Rivera-Aponte v. Restaurant Metropol ( 2003 )

United States Court of Appeals
For the First Circuit
No. 02-1923
RAÚL RIVERA-APONTE, ET AL.,
Plaintiff, Appellant,
v.
RESTAURANT METROPOL #3, INC.
d/b/a RESTAURANT METROPOL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
William Santiago-Sastre, with whom Meléndez, Pérez, Morán &
Santiago, LLP were on brief, for appellants.
Guillermo J. Ramos-Luiña, with whom Rivera, Tulla & Ferrer,
were on brief, for appellee.
July 28, 2003
TORRUELLA, Circuit Judge. Appellant Raúl Rivera Aponte1
("Rivera") challenges the district court's entry of summary
judgment in favor of his former employer, appellee Restaurant
Metropol #3, Inc. ("Metropol"), on Rivera's age discrimination
claim. We find that Rivera has failed to demonstrate a trial
worthy issue of discrimination under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq., and affirm the
district court's decision.
I. Standard of Review
We review the district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
non-moving party, and granting all reasonable inferences in his
favor. Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir.
2003). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c) (2003).
A "genuine issue" as to a "material fact" must be supported by
"such evidence that a reasonable jury, drawing favorable
inferences, could resolve it in favor of the nonmoving party."
Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st
Cir. 1999) (quotation omitted). We will affirm the district
1
Additional appellants are Rivera's wife and children.
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court's grant of summary judgment in favor of the employer unless
there is "evidence sufficient for a factfinder to reasonably
conclude that [the employer's] decision to terminate was driven by
a discriminatory animus." Mulero-Rodríguez v. Ponte, Inc., 98 F.3d
670, 673 (1st Cir. 1996). Finally, we may affirm the decision on
any grounds apparent in the record. Rosenberg, 328 F.3d at 17.
II. Background
Before Metropol opened on June 29, 1998, Rivera and
Alberto Nogueras, a busboy at the restaurant, had an altercation,
during which Rivera threw or accidentally dropped a tray full of
drinking glasses on Nogueras. Nogueras was cut by the glasses and
received twelve stitches at the hospital. The manager of the
restaurant interviewed employees regarding the incident; after
determining that Rivera was the aggressor, the manager fired Rivera
later that day.
At the time of his discharge, Rivera was fifty-five years
old and had been a waiter at Metropol for eight or nine years.
Rivera filed suit in June 1999, alleging age
discrimination under the ADEA and similar Puerto Rican statutes.
On June 3, 2002, the district court granted summary judgment for
Metropol on the federal ADEA claim, and dismissed Rivera's
commonwealth claims without prejudice. This appeal of the ADEA
claim followed.
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III. Discussion
The ADEA makes it unlawful for an employer to "discharge
any individual . . . because of such individual's age." 29 U.S.C.
§ 623(a)(1) (2003). In an ADEA wrongful discharge case, the
plaintiff must prove that he would not have been fired but for his
age. Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 25 (1st Cir.
1997). Where, as here, there is no evidence of direct
discrimination, the familiar McDonnell Douglas burden-shifting
framework governs. Id.; see McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973).
A plaintiff makes a prima facie case of discrimination
under McDonnell Douglas by showing that (1) he was at least forty
years old; (2) he met the employer's legitimate job expectations;
(3) he was fired; and (4) the employer did not treat age neutrally.
Pages-Cahue v. Iberia Líneas Aéreas de España, 82 F.3d 533, 536
(1st Cir. 1996). The fourth element requires the plaintiff to
produce "evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory
criterion." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,
312 (1996) (quotation omitted).
The initial prima facie case is not burdensome and raises
a rebuttable presumption of unlawful discrimination. Woodman v.
Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995). The burden
then shifts to the defendant to articulate a legitimate, non-
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discriminatory reason for the adverse employment action. Mesnick
v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). If the
employer makes this showing, the presumption of discrimination
disappears, and the burden shifts back to the employee. Id. The
plaintiff must then show, without resort to the presumption created
by the prima facie case, that the employer's explanation is a
pretext for age discrimination. Id.A. Legitimate, Non-discriminatory Reason
We assume arguendo that Rivera can establish a prima
facie case. Metropol offers a legitimate, non-discriminatory
reason for discharging Rivera: Rivera assaulted and injured another
employee while at work. Rivera had received a copy of Metropol's
employment manual, which warns that an employee's attack,
aggression, assault, or threat of aggression against a supervisor
or fellow employee justifies Metropol's immediate termination of
that employee. Rivera's behavior violated Metropol's rules of
conduct, and the restaurant took swift disciplinary action. The
restaurant has met its burden of production and the ultimate burden
now rests with Rivera to prove his discharge was motivated by
discriminatory animus. See Mesnick, 950 F.2d at 823.
