Bonefont–igaravidez v. Int'l Shipping Corp..

• Decision Date: 14 October 2011
• Docket Number: No. 10–1953.,10–1953.
• Citation: 113 Fair Empl.Prac.Cas. (BNA) 934,94 Empl. Prac. Dec. P 44306,659 F.3d 120
• Parties: Genaro BONEFONT–IGARAVIDEZ, Plaintiff, Appellant,v.INTERNATIONAL SHIPPING CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

659 F.3d 120

113 Fair Empl.Prac.Cas. (BNA) 934

94 Empl. Prac. Dec. P 44,306

Genaro BONEFONT–IGARAVIDEZ, Plaintiff, Appellant,

v.INTERNATIONAL SHIPPING CORPORATION, Defendant, Appellee.

No. 10–1953.

United States Court of Appeals, First Circuit.

Heard Sept. 13, 2011.Decided Oct. 14, 2011.

Elaine Rodriguez–Frank for appellant.Antonio Cuevas Delgado, with whom Cuevas Kuinlam & Bermúdez was on brief, for appellee.Before HOWARD, RIPPLE,^* and SELYA, Circuit Judges.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 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 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 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 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 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. ² To impugn the veracity 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–Hernández, 519 F.3d at 47 (a court is required to draw only reasonable inferences in plaintiff's favor).

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...