Petition for Writ of Certiorari — Rosado v. Wackenhut International, Inc. (No. 05-1609)

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N O05 1609MAY 6 - 2006

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ia OFFICE OF THE CLERK

Supreme Court of the Anited States

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AURELIO ROSADO; LYDIA ROSADO;

AND THEIR CONJUGAL PARTNERSHIP,

Petitioners,

WACKENHOUT INTERNATIONAL, INC-.;

WACKENHOUT PUERTO RICO, INC.,

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

CELINA ROMANY

USDCPR 121811

Counsel for Petitioners

CELINA ROMANY LAW OFFICES

Westernbank Plaza, Suite 1500

268 Munoz Rivera Ave.

San Juan, PR 00918

Tels. (787) 754-9304; 754-9305

Fax (787) 754-9324

bufetecelinaromany@gmail.com

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether under the Age Discrimination in Employment Act

(29 U.S.C. § 623(a)), the Court of Appeals erred in requir-

ing, in addition to sufficient pretext evidence, direct

evidence of discriminatory intent.

ee era can

PARTIES TO THE PROCEEDINGS

Petitioners are Aurelio Rosado, Lydia Rosado and

their conjugal partnership.

Respondents are Wackenhut International Inc. and

Wackenhut Puerto Rico Inc., a wholly owned subsidiary of

Wackenhut International Inc.

TABLE OF CONTENTS

Page

CS TW iscsi chcciinbvtdatnincnintettiieiiictinstivecobecdsurecomseds 1

TI ve iecsicnsithnccicnihaithicaiabastinitinnhiinttisdsadiemmaciacisiidpitoite 1

Statutory Provisions Involved ...................00:seeceeeceeeeeees 1

CIN as cise recettidesecicbitihincusnsdinceltehiinicinsutalnatsdieanoonesids 2

Reasons for Granting the Ree sid PL Rteo ne ait 17

The Court Of Appeals. Misconstrued The

Reeves Precedent And Exacerbates Circuit

Conflict, Doctrinal Incoherence And Plaintiffs’

Inconsistent Treatment By Sustaining An In-

correct Application Of The Quantum Of Evi-

CERIN TINIE sisisi esis dcncsiens dacs Ate oveeeuieuivtienaiaceed 21

IN sis igicesvieelicwiaceiotachcisdisinuxcbiiiiaakenncsntaibeniplarisiaia 26

APPENDIX

A. Court of Appeals Opimion.....................ccececeeeeeeees App. 1

B. District Court of Puerto Rico Opinion and

OOO tainting a a App. 12

C. Court of Appeals Judgment .......................cceeeees App. 29

D. Judgment denying Petition for Rehearing ........ App. 31

TABLE OF AUTHORITIES

Page

CASES:

Cleary v. Nationwide Mut. Ins. Co., 2001 U.S. App.

LEXIS 11318 (4th Cir. May 31, 2001)......... 00... 20

Chuang v. University of California, 225 F.3d 1115

I NS SUNN 2s cas dacasnecheResbieouenmnacebyoncoupuciaeennensocs 23

EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th

2 1 FEISS EN On SE CIR es I praia ee 24

Feliciano v. El Conquistador, 218 F.3d 1 (1st Cir.

| ERROR at bas ICED A Get ES TN SOAR RATE SO ST RONES Be 2, 17,19

Fisher v. Vassar College, 114 F.3d 1332 (2d Cir.

UD iikc disiiss is todieduensieecnaibbockeababidimcanisnsnalistaieasemsusanonii 19

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98

S. Ct. 2943, 57 L. Ed. 2d 957 (1978)..........cecccecseoceseverers 22

Goosby v. Johnson & Johnson Med Inc., 228 F.3d

BE Oe Ce OE oi ciiiicaccedseelaleiteissccniicdnighiwenbepaigieienes 23

Guyton v. Ottawa Truck Div., No. 00-3028 (10th Cir.

NE ee AN Wihditictrislpoininbecihicissdaiuiegentbncbins ici 20

Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d

Oe Ce Se at taidiectacocctinniccinceriiienbawaneas 24

Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d

I Sa ai iiss iaideceoecc ats ccrbtrvnsiesstedemnciooes 20

McDonnell Douglas Corp. v. Green, 411 U.S. 792

CTR ik dint Aaltacdesaadilamnctethiandaiadinddepesidoutiuebubcn 1s

Mesnick v. General Electric, 950 F.2d 816 (1st Cir.

5 | RARER RSMAS VSSEAERE TS OS tT OYE Gels AN Re) MEIER CW 21

TABLE OF AUTHORITIES — Continued

Page

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340

CTE BO shies ckkcde deciesacgeeceulosvdecstecdooubichussccduabaieses 24

Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) .....passim

Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.

MPO ited diticchiinois ieieaicaswdecuid dis tcnierck dba savas nds ccuiieacsacea 19

Ross v. Campbell Soup, 237 F.3d 701 (6th Cir. 2001)....... 23

Rubinstein v. Adm’rs of the Tulane Educ. Fund.,

SLO FO OO (COUN, BOO) cnisivaiococscsoncasvenssicsdecdsigiconees 20

St. Mary’s Honor v. Hicks, 509 U.S. 502 (1993) .. 17, 20, 22, 23

Schnabel v. Gary Abramson, 232 F.3d 83 (2d Cir.

POO) iii ccendsecksebbiecaisslianciaruabiubiotischcsiakbideatinbaiis ttestldeed. 19

Toth v. Gates Rubber Co., 2000 U.S. App. LEXIS

14374 (10th Civ: Fume 21, 200) wi icicccivccccescsesssvivesssscosees 24

Vadie v. Missisipi State University, 218 F.3d 365

Oe pce is ba tas puiiclancc scan todincenipes Suaanneceueren 19, 20

Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir.

i itisiiiod suptistis dntsatebanpcnccecccceisdivcvecaismditeaibacseo asians 20

Wilson v. United States, 162 U.S. 613, 16 S. Ct. 895,

is: es I A ici ckcc oece cass cats ddsactavoiein ladaieuuddecccieal 22

Wright v. West, 505 U.S. 277, 112 S. Ct. 2482, 120

Dig es ee eave anv nado ces icndadandaspceobsosaten 22

STATUTE AND REGULATIONS:

rR a SA EN RGA Mar oR RN Ah Se RSE MORTON b MU NEH ont tO RIT NOT 1

Federal Rule of Civil Procedure 56.................c..ccccceseceseeuees 1

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS:

Michael E. Gold, Towards a Unified Theory of the

Law of Employment Discrimination, 22 Berkeley

J. Emp. & Lab. L. 175, 181 (2001) .................ccssscsesessores 23

Larson, EMPLOYMENT DISCRIMINATION 8.01[1] at 8-7

series 23

J. Long, Advocating Pretext Plus: The Impact of

Reeves v. Sanderson Plumbing Products Inc. on

the Shifting Evidentiary Framework, 51 U. Kan.

he Sy SINE III cbivsdnicicias thesia dcecansctcistsvenbatiasshamtiadeascuuss 25

McCormick, Truth or Consequences: Why the

Rejection of the Pretext Plus Approach to Em-

ployment Discrimination Cases in Reeves v. San-

derson Plumbing Establishes the Better Legal

Rule, 21 N. Ill. U. L. Rev. 355, 374 (2001)..................... 25

Brent L. Ryman, Lame Duck Precedent: a Comment

on the Summary Judgement Framework for Dis-

parate Treatment Cases After Reeves v. Sander-

son Plumbing, 71 U. Cin. L. Rev. 669 (2003).......... 18, 25

J. Wigmore (2), EVIDENCE § 278(2), p. 133 (J.

OI I a ah 22

Michael J. Zimmer, Leading by Example: An

Holistic Approach to Individual Disparate

Treatment Law, 11 Kan. J.L. & Pub. Pol’y 177,

NE aia iain sae sin ceaadchvcndiedonvocoventiotadatbenbiowns 18

PETITION FOR A WRIT OF CERTIORARI

Counsel for Petitioner respectfully petitions for a writ-

of certiorari to review the judgment of the United States

Court of Appeals for the First Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals, (Pet. App. 1) is

not reported. The order of the District Court, (Pet. App. 12)

granting summary judgment against Petitioner is not

reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

December 29, 2005. A timely petition for rehearing was

denied on February 6, 2006. Pet. App. 31. The jurisdiction

of this Court for this petition of a writ of certiorari rests on

28 U.S.C. § 1254(1).

r’

STATUTORY PROVISIONS INVOLVED -

The Age Discrimination in Employment Act, 29 U.S.C.

§ 623(a) provides, in pertinent part: “It shall be unlawful

for an employer ... to discharge an individual . . . because

of such individual’s age. . . .”

Federal Rule of Civil Procedure 56 provides, in perti-

nent part:

dered forthwith if the pleadings, the positions,

answers to inte gatories 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 judg-

ment as a matter of law.

STATEMENT

This case is likely to clarify and determine the stan-

dard of proof required in cases where Petitioners lack

direct evidence of discrimination. It is a case that arises in

the context of a summary judgment granted by the Court

of Appeals for the First Circuit, on the basis that there was

no evidence showing age discriminatory animus. It por-

trays the inconsistent treatment that Circuit Courts have

provided to this Court’s initial attempt set forth in Reeves

v. Sanderson Plumbing, 530 U.S. 133 (2000) to clarify the

role of pretext in the evidentiary framework for proving

discriminatory intent. The Court of Appeals, along with

several Circuit Courts, have misconstrued the Reeves

holding, directing that evidence of pretext alone may be

sufficient to prove discriminatory intent, into a de facto

pre-Reeves regime of pretext-only/pretext-plus forums. In

this case the Court of Appeals, acting in sync with its

express acknowledgement that its pre-Reeves decisions

were consistent with said holding (Feliciano v. El Conquis-

tador)’ analyzed the evidence submitted in the scenario of

* 218 F.3d 1 (1st Cir. 2000) is a judgment issued six days before

Reeves. After the Reeves opinion was issued, Feliciano petitioned for a

rehearing on the basis of inconsistency with the Court’s opinion in her

case. Feliciano, Id. at 9. Her petition was denied given that the June 6

opinion was considered “consistent” with Reeves. Id. at 10.

summary judgment through its construction of the Reeves

standard as requiring more than pretext.

Petitioners’ opposition to summary disposition and

statement of contested material facts in controversy

complied with the required burden of proof for both his

ADEA and ADA claims. Petitioners satisfied each and

every one of the elements for a prima facie case of ADEA

and ADA as well as his burden of establishing that the

Respondents articulated legitimate non-discriminatory

reasons for termination are a pretext covering up dis-

crimination. There is sufficient evidence for a reasonable

jury to find mendacity in Respondents’ explanation for

Petitioners’ termination which, coupled with his prima

facie case, provides the required evidence to survive

summary judgment.