B. Evidence of Discrimination
Now that the burden has shifted back to Rivera, he must
come forward with sufficient evidence to permit a reasonable fact-
finder to conclude that his employer's stated reason for discharge
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was a pretext for age discrimination. After considering his
arguments and reviewing the record, we find that he has not shown
that a genuine issue exists as to the reason for his termination.
First, Rivera asserts that the pre-termination
investigation was cursory -- evidenced by the fact that Rivera was
never allowed to explain his side of the story -- and therefore
Metropol's reason for terminating him was pretextual. Metropol
responds that it determined, based on one interview and Nogueras'
actual (and undisputed) injuries, that Rivera was the aggressor,
and it sought to take swift action to deter further workplace
violence. Whether a termination decision was wise or done in haste
is irrelevant, so long as the decision was not made with
discriminatory animus. Gray v. New Eng. Tel. & Tel. Co., 792 F.2d
251, 255 (1st Cir. 1986). Rivera's bare assertion that Metropol's
reason for terminating him was pretext is insufficient: the
restaurant's reason was compelling, and our thorough review of the
record reveals that Rivera lacks any evidence that the real reason
for his termination was age discrimination. See Ruiz v. Posadas de
San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997) ("[Plaintiff]
must do more than cast doubt on the rationale proffered by the
employer, . . . the evidence must be of such strength and quality
as to permit a reasonable finding that the termination was
obviously or manifestly unsupported.").
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Second, Rivera contends Metropol discriminated against
older workers, sometimes referring to employees as "imbéciles" or
"corpses." Such "stray workplace remarks" are generally
insufficient, standing on their own, to establish discriminatory
animus. González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002).
Rivera does not specify who made these comments, when they were
made, or to whom they were directed. The lack of a direct
connection between the words and the employment action
significantly weakens their probative value. Schuster v. Lucent
Techs., Inc., 327 F.3d 569, 576 (7th Cir. 2003). Given Metropol's
compelling stated reason for Rivera's termination, these stray
remarks do not permit the inference that the real reason for
Rivera's termination was age discrimination. See Williams v.
Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).
Rivera also offers the affidavit of a former employee who
worked at Metropol for three years, beginning at age sixty, then
left and later sought re-employment at age sixty-three or sixty-
four. The owner told him "we are too old for this," and he was not
rehired. We do not think this evidence reveals age-based animus.
The owner's statement uses "we," which is different than saying
"you are too old for the job;" such ambiguity weakens Rivera's
claim that the statement reveals age animus. See González, 304
F.3d at 70. Also, the fact the employee was hired for the first
time at age sixty demonstrates Metropol's willingness to have older
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employees on its staff. Metropol introduced evidence that more
than two-thirds of its male employees are over forty-five. This is
not the hallmark of an employer who discriminates against older
workers.
Finally, Rivera alleges that other employees were
involved in altercations at work but not fired. Metropol counters
that some of those incidents were unknown to supervisors, and none
of the other incidents resulted in personal injuries requiring
medical treatment. After reviewing the record, we agree that the
incidents proffered by Rivera are of a significantly less severe
nature (a few punches without injury exchanged in one incident,
obscene words and shoving in another, and a piece of silverware
thrown in a third); therefore, these examples fail to show
disparate treatment. See Rodríguez-Cuervos v. Wal-Mart Stores,
Inc., 181 F.3d 15, 21 (1st Cir. 1999) ("[A] claim of disparate
treatment based on comparative evidence must rest on proof that the
proposed analogue is similarly situated in all material respects.")
(quotation omitted).
IV. Conclusion
After reviewing the record, we find that Rivera has
failed to demonstrate sufficient evidence to permit a reasonable
fact-finder to conclude that his termination was a pretext for age
discrimination. The district court's decision is affirmed.
Affirmed.
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