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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-2296 <br> <br>          ALBERTO DOM NGUEZ-CRUZ and NYDIA NEGR N-RAMOS, <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                       SUTTLE CARIBE, INC., <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Daniel R. Domnguez, U.S. District Judge] <br>                                 <br>                                 <br>                                 <br>                             Before <br>                                 <br>                     Lynch, Circuit Judge, <br>                Campbell, Senior Circuit Judge, <br>                 and O'Toole, District Judge.  <br>                                 <br>                                 <br>                                 <br>                                 <br>  Harold D. Vicente-Coln, with whom Vicente & Cuebas was on <br>brief, for appellants. <br>  Graciela J. Belaval, with whom Martnez, Odell & Calabria was <br>on brief, for appellee. <br>   <br> <br> <br> <br> <br> <br>February 2, 2000 <br> <br> <br> <br>                                 <br>                                 <br>  LYNCH, Circuit Judge.  In this age discrimination suit <br>brought by a plant manager whose employment was terminated when he <br>was 55 years old, the district court entered summary judgment for <br>the defendant, Suttle Caribe, on the recommendation of the <br>magistrate judge.  Both judges found that the plaintiff, Alberto <br>Domnguez-Cruz, made out a prima facie case of age discrimination <br>under the familiar McDonnell Douglas-Burdine-Hicks framework.  They <br>determined, however, that he had not overcome Suttle Caribe's <br>articulated non-discriminatory reason for the termination with <br>evidence sufficient to permit a rational factfinder to conclude <br>that the termination was motivated by age discrimination. <br>  The record shows that the employer has, at different <br>times, articulated to varied audiences different reasons for ending <br>the plaintiff's employment.  At times, Suttle Caribe has said that <br>the termination was not an issue of performance but was instead the <br>result of a business restructuring plan that involved the <br>elimination of the plant manager position.  At other times, Suttle <br>Caribe has claimed that the termination was based on the <br>plaintiff's job performance.  At still other times, Suttle Caribe <br>has said that violations of company policy and insubordination were <br>the reasons for the termination.  In addition to the potentially <br>inconsistent reasons the company gave for the termination, notes of <br>a conversation between a member of the personnel department and the <br>key decisionmaker in the plaintiff's termination include -- <br>unusually and unfortunately for the company -- the phrases "age <br>descrim. [sic]" and "cover up."  Finally, the key decisionmaker <br>referred to the plaintiff more than once as an "old fart" in front <br>of two younger employees who would eventually assume many of the <br>plaintiff's job responsibilities.  One of those younger employees <br>in turn referred to the plaintiff as "el viejo" ("the old one" or <br>"the old man") and told another employee at least a year before the <br>plaintiff's termination that he had been offered the plaintiff's <br>job.  While the termination of the plaintiff's employment may prove <br>to have been innocent of age discrimination, these facts are surely <br>enough to raise genuine issues of material fact that should be left <br>to the jury.  We reverse entry of summary judgment and remand. <br>                                I <br>  Alberto Domnguez-Cruz began working for Suttle Caribe on <br>October 12, 1978.  He was hired to set up and manage Suttle <br>Caribe's plant in Humacao, Puerto Rico, and he continued in the <br>position of plant manager until his termination on September 22, <br>1995.  He was 55 years old at the time of his termination.  <br>Although his record was not spotless, all parties agree that <br>Domnguez-Cruz performed his job well.  He successfully launched <br>and nurtured Suttle Caribe's Puerto Rico operations and received <br>recognition for his efforts in the form of positive performance <br>evaluations, merit pay increases, and commendations.  In fact, his <br>immediate supervisor agreed that the plaintiff's 1993 performance <br>evaluation characterized him as "an outstanding employee and <br>manager[,] in general terms."  In addition, Domnguez-Cruz received <br>a merit pay increase for 1995.  <br>  In 1994, upper management at Suttle Caribe's parent <br>company, Suttle Apparatus, began a restructuring initiative, <br>designed to reduce costs and standardize operations by putting the <br>"right people in the right place."  