Petition for Writ of Certiorari — Luz González-Bermúdez, Petitioner v. Abbott Laboratories P.R. Inc., et al.

No.

IN THE

Supreme Court of the United States

LUZ GONZÁLEZ-BERMÚDEZ,

Petitioner,

v.

ABBOTT LABORATORIES P.R. INC. AND KIM PÉREZ,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

JUAN RAFAEL GONZÁLEZ

MUÑOZ

JUAN C. NIEVES GONZÁLEZ

GONZÁLEZ MUÑOZ LAW

OFFICES, P.S.C.

P.O. Box 9024055

San Juan, PR 00902-4055

(787) 766-5052

MICHAEL T. KIRKPATRICK

Counsel of Record

GRACE A. PARAS

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

mkirkpatrick@citizen.org

CARLOS M. VERGNE VARGAS

LAW OFFICE OF CARLOS VERGNE

24 Mariana Bracetti Street, 2nd Floor

San Juan, PR 00918

(787) 753-3799

Attorneys for Petitioner

July 2021

i

QUESTIONS PRESENTED

A jury returned a verdict for petitioner on her age

discrimination and retaliation claims. The district

court upheld the verdict, finding that a reasonable

jury could infer discrimination and retaliation from

the evidence presented. The First Circuit reversed,

holding as a matter of law that petitioner’s

comparator evidence had no probative value because

the comparators had different positions, duties, and

supervisors. The court further held that, without

more, a jury’s disbelief of an employer’s explanation

for an adverse employment action cannot support an

inference of discrimination or retaliation. The

questions presented are —

1. Whether comparator evidence can support an

inference of discrimination if the plaintiff and

comparators do not share the same position,

duties, and supervisor.

2. Whether a jury’s disbelief of an employer’s

proffered reason for an adverse employment

action can sustain an inference of discrimination or retaliation.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 2

JURSIDICTION.......................................................... 2

STATUTES INVOLVED ............................................ 3

STATEMENT .............................................................. 4

Factual background ............................................... 4

Proceedings below ................................................. 7

REASONS FOR GRANTING THE PETITION ....... 13

I. The courts of appeals apply a range of outcomedeterminative standards for assessing whether

comparator evidence is sufficient to support an

inference of discrimination. ................................ 13

A. The courts of appeals are intractably

divided. ........................................................... 14

B. This case illustrates the need for a consistent

standard. ........................................................ 18

II. The courts of appeals apply inconsistent

standards for evaluating whether an employer’s

proffered explanation for an adverse employment

action is pretextual. ............................................. 21

III.The First Circuit erred by substituting its

judgment for that of the jury. ............................. 25

CONCLUSION.......................................................... 29

iii

Appendix A

Opinion of the United States Court

of Appeals for the First Circuit

(March 3, 2021) ............................ 1a

Appendix B

Judgment of the United States

Court of Appeals for the First

Circuit (March 3, 2021) .............. 23a

Appendix C

Opinion of the United States Court

District Court for the District of

Puerto Rico (Sept. 30, 2019) ...... 25a

Appendix D

Opinion of the United States Court

District Court for the District of

Puerto Rico (Oct. 30, 2018) ........ 79a

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Appelbaum v. Milwaukee Metropolitan Sewerage

District,

340 F.3d 573 (7th Cir. 2003) ............................... 26

Brown v. Daikin America Inc.,

756 F.3d 219 (2d Cir. 2014) ................................. 16

Brown v. Packaging Corp. of America,

338 F.3d 586 (6th Cir. 2003) ............................... 23

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012) ......................... 15, 18

Cross v. New York City Transit Authority,

417 F.3d 241 (2d Cir. 2005) ................................. 24

Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344 (6th Cir. 1998) ................... 15, 19, 21

Graham v. Long Island Railroad,

230 F.3d 34 (2d Cir. 2000) ................................... 16

Hawn v. Executive Jet Management, Inc.,

615 F.3d 1151(9th Cir. 2010) ........................ 16, 18

Henderson v. Massachusetts Bay Transportation

Authority,

977 F.3d 20 (1st Cir. 2020) .............................. 2, 22

Johnson v. Advocate Health & Hospitals Corp.,

892 F.3d 887 (7th Cir. 2018) ............................... 15

v

Laxton v. Gap Inc.,

333 F.3d 572 (5th Cir. 2003) ............................... 25

Lee v. Kansas City Southern Railway Co.,

574 F.3d 253 (5th Cir. 2009) ............................... 16

Lewis v. City of Union City,

918 F.3d 1213 (11th Cir. 2019) ..................... 16, 17

Moran v. Selig,

447 F.3d 748 (9th Cir. 2006) ............................... 16

Morris v. Town of Independence,

827 F.3d 396 (5th Cir. 2016) ............................... 16

Raniola v. Bratton,

243 F.3d 610 (2d Cir. 2001) ................................. 24

Ratliff v. City of Gainesville,

256 F.3d 355 (5th Cir. 2001) ............................... 25

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 (2000) .....................................passim

Russell v. McKinney Hospital Venture,

235 F.3d 219 (5th Cir. 2000) ......................... 24, 26

Shumway v. United Parcel Service, Inc.,

118 F.3d 60 (2d Cir. 1997) ................................... 16

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993) ................................. 21, 24, 26

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981) ....................................... 13, 21

vi

Torgerson v. City of Rochester,

643 F.3d 1031 (8th Cir. 2011) ............................. 15

U.S. Postal Service Board of Governors v. Aikens,

460 U.S. 711 (1983) ....................................... 13, 21

Waite v. Board of Trustees of Illinois Community

College District No. 508,

408 F.3d 339 (7th Cir. 2005) ............................... 23

Williams v. Eau Claire Public Schools,

397 F.3d 441(6th Cir. 2005) ................................ 23

Winarto v. Toshiba America Electricals Components,

Inc.,

274 F.3d 1276 (9th Cir. 2001) ............................. 27

Young v. United Parcel Service, Inc.,

575 U.S. 206 (2015) ............................................. 17

Statutes & Rules

28 U.S.C. § 1254(1) ..................................................... 3

29 U.S.C. §§ 621–634 .............................................. 3, 8

Federal Rules of Civil Procedure

50(b) ....................................................................... 9

59(a) ....................................................................... 9

Federal Rules of Evidence

401 ........................................................................ 20

Puerto Rico Law 115 ................................................. 12

vii

Other

Tricia M. Beckles, Class of One: Are Employment

Discrimination Plaintiffs at an Insurmountable

Disadvantage if They Have No “Similarly

Situated” Comparators?, 10 U. Pa. J. Bus. & Emp.