(i) Aurelio Rosado: Evidence of Age Discrimination

Rosado is a 60-year-old man, citizen of the United

States and resident of the Commonwealth of Puerto Rico,

married to Co-Petitioner Lydia Rosado. He is a retired

police sergeant and an honorably discharged Vietnam

veteran who during 1973-76 worked at Wackenhut Puerto

Rico (WPR) as its Investigation Division Manager. He left

WPR to work in the private investigation industry until

1989, when he was called back by WPR to become its new

General Manager. As a General Manager in Puerto Rico,

Rosado was responsible for overseeing the company

business in the island.

Fernando Carrizosa, (Carrizosa) Wackenhut Interna-

tional (WI) President until around the third quarter of

2001, was Rosado’s supervisor. On or about mid-2001,

Carrizosa was replaced by William Morrow (Morrow) as

President of WI. In addition to the President, Rosado also

reported to WI Vice-President, Fernando Hegel (Hegel).

Throughout his tenure as General Manager, from

January 30, 1989 until July 12, 2002 - the date of his

termination, Rosado’s performance was always satisfac-

tory, competent and in many ways exceeded the company’s

standards. He received commendations, performance

bonuses (including a $46,000 bonus check in 1999 and a

$23,000 bonus check in 2000) as well as salary increases

during these years.’ Wackenhut never reprimanded

Rosado for his performance nor informed him about any

possible deficiencies, which if uncorrected, could lead to

his termination.

WPR, like WI, sells security devices and_provides

diverse security services, including contracting security

guards and installing alarm systems. WPR offers services

to both the public (governmental agencies) and the private

sector in Puerto Rico. WPR General Manager reports

directly to the President and Vice-President of Wackenhut

International (WI).* The WI President is, for all practical

purposes, the supervisor of WPR’s General Manager and

the president of a very informal Board of Directors of

WPR.* The WI Presidents hire the WPR General Manager,

establishes his compensation package and directs the

governance of WPR offices in terms of reporting, requiring

monthly reports, balance sheets, Profits and Loss state-

ments (P&L) or any other operational report.”

* Petitioners’ Court of Appeals Appendix at 306-308.

* Petitioners’ Court of Appeals Appendix at 293.

* Petitioners’ Court of Appeals Appendix at 294-295; 298-302.

Notwithstanding Rosados’ discretion as _ general

manager, the President of WI has the last word with

respect to the budget and the managers’ corporate plan.°

Said President also has the last word about prices and,

thus, the manager is prevented from offering lower prices,

even when he deems this strategy as the most efficient in

the long run.’

On April 15, 1998, Rosado suffered a cardiac arrest.

He was in recovery, out of his job for forty (40) days. After

said period of time Rosado returned to work and continued

performing competitively and satisfactorily.° As an exam-

ple, between the years 1998 until the end of 2000, WPR

reached a peak in revenues which amounted to $33 million

a year.” At that time the Company’s economic structure

was built upon four (4) to five (5) government contracts

which, although not leaving a profit, helped the company

cover all its obligations, overhead and fixed expenses.” This

permitted the Company to allocate as profit all of its con-

tracts with the private/non-governmental sector. Rosado

was very concerned with the fragile platform that govern-

ment contracts built for the overall business, given the

government’s track record of late payments and the

temporary nature of such contracts, being subject to the

shifting political winds.” Consequently, even when WPR

was making a yearly $33 million profit, Rosado kept

always bringing to Carrizosa and Hegel’s attention the

* Petitioners’ Court of Appeals Appendix at 297-298; 330-333.

” Petitioners’ Court of Appeals Appendix at 330-333.

* Petitioners’ Court of Appeals Appendix at 306; 308-309.

* Petitioners’ Court of Appeals Appendix at 316; 323.

” Petitioners’ Court of Appeals Appendix at 279 98; 327.

" Petitioners’ Court of Appeals Appendix at Jd.

need to change the business approach.” Because of this

situation, Rosado even went as far as taking the decision

of not bidding for several government agency contracts.”

Rosado consistently offered suggestions and recom-

mendations for preventing a critical economic situation

and seized the opportunity provided by conversations

taking place around his performance evaluation to discuss

these issues with Carrizosa and Hegel. Rosado argued

that, in order to be competitive, WPR would have a firmer

foundation if it moved away from the government con-

tracts while simultaneously lowering the profit expecta-

tion for private contracts.* However, Carrizosa’s and

Hegel’s responses were always the same: “Rosado, in

theory that looks alright but I cannot lower the prices,

because headquarters would not allow it.”” Rosado’s hands

were tied-up by the fact that WI controlled the pricing for

all WPR bids and did not allow him to lower the prices.”

Carrizosa and Hegel were essentially the ones making the

final determination on every bid.”

Rosado’s predictions regarding government contracts

materialized. Between the end of the year 2000 and the

beginning of the year 2001, WPR lost all government

contracts in bidding processes.”

* Petitioners’ Court of Appeals Appendix at 327-329.

” Petitioners’ Court of Appeals Appendix at Id.

* Petitioners’ Court of Appeals Appendix at 279 48; 319-322.

* Petitioners’ Court of Appeals Appendix at 279-281 411; 321.

* Petitioners’ Court of Appeals Appendix at 281; 330-331.

” Petitioners’ Court of Appeals Appendix at 316-317.

* Petitioners’ Court of Appeals Appendix at 329.

~ Rosado’s Successor

When Morrow became WI President, Hegel became

the point person at WI in charge of the WPR affairs, and

the former, learning of the financial losses of WPR during

the year 2000-2001, agreed with Hegel’s decision to send

Griffey, less than 40 years old, to WPR for the scheduled

yearly audit”. At that point in time Griffey held the

position of Field Support Operations for WI. Furthermore,

Griffey was asked by Hegel to perform a financial analysis

of the situation in Puerto Rico, labeled as a sensitivity

report.” Griffey had no knowledge of the Puerto Rico

operations and the particularities of the Puerto Rican

market.

- Griffey’s Sensitivity Report

A sensitivity report is an analysis of the specific hours

of services the agency needed to sell in order to catch up

with the business loss. This entailed reviewing line by line

WPR revenues and expenses. Furthermore, during the

preparation of this sensitivity report both Hegel and

Griffey were constantly providing Carrizosa with informa-

tion regarding suggestions for improving profits, such as

how many hours WPR needed to sell, and how many

expenses needed to be reduced.”

From the outset Griffey’s modus operandi disregarded

Rosado’s input. In fact Griffey never met with Rosado

during the four (4) months that it took for the preparation

” Petitioners’ Court of Appeals Appendix at 311-312.

* Petitioners’ Court of Appeals Appendix at Jd.

* Petitioners’ Court of Appeals Appendix at Id.

of said study,” concluded at some point between July and

October 2001.

Around this time Hegel prepared an evaluation of

Rosado’s performance for the year 2090 that was never

discussed with him. Apparently, he was waiting for the

conclusion of the sensitivity report in order to discuss it

with Rosado. However this meeting never took place and

there is no explanation or any justification offered for

this.”

~ Rosado’s Actions

During the year 2001, Rosado kept explaining to

Hegel that WPR had to lower the rates per hour in order

to increase revenues and be competitive. For Rosado it was

a simple business decision that involved two choices,

either you sell at a lower rate in order to recover the lost

business or you recover internally to reduce your cost.

Furthermore, on several occasions, Rosado wrote to Hegel

his concerns and suggestions in order to alleviate the

impact of lost government contracts. He never received

any response concerning his recommendations.”

~ The Action Plan: Griffey Takes Over

On or around Friday, February 1st, 2002, Morrow and

Hegel met with Rosado in the WPR offices; the first time

Rosado personally met Morrow to discuss WPR operations.

* Petitioners’ Court of Appeals Appendix at 282; 326.

* Petitioners’ Court of Appeals Appendix at 311.

* Petitioners’ Court of Appeals Appendix at 279-281 {J 8-10; 320-

322; 327-328.

The meeting lasted 20-25 minutes.” Rosado first learned

about Griffey’s sensitivity report’s conclusions. As a direct

result of the sensitivity report, Morrow requested from

Rosado a Puerto Rico Operations Action Plan and. thus

gave Rosado “a second chance” notwithstanding the fact

that he had been informed, according to corporate officers’

testimony, of his incompetence.”

Four days later, Rosado suffered a second cardiac

arrest which kept him away from his job for fifty-five (55)

days.”

sado’s heart attack, Griffey was assigned to

run the PR operation. No one notified Rosado about this

appointment.” On several occasions, while Rosado was

recovering at home, he was contacted by Griffey to discuss

several job-related issues, specifically the Action Plan

requested by Morrow on February 1st 2002.” In said

discussions, Rosado disagreed with some of Griffey’s ideas

and made it clear he disapproved of the latter’s proposals.

Rosado, not having received any contrary information,

believed he still held the General Manager’s position.

However, Griffey assumed this role and constantly made

managerial decisions without Rosado’s consent.”

The official nature of Rosado’s replacement as General

Manager took some time to be revealed. On or about April

2002, there were more than a few occasions when Rosado,

* Petitioners’ Court of Appeals Appendix at 332.

* Petitioners’ Court of Appeals Appendix at 331-333.

Petitioners’ Court of Appeals Appendix at 11-12; 283-84 717-18.

* Petitioners’ Court of Appeals Appendix at 11-12; 283 18.

* Petitioners’ Court of Appeals Appendix at 11-12.

” Petitioners’ Court of Appeals Appendix at 11-12.

after his return to work, attempted to find out exactly the

scope and extent of Griffey’s authority and how his posi-

tion and employment was affected. He discussed the issue

with Griffey himself, who claimed that he was not sure of

his status in the company.” He also discussed the issue

with Hegel who either avoided the subject or claimed total

ignorance.”

After Rosado’s return to work, business was run

differently. The staff was clearly following Griffey’s in-

structions and work was done when Griffey instructed so.”

On several occasions employees expressed Rosado their

concern, given their uncertainty about Rosado’s authority,

and thus not knowing how to respond to his requests.” In

the midst of this situation a Wackenhut colleague from El

Salvador asked Rosado a “retirement” question. On or

about a month after Rosado’s return to work, he received a

call from Miguel Angel Escobar, the President of Wacken-

hut/El Salvador, well connected to VP Hegel, who origi-

nally worked at El Salvador’s offices. During the

conversation Mr. Escobar asked Rosado on several occa-

sions “why don’t you retire?” He said that things would

probably be easier for everybody if he did. For Rosado this

phone call was very unusual, given its personal tone and

nature and given the fact that he did not have a previous

relationship with Escobar.”

* Petitioners’ Court of Appeals Appendix at 11-12; 283-84 718.

” Petitioners’ Court of Appeals Appendix at Id.

* Petitioners’ Court of Appeals Appendix at 12.

“ Petitioners’ Court of Appeals Appendix at 12-13.

* Petitioners’ Court of Appeals Appendix at 12-13.

