Ruiz v. Posadas ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1065
IVAN RUIZ, ET AL.,
Plaintiffs, Appellants,
v.
POSADAS DE SAN JUAN ASSOCIATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Jose L. Rivero Vergne for appellants.
Nilda M. Navarro-Cabrer for appellee.
August 18, 1997
CYR, Senior
Circuit
Judge. Appellants Ivan Ruiz and
Estela Diaz, husband and wife, challenge various district court
rulings relating to their claims against appellee Posadas de San
Juan Associates, Inc. ("Posadas" or "Hotel"), alleging,
inter
alia,
age discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. S 621 et seq., and Puerto Rico "Law 100," 29
L.P.R.A. S 146 et seq. As we conclude that appellants failed to
generate a trialworthy dispute regarding their federal claims, we
affirm the district court judgment.
I
BACKGROUND
In 1985, appellant Ivan Ruiz began work as a housekeeper
at the "Hotel San Juan & Casino" ("Hotel"), owned by Posadas, a New
York corporation. By 1987 Ruiz had been promoted to Team Leader,
Housekeeping Department, responsible for supervising housekeeping
in Hotel "public areas" (
e.g., offices, meeting rooms, gymnasium).
Beginning in 1991, he worked five nights a week on the 8:00 p.m. to
4:00 a.m. shift.
As a Team Leader, Ruiz received mixed performance
ratings. During the period from 1987 through 1993, the average
annual performance rating Ruiz received ranged from lows of 3.30 in
The material facts in genuine dispute are related in the light
most favorable to appellants, who opposed summary judgment.
Velez-
Gomez v. SMA Life Assur. Co., 8 F.3d 873, 875 (1st Cir. 1993).
2
1987 and 1989, to a high of 4.02 in 1990. Ruiz received regular
salary increases throughout his tenure. In addition, he received
three merit certificates for excellent supervisory performance and
a "good" overall rating in 1992.
During his tenure, however, Ruiz received some criticism.
In 1988, he was criticized by Felix Joseph, his supervisor at the
time, for "total negligence . . . or total and complete disregard
of
. . .
Company Policy or both," following an unannounced one-day
absence from work. In 1990, a different supervisor, Eddie Ortiz,
noted "major cleaning deficiencies" in the areas for which Ruiz was
responsible specifically, trash not picked up, rooms not
cleaned, and furniture not dusted
as well as a general "lack of
attention" to cleaning responsibilities in the Hotel corporate
offices. Finally, in 1993, yet another supervisor, Jorge Serrano,
warned Ruiz about poor cleaning in the gymnasium and filed a
contemporaneous disciplinary report against him.
Ruiz, on the other hand, dates most of his employment
problems from late 1993, when Luis Rivera, age 32, became Hotel
Executive Housekeeper. Rivera regularly criticized Ruiz, verbally
and in writing, on his job performance. In March 1994, Rivera
On a scale of 1 to 5, "3" indicated that standard job
requirements were met; "4" that the requirements were exceeded "in
many instances"; "5" that the requirements were "consistently"
exceeded.
For example, in February 1994 Rivera notified Ruiz that many
complaints had been lodged regarding the Hotel offices and that
inspection had disclosed failures to dust, pick up trash, clean
window areas, and clean bathrooms. Rivera warned Ruiz that he
expected "immediate action" and that "[f]ailure to comply" would
3
rated Ruiz's performance for 1993 as "need[ing] improvement" in
three areas: accepting criticism, solving problems, and quality of
performance. Rivera noted that Ruiz blamed others for his own
deficiencies, responded lackadaisically to guest requests, and
provided inadequate supervision to subordinates. After Ruiz com-
plained to Rivera, the performance evaluation was changed from
"need[ing] improvement" to "satisfactory," but Rivera did not
soften the negative written commentary. The average rating Ruiz
received for 1993 was 3.69. See supra note 2.
Beginning in 1993, Victoria Greber, Executive Assistant
Manager, "Rooms Division," likewise complained that Hotel public
areas were found to be untidy following Ruiz's shift. Felipe
Mercado, the night manager ultimately responsible for supervising
Ruiz, complained directly to Greber about uncleanliness in areas
for which Ruiz was responsible. Other unfavorable comments
relating to the untidiness of Hotel public areas following Ruiz's
shift were noted in the Hotel log books daily diaries describ-
"result in disciplinary action."