L. 459 (2008) ........................................................ 18

Alexander S. Edmonds, Note, Mopping Up The Mess:

A Call to Adopt the Seventh Circuit’s Standard for

Assessing Comparator Evidence in Title VII

Discrimination Claims,

55 Ga. L. Rev. 911 (2021) .................................... 17

Robert Iafolla, Judging Job Bias by Comparing

Workers: Circuit Court Rules Vary, Bloomberg

Law (April 11, 2019)

https://news.bloomberglaw.com/daily-labor-report/

judging-job-bias-by-comparing-workers-circuitcourt-rules-vary ................................................... 17

Sandra F. Sperino, Into the Weeds: Modern

Discrimination Law,

95 Notre Dame L. Rev. 1077 (2020) .................... 17

Charles A. Sullivan, The Phoenix from the Ash:

Proving Discrimination by Comparators, 60 Ala.

L. Rev. 191 (2009) .......................................... 17, 18

INTRODUCTION

A jury returned a verdict for petitioner Luz

González-Bermúdez on her age discrimination and

retaliation claims under the Age Discrimination in

Employment Act (ADEA) and corresponding Puerto

Rico laws. The district court upheld the liability

verdict. The United States Court of Appeals for the

First Circuit reversed in relevant part, finding that

respondents were entitled to judgment as a matter of

law on the ground that Ms. González’s comparator

evidence lacked probative value because the

comparators had different positions, duties, and

supervisors, and finding that the jury’s disbelief of the

employer’s

proffered

nondiscriminatory

and

nonretaliatory reasons for its actions was insufficient

to sustain an inference of discrimination and

retaliation.

The First Circuit’s decision conflicts with the

decisions of other courts of appeals on the standard for

determining whether comparator evidence can

support an inference of intentional discrimination.

Whereas the First Circuit mechanically applied three

rigid factors to determine whether plaintiff and her

proffered comparators were similarly situated, other

courts of appeals apply a flexible standard focused on

whether the plaintiff and comparators share enough

in common to render the comparison relevant to the

issue of whether intentional discrimination was at

play. The Court should grant certiorari to resolve the

circuit split and clarify the standard for determining

whether comparator evidence supports an inference of

intentional discrimination.

The First Circuit’s decision also conflicts with the

decisions of other courts of appeals regarding the

2

proper application of Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000). In Reeves, this

Court held that a jury’s disbelief of the employer’s

proffered nondiscriminatory reason for an adverse

employment action can sustain an inference of

discrimination. The Court also cautioned that, in

reviewing a jury verdict, courts may not reweigh the

evidence and substitute their judgment for that of the

jury. Over time, however, the courts of appeals have

adopted inconsistent approaches to applying Reeves.

And in the First Circuit, “Reeves is at risk of suffering

death by a thousand cuts.” Henderson v. Mass. Bay.

Transp. Auth., 977 F.3d 20, 54 (1st Cir. 2020) (Barron,

J., dissenting). This Court’s review is thus needed to

clarify the proper application of Reeves.

OPINIONS BELOW

The opinion of the First Circuit (Pet. App. 1a) is

reported at 990 F.3d 37. The Omnibus Opinion and

Order of the District Court for the District of Puerto

Rico (Pet. App. 25a), upholding the jury verdict and

granting in part and denying in part respondents’

Motion for New Trial and Motion for Reconsideration,

is reported at 408 F. Supp. 3d 25. The Opinion and

Order of the District Court for the District of Puerto

Rico (Pet. App. 79a), upholding the jury verdict and

denying respondents’ Motion for Judgment as a

Matter of Law, is reported at 349 F. Supp. 3d 93.

JURISDICTION

The U.S. Court of Appeals for the First Circuit

issued its opinion on March 3, 2021. Under this

Court’s order of March 19, 2020, the time for filing a

petition for a writ of certiorari is 150 days from the

date of the lower court’s judgement for judgments

3

issued prior to July 19, 2021. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

29 U.S.C. § 623 provides:

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge

any

individual

or

otherwise

discriminate against any individual

with respect to his compensation,

terms, conditions, or privileges of

employment,

because

of

such

individual’s age; [or]

(2) to limit, segregate, or classify his

employees in any way which would

deprive or tend to deprive any

individual

of

employment

opportunities or otherwise adversely

affect his status as an employee,

because of such individual’s age.

...

(d) It shall be unlawful for an employer to

discriminate against any of his employees or

applicants for employment … because such

individual, … has opposed any practice made

unlawful by this section, or because such

individual, member or applicant for

membership has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or litigation under

this chapter.

4

STATEMENT OF THE CASE

Factual background

Petitioner Luz González began working at Abbott

in 1984 as a Medical Sales Representative, which was

a Level 12 position on the Abbott pay scale. Over the

next twenty-seven years, Ms. González rose steadily

through the ranks. She always received ratings of

“Achieved Expectations” or “Exceeded Expectations”

on her performance evaluations, and by 2010, she was

a Level 18 National Sales Manager. Pet. App. 3a–4a,

83a–84a.

In November 2010, Abbott reorganized and

eliminated the positions of three employees: Ms.

González, Ms. Rocio Oliver, and Mr. Dennis Torres. Id.

at 3a. Abbott reassigned the three employees to lowerlevel positions, but it notified them that they would

continue to receive the compensation of their prior

positions for an interim period of at least two years.

Id. at 3a, 84a. Ms. Oliver and Mr. Torres were moved

to Level 14 positions from their prior positions at

Levels 15 and 16, respectively. Id. at 3a, 89a. Ms.

González was named Institutional Marketing

Manager, a new Level 17 position supervised by Kim

Pérez. Id. at 3a.

In her previous position, Ms. González supervised

a staff of twenty-eight, including Ms. Oliver and Mr.

Torres. In her new role, she was expected to complete

her tasks without any staff to assist her. Id. Because

Ms. González was unable to timely complete all her

new duties, she received a rating of “Partially

Achieved” expectations on her performance evaluation

for 2011. After some of her responsibilities were

redistributed, she received a rating of “Achieved

Expectations” for 2012. Id. at 3a–4a.