Approximately a month after his return, much to his

surprise, Rosado learned, by email of a general company

report listing company managers, including Griffey as

Associate General Manager. (App. at 13) He could not

figure out how WPR, during stressful economic times,

decided to hire another manager nor the reasons for not

informing him of this fact.” Notwithstanding said official

announcement, Griffey’s answer to Rosado’s questions was

that he was unaware of his position title.” Griffey’s cur-

riculum vitae, however stated otherwise and described

him as WPR General Manager since January 2002.” This

situation remained unaltered until July 12, 2002, the day

Rosado was discharged. Hegel and Griffey met with

Rosado and informed him both of his termination and that

Griffey would replace him as General Manager. July 12

also was Griffey’s 40th birthday. No specific reason was

given for Rosado’s termination.”

Although Hegel told Rosado he did not know the

reasons for his termination, Morrow’s testimony states

that Hegel participated in the decision to terminate

Rosado.”

(ii) Wackenhut’s Articulation of Reasons for Dis-

charge

Respondents have articulated as legitimate nondis-

criminatory reasons that Rosado was terminated due to:

Petitioners’ Court of Appeals Appendix at /d.

Petitioners’ Court of Appeals Appendix at 11-12; 283-84 718.

Petitioners’ Court of Appeals Appendix at 287 47.

Petitioners’ Court of Appeals Appendix at 11-13; 283.

“ Petitioners’ Court of Appeals Appendix at 286-87 724.

(1) his performance; (2) his lack of initiative; (3) failure to

provide a comprehensive action plan; (4) failure to show

signs of improving the critical situation in WPR. The

District Court in its Opinion and Order determined that

Respondents have met their task. Coasequently, the

presumption of discrimination created by the prima facie

case drops away and the burden of production shifts back

to Rosado to show that Wackenhut’s stated nondiscrimina-

tory reason was a pretext for discrimination.

(iii) Rosado’s Evidence of Pretext

The Court of Appeals erred in ignoring Rosado’s

compliance with the Reeves evidentiary framework having

presented sufficient pretext evidence of the falseness of

Defendants’ reasons for his termination, thus allowing it

to conclude that Wackenhut unlawfully discriminated.

~ The Court of Appeals’ Enforcement of a de facto

Pretext-Plus Standard

The Court of Appeals, in its misconstruction of the

Reeves standard and in requiring that Rosado “produce

evidence beyond the mere assertion that the alleged

justification is implausible and show the that the em-

ployer’s anti-discriminatory animus actually motivated the

adverse employment action,” held that the record is

“devoid of any sign of anti discrimina‘“r” animus toward

Rosado.™ The Court, searching for direct e. 2nce, concluded

“ Petitioners’ Court of Appeals Appendix at p 8-9.

that Rosado “fails to cite any material fact in controversy

in the record.”

The Court missed important considerations in the

analysis of discrimination cases, to wit, the significance of

assessing the whole picture, proximity in time, and the

employer’s control of information. These considerations

shed light on the ever-elusive question of discriminatory

animus/intention. Of particular relevance is the fact that

in discrimination cases the events closer in time to the

adverse employment action acquire special significance in

terms of revealing Respondents’ animus, given the nexus

and proximity. Furthermore, all the reasons given by the

employer for terminating an employee must be truthful,

given that the employer is the one in control of the infor-

mation and of the decision-making processes.

Rosado presented evidence of his last six months of

employment against the backdrop of the contradicting

events taking place during 2001 in which everyone blamed

each other for the loss of government contracts. |

Griffey’s sensitivity report was being prepared during

the last six months of 2001. Wackenhut’s corporate officers’

deposition testimony assert that Rosado was aware of the

sensitivity report and discussed the same with Griffey and

Hegel, a fact that Rosado denies. It is admitted by Griffey

that Rosado had no input whatsoever on his communica-

tions with both Morrow and Hegel regarding said report.

Falseness and contradictions in the testimony of Wacken-

hut’s officers reveal the discriminatory animus behind

Rosado’s replacement by Griffey.

“ Petitioners’ Court of Appeals Appendix at p 8-9.

On February 2002, Morrow visited the island and

gave Rosado “a second chance” notwithstanding the fact

that he had been informed, according to corporate officers’

testimony, of his incompetence. As a direct result of the

sensitivity report, Morrow met with Rosado on February

2002 in his first visit as President, and requested a Puerto

Rico Operations Action Plan. During that meeting Rosado

first learned about Griffey’s sensitivity report’s conclusions.

Rosado argued that it was therefore reasonable to conclude

that in asking Rosado for a Puerto Rico Operations Action

Plan and by stressing the necessity of righting the ship

before it was too late, Morrow was giving Rosado the

opportunity to improve the company’s economic situation.

Consequently, in its de novo review the Court of

Appeals had to determine whether there was sufficient

evidence in the record for a trier of fact to conclude that

said offer was a real opportunity or just a false gesture in

a discriminatory cover-up scheme. The deposition testimo-

nies of Respondents’ corporate officers unsuccessfully

attempt to state that it was a real chance. Notwithstand-

ing, their actions after the February 2002 meeting and

their contradictory testimony support a thick inference of

mendacity in the ranks.

Company officers testified that they brought Griffey to

Puerto Rico as Assistant General Manager for Puerto Rico

operations with two main objectives: (1) prepare a report

and recommendation of the Action Plan requested from

Rosado and (2) to “hold the fort” and offer support for WPR

during Rosado’s absence.“ However, Griffey’s curriculum

vitae reveals that he had been WPR General Manager

“ Petitioners’ Court of Appeals Appendix at 32-35.

since January 2002.“ Since Griffey’s arrival on February

2002 both he and Hegel, avoided Rosado’s questions

regarding Griffey’s position at WPR. Furthermore, Griffey

lied to Rosado when he stated that he was uanaware of the

position held by him in the Island. Rosado’s testimony

proves that after Griffey’s arrival, he never again exer-

cised the WPR General Manager’s authority.

Rosado also presented evidence showing that his

alleged failure to submit an Action Plan was also a false

justification to cover up Defendant’s discriminatory ani-

mus. The Action Plan was asked from Rosado right before

he suffered the second cardiac arrest that sent him home

for more than fifty-five (55) days and, during his convales-

cent period, he helped Griffey prepare what he thought

was the requested Action Plan.

Wackenhut’s position that the non-submission of said

plan during Rosado’s convalescent period amounted to

non-compliance with corporate instructions, or lacked of

initiative in his part was contradicted by facts showing

that during his recovery at home, Rosado helped Griffey

prepare what he thought was the requested Action Plan.

A close look at the chronology of events once Rosado

returned to work after his convalescent period reveals WI

and WPR cover up story regarding Rosado’s inaction and

his failure to submit an action plan. Only days after

Rosado’s return, Hegel welcomed him back with an e-mail

requesting that the action plan be presented as soon as

possible.” Rosado immediately sat down with Griffey to

“ Petitioners’ Court of Appeals Appendix at 287.

“ Petitioners’ Court of Appeals Appendix at 36-37 21.

discuss his action plan (the one to which Rosado offered

input during his convalescence period). Although he was

not completely convinced about the same, Rosado agreed

with it given that, under the circumstances, he had no

other options.“

Notwithstanding the fact that the action plan was

approved by Hegel on May 17th, 2002 and an »rder for its

implementation came from WI," Rosado was terminated

two months later because of his lack of initiative and his

failure to submit an action plan. Furthermore, on the date

of Rosado’s termination, Hegel tells Rosado that he doesn’t

know the reasons for his dismissal, while Morrow testifies

in his deposition that Hegel was a co-participant in the

decision to dismiss him. Specifically, he testified that he

did discuss with Hegel the whole company situation and

that both arrived at the conclusion that Rosado had to be

terminated.“

(iv) Preclusion of Summary Judgment and Inferences

for the Jury

This is a case that fully meets the Reeves evidentiary

standard, one in which the jury should be asked to infer

the intentional discrimination from the following: (1)

Rosado was a 60-year-old excellent General Manager

capable of driving WPR to its peak in sales; (2) At the time

of his termination he had no performance problems; (3) A

year before his termination a new company president

“ Petitioners’ Court of Appeals Appendix at 385 422.

“ Petitioners’ Court of Appeals Appendix at Id.

“ Petitioners’ Court of Appeals Appendix at 286-87 4124.

arrived; (4) Six months after his appointment, said Presi-

dent asked Rosado for the first time for an Action Plan for

the WPR operation; (5) After a cardiac arrest and 55 days

of recovery Rosado submitted such action plan in conjunc-

tion with Griffey; (6) Griffey stripped Rosado from his

General Manager’s authority after his heart attack; (7)

Rosado was terminated from employment because of his

failure to submit an action plan and to “right the ship”; (8)

Griffey, the person that submitted the Action Plan with

Rosado and who had de facto authority to right the ship,

replaced Rosado in his position as General Manager.

. f

REASONS FOR GRANTING THE WRIT

The Court of Appeals has joined a group of circuits

which misconstrue the sufficiency of evidence required to

prove discriminatory intent, absent direct evidence. As

stated above, these circuits are restoring the pretext/plus-

pretext/only dichotomy, which preceded the Reeves deci-

sion, and which followed St. Mary’s Honor v. Hicks, 509

U.S. 502 (1993). In addition to legitimizing the inconsis-

tent position of plaintiffs in different circuits, the Court of

Appeals along with some other circuits, are sapping the

vital strength of an evidentiary framework precisely

designed to address the difficulties of proving — via direct

evidence — discriminatory intent. This Court has acknowl-

edged that discrimination can be subtle and that employ-

ers have total control of the evidence.

Ever since Reeves, the Court of Appeals for the First

Circuit (which expressed in Feliciano v. El Conquistador

that its pre-Reeves pretext-plus court-label was unsup-

ported, since Reeves involved no significant change to its

understanding of the quantum of evidence in these cases)”

and its companion circuits, have interpreted this Court’s

holding through the prism of an inverted construction. The

Court of Appeals unduly restrains and places at the

margins the Reeves norm allowing a determination of

intentional discrimination from sufficient evidence of

pretext. The qualifications and limitations created to

underscore its non-absolute character, exemplified by the

verb “may permit” became center stage, and an open

invitation for requiring discriminatory animus evidence,

beyond pretext. (The fact-finder’s disbelief of the reasons

put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to show

intentional discrimination) Reeves, supra, at 511. This

reality has signaled a difficult journey for plaintiffs for

whom this Court has consistently recognized a distinct

evidentiary framework attuned to the realities of employ-

ment discrimination.” McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Often, the Reeves qualification/limitation/exception

language is used to validate pre-Reeves decisions, includ-

ing those specifically targeted by the Reeves court as

improperly requiring pretext-plus. As the Court of Appeals

® Feliciano v. El Conquistador, supra note 1.

Individual Disparate Treatment Law, 11 Kan. J.L. & Pub. Pol’y 177, 185

(2001) cited in Brent L. Ryman, Lame Duck Precedent: a Comment on

the Summary Judgement Framework for Disparate Treatment Cases

After Reeves v. Sanderson Plumbing, 71 U. Cin. L. Rev. 669 (2003)

has done in the First Circuit,” the Court of Appeals for the

Fifth Circuit has underscored that»Rhodes v. Guiberson

Oil Tools, 75 F.3d 989 (5th Cir. 1996), one of the cases that

Reeves sought to overturn, was consistent with Reeves.