Domnguez-Cruz directed this <br>initiative at Suttle Caribe and, as a result, was responsible for <br>terminating the employment of a number of employees in 1994. <br>Although the company now claims that the long-term plan had always <br>been to eliminate the  plant manager position, the plaintiff <br>testified that he was not aware that the restructuring initiative <br>might result in the loss of his job. <br>  In September 1995, Dean Ovitt, Vice President of <br>Manufacturing for Suttle Apparatus and Domnguez-Cruz's direct <br>supervisor as of late 1992, and Jeffrey Berg, President of Suttle <br>Apparatus, traveled to Puerto Rico to meet with Domnguez-Cruz and <br>to assess Suttle Caribe's operations.  During this time, Domnguez- <br>Cruz had conversations with both Berg and Ovitt pertaining to his <br>concerns with some of the proposed changes to the organizational <br>chart.  In addition, Berg and Ovitt discussed with Domnguez-Cruz <br>some of their complaints regarding his handling of certain <br>situations, including an accident involving a company vehicle, the <br>awarding of a contract to an employee, and the filing of <br>unemployment paperwork associated with an employee's leave of <br>absence.  On September 22, 1995, Ovitt, with the consent of Berg <br>and Curtis Sampson, the Chief Executive Officer and President of <br>the Board of Directors, informed Domnguez-Cruz that his employment <br>was being terminated.  Ovitt told Domnguez-Cruz that the plant <br>manager position was being eliminated as a part of the <br>organization's restructuring plan. <br>  Domnguez-Cruz and his wife filed suit against Suttle <br>Caribe in federal district court in May 1996, alleging age <br>discrimination under both federal and Puerto Rican law and claiming <br>violations of various other provisions of Puerto Rican law.  They <br>sought damages and a preliminary injunction reinstating Domnguez- <br>Cruz to his position and enjoining Suttle Caribe from <br>discriminating or taking any retaliatory action against Domnguez- <br>Cruz.  On September 23, 1997, Suttle Caribe filed for summary <br>judgment, arguing that Domnguez-Cruz had failed to make out a <br>prima facie case of age discrimination and that he had failed to <br>rebut its proffered non-discriminatory reasons for the termination. <br>The motion was referred to a magistrate judge, who recommended <br>granting summary judgment to Suttle Caribe.  The district court <br>agreed, concluding that although Domnguez-Cruz had put forth a <br>prima facie case of age discrimination, he had failed to rebut <br>Suttle Caribe's non-discriminatory reasons for the dismissal.  <br>Summary judgment was entered for Suttle Caribe and supplemental <br>jurisdiction over the Puerto Rican law claims was declined. <br>Domnguez-Cruz appealed to this court. <br>                                II <br>  Our review of the entry of summary judgment is de novo.  <br>See Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999). <br>  The plaintiff offers two approaches to this case.  <br>First, he says that the ageist statements allegedly made by Ovitt <br>and another individual and the notes taken by a personnel manager <br>in a meeting with Ovitt constitute "direct evidence" of age <br>discrimination.  Because he produced direct evidence sufficient to <br>sustain his burden, Domnguez-Cruz says, summary judgment should <br>have been denied without resort to the McDonnell Douglas-Burdine- <br>Hicks burden-shifting framework.  The district court rejected this <br>argument, concluding that this evidence was not "direct evidence" <br>but instead constituted "stray remarks" that failed to "tie <br>[Domnguez-Cruz's] dismissal from Suttle to his age or to age <br>discrimination." <br>  Second, the plaintiff says that even under the McDonnell <br>Douglas-Burdine-Hicks framework, summary judgment was improper <br>because he produced evidence from which a jury could infer that the <br>employer's articulated reasons were pretextual and that age <br>discrimination was the real reason for his termination.  See <br>McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973); <br>Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 <br>(1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 515 <br>(1993).  