5

Following the two-year interim period, Ms. Oliver

and Mr. Torres continued in their new positions and

their salaries were lowered to Level 14. Id. at 89a.

Abbott, however, did not allow Ms. González to

continue as Institutional Marketing Manager with a

salary adjustment from Level 18 to Level 17, as she

had expected. Id. at 85a, 88a. Rather, in March 2013,

Abbott demoted Ms. González to Project Manager, a

Level 15 position. At the time, Ms. González was fiftythree years old. Ms. Oliver was forty-four and Mr.

Torres was forty-one. Id. at 4a.

Upon being informed of her demotion, Ms.

González experienced acute anxiety and immediately

reported to the company doctor. The doctor referred

her to the State Insurance Fund (SIF), Puerto Rico’s

worker’s compensation agency. The SIF placed Ms.

González on rest until July 10, 2013. Nevertheless,

two weeks later, on April 1, Abbott sent Ms. González

a letter informing her that she would be fired if she

did not return to work by April 8. Against medical

advice, Ms. González returned to work before the

mandated rest period was over. Id. at 4a, 13a–14a,

100a.

On October 29, 2013, Ms. González filed an

administrative claim of age discrimination based on

her demotion. Her professional relationship with her

supervisor, Ms. Pérez, worsened. Id. at 5a, 100a–01a.

Two weeks later, Ms. González learned from a

colleague that Abbott was hiring a Senior Product

Manager, a Level 16 position. Id. at 5a, 113a.

Although Abbott’s policy was to offer promotions to

qualified

Abbott

employees

before

external

candidates, and although Ms. González had asked at

the time of her demotion about the availability of a

Senior Project Manager position, Ms. González had

6

not been informed of the opening, which Abbott had

been recruiting for externally for more than two

months. Id. at 5a, 102a. Abbott posted the job

internally only after Ms. González inquired about it.

The hiring committee included the supervisor named

in Ms. González’s age discrimination charge, Ms.

Pérez. Id. at 5a. Prior to the hiring decision, Ms. Pérez

discussed Ms. González’s charge with each member of

the selection committee, and the committee discussed

Ms. González’s age discrimination claim with a

lawyer. Id. at 103a.

Ms. González and two external applicants were

chosen as finalists for the position. After their

interviews, the finalists were told that they would

have to make a mock sales presentation to a panel of

judges the following day, even though the notes from

the meeting held to discuss the selection process made

no mention of any presentation. Id. at 103a–04a. In

her nearly thirty years with the company, Ms.

González had never heard of such a requirement and

she knew that the panel judges were already familiar

with her presentation skills. Ms. González viewed the

process as a sham and chose not to make the mock

presentation, although she made clear her continued

interest in the position. Id. at 6a. The day of the

presentations, Abbott filled the position with one of

the external candidates, who was thirty-three years

old. Id. at 105a & n.9.

In January 2014, Ms. González applied for a

promotion to Regional Sales Manager, a Level 18

position that had been posted internally. A month

later, Ms. González received her performance

evaluation for 2013 in which she received a rating of

“Partially Achieved” expectations. Ms. González had

been on track to receive a positive rating based on her

7

mid-year review in September 2013. Id. at 4a, 6a, 18a.

She requested that the Human Resources department

review her evaluation, and she asked that her 2013

emails be reinstated to her account so that she could

demonstrate that she had achieved the goals of her

position and completed her assigned projects. The

Human Resources department responded that the

emails had been deleted and could not be retrieved. Id.

at 6a–7a.

Abbott chose forty-one-year-old Glamary Perez for

the Regional Sales Manager position; Ms. González

was now fifty-five. Id. at 108a & n.11. In March 2014,

Ms. González requested that she be appointed Senior

District Manager, the position left vacant upon Ms.

Glamary Perez’s promotion and a position that Ms.

González had previously occupied. Id. at 7a. Abbott

denied the request and, without posting the position,

offered it to a forty-three-year-old employee. Id. at 7a,

109a & n.13. During the same month, the two

employees other than Ms. González who had been

affected by the reorganization were promoted to Level

16 positions. Ms. González, who had been their

supervisor before the reorganization, remained in a

Level 15 position, without any opportunity for

advancement. Id. at 110a. In April 2014, Abbott

finalized a document that identified potential

promotions that employees might work toward, but it

listed no next moves for Ms. González. Under a new

supervisor in 2014 and 2015, Ms. González received

only positive performance reviews. Id. at 7a.

Proceedings below

Ms. González sued Abbott and her direct

supervisor, Ms. Pérez, alleging discrimination and

retaliation under the Age Discrimination in

8

Employment Act (ADEA), 29 U.S.C. §§ 621–634, and

Puerto Rico law. The case was tried before a jury.

In Reeves, this Court held that a jury’s disbelief of

an employer’s explanation for an adverse action can

be sufficient to support an inference of discrimination.

530 U.S. at 147–48. Relying on Reeves, the district

judge instructed the jury that, for both Ms. González’s

age discrimination and retaliation claims, it

should consider whether defendants’ produced

reason for their actions is not the true reason

why they took the adverse employment action,

i.e., age discrimination and/or retaliation action

against Ms. González and whether the true

reason for the adverse action was to

discriminate and/or retaliate against her

because she filed a charge of age discrimination

and retaliation against defendants and opposed

defendants’ retaliatory actions against her.

App.1 640. The instructions went on to explain that

Ms. González “must prove by a preponderance of the

evidence, not only that the defendants’ purported

reason for discriminating and/or retaliating against

her is false, but also that it is an excuse intended to

cover up the fact that age discrimination and/or age

based retaliation was the reason defendants decided

to act.” Id. at 641.

After a six-day trial, the jury found in favor of Ms.

González and awarded compensatory damages and

backpay. Pet. App. 2a.

Among other post-judgment motions, Abbott

sought judgment as a matter of law pursuant to

––––––––––––––––––––––––

1 “App.” refers to the appendix filed with Abbott’s appellate

brief.