Vadie v. sienesippt State University, 218 F.3d 365 (5th

Cir. 2000).” sees

The Second Circuit, which de facto also requires addi-

tional direct evidence, has taken a similar path. Fisher v.

Vassar College, 114 F.3d 1332 (2d Cir. 1997) — another

specific case targeted by the Reeves court — was expressly

held to be consistent with Reeves. Schnabel v. Gary Abram-

son, 232 F.3d 83 (2d Cir. 2000). In stating that the Supreme

Court’s reading of Fisher -was inaccurate, the Cuurt of Ap-

peals noted that “the Court did not categorically conclude

that a prima facie case plus pretext evidence ‘permits’ a trier

of fact to find that a plaintiff has satisfied his ultimate

burden” and instead used the language “may permit.” In fact

the Court went on to state that “if Reeves had ended here, we

would have little choice but to reinstate plaintiff's ADEA

claim in the instant case.” By stating the “not always”

language sustaining liability, Reeves opened the door for a

judgment in favor of the employer if the record conclusively

revealed some other, nondiscriminatory reason for the

employer’s decision. Jd. at 90.

" Feliciano v. El Conquistador, supra note 1.

“= The Rhodes language found consistent with Reeves stated:

... Thus, a jury issue will be presented and a plaintiff can

avoid summary judgment and judgment as a matter of law

if the evidence taken as a whole (1) creates a fact issue as to

whether each of the employer’s stated reasons was what ac-

tually motivated the employer and (2) creates a reasonable

inference that age was a determinative factor in the actions

of which plaintiff complains.

Excessive reliance on the “additional evidence” of

discriminatory comments similar to those present in

Reeves, creates additional confusing levels. Instead of

focusing on the proper standard, the Courts have com-

monly engaged in a comparative hunt for the comments,

with the “coming over on the Mayflower” and being “too

damn old to do his job” as the hard act to follow in the

additional evidence category. In Vadie, supra, the Court

stated how in Reeves the Supreme Court noted substantial

evidence by pointing “to comments and conduct of the

defendant’s supervisor reflecting an age-related animus”

(at 374). Due to the absence of similar comments that

Court held it was unable to make an inference of inten-

tional discrimination, after the presentation of a prima

facie case and plaintiff’s evidence that the University’s

asserted legitimate reasons for not hiring him were false,

given his superior credentials to the professor hired. The

acceptable inference for the Court was instead that the

University had an “unidentifiable” reason for not hiring

the plaintiff. id. at 373)

The Court of Appeals in this case and in several post-

Reeves decisions demonstrated that the confusion gener-

ated by St. Mary’s Honor v. Hicks, supra, remained signifi-

cantly unaltered. (See also Weinstock v. Columbia Univ.,

224 F.3d 33 (2d Cir. 2000); Cleary v. Nationwide Mut. Ins.

Co., 2001 U.S. App. LEXIS 11318 (4th Cir. May 31, 2001);

Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d

392 (5th Cir. 2000); Kulumani v. Blue Cross Blue Shield

Ass’n, 224 F.3d 681 (7th Cir. 2000); Guyton v. Ottawa |

Truck Div., No. 00-3028 (10th Cir. April 27, 2001)).

Further review is warranted.

I. THE COURT OF APPEALS MISCONSTRUED

THE REEVES PRECEDENT AND EXACERBATES

CIRCUIT CONFLICT, DOCTRINAL INCOHER-

ENCE AND PLAINTIFFS’ INCONSISTENT

TREATMENT BY SUSTAINING AN INCOR-

RECT APPLICATION OF THE QUANTUM OF

EVIDENCE STANDARD

The Court of Appeals did not hold that the pretext

evidence presented by Rosado coupled with his prima facie

case, in the context of a summary judgment, lacked evi-

dentiary sufficiency for proving intentional discrimination.

The Court instead analyzed the evidence Rosado pre-

sented, through the direct-evidence-requirement/de facto

pretext-plus lens, and found it either nonexistent or

insufficient The Court of Appeals, held that Rosado had to

“produce evidence beyond the mere assertion that the

alleged justification is implausible and show that the

employer’s discriminatory animus actually motivated the

adverse employment action”. (emphasis added) (only citing

Mesnick v. General Electric, 950 F.2d 816 (1st Cir. 1991) a

pre-Reeves decision, emblematic of a pretext-plus standard”).

Even under a correct pretext-only standard, Mesnick

presented factual questions concerning the sufficiency of

the evidence of pretext itself. An uncontested history of

insubordination and well-documented evaluations in that

case constituted evidence affecting the quantum and

quality of the pretext evidence.

* The Court held: “Ip be sure, Mesnick flooded the nisi prius roll

with plethoric evidence designed to illustrate his professional compe-

tence and ability to work well with others — but the vast majority of

Mesnick’s evidence related to pretext vel non. Regardless of its bulk,

this evidence had nothing at all to do with age or with the employer’s

true motives”. (emphasis added)

~ The Value of Circumstantial Evidence

The unanimous voice of this Court correctly under-

stood the nature of circumstantial evidence and the role it

plays in the absence of direct evidence when it held that

proof of a false explanation “is simply one form of circum-

stantial evidence that is probative of intentional discrimi-

nation, and it may be quite persuasive”. Reeves, supra at

147, citing St. Mary v. Hicks, supra at 517 (“[P]roving the

employer’s reason false becomes part of (and often consid-

erably assists) the greater enterprise of proving that the

real reason was intentional discrimination” .... Such an

inference is consistent with the general principle of evi-

dence law that the fact finder is entitled to consider a

party’ dishonesty about a material fact as “affirmative

evidence of guilt.”) Citing Wright v. West, 505 U.S. 277,

296, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992); and Wilson

v. United States, 162 U.S. 613, 620-621, 16 S. Ct. 895, 40

L. Ed. 1090 (1896); 2 J. Wigmore, EVIDENCE § 278(2), p.

133 (J. Chadbourn rev. 1979). Moreover, once the em-

ployer’s justification has been eliminated, discrimination

may well be the most likely alternative explanation,

especially since the employer is in the best position to put

forth the actual reason for its decision. Citing Furnco

Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943,

57 L. Ed. 2d 957 (1978) (“[WJhen all legitimate reasons for

rejecting an applicant have been eliminated as possible

reasons for the employer’s actions, it is more likely than

not the employer, who we generally assume acts with some

’ reason, based his decision on an impermissible considera-

tion.”). Reeves, supra at 14.

To undervalue the role of circumstantial evidence

through the pretext-plus requirement, improperly and

without any statutory basis, places discrimination cases in

a separate category of civil cases with more stringent

evidentiary standards, an ironic result, given the Court’s

reiterated acknowledgement of policy considerations

facilitating proof of discrimination.“ It must similarly be

noted that the pretext-plus — direct evidence — de facto

requirement runs counter to the understanding of the

applicable preponderance of evidence standard, thus

imposing the higher burden of clear and convincing

evidence, St. Mary’s Honor v. Hicks, supra at 521-23. The

risk encountered by a non-credible employer is not differ-

ent from that awaiting any litigant whose version of the

events fails to prevail.”

- Accurate Interpretations of Reeves

‘Other Circuits have correctly construed Reeves as

precluding summary judgment by the probative value of

pretext, understanding that the dispute as to the veracity

of the employer’s explanation “provides evidence as to the

company’s discriminatory intent ... ” Ross v. Campbell

Soup, 237 F.3d 701, 708 (6th Cir. 2001). The Ninth Circuit

adopts the premise that as a general matter plaintiff “need

produce very little evidence in order to overcome an

employer’s motion for summary judgment.” Chuang uv.

University of California, 225 F.3d 1115, 1124 (9th Cir.

2000); (See also Goosby v. Johnson & Johnson Med Inc.,

* See also Michael E. Gold, Towards a Unified Theory of the Law of

Employment Discrimination, 22 Berkeley J. Emp. & Lab. L. 175, 181

(2001), commenting on the rarity of egregious discriminatory com-

ments. Larson, EMPLOYMENT DISCRIMINATION 8.01[1]) at 8-7 (2d ed.

1994) (“employers are, on the whole, too sophisticated to profess their

prejudices on paper . . . before witnesses”).

* Td. at 374.

228 F.3d 313 (3d Cir. 2000); EEOC v. Sears Roebuck & Co.,

243 F.3d 846, 854 (4th Cir. 2001) (“[A] prima facie case and

evidence of pretext raises a sufficient inference of dis-

crimination to entitle a plaintiff to survive a motion for

summary judgment.”); Toth v. Gates Rubber Co., 2000 U.S.

App. LEXIS 14374, at 25 (10th Cir. June 21, 2000) (finding

contradictory evidence on the issue of pretext was enough

to defeat summary judgment); Munoz v. Oceanside Re-

sorts, Inc., 223 F.3d 1340, 1345-46 (11th Cir. 2000) (indi-

rect evidence of pretext was enough to infer intentional

discrimination and overcome the defendant’s judgment as

a matter of law); Hinson v. Clinch County, Ga. Bd. of

Educ., 231 F.3d 821, 831-32 (11th Cir. 2000) (overturning

summary judgment for school principal who produced

believable pretext evidence).

A correct application of the Reeves standard in this

case would have confirmed that Rosado met his burden of

proof. There was no evidence “conclusively” showing that,

despite the presence of pretext, some other nondiscrimina-

tory reason was Wackenhut’s real motivation, or that

Rosado’s evidence of pretext was weak. This Court’s last

word as to the correct evidentiary framework in discrimi-

nation cases, underscoring that sufficient evidence of

pretext can ultimately prove intentional discrimination,

should provide the necessary uniformity and guidance

that, without formulaic straight-jackets, employment

discrimination law requires.”

” As has been suggested, “the overall impact on the law is an

inherent unfairness for discrimination plaintiffs. The evidentiary

burden depends on which circuit the plaintiff brings his or her case.

This fundamental issue of civil procedure should be uniform throughout

the federal courts ... To create uniformity the Supreme Court must

(Continued on following page)

- Further Review as to the Applicability of the

Reeves Standard in the Summary Judgment Con-

text is Warranted

Justice Ginsburg’s statement in her concurring

opinion in Reeves that, it would be “uncommon” to require

additional evidence to the combined prima facie and

pretext in order to defeat a summary judgment also serves

to underscore the improper evidence-weighing process

(often involving credibility issues) that some post-Reeves

decisions have shown. (“I write separately to note that it

may be incumbent on the Court, in an appropriate case, to

define more precisely the circumstances in which plaintiffs

will be required to submit evidence beyond these two

categories in order to survive a motion for judgment as a

matter of law. I anticipate that such circumstances will be

uncommon.”) Reeves, at 154.

once again take up the issue of the evidentiary burden for the plaintiff

to defeat a motion for summary judgment in a discrimination case. J.

Long, Advocating Pretext Plus: The Impact of Reeves v Sanderson

Plumbing Products Inc. on the Shifting Evidentiary Framework, 51 U.

Kan. L. Rev. 629 (2003); See also Brent L. Ryman, supra note 49;

McCormick, Truth or Consequences: Why the Rejection of the Pretext

Plus Approach to Employment Discrimination Cases in Reeves uv.