The annual ratings Ruiz received during his tenure were:
Evaluation Date Score Comparison
to
Rivera's
Rating
of
Ruiz
for
1993
calendar year
03-02-94 3.69 the rating given by
Rivera
11-12-92 3.68 lower than Rivera's score
11-01-91 3.39 lower " " "
10-30-90 4.02 higher " " "
11-10-89 3.30 lower " " "
07-30-89 3.47 lower " " "
01-06-87 3.30 lower " " "
4
ing,
inter
alia, the physical condition of the Hotel
by various
Hotel employees including Rivera.
During the Spring of 1994, the occupancy rate at the
Hotel dropped dramatically, resulting in severe shortfalls in Hotel
revenues and prompting work-force reductions by the administration.
In May 1994, Greber met with Rivera and Egidio Colon, Human
Resources Director, to evaluate the personnel records of all
employees holding an employment position within any category
targeted for reduction, which included a Team Leader position in
the Housekeeping Department, "Rooms Division."
After the personnel file on each Team Leader in the
Housekeeping Department had been reviewed, and following receipt of
input from Colon and Rivera, Greber determined to discharge Ruiz.
According to both Colon and Greber, the dispositive factors were
the negative written evaluations (Ruiz posted the lowest average
scores of any Team Leader), the negative commentaries, the disci-
plinary warnings, the complaints from night manager Felipe Mercado,
and the negative log-book notations regarding the uncleanliness of
the public areas following Ruiz's shifts.
On June 2, 1994, Ruiz was fired, after being told that
the Hotel was undergoing "reorganization," and "adjustments" in the
At the time, there were four Team Leaders in the Housekeeping
Department: John Waters, age 61, Steven Rosado, age 27, Carlos
Carrasquillo, age 34 all of whom worked the day shift and
Ruiz, age 61, who worked the night shift only. Carrasquillo and
Rosado had less seniority in their respective Team Leader positions
than Ruiz. Rosado had been a Team Leader for only seven months,
and Carrasquillo had become a Team Leader one year after Ruiz.
5
"Rooms Division" were necessary. Following Ruiz's dismissal,
supervisory responsibility for the night shift was divided between
Carrasquillo and Waters, both of whom continued to serve as Team
Leaders on their daytime shifts as well.
On June 7, 1994, Ruiz filed age-discrimination charges
with the Equal Employment Opportunity Commission and the
Antidiscrimination Unit of the Puerto Rico Department of Labor,
requesting reinstatement. On November 18, 1994, a preexisting Team
Leader position in the Housekeeping Department became vacant when
Mr. Rosado,
see
supra note 5, was promoted to Public Areas Manager.
The Hotel did not inform Ruiz of the vacancy, however, instead
promoting Alexis Vargas, age 26, to Team Leader.
On March 24, 1995, his administrative remedies exhausted
and a "right to sue" letter in hand, Ruiz (and spouse) filed a
complaint in the United States District Court for the District of
Puerto Rico, alleging that the Hotel, during 1993-94, had a policy
of discharging older employees, in violation of the ADEA and "Law
100." Following extended discovery proceedings, the Hotel moved
for summary judgment. In their opposition, appellants asserted,
for the first time, that the Hotel's failure to rehire Ruiz, and
The Hotel fired ten employees in all; two within the protected
age group, including Ruiz. Ruiz was the only Team Leader in the
Housekeeping Department to be fired. Two nonsupervisory employees
in the same department were fired, aged 25 and 29.
In addition, another 111 employees left the Hotel between
April and June, 1994. These included temporary employees whose
contracts were not renewed; retirements; resignations; and
terminations for cause. Among these 111 employees, nine (
i.e., 8%)
were 40 years or older.
6
its hiring of Vargas, likewise violated Puerto Rico "Law 100."
Thereafter, appellants sought leave to amend their original
complaint to state additional ADEA claims, alleging a failure to
rehire based on age and claiming retaliation in response to Ruiz's
filing of administrative charges against the Hotel.
The district court granted summary judgment for the
Hotel, after determining that the proffered evidence on the ADEA
discriminatory discharge claim was inadequate for a prima facie
showing that the Hotel either failed to treat age neutrally or
replaced Ruiz with a younger worker,
see
McDonnell Douglas Corp.
v.
Green, 411 U.S. 792 (1973); Woodman v. Haemonetics Corp., 51 F.3d
1087 (1st Cir. 1995). It also dismissed the pendent Commonwealth
claim under "Law 100," as there was no longer an independent basis
for asserting federal jurisdiction. Finally, the court denied the
motion to amend the complaint, on the ground that its new allega-
tions, "even if supported, . . . [would] not sustain an ADEA claim.
