Genaro Bonefont-Igaravidez v. International Shipping Corporation

United States Court of Appeals
For the First Circuit
No. 10-1953
GENARO BONEFONT-IGARAVIDEZ,
Plaintiff, Appellant,
v.
INTERNATIONAL SHIPPING CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Ripple, and Selya, *
Circuit Judges.
Elaine Rodriguez-Frank for appellant.
Antonio Cuevas Delgado, with whom Cuevas Kuinlam & Bermúdez
was on brief, for appellee.
October 14, 2011
Of the Seventh Circuit, sitting by designation. *

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HOWARD, Circuit Judge. In this age discrimination case,
plaintiff-appellant Genaro Bonefont-Igaravidez ("Bonefont")
challenges the entry of summary judgment in favor of his former
employer, defendant-appellee International Shipping Corporation
("Intership"). Ascertaining no reversible error, we affirm.
I. Background
The critical facts are straightforward. Intership loads
and unloads cargo ships in Puerto Rico. The bulk of its work force
is comprised of stevedores, who are assembled into fixed groups
referred to as "gangs." Each gang is supervised directly by a
foreman, who in turn reports to a "Bozo" (also called a "Bosso" or
"Bosson"). Bonefont worked for Intership for fifty-seven years,
primarily as a stevedore.
Between late 2006 and early 2007, Bonefont missed several
months of work due to various physical ailments, during which time
he received disability benefits. Upon his return to active
employment in April 2007, some of Bonefont's stevedore colleagues
allegedly leveled insults related to his age and medical
conditions, often in the presence of supervisors. Specifically,
they called Bonefont an old, sick man; asked him why he had not
retired; told him that he was too old to perform his job duties;
and urged him to stay home to watch soap operas and care for his
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grandchildren. Bonefont does not allege that any of his Intership
superiors initiated or actively participated in this behavior.1
On April 23, 2007, Intership Director of Human Resources
Karen Figueroa was informed that Bonefont had purportedly assaulted
his Bozo, Raúl Pérez Valentín ("Pérez"), during his shift earlier
in the day. Pérez himself was more than sixty years old. Figueroa
immediately suspended Bonefont, and shortly thereafter decided to
terminate his employment, effective as of the day of the incident.
A report filed by Intership Security Officer Luis Burgos stated, in
part:
Mr. Genaro started to argue with the Bozo
where the argument became very heated and they
became angry. Mr. Genaro raised his hands
trying to assault the Bozo [b]ut he was unable
to because the Bozo raised his hands to cover
his face and he only hit him in the hands.
Bonefont was informed of his termination on May 11, 2007. At that
time, he was seventy-one years old.
Bonefont sued, asserting that Intership had discriminated
against him because of his age in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. He
Bonefont's brief does make glancing reference to 1
discriminatory comments made by Jose Dávila, a company supervisor,
and Raúl Pérez Valentín, a Bozo. These perfunctory claims,
however, lack support in the record. In deposition testimony,
Bonefont conceded that he "[does not] know if Mr. Dávila
participated" in the age-related banter, and that Pérez "has not
made any comments to me about my age." Further, with respect to
Dávila, Bonefont subsequently clarified in his brief that the
supervisor may have only been "aware of the [age-related] comments
made to Plaintiff" (emphasis added).
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claimed that he was terminated because his seniority entitled him
to higher pay than other stevedores and because Figueroa and others
believed him too old to do his job. Intership denied the
allegations of the complaint and, at the conclusion of discovery,
moved for summary judgment. The district court, adopting in large
part the report and recommendation of a magistrate judge, granted
the motion over Bonefont's objection, concluding that there was no
probative evidence of discriminatory animus. Bonefont-Igaravidez
v. Int'l Shipping Corp., Civ. No. 08-2307 (D.P.R. July 6, 2010).
This timely appeal ensued.
II. Legal Analysis
A. Standards
We review a district court's entry of summary judgment de
novo, taking the facts of record in the light most favorable to the
nonmoving party (here, the appellant Bonefont), and drawing all
reasonable inferences in his favor. Iverson v. City of Boston, 452
F.3d 94, 98 (1st Cir. 2006).
The object of summary judgment is "to pierce the
boilerplate of the pleadings and assay the parties' proof in order
to determine whether trial is actually required." Acosta v. Ames
Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004) (quoting Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).
Thus, summary judgment is appropriate only when the moving party
"shows that there is no genuine dispute as to any material fact and
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the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). We are not, however, required to "accept as
true or to deem as a disputed material fact, each and every
unsupported, subjective, conclusory, or imaginative statement" made
by a party. Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47
(1st Cir. 2008).
B. ADEA Claim
The ADEA makes it unlawful for any employer to "discharge
any individual or otherwise discriminate against any
individual . . . because of such individual's age." 29 U.S.C. §
623(a)(1). Generally, in order to make a claim that his
termination was violative of the ADEA, an employee shoulders the
burden of proving that his age was the determinative factor in his
discharge. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.