Sanderson Plumbing Establishes the Better Legal Rule, 21 N. Il. U. L.

Rev. 355, 374 (2001).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

CELINA ROMANY

Counsel for Petitioner

CELINA ROMANY LAW OFFICES

Westernbank World Plaza, Suite 1500

268 Mufioz Rivera Ave.

San Juan, PR 00918

Tels. (787) 754-9304; 754-9305

Fax (787) 754-9324

bufetecelinaromany@gmail.com

App. 1

160 Fed.Appx. 5

Not for Publication in West’s Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-1325

AURELIO ROSADO, ET AL.,

Plaintiffs-Appellants,

Vv.

WACKENHUT PUERTO RICO, INC., ET AL.,

Defendants-Appellees.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

{Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Lipez, Circuit Judge,

Coffin, Senior Circuit Judge,

Carter,* Senior District Judge,

* Of the District of Maine, sitting by designation.

App. 2

Celina Romany, with whom Juan M. Frontera Suau

and Celina Romany Law Offices were on brief, for appel-

lants.

José J. Sanchez Vélez, with whom Yidefonso Lépez

Morales, Eileen M. Garcia Wirshing and O’Neill & Borges

Law Firm were on brief, for appellees.

December 29, 2005

CARTER, Senior District Judge. Plaintiffs/

Appellants, Aurelio Rosado, Lydia Rosado, and the conjugal

partnership formed between them, filed the present

complaint against Defendants/Appellees, Wackenhut Puerto

Rico (“WPR”) and Wackenhut International, Inc. (“WII”)

(collectively “the Wackenhut defendants”). Plaintiffs allege

violations of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621 et seq. (1994 & Supp.2003);

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12131 et seq. (1994 & Supp. 2003); and various Puerto

Rico statutes. The district court granted Defendants’

Motion for Summary Judgment on all counts of Plaintiffs’

Verified Complaint. P:.. ntiffs appeal.’

" In the interest of clarity, we discuss the case with exclusive

reference to appellant Aurelio Rosado. However, this opinion is also

binding on appellant Lydia Rosado and the conjugal partnership formed

between appellants Aurelio and Lydia Rosado.

App. 3

Facts and Procedural History

The district court accurately summarized the facts as

follows. WII is the parent company of WPR, a subsidiary

company dedicated to providing security and surveillance

services in the Puerto Rico private and public sectors. Mr.

Rosado worked at WPR as general manager from January

31, 1989 until July 12, 2002, when he was terminated. As

general manager, Mr. Rosado possessed broad responsibil-

ity and discretion for WPR’s operations, but his actions

were ultimately subject to WII corporate headquarters’

approval. Mr. Rosado’s responsibilities included submit-

ting monthly operations reports, balance sheets, and profit

and loss sheets to the Vice-President of WPR Operations,

Fernando Hegel, and the President of WII, William Mor-

row. Mr. Rosado was subject to periodic performance

evaluations, and received yearly bonuses based upon his

performance and operational results.

During the first several years of Mr. Rosado’s manage-

rial guidance, WPR performed well. At its peak, WPR drew

$33 million in revenues. Mr. Rosado received positive

evaluations and was rewarded with favorable bonuses.

Between 1999 and 2001, WPR lost a significant number of

government contracts, and revenue dropped by half. While

both parties admit that there was recognition that WPR

needed to lessen its reliance on government contracts,

which were ephemeral, and to instead redirect sales

toward the private sector, the Wackenhut defendants and

Mr. Rosado each claim that the other party was unrespon-

sive in joining to remedy the problem.

After the conclusion of a fruitless dialogue between

Mr. Rosado and the Wackenhut defendants on righting

App. 4

WPR’s ship, in June 2001, Mr. Morrow and Mr. Hegel

directed John Griffey, a WII Field Support Operations

Special Project Manager, to visit WPR. Mr. Griffey was

directed to draft a sensitivity report assessing WPR’s

operations and issuing recommendations for improvement,

based upon his visit to Puerto Rico. The sensitivity report

highlighted the need for improved collections, operational

efficiency, and increased sales. In late January or early

February 2002, Mr. Morrow and Mr. Hegel met with Mr.

Rosado in Puerto Rico to discuss how to improve WPR’s

grim state of affairs. Mr. Morrow strongly expressed his

dissatisfaction with WPR’s performance and the need for

drastic change, and directed Mr. Rosado to submit a

comprehensive action plan by the end of February 2002.

Several days after the meeting took place, Mr. Rosado

suffered a cardiac arrest.’ Mr. Rosado was hospitalized and

in recovery for approximately fifty-five days before return-

ing to work. Mr. Rosado was unable to work on the action

plan during his recovery. Mr. Morrow and Mr. Hegel

directed Mr. Griffey, who had become familiar with WPR’s

operations during his earlier visit, to return to Puerto

Rico, assist in the preparation of the WPR action plan, and

provide leadership in Mr. Rosado’s absence.

Mr. Rosado returned to work in April 2002, but Mr.

Griffey remained at WPR. Mr. Rosado claims that WPR

employees were now answering exclusively to Mr. Griffey’s

command and that although when questioned as to his

formal role Mr. Griffey was purposefully ambiguous, Mr.

Griffey had become WPR’s de-facto general manager. Mr.

* This was Mr. Rosado’s second heart attack. His first heart attack

took place in April 1998.

App. 5

Rosado claims that while he retained his formal title as

general manager, he had lost all authority at WPR.

Shortly after Mr. Rosado returned, Mr. Hegel re-

quested that he review Mr. Griffey’s action plan and either

approve Mr. Griffey’s plan or, in the alternative, submit

his own action plan. Mr. Rosado reviewed and, with some

reservations, adopted Mr. Griffey’s action plan.

In or around May 2002, Miguel Angel Escobar, the

President of Wackenhut El Salvador (“WES”), placed a

telephone call to Mr. Rosado.’ During the conversation, Mr.

Escobar asked Mr. Rosado, “Why don’t you retire?” Mr.

Escobar suggested that “things would probably be easier

for everyone” if Mr. Rosado retired.

Approximately one month later, Mr. Morrow made the

decision to terminate Mr. Rosado. On July 12, 2002, Mr.

Hegel informed Mr. Rosado that he was terminated. Upon

Mr. Hegel’s recommendations, Mr. Morrow appointed Mr.

Griffey as the new general manager for WPR.

Mr. Rosado filed the instant action alleging violations

of the ADEA, the ADA and various Puerto Rico statutes.

The district court granted the Wackenhut defendants’

Motion for Summary Judgment on all counts of Mr.

Rosado’s Verified Complaint.

* Like WPR, WES is a subsidiary of WII. WES’s leadership has no

authority over WPR.

App. 6

Il.

Summary Judgment Standard

The standard for summary judgment is straightfor-

ward and well-established. A district court may enter

summary judgment upon a showing “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). We review summary judgment rulings de

novo, construing the record evidence in the light most

favorable to, and drawing all reasonable inferences in

favor of, the nonmoving party. Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 33 (1st Cir. 2001); Feliciano de la Cruz v.

El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st

Cir. 2000). Summary judgment is appropriate when “there

is no genuine issue as to any material fact.” Fed. R. Civ. P.

56(c). “Even in employment discrimination cases where

elusive concepts such as motive or intent are at issue,”

summary judgment is appropriate if the non-moving party

rests “merely upon conclusory allegations, improbable

inferences, and unsupported speculation.” Feliciano, 218

F.3d at 5 (quoting Medina-Munoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (1st Cir.1990)) (internal quotations

omitted). It is within this procedural framework that we

assess Mr. Rosado’s claims. Our review is not constrained

by the lower court’s stated rationale; we may affirm the

entry of summary judgment on any ground supported by

the record. See Houlton Citizens’ Coal. v. Town of Houlton,

175 F.3d at 178, 184 (1st Cir. 1999).

The ADEA Claim

The ADEA makes it unlawful for an employer to

discharge any individual or otherwise discriminate against

App. 7

him on the basis of his age. See 29 U.S.C. § 623(a)(1). Since

there is no direct evidence which demonstrates the Wack-

enhut defendants’ alleged discriminatory animus against

Mr. Rosado, we must consider the multi-part McDonnell

Douglas test. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-805 (1973). Applying the McDonnell Douglas

framework, Mr. Rosado must first “demonstrate that he (1)

was at least forty years of age, (2) met the employer’s

legitimate job performance expectations, (3) experienced

adverse employment action; and (4) was replaced by a

person with roughly equivalent job qualifications.” Gold-

man v. First Natl Bank of Boston, 985 F.2d 1113, 1117 (1st

Cir. 1993). The record supports the conclusion that Mr.

Rosado satisfies the prima facie case factors. The burden

of production then shifts back to the employer who must

rebut the inference of discrimination by articulating some

legitimate, non-discriminatory reason for the adverse

employment action. Dominguez-Cruz v. Suttle Caribe, Inc.,

202 F.3d 424, 430 (1st Cir. 2000). Mr. Rosado admits, and

this Court finds, that the Wackenhut defendants have

satisfied their burden of production by asserting that Mr.

Rosado was discharged because his managerial perform-

ance since 1998 was unsatisfactory and because WPR was

suffering a lack of effective leadership.

In the final stage of the analysis the burden shifts

back to Mr. Rosado to show that the employer’s alleged

justification was not its true reason for the adverse em-

ployment action, but was a mere pretext for age discrimi-

nation. Id.; Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823

(1st Cir. 1991). The ADEA “does not stop a company from

discharging an employee for any reason (fair or unfair) or

for no reason, so long as the decision to fire does not stem

from the person’s age.” Freeman v. Package Mach. Co., 865

App. 8

F.2d 1331, 1341 (1st Cir. 1988). Mr. Rosado must produce

evidence beyond the mere assertion that the alleged

justification is implausible and show that the employer’s

discriminatory animus actually motivated the adverse

employment action. See Mesnick, 950 F.2d at 825.

The record is devoid of any sign that anyone in a

decision-making role, including Mr. Morrow and Mr.

Hegel, bore any discriminatory animus toward Mr.

Rosado. Appellant fails to present evidence necessary to

show that the Wackenhut defendants’ given reasons for

the termination were pretextual. Appellant makes sweep-

ing statements but fails to cite to any material fact in

controversy in the record. Although appellant states that

“the district court has completely ignored most, if not all,

of Plaintiff’s pretext evidence,” he never discloses what

evidence the district court disregarded. Appellant’s Brief

at 21. Generally, appellant criticizes the district court for

missing important considerations such as “the significance

of assessing the whole picture, proximity in time, and the

employer’s control of information.” Appellant’s Brief at 22.

But, here again, he never states what is that pertinent

evidence.

Even if we were to consider appellant’s unsupported

arguments, the evidence fails to create a trial-worthy age

discrimination claim. Appellant states that according to

Wackenhut corporate officers Mr. Rosado was aware that a

sensitivity report was being prepared but Mr. Rosado

denies that he knew the reasons for Mr. Griffey’s visit to

the island. Assuming that there is contradictory testimony

on this point, such conflict does not support the inference

that the reason given by the Wackenhut defendants for

Mr. Rosado’s termination was a pretext for age discrimina-

tion. Appellant also attempts to draw some inference of

App. 9

pretext from the February 2002 meeting between Mr.

