence of age discrimination. Indeed, "[a]n employer's disparate

treatment of employees in response to behavior that legitimately

offends the employer can provide evidence of discriminatory

animus." Vélez, 585 F.3d at 451. However, "[t]o successfully

allege disparate treatment, a plaintiff must show 'that others

similarly situated to him in all relevant respects were treated

differently by the employer.'" Kosereis v. Rhode Island, 331 F.3d

207, 214 (1st Cir. 2003) (quoting Conward v. Cambridge Sch. Comm.,

171 F.3d 12, 20 (1st Cir. 1999)).

Because Rivera replaced Acevedo as Maintenance and

Engineering Manager, it is clear that the two were similarly

situated at the company. That is, it is undisputed that Rivera

We are by no means suggesting that these remarks, which also are 8

susceptible to a benign interpretation, are, on their own,

sufficient to sustain Acevedo's burden; but we do find that they

may be considered in conjunction with other evidence, discussed

herein, to determine if the aggregate proof satisfies the

plaintiff's burden on summary judgment to raise an issue of fact

regarding discriminatory motive. Cf. Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 36 (1st Cir. 2001) (holding that stray remarks

may be considered evidence of bias only in combination with other

evidence and if they were temporally close and causally related to

the adverse employment decision).

-33-
came into the same responsibilities that Acevedo had prior to his

termination. Despite this, Rivera was not reprimanded or

disciplined for incidents that Acevedo contends were similar to the

problems that arose during his tenure. For instance, in 2007,

after Rivera took charge of the Maintenance and Engineering

Department, an internal audit of the department revealed persistent

violations of the company's SOPs and good manufacturing practices. 

These included departmental failures to follow procedures involving

the purified water system, complete cleaning and sanitation

adequately, and execute pest control procedures with the required

frequency. A July 2007 unplanned deviation report also indicated

that an increase in mold and yeast counts had been detected in the

packaging area due to "improper area cleaning and sanitation," and

unplanned deviation reports from 2008 reflected various instances

in which pests, such as insects, a lizard, and rats, entered the

plant. Despite admitting his knowledge of these events at the time

they occurred, Ceinos did not hold Rivera accountable for them in

her performance evaluations, nor were any other employees

reprimanded for the same. We find that, based on this evidence, a

jury could infer that the disparate treatment alleged by Acevedo

existed, "exposing the pretextual nature of [Ex-Lax's] proffered

explanation for firing [Acevedo] and revealing that [Ex-Lax's] true

motivation was age discrimination." Vélez, 585 F.3d at 451.

-34-
The district court rejected Acevedo's disparate treatment

argument because it found Rivera's infractions regarding the 2008

pest incidents were not comparable to Acevedo's. See AcevedoPadilla, 740 F. Supp. 2d at 318. Along the same lines, Ex-Lax 9

argues that Rivera was not "similarly situated" to Acevedo because

the problems under Rivera's governance that were reflected in the

internal audit and unplanned deviation reports of 2007 and 2008

were distinguishable from the kinds of deficiencies Ceinos had

previously held Acevedo accountable for. However, these are issues

of fact and credibility, and Acevedo has presented sufficient

evidence to allow a jury to decide whether the incidents were

similar enough to support his allegation of disparate treatment. 

A reasonable factfinder could infer that the difference in Ceinos's

treatment of Acevedo and Rivera, who was a much younger

replacement, tends to prove the employer's discriminatory animus

toward Acevedo. See, e.g., id. at 451-52 (where four employees,

including the plaintiff, admitted to stealing property from the

employer, but only the plaintiff was fired, a jury could

For reasons that are not clear from its opinion, the district 9

court did not refer to any of the evidence proffered by Acevedo

supporting his allegations of Rivera's negligence beyond the 2008

pest incidents. Specifically, the district court failed to

consider the 2007 and 2008 internal audit reports reflecting

violations of Ex-Lax's SOPs during Rivera's tenure, or the 2007

unplanned deviation report indicating that mold and yeast had been

detected in the packaging area while Rivera was manager. However,

Acevedo's allegations are supported by the record and were properly

briefed by the parties. Accordingly, we have considered them on de

novo review.

-35-
"reasonably distrust" the employer's given reason for the firing

and conclude that it was a pretext for age discrimination); see

Mesnick, 950 F.2d at 824 ("deployment of younger replacements" may

be considered as probative, circumstantial evidence of age

discrimination (citing Hebert, 872 F.2d at 1115)).

Finally, we examine Acevedo's contention that a series of

employment decisions made by Ex-Lax beginning in 2003 constitute an

"invidious pattern of age-related discharges or forced early

retirements" that hints at discriminatory animus on the part of ExLax. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10

(1st Cir. 1990). Acevedo first points to the following statistics,

gathered from Ex-Lax's employment records: (1) after Ceinos became

Site Leader in 2003, the company hired approximately 140 employees,

114 of whom were younger than 40 years of age; (2) in the same

period, 17 employees were fired, 15 of whom were over 40 years old. 