1991). Where, as here, the employee lacks direct evidence, we
utilize the burden-shifting framework developed by the Supreme
Court to facilitate the process of proving discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
see also Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215,
218-21 (1st Cir. 2008) (applying the burden-shifting framework in
an ADEA case); Dávila v. Corporación de P.R. para la Difusión
Pública, 498 F.3d 9, 15-18 (1st Cir. 2007)(same).
Under this framework, the terminated employee bears the
initial burden of establishing a prima facie case of age
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discrimination. To satisfy this burden, he must produce evidence
showing that: (1) he was at least 40 years old at the time of the
termination; (2) he was qualified for the position that he had
held; (3) he was fired; and (4) his employer subsequently
demonstrated a continuing need for those services. Vélez v. Thermo
King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009). This
showing is sufficient to raise an inference of discrimination,
thereby shifting the burden to the employer to articulate a
legitimate, non-discriminatory reason for the termination. Currier
v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004). The
employer's burden is one of production, not persuasion. Dávila,
498 F.3d at 16. Accordingly, "the employer need do no more than
articulate a reason which, on its face, would justify a conclusion
that the plaintiff was let go for a nondiscriminatory motive." Id.
If the employer does so, the burden reverts to the employee to
show, by a preponderance of the evidence, that the employer's
proffered reason for the adverse employment action "is pretextual
and that the true reason for the adverse action is discriminatory."
Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010).
In this instance, Intership concedes that Bonefont has
established a prima facie case of age discrimination, and there is
no doubt that Intership's explanation for the discharge -
Bonefont's alleged assault of Pérez - is facially adequate. Thus,
we turn to the pivotal question: whether Bonefont has adduced
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sufficient evidence that Intership's articulated basis for his
termination was pretextual. We hold that he has not.
Under the purview of the ADEA, pretext can be established
by showing "such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions" in the employer's offered reasons
for the termination that a "reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory reasons." Gómez-
González v. Rural Opportunities, Inc., 626 F.3d 654, 662-63 (1st
Cir. 2010) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997)). To support his claim of pretext, Bonefont first
presents several purported inconsistencies in Intership's account
of events. Specifically, he argues that there are at least two
versions of the incident report; that it was Intership supervisor
Jose Dávila, and not Figueroa, who suspended him on April 23, 2007;
and that the final decision to terminate occurred not on April 23,
2007, but later, after Intership's internal investigation had
concluded.
Even assuming, arguendo, that the inconsistencies
identified by Bonefont find support in the record, they are still
insufficient to demonstrate pretext absent some cognizable nexus to
Intership's offered basis for termination. To impugn the veracity 2
Record evidence of these facts is scarce. In support of his 2
claim that Dávila, and not Figueroa, ordered the suspension,
Bonefont provides an email from Luis Burgos to Karen Figueroa dated
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of a tangential aspect of Intership's story is not enough. Rather,
Bonefont must elucidate specific facts to support the proposition
that Intership's reason for termination is "not only a sham, but a
sham intended to cover up [its] real . . . motive of
discrimination." Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 246
(1st Cir. 2006) (quoting Mesnick, 950 F.2d at 824 (internal
quotation mark omitted)). The only discernible distinction between
the two copies of the incident report is the appearance of Pérez's
signature on one but not the other. The substance of the reports
is otherwise identical. This fact does nothing to unveil any
ulterior, discriminatory motive. Similarly, on these facts,
neither the identity of the specific employee responsible for
suspending Bonefont nor the date of the decision to terminate are
related to the company's motive for discharge. Bonefont's
assertion that these alleged inconsistencies support a finding of
an underlying nefarious intent on the part of Intership is
therefore not reasonable. Id.; see Torrech, 519 F.3d at 47 (a
court is required to draw only reasonable inferences in plaintiff's
favor).
April 24, 2007, which notes only that Bonefont was the employee
suspended the previous day. The email does not identify anyone
specific as being responsible for ordering the suspension.
Further, not only is the record silent as to the specific date of
the termination decision, but it is also difficult to understand
how being fired after the investigation supports a claim of
discriminatory animus.
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In addition to challenging Intership's version of events,
Bonefont also argues that Intership's past improper treatment of
older employees constitutes evidence of pretext. He grounds this
argument in two separate allegations: that he was personally
mistreated by Intership employees due to his age; and that
Intership, in previously exercising its discretion not to terminate
younger employees for similar acts of physical aggression, had
established a pattern of disparate treatment. We address each of
these allegations in turn.
Regarding his claim of personal mistreatment, Bonefont
points to the disparaging remarks made by his co-workers, including
that he was too old and sick to perform his job, and that he should
retire to watch soap operas and care for his grandchildren.