9

Federal Rule of Civil Procedure 50(b) and a new trial

pursuant to Rule 59(a), arguing that the evidence was

insufficient to support the jury’s verdict. Id. at 80a. In

separate opinions, the district court denied both

motions, finding that the evidence easily supported

the verdict. Id. at 25a–26a, 79a–80a.2

The district court denied Abbott’s Rule 50(b)

motion with respect to Ms. González’s March 2013

demotion because it found that the jury had

reasonably concluded that Ms. González established

that age was the “but-for” cause of the demotion. Id.

at 98a–99a. The court noted that Ms. González was

significantly older than the other two employees

affected by the reorganization, that the younger

employees were not demoted following the two-year

interim period, and that they suffered only a one-level

and two-level reduction in pay compared to the threelevel reduction imposed on Ms. González. The court

concluded that it was reasonable for the jury to have

concluded that the younger employees were

“comparable” or “similarly situated” to Ms. González

because they were all “in the same boat” in terms of

the repercussions of the reorganization on their

––––––––––––––––––––––––

2 The jury awarded Ms. González $4 million in compensatory

damages and $250,000 in backpay. Pursuant to the doubling

provisions of the applicable statutes, the court entered judgment

for $8,500,000 in compensatory damages and backpay. Pet. App.

26a. The district court later granted defendants’ motion for

remittitur, reducing the backpay award from $250,000 to

$95,620.83 and ordering that the backpay would not be subject

to doubling under Puerto Rico law and as liquidated damages

under the ADEA. The court also decreased compensatory

damages to $450,000—$400,000 against Abbott and $50,000

against the supervisor—doubled to $900,000. Id. at 78a.

10

employment and were all offered the same conditions

at the time of the reorganization. Id. at 89a–91a.

The court held that a reasonable jury could have

concluded that Abbott discriminated against Ms.

González when she was treated disparately from her

younger counterparts and that the jury was right to

reject Abbott’s assertion that deficient performance

was the cause of her demotion. The court explained

that a reasonable jury could have inferred that Ms.

González was set up for failure when she was given

“unattainable goals without the proper supporting

staff” and that the jury knew Ms. González was given

an “Achieved Expectations” rating on her most recent

evaluation before her demotion. Having already held

that “a reasonable jury could have found enough

evidence was presented to support the conclusion that

Plaintiff was the victim of disparate treatment on the

basis of age when her position was adjusted

downward,” the district court found that the jury could

have reasonably inferred that Abbott’s claims that

poor performance drove the demotion decision “were

in fact pretextual and not worthy of credence” because

the testimonies of Abbott’s decisionmakers were

riddled with inconsistencies and contradictions and

their demeanor suggested that “they had something to

hide.” Id. at 91a–94a. Thus, the court held that, “taken

in the light most favorable to Gonzalez,” “the evidence

presented at trial” was not “so overwhelmingly

inconsistent with the verdict that no reasonable jury

could come to the conclusion that defendants

discriminated against Plaintiff based on her age.” Id.

at 98a (emphasis in original).

The district court also denied Abbott’s Rule 50(b)

motion with regard to Ms. González’s retaliation

claims arising from Abbott’s failure to promote her

11

after she had complained of age discrimination and

her negative performance evaluation for 2013. Id. at

120a. With regard to her rejection for the Senior

Product Manager position in December 2013, the

court found that a reasonable jury could have easily

concluded that Abbott’s non-retaliatory explanations

for the decision were pretextual because Abbott had

deviated inexplicably from its usual practices, its

explanations were “hard to believe,” and it was

reasonable for Ms. González to have withdrawn from

the presentation phase of the selection process

because “the overwhelming circumstantial evidence

showed that her effort and continued participation

would have been futile.” Id. at 113a–17a.

With regard to the Regional Sales Manager and

Senior District Manager positions for which Ms.

González was not selected in early 2014, the court

found that “[t]he cumulative effect of defendants’

irregularities in the promotional processes, deviations

from established policies, shifting explanations,

stealthy personnel moves, contradictions and inconsistencies weighed heavily in the minds of the jury,”

and “the evidence from which the jury could have

reasonably concluded that defendants retaliated

against the Plaintiff by failing to promote her was

overwhelming.” Id. at 124a–25a. Finally, the court

found that the “overall factual picture in this case”

supported the jury’s conclusion that Abbott’s

explanations for giving Ms. González a negative

performance review for 2013 were pretextual and that

the evaluation “was unwarranted and resulted from

defendants’ desire to retaliate against Plaintiff for

having filed claims of age discrimination and

retaliation.” Id. at 130a–31a.

12

For the reasons expressed in the court’s opinion

and order denying the Rule 50(b) motion, the district

court also denied Abbott’s Rule 59(a) motion for a new

trial based on the sufficiency of the evidence. The

court held that “the evidence on record strongly

supported the jury’s verdict.” Id. at 30a.

Abbott appealed, and the First Circuit reversed the

district court’s denial of defendants’ motion for

judgment as a matter of law on her ADEA claims and

her corresponding claims under Puerto Rico law.3 Id.

at 2a. With respect to Ms. González’s March 2013

demotion, the court of appeals held that Ms. Oliver

and Mr. Torres were not similarly situated to Ms.

González for purposes of showing disparate treatment

because they occupied different positions and reported

to different supervisors than did Ms. González, and

because Ms. González presented no evidence that

compared their performance ratings to hers. The court

held that the lack of suitable comparator evidence was

fatal to Ms. González’s age discrimination claim. Id. at

9a. The Court also held that the jury’s disbelief of

Abbott’s explanation for the demotion decision was

insufficient to support an inference of discrimination.

Id. at 10a–11a.

The First Circuit further held that no reasonable

jury could have found that Abbott retaliated against

Ms. González by denying her promotions and giving

her a negative performance evaluation after she

complained of age discrimination. Id. at 16a–17a,

20a–22a. With regard to the promotion sought by Ms.

––––––––––––––––––––––––

3 The First Circuit upheld the jury verdict in favor of Ms.

González regarding her claim that Abbott violated Puerto Rico

Law 115 by threatening to terminate her in retaliation for

reporting to the SIF. Pet. App. 2a.

13

González in December 2013, the court found that her

decision to not participate in the mock sales

presentation barred her claim because it was not clear

that completing the process would have been futile. Id.

at 15a–17a. With regard to her claim that the negative

performance evaluation she received soon after she

complained of discrimination was retaliatory, the

court acknowledged that the chronology of events

could support an inference of improper motive, but

found that such an inference was unreasonable in

light of evidence that Ms. González had missed certain

deadlines. Id. at 17a–21a. Finally, the court found

that Abbott’s refusal to promote Ms. González in early

2014 could be explained by the “Partially Achieved”

performance rating she had received for 2013, despite

inconsistencies in Abbott’s explanations and the jury’s

contrary findings. Id. at 21a–22a.