The district court rejected this argument, finding that <br>the circumstantial evidence presented by the plaintiff was <br>insufficient to carry the burden of establishing that "age-related <br>animus motivated [his] dismissal." <br>  When a plaintiff presents direct evidence of age <br>discrimination, the defendant must then either "deny the validity <br>or the sufficiency of the plaintiff's evidence," and "have the jury <br>. . . decide[] whether plaintiff has proved discrimination by a <br>preponderance of the evidence," see 8 Lex K. Larson, Employment <br>Discrimination  136.02, at 136-6 (2d ed. 1999), or "prove that it <br>would have made the same decision even if it had not taken the <br>protected characteristic into account," see Ayala-Gerena v. Bristol <br>Myers-Squibb Co., 95 F.3d 86, 95-96 (1st Cir. 1996), or both, if it <br>chooses.  See also Price Waterhouse v. Hopkins, 490 U.S. 228 <br>(1989).  This burden makes it difficult, but not impossible, for <br>defendants to obtain summary judgment.  See Cardona Jimenez v. <br>Bancomercio De Puerto Rico, 174 F.3d 36, 40 (1st Cir. 1999); <br>Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d <br>17, 24 (1st Cir. 1998); but see Ayala-Gerena, 95 F.3d at 95-96 <br>(referring to the defendant's obligation to "affirmatively prove <br>that it would have made the same decision" in the summary judgment <br>context). <br>  It is often quite difficult to draw the line between what <br>is "direct evidence" and what is "circumstantial evidence."  See, <br>e.g., Fernandes v. Costa Bros. Masonry, Inc., 1999 WL 1252868, at <br>*7 (1st Cir. Dec. 29, 1999) (noting that the First Circuit has yet <br>to choose among different approaches to "direct evidence" and <br>"circumstantial evidence" cases).  "In many cases, the line between <br>McDonnell Douglas, on the one hand, and Price Waterhouse, on the <br>other hand, is blurred."  F.W. Morse, 76 F.3d at 421.  In fact, one <br>might question whether these bright line articulations are so <br>helpful in the end.  See, e.g., Deborah C. Malamud, The Last <br>Minuet: Disparate Treatment after Hicks, 93 Mich. L. Rev. 2229, <br>2311 (1995) (suggesting that McDonnell Douglas does a poor job of <br>shaping pre-trial decisionmaking, particularly at the summary <br>judgment phase). <br>  In appeals after trial, this and other courts have <br>recognized the need for flexibility and have sometimes bypassed <br>these approaches and instead looked at whether the totality of the <br>evidence permits a finding of discrimination.  See F.W. Morse, 76 <br>F.3d at 421 ("Discretion is sometimes the better part of valor, and <br>courts often wisely decide to sidestep difficult theoretical <br>questions if answers to them are not essential to the proper <br>resolution of a given case."); see also Carson v. Bethlehem Steel <br>Corp., 82 F.3d 157, 158 (7th Cir. 1996) ("The central question in <br>any employment-discrimination case is whether the employer would <br>have taken the same action had the employee been of a <br>different . . . age . . . and everything else had remained the <br>same.").  In this case, we take this course, examining the totality <br>of the evidence with the guidance of the McDonnell Douglas-Burdine- <br>Hicks framework and reserving judgment on the "direct evidence" <br>issue. <br>A.  McDonnell Douglas-Burdine-Hicks <br>  Under this framework, the plaintiff must first make a <br>prima facie showing of age discrimination.  See Burdine, 450 U.S. <br>at 252-53.  Because it is conceded for purposes of this appeal that <br>Domnguez-Cruz established a prima facie case, we do not describe <br>the required components. <br>  Once the plaintiff has made out a prima facie case, a <br>presumption that the employer unlawfully discriminated against the <br>employee is created and the burden shifts to the employer to <br>articulate a nondiscriminatory reason for the dismissal.  See <br>Hicks, 509 U.S. at 506-07.  The defendant's burden at this stage is <br>only a burden of production; the burden of proof remains with the <br>plaintiff at all times.  See id.  If the defendant meets this <br>burden, the presumption of discrimination created by the prima <br>facie case drops away and the burden of production shifts back to <br>the plaintiff to show that the employer's stated nondiscriminatory <br>reason was a pretext for discrimination.  See id. at 507-08.  At <br>this final stage of the McDonnell Douglas-Burdine-Hicks framework, <br>this burden "merges with the ultimate burden of persuading the <br>court that [the plaintiff] has been the victim of intentional <br>discrimination."  Burdine, 450 U.S. at 256; Thomas v. Sears, <br>Roebuck & Co., 144 F.3d 31, 33 (1st Cir. 1998) ("The plaintiff <br>bears the 'burden of proving that his years were the determinative <br>factor in his discharge, that is, that he would not have been fired <br>but for his age.'" (quoting Freeman v. Package Mach. Co., 865 F.2d <br>1331, 1335 (1st Cir. 1988)). <br>  Where, as here, the plaintiff has raised a prima facie <br>case and the defendant has met the burden of production, the <br>McDonnell Douglas-Burdine-Hicks framework becomes less relevant.  <br>See Hicks, 509 U.S. at 510.  At the summary judgment phase, "courts <br>should not unduly complicate matters . . . by applying legal rules <br>which were devised to govern the basic allocation of burdens and <br>order of proof."  Mesnick v. General Elec. Co., 950 F.2d 816, 825 <br>(1st Cir. 1991) (internal quotation marks and citations omitted).  <br>Instead, the focus should be on the ultimate issue: whether, <br>viewing the "aggregate package of proof offered by the plaintiff" <br>and taking all inferences in the plaintiff's favor, the plaintiff <br>has raised a genuine issue of fact as to whether the termination of <br>the plaintiff's employment was motivated by age discrimination.  <br>Id. at 824-25; see Pages-Cahue v. Iberia Lineas Aereas de Espaa, <br>82 F.3d 533, 536 (1st Cir. 1996); Fennell v. First Step Designs, <br>Ltd., 83 F.3d 526, 535 (1st Cir. 1996); Olivera v. Nestle Puerto <br>Rico, Inc., 922 F.2d 43, 50 (1st Cir. 1990). <br>  We hold that there was evidence presented on summary <br>judgment from which a jury could (although need not) infer that the <br>employer's claimed reasons for terminating Domnguez-Cruz's <br>employment were pretextual and that the decision was the result of <br>discriminatory animus.  First, the evidence put forth by the <br>plaintiff in making his prima facie case clearly established that <br>Dean Ovitt, who was the plaintiff's direct supervisor and twelve <br>years younger than him, and Jeffrey Berg, who was two years younger <br>than the plaintiff, made the decision to terminate the plaintiff, <br>with Sampson's approval.  After his termination, Domnguez-Cruz's <br>job responsibilities were assumed by Ovitt, Mario Medina, Suttle <br>Caribe's Operations Manager, Nilda Torres, Suttle Caribe's then <br>Quality Control Supervisor, and Adalberto Sierra, Suttle Caribe's <br>Personnel Manager.  All four individuals are younger than <br>Domnguez-Cruz (although Sierra only by one year).  In fact, the <br>evidence showed that Domnguez-Cruz was the oldest Suttle Caribe <br>employee.  In addition, while Suttle Caribe claims that Luis <br>("Tony") Hernndez, the Costa Rica plant manager, did not assume <br>any of the plaintiff's job responsibilities, there is evidence that <br>Hernndez, who is ten years younger than the plaintiff, oversees <br>Medina and Sierra and was selected for this position "rather than" <br>the plaintiff. <br>  Second, and in addition to the evidence supporting <br>Domnguez-Cruz's prima facie case, the defendant presented <br>explanations for Domnguez-Cruz's termination that could be viewed <br>as inconsistent.  When Domnguez-Cruz was informed by Ovitt and <br>Janice Wielke, a Suttle Apparatus personnel manager, that he was <br>being dismissed, he was told that his position was being eliminated <br>as a result of the restructuring plan.  That same day, a memorandum <br>from Ovitt was distributed to all employees, informing them that <br>some "organizational changes" would be made as a part of the <br>"restructuring of the organization."  Ovitt's notes made shortly <br>before the plaintiff was informed of the decision support the <br>restructuring explanation:  "This reorganization is not a <br>performance issue.  This was a difficult decision of restructuring <br>the company to combine operation resourses [sic] and better utilize <br>resourses [sic] available."  When Domnguez-Cruz contacted Sampson <br>for an explanation, he received a letter stating that Hernndez had <br>been selected "rather than" himself to sit on the committee that <br>would oversee Suttle Caribe operations.  When the plaintiff met <br>with Sampson a week or so later, Sampson told him that while there <br>had been some complaints about his performance, they were "not <br>important." <br>  However, in its answer to Domnguez-Cruz's complaint, <br>Suttle Caribe changed its reasons for the termination of <br>plaintiff's employment.  It denied that the plaintiff was <br>discharged as a result of restructuring, instead claiming that <br>"Plaintiff was terminated for his repeated failure to abide by <br>company policies and to commit to the team efforts as required."  <br>At another point in the answer, Suttle Caribe stated that the <br>plaintiff's termination "was determined exclusively because of his <br>violations to [sic] company policies" and referred to his <br>"inability to commit to the managerial efforts directed by the <br>parent corporation, covering up employee misconduct which required <br>termination, and his failure to abide by previous commitments to <br>his immediate supervisor with respect to team work and <br>reorg[an]ization." <br>  The depositions betray a similar inability to settle on <br>an explanation for Domnguez-Cruz's dismissal.  