That is, plaintiffs would [sic] have established a
prima
facie case
of age discrimination."
II
DISCUSSION
We consider the summary judgment ruling
de
novo, viewing the
record in the light most favorable to Ruiz, the nonmoving party,
and drawing all reasonable inferences in his favor. LeBlanc v.
Great American Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). On the
other hand, we must affirm if the record reveals no trialworthy
issue of material fact and the Hotel was entitled to judgment as a
matter of law. See id. Moreover, we may affirm "on any indepen-
dently sufficient ground." Polyplastics, Inc.
v.
Transconex, Inc.
,
827 F.2d 859, 860-61 (1st Cir. 1987).
7
A. Wrongful Discharge Claim Under ADEA
1. Prima Facie Case
Our analysis is governed by the familiar burden-shifting
framework enunciated in
McDonnell Douglas
, 411 U.S. at 802-04, and
adapted for use in ADEA cases,
see,
e.g.,
Woodman, 51 F.3d at 1091.
Absent direct evidence of age discrimination, a claimant whose
employment was terminated through a reduction in force ("RIF")
first must make a prima facie showing that: 1) he was at least
forty years old; 2) met the employer's legitimate job expectations;
3) was fired; and 4) that age was not treated neutrally in imple-
menting the RIF, or younger individuals were retained in the same
position. Id. We need not consider the fourth prong, however,
including Ruiz's contention that the Hotel retained two younger
employees i.e., Rosado and Carrasquillo in the same occupa-
tional classification, since there is an alternative ground for
affirmance. See Polyplastics, Inc. v. Transconex, Inc., 827 F.2d
859, 860-61 (1st Cir. 1987). We therefore assume, without
deciding, that Ruiz made out a
prima
facie case of age discrimina-
tion by demonstrating that younger workers were retained in the
same position. See
Pages-Cahue v.
Iberia Lineas Aereas De Espana
,
82 F.3d 533, 538 (1st Cir. 1996).
2. Pretext
In order to rebut the presumption that arises upon the
establishment of a prima facie case i.e., that the employer
engaged in intentional age-based discrimination, see Woodman, 51
F.3d at 1091 the employer need only produce enough competent
8
evidence, taken as true, to enable a rational factfinder to
conclude that there existed a nondiscriminatory reason for the
challenged employment action,
see
St. Mary's Honor Center
v.
Hicks,
509 U.S. at 502, 509 (1993); Woodman, 51 F.3d at 1091 (same). At
that point, the employee "must demonstrate that the proffered
reason for the adverse employment action was simply a pretext for
age discrimination," Goldman v. First
Nat'l
Bank
of
Boston, 985
F.2d 1113, 1117 (1st Cir. 1993), which in turn requires that the
employee proffer enough competent evidence to support
two findings:
1) the employer's proffered reason was pretextual;
and, 2) its true
motive was age discrimination. Udo v.
Tomes, 54 F.3d 9, 12-13 (1st
Cir. 1995). The burden of persuasion remains on the plaintiff
employee at all times. LeBlanc, 6 F.3d at 842.
There is no dispute that the Hotel experienced signifi-
cant financial difficulties in the Spring of 1994 and terminated
ten employees as part of a legitimate RIF. Moreover, Victoria
Greber, the executive directly responsible for the decision to
discharge Ruiz, attested that financial difficulties prompted the
employee discharges, both in her own department and throughout the
Hotel. She explained, again without contradiction, that she
determined to discharge a Team Leader in the Housekeeping Depart-
ment because she considered it an expendable "medial" position
between the housekeepers, who do the cleaning, and the Hotel
Ruiz so concedes on appeal. See Brief for Appellants at 14
("Ruiz does not contest that a reduction in force was necessary in
order to confront the Hotel's economic problems. . . .").
9
management. She further explained that Ruiz was selected for
termination because his employment record was the weakest among all
Team Leaders. Careful review bears out that Greber's explanation
is entirely consistent with the undisputed documentary evidence
that Ruiz had received more disciplinary warnings, and the lowest
average evaluation ratings, of any Team Leader in the Housekeeping
Department, as well as the only negative written commentary. Thus,
the Hotel met its burden of production under the second prong of
the McDonnell Douglas test. See LeBlanc, 6 F.3d at 844-45.