REASONS FOR GRANTING THE PETITION

I. The courts of appeals apply a range of outcome-determinative standards for assessing

whether comparator evidence is sufficient to

support an inference of discrimination.

Once a discrimination case goes to trial, the

question for the factfinder is whether the defendant

intentionally discriminated against the plaintiff. U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

715–16 (1983) (citing Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). A plaintiff may

prove intentional discrimination using indirect, or

circumstantial, evidence. Id. at 716 (citing Burdine,

450 U.S. at 256). One way a plaintiff may do so is by

demonstrating that the employer treated a similarly

situated individual outside the protected class more

14

favorably than the plaintiff. See Reeves, 530 U.S. at

151.

A. The courts of appeals are intractably

divided.

The First Circuit held that Ms. González’s

comparator evidence was “unsuitable” to support an

inference of discrimination. The court acknowledged

that Ms. Oliver and Mr. Torres, like Ms. González, had

their positions eliminated as part of the

reorganization, that they were younger than Ms.

González, but that they were not demoted at the

conclusion of the interim period. Nonetheless, the

court held that Ms. Oliver and Mr. Torres “were not

similarly situated to González in several important

respects,” because they had different positions, duties,

and supervisors. The court held that these differences

stripped the comparator evidence of any probative

value on the question whether Ms. González was

demoted in March 2013 because of age discrimination.

Pet. App. 9a. By requiring comparators’ positions,

duties, and supervisors to be identical to those of the

plaintiff before comparator evidence can be used to

prove discrimination, the First Circuit aligned itself

with the most restrictive courts of appeals in a wellacknowledged disagreement regarding whether a

comparator is “similarly situated” to a plaintiff such

that the employer’s disparate treatment of the two can

support an inference of discrimination.

Several courts apply a far less rigid standard than

the First Circuit adopted here. In the Seventh Circuit,

for example, “[s]o long as the distinctions between the

plaintiff and the proposed comparators are not so

significant that they render the comparison effectively

useless, the similarly-situated requirement is

15

satisfied.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th

Cir. 2012) (cleaned up). Under this “flexible standard,”

the plaintiff and comparator must share “enough

common factors ... to allow for a meaningful

comparison in order to divine whether intentional

discrimination was at play” and “the number of

relevant factors depends on the context of the case.”

Id. at 846–47 (cleaned up). Thus, in the Seventh

Circuit, the standard for whether a comparator and

the plaintiff are sufficiently similar to support an

inference of discrimination “is really just the same

requirement

that

any

case

demands—the

requirement to submit relevant evidence.” Johnson v.

Advocate Health & Hosps. Corp., 892 F.3d 887, 895

(7th Cir. 2018). Evidence of what has happened to

other employees is relevant if the other employees are

“in the same boat as the plaintiff.” Id.

The Sixth Circuit also uses relevancy as the

touchstone for examining comparator evidence. “The

plaintiff need not demonstrate an exact correlation

with the employee receiving more favorable treatment

in order for the two to be considered similarlysituated.” Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344, 352 (6th Cir. 1998) (cleaned up). Rather,

the plaintiff need only show that he or she is similar

to the comparator “in all relevant respects.” Id. at 353

(emphasis in original). The Eighth Circuit also uses

the “all relevant respects” standard, but it conducts

the inquiry in a more rigid manner than the Sixth and

Seventh Circuits. E.g., Torgerson v. City of Rochester,

643 F.3d 1031, 1051 (8th Cir. 2011) (characterizing its

relevancy standard as rigorous).

In the Second Circuit, a plaintiff can raise an

inference of discrimination by showing that she was

treated differently than a comparator to whom she

16

was “similarly situated in all material respects,”

Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64

(2d Cir. 1997), but the plaintiff’s and comparator’s

circumstances need only bear a “reasonably close

resemblance.” Brown v. Daikin Am. Inc., 756 F.3d 219,

230 (2d Cir. 2014) (citing Graham v. Long Island R.R.,

230 F.3d 34, 40 (2d Cir. 2000)).

The Ninth Circuit characterizes its test the same

way, e.g., Moran v. Selig, 447 F.3d 748, 755 (9th Cir.

2006), but emphasizes that “[m]ateriality will depend

on context and the facts of the case,” and “cannot be

mechanically resolved.” Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1157–58 (9th Cir. 2010).

In stark contrast, the Fifth Circuit requires that a

comparator be “nearly identical” to the plaintiff to

support an inference of discrimination. E.g., Morris v.

Town of Indep., 827 F.3d 396, 401 (5th Cir. 2016). The

Fifth Circuit requires the plaintiff and the proffered

comparators to have had the same job or

responsibilities, and to have shared the same

supervisor or had their employment status

determined by the same person. Id. (citing Lee v.

Kans. City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir.

2009)). Notably, the Fifth Circuit has recognized the

tension between its “nearly-identical” standard and

the Sixth Circuit’s focus on the relevance of any

differences between a plaintiff and a comparator. Id.

at 402 (citing Ercegovich, 154 F.3d at 353).

In addition, whereas the Eleventh Circuit, like the

Second and Ninth Circuits, articulates its standard as

“similarly situated in all material respects,” Lewis v.

City of Union City, 918 F.3d 1213, 1224 (11th Cir.

2019) (en banc) (cleaned up), it applies a far more

restrictive test than those Circuits. The Eleventh

17

Circuit has previously “bounc[ed] back and forth (and

back and forth) between two standards,” ranging from

“nearly identical” to “same or similar,” which left its

law in disarray. Id. at 1217–18, 1224. Under the

Circuit’s newly adopted standard, “a plaintiff and her

comparators must be sufficiently similar, in an

objective sense, that they ‘cannot reasonably be

distinguished.’” Id. at 1228 (quoting Young v. United

Parcel Serv., Inc., 575 U.S. 206, 231 (2015)). In

adopting this standard, the Eleventh Circuit

expressly rejected both the Fifth Circuit’s “nearlyidentical” standard and the Seventh Circuit’s “notuseless” standard, finding the former “too strict” and

the latter “too lax.” Id. at 1224.