At one point, Ovitt <br>stated that "[t]he reason that he was terminated was because of his <br>performance, it was performance issues."  At another point, Ovitt <br>acknowledged that he told "the employees of the corporation, other <br>than the executive staff," that the dismissal was not related to <br>performance.  Later, he indicated that the plaintiff was fired <br>because of "his refusal to take the direction that the company was <br>going" and his insubordination.  Finally, Ovitt referred to <br>Domnguez-Cruz's failure to abide by company policies.  Sampson, in <br>contrast, stated in his deposition that Domnguez-Cruz was doing a <br>"good job" and was "very adequate" and that "[t]he primary reason <br>for termination was always that they wanted to eliminate the <br>position, they didn't think it was necessary any more." <br>  A company may have several legitimate reasons to dismiss <br>an employee.  But when a company, at different times, gives <br>different and arguably inconsistent explanations, a jury may infer <br>that the articulated reasons are pretextual.  See Thurman v. Yellow <br>Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An <br>employer's changing rationale for making an adverse employment <br>decision can be evidence of pretext."),  opinion amended by 97 F.3d <br>833 (6th Cir. 1996); Kobrin v. University of Minnesota, 34 F.3d <br>698, 703 (8th Cir. 1994) ("Substantial changes over time in the <br>employer's proffered reason for its employment decision support a <br>finding of pretext."); Castleman v. Acme Boot Co., 959 F.2d 1417, <br>1422 (7th Cir. 1992) ("A jury's conclusion that an employer's <br>reasons were pretextual can be supported by inconsistencies in or <br>the unconvincing nature of the decisionmaker's testimony."); <br>Alvarado v. Board of Trustees, 928 F.2d 118, 122-23 (4th Cir. <br>1991); Schmitz v. St. Regis Paper Co., 811 F.2d 131, 132-33 (2d <br>Cir. 1987).  A jury could, at trial, accept the employer's <br>explanation that it initially chose not to discuss the plaintiff's <br>performance issues publicly out of a desire to avoid humiliating <br>him.  This explanation, however, does not fully explain its failure <br>to mention these issues to Domnguez-Cruz when he inquired as to <br>the reasons for his dismissal.  At the summary judgment stage, <br>viewing the evidence as a whole and given that the court should not <br>engage in credibility assessments, see Brennan v. GTE Gov't Sys. <br>Corp., 150 F.3d 21, 26 (1st Cir. 1998), the evidence in this case <br>can support an inference of pretext. <br>  Third, and further supporting a possible inference that <br>Suttle Caribe's explanations are pretextual, there is evidence <br>suggesting that restructuring was not the reason for the <br>termination of the plaintiff's employment.  First, there is <br>evidence that, in 1994 or earlier, Ovitt had offered the plant <br>manager position to Medina.  Medina told another employee that he <br>was considering taking the offer.  Second, the plaintiff had no <br>prior notice that the company was considering eliminating the plant <br>manager position, even though he was integrally involved in the <br>restructuring efforts at Suttle Caribe.  Third, while Suttle Caribe <br>maintains that the plan had always been to eliminate the plant <br>manager positions in both Puerto Rico and Costa Rica, the position <br>in Costa Rica had not, as of the time of the depositions, been <br>eliminated. <br>  The performance explanation also suffers from some <br>deficiencies.  At least one of the alleged violations of company <br>policy upon which Suttle Caribe relies occurred approximately two <br>years before Domnguez-Cruz was dismissed, and his 1993 evaluation, <br>at roughly the same time, called him an outstanding employee.  And <br>there is at least some question whether Domnguez-Cruz was directly <br>responsible for two of the alleged violations.  Further, the fact <br>that the other employees involved in some of these violations were <br>not terminated may cast doubt on the veracity of this explanation.  <br>Finally, Domnguez-Cruz's record at the company may undermine the <br>performance explanation.  He had a strong record with the company, <br>received a positive performance evaluation in 1993, was given a <br>letter of commendation from Berg in August of 1994, and received a <br>merit pay increase in 1995.  A jury could conclude that the alleged <br>performance problems only arose once the plaintiff came under <br>Ovitt's supervision; Ovitt terminated the plaintiff within three <br>years of becoming his supervisor. <br>  Finally, evidence of age-related comments could support <br>an inference of pretext and discriminatory animus.  