Morrow and Mr. Rosado wherein Morrow discussed the

sensitivity report’s conclusions with Mr. Rosado, which

were apparently unknown to Rosado until that time.

However, the fact that Mr. Rosado was kept out of the loop

on the sensitivity report does not in any way suggest that

the Wackenhut defendants’ performance-based reasons for

terminating Mr. Rosado were false.

Finally, appellant suggests that when Mr. Morrow

asked him to create an action plan for WPR, Mr. Morrow

was giving Mr. Rosado an opportunity to improve the

company’s economic situation. Because he was terminated

less than three months after returning to work from the

heart attack, appellant suggests that there is sufficient

evidence in the record for a trier of fact to conclude that

the chance Mr. Morrow gave him was just a false gesture

in a discriminatory cover-up scheme. However, the timing

of his termination, standing alone or even in conjunction

with being kept out of the loop on the sensitivity report,

does not in any way suggest that the Wackenhut defen-

dants’ performance-based reasons for terminating Mr.

Rosado were false. Appellant has not presented any

evidence besides his age and Mr. Griffey’s presence point-

ing to age as a factor in his termination. Moreover, appel-

lant has made no attempt to demonstrate that WPR’s

economic losses under Mr. Rosado’s leadership were

fabricated by the company to conceal his superiors’ dis-

criminatory motives.

The ADA Claim

To establish a claim of disability discrimination under

the ADA, a plaintiff must prove, by a preponderance of

App. 10

evidence, that he (1) was disabled within the meaning of

the ADA, (2) was able to perform the essential functions of

the job with or without reasonable accommodation, and (3)

was discharged by the employer in whole or in part be-

cause of his disability. Jacques v. Clean-Up Group, 96 F.3d

506, 511 (Ist Cir. 1996). Appellant does not allege any

direct evidence of disability discrimination. Here again, in

the absence of direct evidence, Mr. Rosado may “indirectly”

prove his case by “using the prima facie case and burden

shifting methods originated in McDonnell Douglas.”

Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co., 87

F.3d 26, 30 n.2 (1st Cir. 1996)).

Under McDonnell Douglas Mr. Rosado must demon-

strate by a preponderance of evidence that he (1) has a

disability within the meaning of the ADA, (2) is qualified to

perform the essential functions of the job, with or without

reasonable accommodations, (3) was subject to an adverse

employment action by a company subject to the ADA, (4) was

replaced by a non-disabled person or treated less favorably

than non-disabled employees, and (5) suffered damages as a

result. Jd. The district court granted defendants’ motion for

summary judgment after finding that Mr. Rosado failed to

establish a prima facie case under the ADA.

Appellant correctly asserts that it is not necessary

that he actually be disabled, but that it is sufficient that

his employer regarded him as disabled. Considering this

theory of liability, the district court found that Mr.

Rosado’s assertion that he “must have been generally

perceived as impaired because of his shortness of breath”

was not supported by the record. On appeal Mr. Rosado

again contends that the Wackenhut defendants termi-

nated him because he was perceived as being “an old man

who had suffered a second heart attack which prevented

App. 11

him from performing the task required from a manager in

the industry.” Appellant’s Brief at 34. To support this

statement, appellant states that anyone observing him

after he returned would have noticed physical changes that

would have led them to conclude that he was disabled or

could not do the job. However, appellant does not cite to any

evidence in the summary judgment record that even upon

noticing his shortness of breath, anyone entertained the

belief that he was disabled. Without providing evidence of a

single instance of misperception by any particular person

or group of persons, Mr. Rosado can not satisfy his prima

facie burden under the ADA.

Although appellant suggests that after he returned to

work he was universally treated as if he was completely

incapable of performing the duties of general manager, his

only support for this conclusion is that he was required to

have Mr. Griffey authorize his decisions before they

became final. Mr. Rosado makes no citation to the eviden-

tiary record to support the assertion that his decisions had

to receive prior authorization from Mr. Griffey. However,

even if Mr. Griffey was exercising oversight over Mr.

Rosado’s decisionmaking at WPR, there is no evidence that

this is related to a perception by the Wackenhut defen-

dants that Mr. Rosado is disabled rather than to the

troubled financial condition of WPR and the corporate

effort to implement the action plan, which Mr. Griffey was

instrumental in developing. Without record support for the

inference that the alleged oversight was in some way

connected to Mr. Rosado’s shortness of breath, Mr. Rosado

can not establish a prima facie case under the ADA.

The district court’s judgment is affirmed.

App. 12

UNITED STATES DISTRICT COURT

DISTRICT OF PUERTO RICO

AURELIO ROSADO, et al. Civil No. 03-1737 (JAF)

Plaintiffs,

WACKENHUT PUERTO RICO,

INC.; et al.

Defendants.

OPINION AND ORDER

Plaintiffs, Aurelio Rosado, Lydia Rosado, and the

conjugal partnership formed between them, filed the

present complaint against Defendants, Wackenhut Puerto

Rico (“Defendant WPR”) and Wackenhut International,

Inc. (“Defendant WII”).’ Plaintiff alleges violations of the

Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621-634 (1994 & Supp. 2003); the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165

(1994 & Supp. 2003), and various Puerto Rico statutes.

Docket Document No. 1.

Defendants move for summary judgment, claiming

that Plaintiff cannot meet his burdens under the ADEA

and the ADA. Docket Document No. 15. In the alternative,

Defendant WII requests dismissal under Federal Rule of

Civil Procedure 12(b)(6). Id. Plaintiff opposes the motion.

Docket Document No. 28.

" In the interest of clarity, we will discuss the case with exclusive

reference to Plaintiff Aurelio Rosado. However, this opinion and order is

also binding on Plaintiff Lydia Rosado and the conjugal partnership

formed between Plaintiffs Aurelio and Lydia Rosado.

App. 13

Factual and Procedural Synopsis

Unless otherwise indicated, we derive the following

factual summary from the parties’ statements of facts.

Docket Document Nos. 1, 16, 28.

WII is the parent company of WPR, a subsidiary

company dedicated to providing security and surveillance

services in the Puerto Rico private and public sectors.

Plaintiff worked at WPR as General Manager from Janu-

ary 31, 1989, until July 12, 2002, when he was terminated.

As General Manager, Plaintiff possessed broad responsibil-

ity and discretion for WPR’s operations, but his actions

were ultimately subject to WII corporate headquarters’

approval. Plaintiff’s responsibilities included submitting

monthly operations reports, balance sheets, and profit and

loss sheets to the Vice President of WPR Operations, Mr.

Fernando Hegel, and the President of WII, Mr. William

Morrow. Plaintiff was subject to periodic performance

evaluations, and received yearly bonuses based upon his

performance and operational results.

During the first several years of Plaintiff’s manage-

rial guidance, WPR performed well. At its peak, WPR drew

$33 million in revenues. Plaintiff received positive evalua-

tions and was awarded with favorable bonuses. Between

1999 and 2001, WPR lost a significant number of govern-

ment contracts, and revenue dropped by half. While both

parties admit that there was a recognition that WPR

needed to lessen its reliance on government contracts,

which were ephemeral and unrewarding, and to instead

redirect sales toward the private sector, Defendants and

Plaintiff each claim that the other party was unresponsive

in joining to remedy the problem.

App. 14

After the conclusion of a fruitless dialogue between

Plaintiff and Defendants on righting WPR’s ship, in June

2001, Mr. Morrow and Mr. Hegel directed John Griffey, a

WII Field Support Operations Special Project Manager, to

visit WPR. Mr. Griffey was directed to draft a sensitivity

report assessing WPR’s operations and issuing recommen-

dations for improvement, based upon his visit to Puerto

Rico. The sensitivity report highlighted the need for

improved collections, operational efficiency, and increased

sales. In late January or early February 2002, Mr. Morrow

and Mr. Hegel met with Plaintiff in Puerto Rico to discuss

how to improve WPR’s grim state of affairs. Mr. Morrow

strongly expressed his dissatisfaction with WPR’s per-

formance and the need for drastic change, and directed

Plaintiff to submit a comprehensive action plan by the end

of February 2002.

Several days after the meeting took place, Plaintiff

suffered a cardiac arrest.’ Plaintiff was hospitalized and in

recovery for approximately fifty-five days before returning

to work. Plaintiff was unable to work on the action plan

during his recovery. Mr. Morrow and Mr. Hegel directed

Mr. Griffey, who had become familiar with WPR’s opera-

tions during his earlier visit, to return to Puerto Rico,

assist in the preparation of the WPR action plan, and

provide leadership in Plaintiff’s absence.

Plaintiff returned to work in April 2002, but Mr.

Griffey remained at WPR. Plaintiff claims that WPR

employees were now answering exclusively to Mr. Griffey’s

command and that although when questioned as to his

* This was Plaintiff’s second heart attack His first heart attack

took place on April 15, 1998.

App. 15

formal role Mr. Griffey was purposefully ambiguous, Mr.

Griffey had become WPR’s de-facto general manager.

Plaintiff claims that while he retained his formal title as

general manager, he had lost all authority at WPR.

Mr. Hegel requested that Plaintiff review Mr. Griffey’s

action plan and either approve Mr. Griffey’s plan or, in the

alternative, submit his own action plan. Plaintiff reviewed

and, with some reservations, adopted Mr. Griffey’s action

plan.

In or around May 2002, Mr. Miguel Angel Escobar, the

President of Wackenhut El Salvador (“WES”), placed a

telephone call to Plaintiff.’ During the conversation, Mr.

Escobar asked Plaintiff, “why don’t you retire?” Mr.

Escobar suggested that “things would probably be easier

for everyone” if Plaintiff retired.

Mr. Morrow made the decision to terminate Plaintiff.

On July 12, 2002, Mr. Hegel informed Plaintiff that he was

terminated. Upon Mr. Hegel’s recommendation, Mr.

Morrow appointed Mr. Griffey as the new general manager

for WPR.

On July 3, 2003, Plaintiff filed the present action.

Docket Document No. 1. On June 28, 2004, Defendants

filed a motion for summary judgment or, in the alterna-

tive, dismissal of the claim against WII for failure to state

a claim upon which relief can be granted. Docket Docu-

ment No. 15. On August 11, 2004, Plaintiff filed a response

in opposition to Defendants’ motion for summary judgment

and dismissal. Docket Document No. 40.

* Like WPR, WES is a subsidiary of WII. WES’s leadership has no

authority over WPR.

App. 16

Il.

Motion for Summary Judgment

Standard under Rule 56(c)

The standard for summary judgment is straightfor-

ward and well-established. A district court should grant a

motion for summary judgment “if the pleadings, deposi-

tions, and answers to the interrogatories, and admissions

on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and the moving

party is entitled to a judgement as a matter of law.” FED.