“The mess” of the law in this area has been

repeatedly recognized by commentators as well. See

Alexander S. Edmonds, Note, Mopping Up The Mess:

A Call to Adopt the Seventh Circuit’s Standard for

Assessing Comparator Evidence in Title VII

Discrimination Claims, 55 Ga. L. Rev. 911, 919–28

(2021) (describing the differences between the

Seventh and Eleventh Circuits’ standards for

comparator evidence and arguing for Supreme Court

review); see also, e.g., Sandra F. Sperino, Into the

Weeds: Modern Discrimination Law, 95 Notre Dame

L. Rev. 1077, 1096–98 (2020) (“There is a split among

circuits (and even within some circuits) about how

similar the plaintiff must be with the comparator.”);

Robert Iafolla, Judging Job Bias by Comparing

Workers: Circuit Court Rules Vary, Bloomberg Law

(April 11, 2019)4 (“Standards for handling comparator

evidence vary by circuits.”); Charles A. Sullivan, The

––––––––––––––––––––––––

https://news.bloomberglaw.com/daily-labor-report/judgingjob-bias-by-comparing-workers-circuit-court-rules-vary.

4

18

Phoenix from the Ash: Proving Discrimination by

Comparators, 60 Ala. L. Rev. 191, 223 (2009)

(explaining that, on the issue of “when the putative

comparator is similar enough to justify the inference

[of discrimination], … the circuits seem hopelessly

lost”); Tricia M. Beckles, Comment, Class of One: Are

Employment Discrimination Plaintiffs at an Insurmountable Disadvantage if They Have No “Similarly

Situated” Comparators?, 10 U. Pa. J. Bus. & Emp. L.

459, 472 (2008) (“The differing standards across the

circuits cause a great deal of uncertainty in

discrimination cases generally.”).

Given the deep, intractable, and widely

acknowledged split among the circuits on the proper

standard for evaluating comparator evidence, the

Court should grant review.

B. This case illustrates the need for a

consistent standard.

Although the jury found that age discrimination

was the but-for cause of Ms. González’s demotion, the

First Circuit, applying its narrow conception of

comparators, held as a matter of law that comparator

evidence did not support the finding because Ms.

González and her comparators did not share the same

position, duties, and supervisor. Pet. App. 9a. Had her

case been heard in any of several other circuits, the

jury’s verdict would have been upheld. See, e.g.,

Coleman, 667 F.3d at 849 (holding that “different

titles and duties do not defeat, as a matter of law, the

probative value” of comparator evidence); Hawn, 615

F.3d at 1157 (rejecting a requirement that plaintiff

and comparators share the same supervisor because

whether such a fact is material will vary depending on

the context and facts of the case).

19

For example, in Ercegovich, the plaintiff was

terminated after his position was eliminated in a

reorganization. Two younger employees whose

positions were also eliminated were treated more

favorably and transferred to other jobs within the

company. 154 F.3d at 349. The plaintiff brought an

age discrimination claim based on comparator

evidence. Id. at 349–50. The district court held that

the plaintiff’s evidence was insufficient to support an

inference of discrimination because the younger

employees had different positions and performed

different duties. Id. at 349. The Sixth Circuit reversed,

holding that job titles and activities are not always

relevant to a claim that a defendant denied an

employee an opportunity because of age. Id. at 353.

“[W]hen an employer makes selective offers of transfer

following a reduction in force or a reorganization,

differences in the job activities previously performed

by transferred and non-transferred employees do not

automatically constitute a meaningful distinction that

explains the employer’s differential treatment of the

two employees.” Id. Thus, the court held that a

reasonable jury could conclude that the plaintiff “was

not offered the opportunity to transfer because of age

discrimination.” Id. at 354.

Had the First Circuit applied the same approach

as the Sixth Circuit, it would have held that a

reasonable jury could conclude that Ms. González was

treated differently than her younger colleagues

following the reorganization when she was demoted

and they were not. The application of a different

standard was outcome determinative. And because

the outcome of Ms. González’s discrimination claim

would have been different in other circuits, this case

is an excellent vehicle for the Court to clarify the

20

proper standard for determining whether comparator

evidence supports an inference of intentional discrimination.

Indeed, Ms. González presented comparator

evidence relevant to her age discrimination claim.

Only three employees had their positions eliminated

as part of Abbott’s reorganization: Ms. González, Ms.

Oliver, and Mr. Torres. Pet. App. 3a. Ms. González

was significantly older than the other two, and she

alone was demoted after the transition period. Id. at

4a. The younger employees were both promoted. Id. at

110a. Although the three employees were not

similarly situated in all respects, they shared enough

similarities that their disparate treatment was

relevant to the issue of age discrimination. See Fed. R.

Evid. 401 (“Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of

consequence in determining the action.”).

The First Circuit erred by holding that Ms.

González’s comparators were not similarly situated as

a matter of law because they did not have the same

title, duties, and supervisor. Pet. App. 9a. The court’s

formalistic and inflexible standard denies a plaintiff

the chance to have a jury determine as a matter of fact

whether the plaintiff and comparators had enough in

common to create an inference that discrimination

was at play. The need for flexibility is particularly

acute when a plaintiff, like Ms. González here,

occupies a unique position. In such circumstances, to

require a plaintiff “to demonstrate that he or she was

similarly-situated in every aspect to an employee

outside the protected class receiving more favorable

treatment” effectively removes “employees occupying

‘unique’ positions” “from the protective reach of the

21

anti-discrimination laws.” Ercegovich, 154 F.3d at

353.

A case-by-case approach to comparator evidence,

where specific factors may serve as a guide but do not

apply formulaically, best allows “plaintiffs and the

courts to deal effectively with employment

discrimination revealed only through circumstantial

evidence.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 526 (1993). Because “there will seldom be

‘eyewitness’ testimony as to the employer’s mental

processes,” Aikens, 460 U.S. at 716, this Court should

reject the First Circuit’s rigid test for comparator

evidence in favor of a test that rests on traditional

notions of relevance.

II. The courts of appeals apply inconsistent

standards for evaluating whether an

employer’s proffered explanation for an

adverse employment action is pretextual.

In Reeves, this Court held that a trier of fact may

infer intentional discrimination from the falsity of the

employer’s nondiscriminatory explanation for its

decision.5 “Proof that the defendant’s explanation is

unworthy of credence is simply one form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive,”

––––––––––––––––––––––––

5 The plaintiff must also establish the elements of a prima

facie case, but there is no dispute that Ms. González satisfied that

requirement. In any event, once an employer proffers a

nondiscriminatory reason for the challenged employment action

and the case advances to trial, the mandatory inference of

discrimination created by the plaintiff’s prima facie case drops

out and the factfinder must decide the ultimate question of

intentional discrimination. See, e.g., St. Mary’s Honor Ctr., 509

U.S. at 510–12; Aikens, 460 U.S. at 714–15; Burdine, 450 U.S. at

255–56.

