TORRUELLA, Circuit Judge.
This appeal follows a summary judgment granted to the employer, Western Auto, in an action based on federal and Puerto Rican age discrimination and employment protection statutes. We affirm the judgment below.
The facts of this case, thoroughly explained in Menzel v. Western Auto Supply Co., 662 F.Supp. 731 (D.P.R.1987), need only be outlined for the present discussion.
Appellant's merits include a "go-getter" award for the best idea of the year, positive evaluations, regular raises, and a transfer to Puerto Rico to head Western Auto's credit division a few months prior to his dismissal. Appellant's demerits include several memoranda from supervisors, sent to him and to one another, insisting on the need to keep accurate records and to follow business practices strictly according to the company's guidelines.
After his dismissal, Menzel sued pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. and under applicable Puerto Rican law. In the complaint Menzel alleged the four elements required for a prima facie case under ADEA, namely that 1) Menzel belonged to the protected class; 2) his job performance was sufficient to meet his employer's legitimate expectations; 3) he was discharged in spite of his performance; and 4) the employer sought a replacement for him. 662 F.Supp. at 740 (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979)). Western Auto challenged the sufficiency of Menzel's prima facie case arguing that his job performance was not up to its legitimate expectations. Also, Western Auto chose to assume, for argument purposes, that the prima face case was sufficient. Supported by extensive admissible evidence, it articulated nondiscriminatory reasons for the dismissal. After discovery, Western Auto moved for summary judgment, which the court granted.
Menzel's challenge is focused mainly on the court's treatment of his burden once the employer presented nondiscriminatory reasons for the dismissal. Before addressing plaintiff's burden at that stage of an ADEA case, we will briefly outline the conceptual framework of such a case.
The burden of persuasion rests solely on the plaintiff throughout the case. Loeb, 600 F.2d at 1011. At the prima facie stage, plaintiff must prove the four elements mentioned above. Once that stage is passed the burden shifts to the defendant to produce some evidence of nondiscriminatory reasons for the dismissal. Id. The burden of production is merely "a burden to articulate or state a valid reason" that must be "sufficient on its face, to `rebut' or `dispel' the inference of discrimination that arises from proof of the prima facie case." Id. & n. 5 (emphasis in original). Western Auto has amply carried this burden by reconstructing a performance history fraught with irregularities, problems with record keeping, and an almost pathological incapacity to follow instructions. 662 F.Supp. at 734-39.
Once the employer has presented its reasons, the plaintiff has the burden of persuading the court that the reasons proffered are but a pretext, a "coverup" for the wrong reasons. Loeb, 600 F.2d at 1012; cf. Egger Hallquist v. Local 276, Plumbers and Pipefitters Union, AFL-CIO, 843 F.2d 18 (1st Cir.1988) (in a sex discrimination case, burden on plaintiff to show that proffered reason was not the true reason for the decision); and Oliver v. Digital Equipment Corp., 846 F.2d 103 (1st Cir.1988) (same in racial discrimination case). Menzel tried to accomplish this task by reasserting the positive side of his work
Let us, then, examine plaintiff's burden once the defendant has warded off the prima facie attack. Plaintiff must prove that the reason given was not the real reason — "the relevant question is simply whether the given reason was a pretext for illegal discrimination." Loeb, 600 F.2d at 1012 n. 5. The task at this stage is different from the one at the prima facie case stage. Plaintiff must disprove the defendant's reasons. Id. This is a critical burden, since a finding of pretext is the equivalent of a finding that the employer intentionally discriminated. See Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 18 & n. 7 (7th Cir.1987). The rationale for this burden is that "when 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 only with some reason, based his decision on an impermissible consideration such as [age]." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); see also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir.1987).
In addition, "plaintiff may proceed with indirect evidence, as by demonstrating that the reason advanced applied to other employees who did not have plaintiff's `protected' characteristics, but that they were not rejected or fired." Loeb, 600 F.2d at 1014. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973) (evidence relevant to show pretext may include employer's general policy and practice with respect to relevant group, e.g., through statistical evidence). Menzel chose only to restate his prima facie case.