Accordingly, the presumption of age discrimination has
vanished, see id., and we inquire whether the evidence, " in its
entirety," would permit a reasonable factfinder to infer that the
proffered reason for the dismissal was pretextual
and that the true
reason was an age-based animus, see id. (emphasis added). In
pursuing this inquiry, we focus on whether the employer believed
that its proffered reason was credible. See Mesnick v. General
Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991). That is, Ruiz must
do more than cast doubt on the rationale proffered by the employer,
see
Connell v.
Bank of Boston
, 924 F.2d 1169, 1172 (1st Cir. 1991),
the "evidence must be of such strength and quality as to permit a
reasonable finding that the . . . [termination] was obviously or
manifestly unsupported." Brown v. Trustees
of
Boston
Univ., 891
F.2d 337, 346 (1st Cir. 1989) (emphasis added) (internal quotation
marks omitted). The summary judgment record generated no
10
trialworthy issue on the ADEA wrongful discharge claim.
Ruiz attempted to demonstrate that Rivera was responsible
for an atmosphere of age-based discrimination, in the Housekeeping
Department, which influenced the decision to terminate him. He
relied on an affidavit from Carmen Pena, age 54, formerly employed
in the Housekeeping Department, who attested that Rivera expected
more from her than from younger workers; asked her age; stated that
she didn't look good for her age; inquired about her health and
suggested that a job change might be beneficial. Pena acknowl-
edged, however, that Rivera never asked, let alone ordered, her to
transfer. Moreover, Pena attributed another remark to Rivera
An affidavit from Miguel Moreales, formerly a housekeeper with
the Hotel, concludes that Ruiz was an excellent supervisor, but
does not purport to compare Ruiz's work record with that of other
Team Leaders. Moreales also opines that Ruiz's disciplinary
warnings were unfounded because Ruiz always assigned a housekeeper
to clean, and checked the area afterward. However, these
conclusory statements did not demonstrate that the areas about
which Ruiz was warned had been properly cleaned on the particular
occasions identified in the warnings he received, much less that
the warnings were unfounded, nor that Victoria Greber who made
the decision to fire Ruiz, see supra p. 5 could not reasonably
have believed that the disciplinary warnings were warranted. Cf.
Mulero-Rodriguez v. Ponte,
Inc., 98 F.3d 670, 674-75 (1st Cir.
1996) (wherein plaintiff presented evidence that employer's cited
reasons were pretextual).
Similarly, Ruiz attests that he was discharged due to his age,
a belief based on his judgment that he had a good employment
record. Even assuming his employment record passed muster,
however, Ruiz proffered no evidence which would enable a rational
jury to find that the Hotel's employment action was not soundly
founded on its determination that Ruiz possessed the least worthy
work-performance-record among all competing Team Leaders.
Finally, Ruiz alleged that the Hotel conducted a systematic
purge of older workers, but admits he has no such personal
knowledge or evidence. It is axiomatic that more is required than
mere conclusory allegations and unsupported conjecture. See
LeBlanc, 6 F.3d at 841; Goldman, 985 F.2d at 1116.
11
that all female workers at the Hotel were
overworked. In addition,
the Moreales affidavit states, inter alia, see also supra note 9,
that Rivera harbored an "obvious" bias toward younger workers. The
only explication Moreales offered for this conclusion, however, was
that Rivera had pressured older workers, unfairly reprimanded older
workers in front of younger ones, and treated two older supervi-
sors, including Ms. Pena, in a "disrespectful manner," but without
providing an evidentiary foundation upon which it might reasonably
be inferred that any pressure, reprimand, or disrespect was either
discriminatory or age-based. See LeBlanc, 6 F.3d at 841.
Although we have allowed as how circumstantial evidence
of a general discriminatory environment may add "color" to an
employer's decisionmaking process, see Conway v. Electro
Switch
Corp., 825 F.2d 593, 597 (1st Cir. 1987), we have explained that
"[p]roof of a general atmosphere of discrimination is not the
equivalent of proof of discrimination against an individual,"
Sweeney v.
Board of Trustees of Keene State College
, 604 F.2d 106,
113 (1st Cir. 1979). In all events, these proffers failed to
establish a trialworthy claim that a "general" atmosphere of age-
based discrimination existed in the Housekeeping Department, let
alone that Ruiz was "riffed" for any reason other than the relative
weakness of his work record. Instead, without confronting the
Ruiz presented no competent evidence that the Hotel "riffed"
him, or any other employee,
based
on
age. There is no evidence of
any comment by anyone associated with the Hotel, including Rivera
and Greber, about Ruiz's age or that age played any part in
determining which employees would be let go. Moreover, the 1993
annual rating received from Rivera was the second highest Ruiz ever
12
evidence, Ruiz concludes that he must have been discriminated
against because his record had been improving before Rivera became
his supervisor and because his eight-year employment record cannot
fairly be compared to the records of Team Leaders with less tenure.