22

because “once the employer’s justification has been

eliminated, discrimination may well be the most likely

alternative explanation.” 530 U.S. at 147. Although

disbelief of an employer’s proffered explanation might

not “always be adequate to sustain a jury’s finding of

liability,” id. at 148 (emphasis in original), instances

in which courts should grant Rule 50 motions in favor

of employers “will be uncommon,” id. at 154

(Ginsburg, J., concurring).

Concurring in Reeves, Justice Ginsburg observed

that it might become “incumbent on the Court, in an

appropriate case, to define more precisely the

circumstances in which plaintiffs will be required to

submit evidence beyond” that from which a rational

factfinder could conclude that an employer’s proffered

explanation for its actions was false. Id. The First

Circuit’s opinion below—and the inconsistent

standards applied by the courts of appeals in similar

cases—demonstrates that the time has come for the

Court to better define the applicable standard.

In this case, reversing the jury’s verdict for Ms.

González on her age discrimination and retaliation

claims, the First Circuit found that her evidence of

pretext was insufficient to support the verdict. The

opinion does not cite Reeves, and its decision continues

the First Circuit’s drift away from Reeves and towards

a return to the pretext-plus standard that Reeves

sought to curtail. That pattern has been noted with

concern by First Circuit Judge Barron, who stated: “I

am concerned that, through a series of individualized,

seemingly fact-dependent rulings, Reeves is at risk of

suffering death by a thousand cuts.” Henderson, 977

F.3d at 53 (Barron, J., dissenting).

23

The Sixth Circuit has also strayed from the rule

announced in Reeves by approving a jury instruction

stating that “it is not enough for plaintiff simply to

prove or claim that the stated reasons for [employer’s]

actions with regard to plaintiff were not believable or

are not the true reasons for the actions.” Brown v.

Packaging Corp. of Am., 338 F.3d 586, 593 (6th Cir.

2003). According to the Sixth Circuit, a jury may not

infer discrimination unless the plaintiff submits

evidence beyond that from which the jury can

conclude that that the employer’s stated reason for its

action was a pretext. Id. at 593–94; see Williams v.

Eau Claire Pub. Schs., 397 F.3d 441, 445–46 (6th Cir.

2005) (affirming the district court’s refusal to instruct

the jury that, if it did not believe the employer’s

asserted non-discriminatory reasons, it could infer

discrimination and conclude that the plaintiff had met

her burden of proving intentional discrimination).

The Seventh Circuit has also shirked Reeves. In a

discrimination case based on circumstantial evidence,

it held that “it is not enough for the jury to disbelieve

the explanation of the employer.” Waite v. Bd. of Trs.

of Ill. Cmty. Coll. Dist. No. 508, 408 F.3d 339, 344 (7th

Cir. 2005). In Waite, a supervisor’s remark that a

Caribbean employee had a “plantation mentality” was

enough additional evidence of discriminatory animus

for the Seventh Circuit to uphold the jury’s verdict for

the plaintiff on her national-origin discrimination

claim, but the court explained that, without evidence

of the supervisor’s remark, the jury’s disbelief of the

supervisor’s reason for terminating the plaintiff would

not have been sufficient to support the verdict. Id. at

344–45.

In contrast with the decisions of the First, Sixth,

and Seventh Circuits, other courts of appeals hold that

24

disbelief of an employer’s proffered explanation for its

decision can alone support an inference of

discrimination. For example, in Cross v. New York

City Transit Authority, 417 F.3d 241, 250 (2d Cir.

2005), the Second Circuit found that an employer’s

insistence that it had not provided the plaintiff with

lesser training than that which younger employees

received could lead a reasonable jury to conclude “not

only that there was a disparity in the training received

by the plaintiffs compared to younger [employees] but

that [the employer’s witness] deliberately testified

falsely on this material fact.” The court concluded that

a factfinder’s disbelief of the reasons put forward by

the defendant, accompanied by a suspicion of

mendacity, can support an inference of discrimination. Id. (citing St. Mary’s Honor Ctr., 509 U.S. at 511;

Reeves, 530 U.S. at 147); see also Raniola v. Bratton,

243 F.3d 610, 625 (2d Cir. 2001) (Sotomayor, J.)

(holding that “retaliatory intent may … be shown, in

conjunction with the plaintiff’s prima facie case, by

sufficient proof to rebut the employer’s proffered

reason for” the adverse action (citing Reeves, 530 U.S.

at 148)).

Similarly, the Fifth Circuit, relying on Reeves, has

emphasized that disbelief of an employer’s proffered

reason for an adverse employment action permits a

jury to conclude that the employer engaged in

unlawful discrimination. In Russell v. McKinney

Hospital Venture, 235 F.3d 219, 224–25 (5th Cir.

2000), that court, noting that it “will not second guess

[the jury’s] rejection of defendants’ proffered

justification,” reversed the district court’s grant of the

employer’s motion for judgment as a matter of law,

finding that the plaintiff “provided sufficient evidence

to create a jury issue that [the employer’s] justification

25

was pretextual.” Likewise, in Ratliff v. City of

Gainesville, 256 F.3d 355, 359–62 (5th Cir. 2001), the

Fifth Circuit held that the district court erred by

refusing to instruct the jury that “[i]f the Plaintiff

disproves the reasons offered by Defendants by a

preponderance of the evidence, you may presume that

the employer was motivated by age discrimination.”

The court emphasized that “if the plaintiff establishes

that the defendant’s reasons are pretextual, the trier

of fact is permitted, but not required, to enter

judgment for the plaintiff.” Id. at 361; accord Laxton

v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)

(“Evidence demonstrating that the employer’s

explanation is false or unworthy of credence, taken

together with the plaintiff’s prima facie case, is likely

to support an inference of discrimination even without

further evidence of defendant’s true motive.”).

In light of the stark differences in the lower courts’

understanding and application of Reeves, this Court’s

review is needed.

III.

The First Circuit erred by substituting its

judgment for that of the jury.