R. Civ. P. 56(c); see Lipsett v. Univ. of P.R., 864 F.2d 881,

894 (lst Cir. 1988). A factual dispute is “material” if it

“might affect the outcome of the suit under the governing

law,” and “genuine” if the evidence is such that “a reason-

able jury could revurn a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden of establishing the nonexistence of a

genuine issue as to a material fact is on the moving party.

See Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). This

burden has two components: (1) an initial burden of

production, which shifts to the nonmoving party if satis-

fied by the moving party; and (2) an ultimate burden of

persuasion, which always remains on the moving party.

See id. In other words, “(t]he party moving for summary

judgement, bears the initial burden of demonstrating that

there are no genuine issues of material fact for trial.”

Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir.

1998). This burden “may be discharged by showing that

there is an absence of evidence to support the nonmoving

party's case.” Celotex, 477 U.S. at 325. After such a show-

ing, the “burden shifts to the nonmoving party, with

‘respect to each issue on which he has the burden of proof,

to demonstrate that a trier of fact reasonably could find in

App. 17

his favor .” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st

Cir. 1997) (citing Celotex, 477 U.S. at 322-25).

Although the ultimate burden of persuasion remains

on the moving party and the court should draw all reason-

able inferences in favor of the nonmoving party, the

nonmoving party will not defeat a properly supported

motion for summary judgment by merely underscoring the

“existence of some alleged factual dispute between the

parties;” the requirement is that there be a genuine issue

of material fact. Anderson, 477 U.S. at 247-48; Goldman v.

First Natl Bank of Boston, 985 F. 2d 1113, 1116 (1st Cir.

1993). In addition, “factual disputes that are irrelevant or

unnecessary will not be counted.” Anderson, 477 U.S. at

248. Under Rule 56(e) of the Federal Rules of Civil Proce-

dure, the non-moving party “may not rest upon the mere

allegations or denials of the adverse party’s pleadings, but

. must set forth specific facts showing that there is a

genuine issue for trial.” FED. R. Civ. P. 56(e); see also

Anderson, 477 U.S. at 256. Summary judgment exists to

“pierce the boilerplate of the pleadings,” Wynne v. Tufts

Univ. Sch. of Med., 976 F.2d 791, 794 (ist Cir. 1992), and

“determine whether a trial actually is necessary.” Vega-

Rodriguez v. PR. Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).

Ill.

Analysis

Defendants argue that we should grant summary

judgment because the facts alleged by Plaintiff are insuffi-

cient, as a matter of law, to support an ADEA and/or ADA

claim for relief. Defendants also argue that the claim

against WII should be dismissed under Rule 12(b)(6)

because WII, as a parent corporation, “does not control the

App. 18

employment practices and decisions of WPR, [and there-

fore] should not be held liable for the alleged acts of its

subsidiary.” Docket Document No. 15. Because we find that

Plaintiff’s allegations are insufficient to establish an

ADEA or ADA claim, we need not reach the Rule 12(b)(6)

issue.*

A. ADA Claim

1. Absence of Direct Evidence

To establish a claim of disability discrimination under

the ADA, a plaintiff must prove, by a preponderance of the

evidence, that he (1) was disabled within the meaning of

the ADA, (2) was able to perform the essential functions of

the job with or without reasonable accommodation, and (3)

was discharged by the employer in whole or in part be-

cause of his disability. Jacques v. Clean-Up Group, 96 F.3d

506, 511 (1st Cir. 1996). Plaintiff fails to submit any

allegations that can be construed as direct evidence that

he was discharged because of a disability. In the pleadings,

Plaintiff addresses only the first and second prongs of the

direct evidence test, and fails to allege direct evidence of

discriminatory discharge. Docket Document Nos. 1, 27.

Plaintiff states only that “a reasonable jury could con-

clude, from the evidence in the record, and from the

reasons given by Defendants for Plaintiff’s termination,

that Defendant acted because [Plaintiff] was en old man

who had suffered a second heart attack which prevented

him from performing the task required from a manager in

* Since we do not consider the motion to dismiss, we also do not

reach the concerns articulated in Plaintiffs’ motion requesting order to

strike Defendants’ memorandum. Docket Document No. 19.

App. 19

the industry.” Docket Document No. 27. This declaration is

grossly insufficient to constitute direct evidence of disabil-

ity discrimination. Anderson, 477 U.S. at 247-248, 256;

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990).

2. Burden-shifting Framework

In the absence of direct evidence, a plaintiff may also

“indirectly” prove his or her case by “using the prima facie

case and burden shifting methods that originated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”

Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co., 87

F.3d 26, 30 n.2 (1st Cir. 1996)). A plaintiff may proceed

under McDonnell by demonstrating by a preponderance of

the evidence that he (1) has a disability within the mean-

ing of the ADA, (2) is qualified to perform the essential

functions of the job, with or without reasonable accommo-

dations, (3) was subject to an adverse employment action

by a company subject to the ADA, (4) was replaced by a

non-disabled person or treated less favorably than non-

disabled employees, and (5) suffered damages as a result.

Id.; Jacques, supra; Katz, supra.

The ADA defines a “qualified individual with a disabil-

ity” as “an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desired.” 42 U.S.C. § 12111(8). A “disability” is (i)

a physical or mental impairment that substantially limits

one or more of the major life activities of such individual;

(ii) a record of such an impairment; or (iii) being regarded

as having such an impairment. 42 U.S.C. § 12102(2).

Merely having a physical impairment does not make an

App. 20

individual disabled for purposes of the ADA. Toyota Motor

Mfg., Ky. v. Williams, 534 U.S. 184, 195 (2002). A claimant

also needs to prove that the impairment limits a major life

activity. Id. A relevant illustration of a “major life activity”

is “performing manual tasks.” Jd. To be substantially

limited in performing manual tasks, an individual “must

have an impairment that prevents or severely restricts the

individual from deing activities that are of central impor-

tance to most people’s daily lives.” Id. at 198. Manual

tasks that are unique to any particular job are not of

necessity important parts of most people’s lives. Jd. at 201.

Ultimately, “[w]hether a person has a disability under the

ADA is an individualized inquiry.” Sutton v. United Air

Lines, 527 U.S. 471, 483 (1999).

Defendants submit that Plaintiff has “failed to dem-

onstrate that his heart condition poses any impairment or

substantial limitation in his ability to perform any major

life activities.” Docket Document No. 15. Defendants are

correct to focus on the degree to which Plaintiff was

impaired (if at all) rather than the heart condition itself.

“A medical diagnosis is insufficient to prove that an

impairment is substantially limiting a major life activity;

plaintiffs must present ‘evidence that the extent of the

limitation [caused by the impairment] in terms of their

own experience is substantial.’. . . The inability to perform

tasks such as washing cars, taking care of the back yard,

playing with children, and driving long distances does not

amount to such severe restrictions to qualify as major life

activities.” Soler v. Tyco Elec., Inc., 268 F. Supp.2d 97, 105

(D.P.R. 1997) (quoting Williams, 534 U.S. at 197-98, 202).

“(T]he EEOC has defined ‘major life activities’ to include

‘functions such as caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing,

App. 21

learning, and working.’” Gillen v. Fallon Ambulance Serv.,

283 F3d 11, 21 (ist Cir. 2002) (quoting 29 C.FR.

§ 1630.2(i) (1991)).

Plaintiff asserts that subsequent to his second heart

attack, he experienced chronic shortness of breath, implic-

itly arguing that his breathing difficulty “substantially

limitied]” a life activity within the ADA’s statutory mean-

ing. Docket Document No. 27; Gillen, 283 F.3d at 21.

Plaintiff supports his claim by referring to Dr. Ricardo

Miranda Rodriguez’ deposition, in which Dr. Rodriguez

described Plaintiff’s condition as “mild respiratory dis-

tress.” Docket Document No. 27, Exh. 1. Dr. Rodriguez

noted that Plaintiff’s condition was not so severe as to be

described as “laboring while breathing,” and even agreed

that it would be difficult to attribute the breathing short-

ness to Plaintiff’s recent heart attack, as opposed to a

pulmonary condition common among chronic smokers. /d.

Plaintiff’s impairment claim, even if assumed as true,

fails to impress this court as obviously sufficient for the

purposes of establishing an ADA prima facie case. Plaintiff

makes no assertion that the mild breath shortness “sig-

nificantly restricted as to the condition, manner or dura-

tion under which [Plaintiff could] perform a particuiar

major life activity as compared to the condition, manner,

or duration under which the average person in the general

population can perform that same major life activity.”

Gillen, supra (citing 29 C.F.R. § 1630.2(j)). In inquiring

into whether Plaintiff was substantially limited, we search

in vain for any “significant obstacles.” Gillen, 283 F.3d at

22. Plaintiff’s assertion that he could not walk “without

having to take several stops to catch his breath,” Docket

Document No. 27, is insufficient insofar as it establishes

an impairment that interferes “in only a minor way with

App. 22

the performance of manual tasks.” Williams, 534 U.S. at

197. Additionally, Plaintiff fails to assert the condition’s

permanence, which is necessary to support a disability

claim. Id.; Katz, 87 F.3d at 30.

Plaintiff correctly observes that the mere perception of

impairment can be sufficient for the purpose of satisfying

the ADA disability definition. Docket Document No. 27, 42

U.S.C. §12102(2C). In order for Plaintiff to obtain

redress under § 12102(2)(C), “it is necessary that a covered

entity entertain misperceptions about the individual — it

must believe either that one has a substantially limiting

impairment that one does not have or that one has a

substantially limiting impairment when, in fact, the

impairment is not so limiting.” Sutton, 527 U.S. at. 490.

While Plaintiff quotes extended passages from Sutton and

from § 12102(2\C), Plaintiff does not allege that anyone

entertained a mistaken belief that he was impaired.

Rather, Plaintiff merely asserts that he must have been

generally perceived as impaired because of his shortness of

breath. Docket Document No. 27. Without pleading a

single instance of misperception by any particular person

or group of persons, Plaintiff will not satisfy his prima

facie burden via reference to 42 U.S.C. §12102(2)(C).

Sutton, 527 U.S. at 490; Santiago Clemente v. Executive

Airlines, Inc., 213 F.3d 25, 30 (1st Cir. 2000); Feb. R. Civ.

P. 56(e) (the non-moving party “may not rest upon the

mere allegations or denials of the adverse party’s plead-

ings, but ... must set forth specific facts showing that

there is a genuine issue for trial”).

Because Plaintiff has failed to clearly establish a

disability, he has not successfully established a prima facie

case of discrimination, and we will not proceed with the

App. 23

McDonnell burden-shifting analysis of Plaintiff’s ADA

claim.