Ruiz's logic escapes us on both scores. First, as already noted,
Ruiz received his next best performance rating ever from none other
than Rivera. Second, if Team Leaders with less tenure
i.e. less
experience received better performance ratings than the more
experienced Ruiz, it is difficult to discern how their superior
performance reflects less well on them.
Furthermore, as we have stated repeatedly, we do not
assume the role of a "super personnel department[], assessing the
merits
or even the rationality
of employers' nondiscriminato-
ry business decisions." Mesnick, 950 F.2d at 825; see also
LeBlanc, 6 F.3d at 846 (similar). So it must be here. See Smith
v. Stratus
Computer,
Inc., 40 F.3d 11, 16 (1st Cir. 1994), cert.
denied, --- U.S. ---, 115 S. Ct. 1958, 131 L.Ed.2d 850 (1995)
(stating that relief will not be granted "to a plaintiff who has
been discharged unfairly, even by the most irrational of managers,
received. Nor did Ruiz address the undisputed evidence that all
but two employees "riffed" by the Hotel were under forty,
see
supra
note 6, which tends to suggest that the alleged systematic purge of
employees was age-blind. Cf.
Hebert v.
Mohawk Rubber Co.
, 872 F.2d
1104, 1114 (1st Cir. 1989) (noting "rather startling" statistical
evidence that 76% of all older employees were "riffed"). Finally,
and most importantly, Ruiz proffered no evidence that he, among all
employees holding a targeted Team Leader position, had not received
the most disciplinary warnings, negative written comments,
complaints from the night manager, and the lowest average annual
performance rating an average compiled from ratings given by
various supervisors in addition to Rivera.
13
unless the facts and circumstances indicate that discriminatory
animus was the reason for the decision").
For the foregoing reasons, we hold that Ruiz failed to
proffer competent evidence adequate to ward off summary judgment on
the ADEA claim for wrongful discharge.
B. The Motion to Amend
Ruiz next contends that the district court erred in
denying the motion to amend the complaint,
see Fed. R. Civ. P. 15,
to include ADEA claims based on the Hotel's allegedly discriminato-
ry and retaliatory failure to rehire him. See supra p. 6.
1. Standard of Review
As Ruiz did not propose the amended complaint until seven
months after the Hotel had moved for summary judgment, we treat the
motion to amend as "an attempt to alter the shape of the case in
order to defeat summary judgment." Glassman v. Computervision
Corp., 90 F.3d 617, 623, (1st Cir. 1996). Consequently, Ruiz must
"demonstrate . . . that the proposed amendments were supported by
substantial and convincing evidence," Resolution
Trust
Corp. v.
Gold, 30 F.3d 251, 253 (1st Cir. 1994) (citations and internal
quotation marks omitted). Under the abuse of discretion standard,
any sound reason apparent from the record is sufficient to support
the district court ruling, see id., including but not limited to
undue delay, bad faith, dilatory motive, and the futility of the
We review the ruling on the motion to amend for "abuse of
discretion." Resolution Trust Corp.
v.
Gold, 30 F.3d 251, 253 (1st
Cir. 1994).
14
amendment,
see
Grant v.
News Group Boston, Inc.
, 55 F.3d 1, 5 (1st
Cir. 1995).
2. The District Court Ruling
Ruiz contends that the district court confused the
requirements an ADEA plaintiff must meet to establish a
prima
facie
discriminatory discharge claim, with the separate standards for
establishing prima facie claims of retaliation and discriminatory
failure to rehire. He points to the district court's statement
that the retaliation and failure-to-rehire claims, "even if
supported, will not sustain an ADEA claim. That is, plaintiffs
would [sic] have established a
prima
facie case of age discrimina-
tion[,]" and argues that the district court erroneously ruled that
Ruiz could not prevail on the proposed
retaliation and
failure-to-
rehire claims because he could not meet the prima facie showing
required for a
discriminatory
discharge claim. We need not address
this contention, however, as the record discloses an adequate
alternative ground for affirmance. See
Resolution Trust Corp.
, 30
F.3d at 253.