Although such remarks may be material to the pretext inquiry, their
probativeness is "circumscribed if they were made in a situation
temporally remote from the date of the employment decision in
question, or if they were not related to the employment decision or
were made by nondecisionmakers." McMillan v. Mass. Soc'y for Prev.
of Cruelty to Animals, 140 F.3d 288, 301 (1st Cir. 1998)(internal
citations omitted). Here, the stray remarks to which Bonefont
alludes are not significantly probative of pretext. While perhaps
not temporally remote from the date of the employment decision, the
comments were made by his fellow stevedores in circumstances
unrelated to the altercation and subsequent termination. Bonefont
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presents no evidence that Intership's decisionmakers made, or were
even aware of, such comments at the time the decision to terminate
was rendered. Nor is there evidence that Figueroa, in making her 3
decision, relied on information from any Intership employee who may
have demonstrably possessed a discriminatory animus. See Dávila,
498 F.3d at 17 n.3. Thus, without more, the comments are
insufficient to establish pretext. See Gonzalez v. El Dia, Inc.,
304 F.3d 63, 69 (1st Cir. 2002).
To support his allegation that Intership failed to
terminate several younger employees for similar acts of aggression,
Bonefont relies on the sworn statement of Julian Cepero Vega
("Cepero"), the stevedores' union president. Cepero, who was
neither employed by Intership nor privy to Intership's internal
disciplinary proceedings, claims that between 2005 and Bonefont's
2007 termination, at least five younger employees "were involved in
fist fights and were not terminated or sanctioned by Intership."
In a sworn declaration, Karen Figueroa avers that she "had no 3
knowledge of any comments in the waterfront regarding Mr.
Bonefont's age." Bonefont also testified accordingly:
Q: Before April 22, 2007, had Mrs. Karen Figueroa made any
comments about your age?
A: She and I have never talked.
Q: Do you have any reason to believe that Mrs. Karen Figueroa
knew about the comments going on in the waterfront about your
age?
A: I don't know. I can't answer that for you, because I don't
think so.
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For such disparate treatment to be probative of a discriminatory
motive, however, it must be shown that the incidents were
"similarly situated in material respects [to the proposed
analogue]," Vélez, 585 F.3d at 451. Bonefont makes no such
showing. There is simply no indication, either in Cepero's
statement or elsewhere in the record, that these other purported
incidents were materially similar to the one involving Bonefont.4
Such unsupported conclusions are exactly the sort to which we
accord minimal probative value, and they thus fail to show that the
real reason for Bonefont's termination was age discrimination.
Id.; Torrech, 519 F.3d at 47.
Finally, we address an argument to which Bonefont devotes
substantial, but ultimately misplaced, attention: that his
altercation with Pérez never escalated to the level of physicality
ascribed to it by Intership. To that end, he introduces statements
from the putative victim Pérez and fellow Intership employee Tomás
Otero, procured well after Bonefont's termination, which indicate
that Bonefont never attempted to strike Pérez. Even if, unlike the
district court, we considered these statements, the argument 5
In fact, the record suggests that Ms. Figueroa historically 4
terminated any employee whom she learned had engaged in similar
aggressive behavior.
The district court granted Intership's motion to strike the 5
statements, finding them to be neither valid depositions pursuant
to Federal Rules of Civil Procedure 28(a)(1), 28(c), and 30(b)(5),
nor adequately sworn affidavits under Rule 56(e). Bonefont argues
that the district court abused its discretion in doing so. While
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misses the mark. When assessing a claim of pretext in an
employment discrimination case, the court must focus on the
motivations and perceptions of the employer's decisionmaker.
Mesnick, 950 F.2d at 824. Whether these perceptions are accurate
or not, and the motivations apt or inept, so long as they are not
discriminatory it is beyond the province of the court to act as a
"super personnel department[]," second-guessing the process by
which the decisionmaker has arrived at her conclusion and, in
effect, substituting its own business judgment for that of the
employer. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 32 (1st Cir.
2007).
Thus, even if Bonefont is correct and the punch was never
thrown, this fact may indicate nothing more than that his dismissal
was unfair or unwise. Figueroa has stated, under oath, that she
fired Bonefont based on her belief that he attempted to strike
Pérez, and Bonefont identifies nothing in the record to impugn that
stated reason. It is not our job to review the accuracy or acumen
of Figueroa's position, so long as it is not grounded in
discriminatory animus. Id.; see also Rivera-Aponte v. Rest.
Metropol # 3, Inc., 338 F.3d 9, 11-12 (1st Cir. 2003) ("Whether a
termination decision was wise or done in haste is irrelevant, so
long as the decision was not made with discriminatory animus.").
the district court's analysis appears sound, even if erroneously
excluded the statements would not change the result.
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There is certainly something to be said for an employer-
employee relationship that spans the better part of six decades.
Such lengthy tenures are increasingly rare, and for this one to
have dissolved under such circumstances is no doubt regrettable.
But the action taken was not in violation of the statute. Because
we agree with the district court that there is nothing in the
summary judgment record from which a reasonable factfinder might
conclude that Bonefont was fired as a result of his age, the
judgment is affirmed.
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