As this Court held in Reeves, judgment as a matter

of law is appropriate only if there is no legally

sufficient evidentiary basis to support the jury’s

verdict. A reviewing court “must draw all reasonable

inferences in favor of the nonmoving party, and it may

not make credibility determinations or weigh the

evidence.” Reeves, 530 U.S. at 150. And it “must

disregard all evidence favorable to the moving party

that the jury is not required to believe,” id. at 151,

because it is the function of the jury—not the

appellate court—to weigh conflicting evidence and

inferences and determine the credibility of witnesses.

26

See Appelbaum v. Milwaukee Metro. Sewerage Dist.,

340 F.3d 573, 581 (7th Cir. 2003) (“[W]hat [jurors are]

for is to bring their human experience and their

knowledge of people and life experiences and look into

the eyes of the witnesses that have been up here on

the stand and figure out who is telling the truth.”)

(cleaned up); Russell, 235 F.3d at 225 (“The jury, with

its ability to listen to live testimony, was in a better

position to judge the credibility of the witnesses and

the accounts of the events” than was the court.).

Here, substantial evidence supported the jury’s

determination that Abbott’s proffered reasons for its

actions were pretext to cover up unlawful

discrimination. With regard to the March 2013

demotion, some of Abbott’s witnesses falsely denied

the fact that Ms. González had even been demoted.

The First Circuit dismissed this evidence as a “rather

trivial disagreement among Abbott witnesses.” Pet.

App. 10a. But under Reeves, a reasonable jury could

find such mischaracterization of the adverse

employment action as mendacity, calling for an

inference of pretext. 530 U.S. at 147 (citing St. Mary’s

Honor Ctr., 509 U.S. at 511).

Abbott also attempted to justify the demotion by

claiming that Ms. González had poor performance,

which was contradicted by her “Achieved

Expectations” performance rating for 2012. Abbott’s

witnesses sought to overcome the discrepancy by

claiming that Ms. González had achieved a positive

performance evaluation only because of a reduction in

her workload and that the demotion was made to

reflect that some of her duties had been reassigned,

but the evidence showed that, upon reassignment, she

had

been

saddled

with

substantial

new

responsibilities while her support staff was reduced

27

from twenty-eight to zero. Pet. App. 4a. Thus, as the

district court found, it was reasonable for the jury to

conclude that, after twenty-seven years of success in

positions of increasing responsibility, Ms. González

had been set up to fail when she was given

“unattainable goals without the proper supporting

staff.” Id. at 92a. The First Circuit, defying Reeves and

weighing the evidence itself, held that such a

conclusion was mere speculation. Id. at 10a.

Finally, the First Circuit found that the demotion

could be attributed to “a difficult professional

relationship” between Ms. González and her supervisor. Id. at 11a. In so doing, the court wrongly

substituted its judgment for that of the jury. See

Winarto v. Toshiba Am. Elecs. Components, Inc., 274

F.3d 1276, 1284–85, 1286 (9th Cir. 2001) (holding that

the district court erred by failing to inquire whether

plaintiff’s performance review “was itself based on

improper discriminatory or retaliatory motives”

especially where “the record reflects [supervisor’s]

exasperation, lack of sympathy, and even animosity

toward [plaintiff]”).

Ms. González also presented substantial evidence

from which a jury could infer that she was denied a

promotion in December 2013 in retaliation for her

complaint of age discrimination, which the selection

committee discussed during the selection process,

although they knew it was not relevant. Pet. App. 5a,

103a. The First Circuit found that Ms. González had

sacrificed this claim by failing to participate in the

mock sales presentation, id. at 15a, but as the district

court explained, there was significant evidence from

which a jury could infer that participation would have

been futile, id. at 117a. Indeed, given the evidence

that Abbott had never previously imposed such a

28

requirement, it was reasonable for the jury to infer

that the new requirement was imposed to provide a

nonretaliatory—but pretextual—excuse for denying

Ms. González the promotion. The First Circuit found

Abbott’s deviation from its usual practice to be “beside

the point” and did not even “consider her other

arguments for why the jury could have found

retaliation.” Id. at 16a, 17a n.3. By failing to “review

all of the evidence in the record,” the court violated the

standard set out in Reeves. 530 U.S. at 150.

With regard to Ms. González’s claim that her

performance evaluation for 2013 was retaliatory, the

First Circuit recognized that the chronology of events

could support an inference of retaliatory motive, but it

weighed the evidence when it questioned the

reasonableness of that inference in light of Abbott’s

assertion that the evaluation was deserved because of

missed deadlines. Pet. App. 17a–19a. The court also

rejected the jury’s inferences of retaliation based on

evidence that Ms. González’s supervisor deprived her

of important information, and that Abbott failed to

place Ms. González on a performance-improvement

plan or identify developmental actions for her. Id. at

19a–20a; compare, id. at 110a–11a. The court held

that this evidence, even when “viewed collectively,”

was not enough to allow a reasonable jury to find that

Abbott’s explanation was pretextual and to infer that

the real reason for the poorer performance rating was

retaliation, id. at 21a, even though the district court

held that a jury “could have reasonably found that

defendants deviated from the Company’s performance

evaluation policy and that the shifting explanations

they offered were incongruous,” id. at 130a. In doing

so, the court of appeals failed to “draw all reasonable

inferences in favor of the nonmoving party,” and

29

refrain from “mak[ing] credibility determinations or

weigh[ing] the evidence.” Reeves, 530 U.S. at 150.

Because the First Circuit “impermissibly

substituted its judgment concerning the weight of the

evidence for the jury’s” in reviewing the district court’s

judgment in favor of Ms. González for her

discrimination and retaliation claims, Reeves, 530

U.S. at 153, its decision should be reversed.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JUAN RAFAEL

GONZÁLEZ MUÑOZ

JUAN C. NIEVES

GONZÁLEZ

GONZÁLEZ MUÑOZ LAW

OFFICES, P.S.C.

P.O. Box 9024055

San Juan, PR 009024055

(787) 766-5052

MICHAEL T. KIRKPATRICK

Counsel of record

GRACE A. PARAS

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

mkirkpatrick@citizen.org

CARLOS M. VERGNE VARGAS

LAW OFFICE OF CARLOS VERGNE

24 Mariana Bracetti St., 2d Floor

San Juan, PR 00918

(787) 753-3799

Attorneys for petitioner

July 2021