Given the tardiness of the motion to amend, the question
before us is whether Ruiz supported the proposed amended complaint
with enough "substantial and convincing evidence,"
id., of an age-
based discriminatory animus. See Woods v. Friction
Materials,
Inc., 30 F.3d 255, 260 (1st Cir. 1994) (stating that plaintiff must
show discriminatory animus in failure-to-hire case); Fennell v.
First Step Designs, Ltd.
, 83 F.3d 526, 535 (1st Cir. 1996) (stating
that employee must demonstrate retaliatory animus); see also id.
15
(stating that court may dispense with burden-shifting framework,
and focus instead on whether the "evidence as a whole was suffi-
cient to generate a jury question on pretext and discriminatory
animus"). First of all, it must be noted that the mere fact Ruiz
was not rehired does not itself afford a basis for inferring age
discrimination. See Udo, 54 F.3d at 14 (stating that failure to
rehire may simply show employer did not want to rehire employee).
Second, though the timing of the decision to hire Vargas
coming
as it did five months after Ruiz filed administrative charges
tends to favor Ruiz, it does not amount to "substantial and
convincing evidence" of an age-based animus. See
Resolution Trust
Corp., 30 F.3d at 253.
In addition, the essential thrust of the proposed amended
complaint is that coupled with Rivera's alleged discriminatory
animus toward older employees the decision to hire Vargas,
rather than recall Ruiz, was patently irrational and, therefore,
must have been a pretext for discrimination. However, the underly-
ing thesis that Vargas's qualifications were so inferior that
the Hotel
could
only have been engaging in age-based discrimination
and/or retaliation against Ruiz when it chose not to notify or
rehire him is seriously flawed.
First, Ruiz did not proffer sufficient evidence to enable
a finding of discriminatory animus, either in the Housekeeping
Department at large or toward him in particular.
See
supra pp. 11-
14. Second, the fact that Ruiz, based on experience and past
performance, may have been qualified to hold the Team Leader
16
position which was given to Vargas, is
not evidence that the Hotel
was motivated by an age-based animus in withholding it from Ruiz.
See Woods, 30 F.3d at 262.
In conclusion, whether or not it was short-sighted to
bypass Ruiz in favor of Vargas, who had never received a disciplin-
ary warning, it cannot be said that it was so absurd as to defy
rational belief. See
Lehman v.
Prudential Ins. Co. of America
, 74
F.3d 323, 329 (1st Cir. 1996) (refusing to "second-guess" hiring
decision "absent clearer evidence of irrationality"). According-
ly, we are not confronted with such disparities in their respective
employment records as would "virtually jump off the page and slap
us in the face," Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)
(quoted in
Lehman, 74 F.3d at 329), let alone combine with evidence
of discriminatory animus to defeat summary judgment,
see
Smith, 40
F.3d at 16 (requiring minimally sufficient evidence of discrimina-
tory animus). Consequently, we are not at liberty to "substitute
. . . [our] views for those of the individuals charged with the
evaluation duty by virtue of their own years of experience and
expertise in the field in question." Id. (quoted in Lehman, 74
F.3d at 329).
Moreover, Vargas also received several commendations for work
performance in the Housekeeping Department, the Hotel laundry, and
as a driver and chauffeur, as well as performance ratings
at
least
comparable to those received by Ruiz. Vargas earned the following
annual performance ratings: 1987, 4.4; 1988, 3.74; 1989, 3.1;
1990, 4.0; 1991, 4.48; 1992, 4.3; 1993, 3.45; 1994, 3.59. See
also supra note 4. In addition, Vargas had worked the day shift,
which was regarded by Hotel management as more demanding than the
night shift worked by Ruiz.
17
Therefore, as Ruiz proffered insufficient evidence from
which an age-based discriminatory animus might reasonably be
inferred in connection with the Hotel's decision to promote Vargas,
rather than rehire Ruiz, see Smith, 40 F.3d at 16, he has not met
the heavy burden of establishing that the proposed amended
complaint was supported by "substantial and convincing evidence."
Resolution Trust Corp., 30 F.3d at 253.
18
III
CONCLUSION
Finally, since the district court supportably dismissed
the federal claims, it permissibly declined to retain, see 28
U.S.C. S 1367, supplemental jurisdiction of the pendent claim under
Commonwealth "Law 100." See United
Mine
Workers
of
America v.
Gibbs, 383 U.S. 715, 726 (1966). Accordingly, the district court
judgment is affirmed.
SO ORDERED.
19