We have clarified that statistics, when considered in isolation and

outside of context, are not probative of age discrimination. See,

e.g., Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 385 (1st Cir.

2000) (noting that appellant's burden to show employer's

discriminatory animus cannot be carried "simply by a comparison of

ages within a sample that lacks statistical significance"). In

this vein, Ex-Lax argues that Acevedo's reliance on the company's

hiring data is unsound because, as the district court found,

Acevedo "failed to provide information regarding the pool of

-36-
applicants or the composition of the relevant labor market." 

Acevedo-Padilla, 740 F. Supp. 2d at 318; see LeBlanc v. Great Am.

Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) ("[T]he 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."). We cannot argue with

this reasoning because our case law makes clear that Acevedo should

have introduced evidence regarding the relevant labor market in

order to put Ex-Lax's hiring data into context. Id. (failure to

indicate "whether 'qualified older employees were available or

applied for those jobs'" noted as "flaw[] in the statistical

evidence" that recent hires were younger than the plaintiff for

discriminatory reasons) (quoting Simpson v. Midland–Ross Corp., 823

F.2d 937, 943 (6th Cir. 1987)). Notwithstanding, it is relatively

straightforward for one to draw statistical significance from the

separately adduced fact that, after Ceinos's arrival in 2003,

almost all of the fired employees -- 15 out of a total of 17 people

-- were over forty years of age. A reasonable inference may be

drawn from this evidence for the existence of the kind of pattern

suggested by Acevedo.

In any event, this is not the only proof relied upon by

Acevedo to substantiate his theory that his termination was part of

a greater "pattern of age-related discharges or forced

retirements." Medina-Muñoz, 896 F.2d at 10. In addition to the

-37-
reasonable inference that may be drawn from the documented firings

that occurred at the plant soon after Ceinos's arrival, Acevedo

offers the testimony of Rodríguez, who indicated that, upon

beginning work as Site Leader in 2003, Ceinos instituted a new

"recruitment plan" with the purpose of "substitut[ing] the persons

who were of retirement age." As part of the recruitment plan,

Rodríguez stated that Ceinos asked her to investigate how long

employees at or nearing retirement age planned to stay at the

company. She explained that although in effectuating this plan, HR

did not pressure employees to retire, at least one employee at

retirement age who was asked to retire early, and chose not to, was

subsequently moved to another department and effectively demoted.

Ceinos, in contrast, averred that it was Rodríguez who

brought to his attention a concern that there were a substantial

number of employees in key positions that were near retirement age,

and that this situation could result in a number of key positions

being vacant simultaneously. As a result, Ceinos contends that he

asked Rodríguez to prepare a plan to prevent this potential

situation from coming to fruition. See Wallace v. O.C. Tanner

Recognition Co., 299 F.3d 96, 101 (1st Cir. 2002) (noting that

"company officials are permitted to gather information relevant to

personnel planning without raising the specter of age

discrimination").

-38-
We acknowledge that "[an] offer of early retirement . . .

is not, by itself, evidence of . . . discriminatory animus" and

that "[s]omething more must be shown that would tie the decision to

offer early retirement to discrimination." Álvarez-Fonseca v.

Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27 (1st Cir. 1998). 

Notwithstanding, on a motion for summary judgment, we must draw all

inferences in favor of the non-movant. See Hodgens, 144 F.3d at

156. A jury could find that the statistics, considered in

conjunction with the recruitment plan about which Rodríguez

testified -- and the rest of the plaintiff's circumstantial proof

-- discredit Ceinos's stated reason for the discharge. See Hebert,

872 F.2d at 1114-15 (finding that plaintiff defeated summary

judgment, after considering "admittedly weak" data proffered by

plaintiff that beginning of supervisor's tenure coincided with

dismissals of workers in protected class, where plaintiff's case

for pretext did not rest on "general pattern data alone," and

relied on other "suggestive scraps of circumstantial evidence").

III. Conclusion

In sum, based on the totality of the record, we conclude

that there was sufficient evidence presented on summary judgment

from which a jury could draw the permissible inference that ExLax's claimed reasons for terminating Acevedo were pretextual and

that the decision was the result of discriminatory animus. We are

particularly moved to this conclusion by inconsistencies between

-39-
Ex-Lax's stated reasons for dismissal and Acevedo's performance

record at the company, the lack of credibility that may be ascribed

by a jury to certain of Ceinos's justifications for dismissal, and,

most importantly, the fact that in response to arguably similar

conduct by Acevedo's younger replacement, Ex-Lax took no

disciplinary action.

Because Acevedo's proffer on summary judgment is

sufficient to raise a genuine issue of material fact as to whether

discrimination motivated the adverse employment action -- a

question that a jury, and not this court, should solve -- we must

reverse the district court's determination in Ex-Lax's favor and

remand.

Reversed and Remanded.

-40-