The court below analyzed Menzel's attempts at showing pretext, 662 F.Supp. at 741-44. It first set out the Loeb standard: "Plaintiff must prove by a preponderance of the evidence that Menzel's age was the determining factor in his discharge in the sense that `but for his employer's motive to discriminate against him because of his age, he would not have been discharged.' [Loeb, 600 F.2d] at 1019." Menzel, 662 F.Supp. at 741; see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1980). The district court correctly identified Menzel's onus, namely, he had to respond to proof that he: 1) was infringing company policy concerning charge-offs; 2) was not following instructions on company policy and administrative and control matters; 3) had authorized an inaccurate statement amounting to $85,000; and 4) had proved incapable of overcoming deficiencies of which he was aware. 662 F.Supp. at 741-42. The court analyzed each argument Menzel presented:
Id. at 742 (footnotes omitted). The court found that the evidence offered was insufficient to create a genuine issue of fact.
The court's approach is correct. The employer provided specific, nondiscriminatory reasons for the dismissal. The reasons were not so idiosyncratic or questionable as to make plaintiff's task an easy one (see
Equally correct, therefore, was the court's disposition of this case through summary judgment. To oppose summary judgment, Menzel had to show that there is a dispute "over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Since different facts will play different roles in the context of different laws, the Court stated that "the substantive law will identify which facts are material." Id.
In the case before us, the applicable laws and cases set out the conceptual scheme discussed before. Thus it becomes clear that once the employer has articulated its reasons for the dismissal, the plaintiff must deflate those reasons.
Menzel refers to Graefenhain, 827 F.2d at 13 for the proposition that courts must look at the evidence cumulatively, namely, not focusing only on the specific reasons offered by the employer; from which Menzel infers that a showing of good performance, generally, can suffice to show pretext. Both statements are at least partially true; but equally unavailing to appellant.
In age discrimination cases, "where a company advances specific reasons for a discharge, the plaintiff's rebuttal evidence should be focused on those reasons." Id. at 19 (citing La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1414 (7th Cir.1984). However, when a company merely alleges inadequacy in job performance, generally, then proof of outstanding performance, and of the employer's recognition of the outstanding performance, may be sufficient to rebut the employer's reasons. Graefenhain, supra, at 19. Thus, even though courts may sometimes have to look at all the evidence cumulatively, Menzel's argument fails. In this case the employer has produced a work history that shows a pattern of substandard performance in one important facet of Menzel's job — an aspect we may presume became more intolerable as Menzel's responsibilities increased. The court correctly pinpointed the reasons propounded by Western Auto as the issues that needed illumination. Since Menzel did not address the reasons given by Western Auto, there were no material facts in dispute.
Before leaving this issue, we should emphasize that, even if Menzel had succeeded in creating some doubt about the objective correctness of Western Auto's decision to fire him, that would not be enough to sustain plaintiff's appeal. As we have said in affirming summary judgment in a recent ADEA case, "[m]erely casting doubt on the employer's articulated reason does not suffice to meet the plaintiff's burden of demonstrating discriminatory intent...." Dea v. Look, 810 F.2d 12, 15 (1st Cir.1987). Here, Menzel does not dispute his poor record keeping and the like, but basically argues that the company could not have put so much weight on such factors. That is manifestly insufficient to prove discriminatory intent, especially where the evidence suggests no age-related reason for his discharge.
For these reasons, the district court did not err in deciding the case for the defendant on summary judgment.
Puerto Rico Law Claims
The court also found for defendant under Law No. 100 of June 30, 1959, as amended, 29 L.P.R.A. § 146 et seq., which prohibits dismissal for the reason of age. Although generally parallel to the ADEA,
Section 185b provides a listing of several reasons that constitute "just cause."
Since Menzel's performance was substandard as defined by § 185b(b), the court's ruling in favor of Western Auto was appropriate.