B. ADEA Claim

1. Absence of Direct Evidence

The ADEA makes it unlawful for an employer to

discharge any individual or otherwise discriminate against

him on the basis of her age. 29 U.S.C. § 623(a) (1). Here,

there is no direct evidence or “smoking gun” which demon-

strates Defendants’ alleged discriminatory animus against

Plaintiff. Plaintiff’s allegation that WES President

Escobar brought up the issue of retirement is not proba-

tive. Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6 n.8 (1st

Cir. 1998) Plaintiff has not alleged, let alone shown, how

the one allegedly discriminatory statement made by an

official of another WII subsidiary company was “made by a

decisionmaker, pertained to the decisional process, bore

squarely on the employment decisions at issue ... and

straightforwardly conveyed age animus.” Febres v. Chal-

lenger Caribbean Corp., 214 F.3d 57, 61 (1st Cir. 2000). We

must, therefore, consider the multi-factor test established

by the Supreme Court i: McDonnell Douglas.

2. Burden-shifting Framework

Plaintiff “must demonstrate that he (1) was at least

forty years of age, (2) met the employer’s legitimate job

performance expectations, (3) experienced adverse em-

ployment action, and (4) was replaced by a person with

roughly equivalent job qualifications.” Goldman, 985 F.2d

at 1113; see also Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53

(1st Cir. 2000); Febres v. Challenger Caribbean Corp., 214

F.3d 57, 61 (1st Cir. 2000). Once the plaintiff establishes a

App. 24

prima facie case, the presumption arises that the employer

unlawfully discriminated against him. Gonzalez v. El Dia,

Inc., 304 F.3d 63, 68-69 (1st Cir. 2002); Vega v. Kodak

Caribbean, Ltd., 3 F.3d 476, 478 (1st Cir. 1993). The

burden of production then shifts back to the employer-

defendant who must rebut the inference of discrimination

by articulating some legitimate, non-discriminatory reason

for the adverse employment action. Dominguez-Cruz v.

Suttle Caribe, Inc., 202 F.3d 424, 430 (1st Cir. 2000).

If the employer meets this burden, the inference of

unlawful discrimination is dispelled, and the burden shifts

to the plaintiff to show that the employer’s alleged justifi-

cation is a mere pretext for discrimination. Id.; Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). At this

stage, the plaintiff must produce evidence beyond the

mere assertion that the alleged justification is implausible

and show that the employer’s discriminatory animus

actually motivated the adverse employment action. See

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993);

Mesnick, 950 F.2d at 825. Throughout this analysis, the

plaintiff must prove that he would not have suffered the

adverse employment action but for his membership in a

protected class. See Freeman v. Package Mach., 865 F. 2d

1331, 1335 (1st Cir. 1988). Thus, federal law “does not stop

a company from discharging an employee for any reason

(fair or unfair) or for no reason, so long as the decision to

fire does not stem from the person’s age.” Jd. at 1341.

a. Plaintiff’s Prima Facie Case

Plaintiff was over forty years old at the time of an

adverse employment action, and was replaced by another

employee. Docket Document No. 28. The only remaining

App. 25

prima facie inquiry is whether Plaintiff was qualified to

perform the essential functions of the job. See Texas Dept.

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981);

Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 22 (1st

Cir. 2004). Plaintiff points to years of favorable perform-

ance reviews and generous bonuses to demonstrate that he

was amply qualified to perform. Docket Documents No. 27,

28. Defendant maintains that the last several years of

Plaintiffs’ employment was disappointing, Docket Docu-

ment No. 15, but Plaintiffs’ assertions will suffice for the

purpose of satisfying the prima facie burden. Burdine, 450

U.S. at 253.

b. Defendants’ Rebuttal

Defendants are now pressed to rebut the inference of

discrimination by articulating some legitimate, non-

discriminatory reason for the adverse employment action.

See Dominguez-Cruz, 202 F.3d at 430. “This burden is one

of production, not persuasion; it ‘can involve no credibility

assessment.” Reeves v. Sanderson Plumbing Prod., Inc.,

530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Center

v. Hicks, 509 U.S. 502, 509 (1993)). As Plaintiff readily

concedes, Docket Document No. 27, Defendants easily

satisfy their burden requirements by asserting that

Plaintiff was discharged because his managerial perform-

ance since 1998 was unsatisfactory, and because WPR was

suffering a lack of effective leadership. Docket Document

No. 15. The record is so colored with evidence of WPR’s

troubled financial health, and with WII President Mor-

row’s growing impatience with WPR’s lackluster perform-

ance, that Defendants’ rebuttal hardly requires further

discussion. Docket Document Nos. 1, 15, 16, 27, 28. Mr.

Morrow and Mr. Hegel’s concern prompted the commission

App. 26

of Mr. Griffey’s sensitivity report in late summer 2001.

Plaintiff admits of his “tense” interactions with Mr. Mor-

row, and even admits that immediately prior to the heart

attack which supposedly supports Plaintiff's ADA claim,

he was subject to “scolding” and the “threat” that WPR

would be shut down if he did not succeed in righting

WPR’s ship. Docket Document No. 27. Plaintiff may be

justified in disagreeing with Defendants’ displeasure with

Plaintiff's managerial performance; our function is not to

sit as a “super-personnel department that reexamines an

entity's business decisions.” See Gonzalez, 304 F.3d at 69

- (citing Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359,

1365 (7th Cir. 1988)). Defendants’ growing dissatisfaction

with Plaintiff's work performance, both before and after

the heart attack, clearly serve to satisfy Defendants’

McDonnell burden.

c. Defendant’s Justification as a Pretext

“‘T}he ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.” And in

attempting to satisfy this burden, the plaintiff — once the

employer produces sufficient evidence to support a nondis-

criminatory explanation for its decision — must be afforded

the ‘opportunity to prove by a preponderance of the evi-

dence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimina-

tion.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U:S. at

253). Plaintiff adduces no evidence to support the claim

that Defendants’ reasons for terminating Plaintiff were

pretextual. Instead, Plaintiff merely reiterates the sequence

of events leading to his termination and labels Defendants’

App. 27

narrative as contradictory. Docket Document No. 27. Plain-

tiff also argues that his attempts at saving WPR were

frustrated by WII leadership’s lack of responsiveness, and

that he was unjustly blamed for matters beyond his control.

Id. Plaintiff's concern that he was a scapegoat for the

companys problems may, for all we know, be entirely

justified. Alternatively, Plaintiff may be entirely to blame

for WPR’s woes. However, whether or not Plaintiff was a

scapegoat is irrelevant unless Plaintiff alleges that he was

scapegoated due to illegal discrimination. Hicks, 509 U.S. at

519. (“[Tjhe factfinder must believe the plaintiff’s explana-

tion of intentional discrimination.”); Freeman, 865 F.2d at

1341. The record is bereft of any sign that anyone in a

decision-making role, including Mr. Morrow and Mr. Hegel,

bore any discriminatory animus whatsoever. Docket Docu-

ment No. 27. The sequence of events, as portrayed by both

parties, demonstrates a gradual souring of Plaintiff’s

relationship with Mr. Morrow that bears no obvious nexus

to Plaintiff’s age or, for that matter, alleged disability.

Docket Document Nos. 1, 15, 16, 27, 28. Plaintiff fails to

present the “definite, competent evidence” necessary to

show that Defendants’ given reasons for the termination

were pretextual. Mesnick, 950 F.2d at 822. “It is not enough

for a plaintiff merely to impugn the veracity of the em-

ployer’s justification; he must ‘elucidate specific facts which

would enable a jury to find that the reason given is not only

a sham, but a sham intended to cover up the employer’s

real motive.” Id. at 824 (citing Medina-Munoz, 896 F.2d at

9); see also LeBlanc v. Great Am. In. Co., 6 F.3d 836, 843

(1st Cir. 1996) (“The plaintiff cannot avert summary judg-

ment if the record is devoid of adequate direct or circum-

stantial evidence of discriminatory animus on the part of

the employer.”). Therefore, we grant Defendants’ summary

judgment motion.

App. 28

C. Supplemental Jurisdiction

Because all of Plaintiff’s federal claims have been

dismissed, we decline to exercise supplemental jurisdiction

over Plaintiff’s associated state-law claims. Rivera v.

Murphy, 979 F.2d 259, 264 (1st Cir. 1992) (quoting Cullen

v. Mattaliano, 690 F. Supp. 93 (D. Mass. 1988) (“[I]t is the

settled rule in this Circuit that in a non-diversity case,

where pendent state claims are joined with a federal cause

of action and that the federal cause of action is [dismissed]

... the pendent state claims should be dismissed.”)).

IV.

Conclusion

In accordance with the foregoing, we GRANT Defen-

dants’ motion for summary judgment. Docket Document

No. 15. Plaintiff's ADEA and ADA claims are DIS-

MISSED WITH PREJUDICE. Plaintiff’s state law

causes of action are DISMISSED WITHOUT PREJU-

DICE. Judgment shall be entered accordingly.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 12th day of January, 2005.

S/Jose Antonio Fuste

JOSE ANTONIO FUSTE

Chief U. S. District Judge

App. 29

United States Court of Appeals

For the First Circuit

No. 05-1325

AURELIO ROSADO, ET AL.,

Plaintiffs-Appellants,

WACKENHUT PUERTO RICO, INC., ET AL.,

Defendants-Appellees.

JUDGMENT

Entered: December 29, 2005

This cause came on to be heard on appeal from the

United States District Court for the District of Puerto Rico

and was argued by counsel.

Upon consideration whereof, it is now here ordered,

adjudged and decreed as follows: The district court’s

judgment is affirmed.

Certified and Issued By the Court:

as Mandate under

Fed. R. App. P. 41. — Cushing Donovan,

— ee MARCA CARTER

: By: Margaret Carter,

/s/ [legible]

Deputy Clerk Chief Deputy Clerk

Date: 2/14/06

App. 30

[cc: Celina Romany, Esq., Juan M. Frontera Suau, Esq.,

Jose J. Sanchez Velez, Esq., Eileen M. Garcia Wirshing,

Esq. and Yidefonso Lopez Morales, Esq.]

Celina Romany Siaca, Esq.

Westernbank World Plaza

Suite 1500

268 Munoz Plaza

Hato Rey, PR 00918

App. 31

United States Court of Appeals

For the First Circuit

No. 05-1325

AURELIO ROSADO; LYDIA ROSADO;

CONJUGAL PARTNERSHIP ROSADO-ROSADO

Plaintiffs-Appellants

WACKENHUT PUERTO RICO, INC.;

WACKENHUT INTERNATIONAL, INC.

Defendants-Appellees.

Before

Boudin, Chief Judge,

Coffin, Senior Circuit Judge,

Torruella, Selya, Lynch,

Lipez and Howard, Circuit Judges,

Carter, Senior District Judge.

ORDER OF COURT

Entered: February 6, 2006

The petition for rehearing having been denied by the

panel of judges who decided the case, and the petition for

rehearing en banc having been submitted to the active

judges of this court and a majority of the judges not having

voted that the case be heard en banc, it is ordered that the

App. 32

petition for rehearing and the petition for rehearing en

banc be denied.

By the Court:

Richard Cushing Donovan, Clerk

By: /s/ JULIE GREGG

Julie Gregg, Operations Manager

[cc: Celina Romany Siaca, Esq., Juan M. Frontera-Suau,

Esq., Jose J. Sanchez Velez, Esq., Eileen Garcia-Wirshing,

Esq., Yidefonso Lopez Morales, Esq.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.