The record <br>reflects that Ovitt -- the plaintiff's direct supervisor and the <br>key decisionmaker regarding his termination -- referred to the <br>plaintiff, more than once, as an "old fart" in front of other <br>employees, including Medina and Sierra.  Medina, in turn, was heard <br>by another employee referring to Domnguez-Cruz as "el viejo" ("the <br>old one" or "the old man") in the course of saying that he had been <br>offered Domnguez-Cruz's job.   <br>  In addition, there are the notes made by Wielke, the <br>personnel manager.  Wielke, in some way, participated in the <br>dismissal and flew to Puerto Rico with Ovitt to inform plaintiff <br>that his employment was terminated.  Her notes about the decision <br>to terminate the plaintiff contain his full name and include the <br>phrases "cover up so Alberto doesn't," "all over 40," "Tony -- <br>age," and "age descrim. [sic]."  Perhaps the discussion <br>memorialized in these notes was about how to comply with the law, <br>but, if so, the "cover up" language is an odd choice.  These notes, <br>as well as the remarks made by the key decisionmaker and another <br>employee, could lead a reasonable jury to infer that age <br>discrimination was at work. <br>  This recitation of the facts has taken the evidence in <br>the light most favorable to the plaintiff.  See Levy v. Federal <br>Deposit Ins. Corp., 7 F.3d 1054, 1056 (1st Cir. 1993).  It is not <br>a description of what the jury must find, but is rather a <br>description of the permissible inferences that could be drawn from <br>the facts and that suffice to defeat summary judgment.  "The <br>plaintiff does not have to prove by a preponderance of the <br>additional evidence that discrimination was in fact the motive for <br>the action taken.  All a plaintiff has to do is raise a genuine <br>issue of fact as to whether discrimination motivated the adverse <br>employment action."  Olivera, 922 F.2d at 50.  We find that <br>Domnguez-Cruz has done so and should be allowed to take his claims <br>to a jury.  See Hodgens v. General Dynamics Corp., 144 F.3d 151, <br>167 (1st Cir. 1998) ("[W]here a plaintiff in a discrimination case <br>makes out a prima facie case and the issue becomes whether the <br>employer's stated nondiscriminatory reason is a pretext for <br>discrimination, courts must be 'particularly cautious' about <br>granting the employer's motion for summary judgment." (citation <br>omitted)); Mulero-Rodrguez v. Ponte, Inc., 98 F.3d 670, 677 (1st <br>Cir. 1996) (reversing summary judgment and noting that <br>"determinations of motive and intent, particularly in <br>discrimination cases, are questions better suited for the jury" <br>(internal quotation marks and citation omitted)); see also Brennan, <br>150 F.3d at 30 (reversing directed verdict entered for defendant in <br>ADEA case); Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092 (1st <br>Cir. 1995) (reversing summary judgment for defendant in ADEA case). <br>B.  Direct Evidence <br>  We defer any decision as to whether plaintiff has <br>produced direct evidence of discrimination in light of our holding.  <br>Should such a decision prove material it would be better made after <br>the development of the evidence.  See, e.g., W. Carl Jordan, <br>Employment Discrimination Law 223 (1998 Supp.); see also Fernandes, <br>1999 WL 1252868, at *5 (noting that a plaintiff "may elect to <br>proceed simultaneously on both fronts" and that "the trial court, <br>at an appropriate stage of the litigation, will channel the case <br>into one format or the other").  It is true the alleged comments <br>were about the plaintiff -- not other people -- and most were <br>purportedly made by those involved in the termination.  The <br>comments in Wielke's notes have to do with terminating the <br>plaintiff's employment and are contemporaneous with the termination <br>decision.  However, the summary judgment record gives little <br>context to the remarks and comments.  There is, for example, no <br>explanation from the personnel manager about what her notes meant.  <br>Nor is there any evidence from the plaintiff or the two <br>subordinates concerning the context in which Ovitt made his <br>lamentable comments.  Hence it would be premature for us to <br>categorize this evidence now, both because the district court will <br>be better able to do so on a more complete record, and because <br>whether or not there will be any practical need to do so for <br>purposes of deciding this case is not yet apparent. <br>  The decision of the district court is reversed.  We <br>remand for proceedings consistent with this opinion. <br>  So ordered.</pre>

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