
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT       No. 97-1065                                 IVAN RUIZ, ET AL.,                               Plaintiffs, Appellants,                                         v.                           POSADAS DE SAN JUAN ASSOCIATES,                                Defendant, Appellee.                                                                        APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                                                                           Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                             and Boudin, Circuit Judge.                                                                Jose L. Rivero Vergne for appellants.            Nilda M. Navarro-Cabrer for appellee.                                                                                       August 18, 1997                                                                        CYR, Senior                                 Circuit                                          Judge. Appellants Ivan Ruiz and          Estela Diaz, husband and wife, challenge various district court          rulings relating to their claims against appellee Posadas de San          Juan Associates, Inc. ("Posadas" or "Hotel"), alleging,                                                                 inter                                                                       alia,          age discrimination under the Age Discrimination in Employment Act          (ADEA), 29 U.S.C. S 621  et seq., and Puerto Rico "Law 100," 29          L.P.R.A. S 146 et seq. As we conclude that appellants failed to          generate a trialworthy dispute regarding their federal claims, we          affirm the district court judgment.                                         I                                       BACKGROUND                    In 1985, appellant Ivan Ruiz began work as a housekeeper          at the "Hotel San Juan & Casino" ("Hotel"), owned by Posadas, a New          York corporation. By 1987 Ruiz had been promoted to Team Leader,          Housekeeping Department, responsible for supervising housekeeping          in Hotel "public areas" (                                  e.g., offices, meeting rooms, gymnasium).          Beginning in 1991, he worked five nights a week on the 8:00 p.m. to          4:00 a.m. shift.                    As a Team Leader, Ruiz received mixed performance          ratings. During the period from 1987 through 1993, the average          annual performance rating Ruiz received ranged from lows of 3.30 in                                             The material facts in genuine dispute are related in the light          most favorable to appellants, who opposed summary judgment.                                                                      Velez-          Gomez v. SMA Life Assur. Co., 8 F.3d 873, 875 (1st Cir. 1993).                                          2          1987 and 1989, to a high of 4.02 in 1990. Ruiz received regular          salary increases throughout his tenure. In addition, he received          three merit certificates for excellent supervisory performance and          a "good" overall rating in 1992.                     During his tenure, however, Ruiz received some criticism.          In 1988, he was criticized by Felix Joseph, his supervisor at the          time, for "total negligence . . . or total and complete disregard          of             . . .                   Company Policy or both," following an unannounced one-day          absence from work. In 1990, a different supervisor, Eddie Ortiz,          noted "major cleaning deficiencies" in the areas for which Ruiz was          responsible    specifically, trash not picked up, rooms not          cleaned, and furniture not dusted                                               as well as a general "lack of          attention" to cleaning responsibilities in the Hotel corporate          offices. Finally, in 1993, yet another supervisor, Jorge Serrano,          warned Ruiz about poor cleaning in the gymnasium and filed a          contemporaneous disciplinary report against him.                     Ruiz, on the other hand, dates most of his employment          problems from late 1993, when Luis Rivera, age 32, became Hotel          Executive Housekeeper. Rivera regularly criticized Ruiz, verbally          and in writing, on his job performance.  In March 1994, Rivera                                             On a scale of 1 to 5, "3" indicated that standard job          requirements were met; "4" that the requirements were exceeded "in          many instances"; "5" that the requirements were "consistently"          exceeded.                For example, in February 1994 Rivera notified Ruiz that many          complaints had been lodged regarding the Hotel offices and that          inspection had disclosed failures to dust, pick up trash, clean          window areas, and clean bathrooms. Rivera warned Ruiz that he          expected "immediate action" and that "[f]ailure to comply" would                                          3          rated Ruiz's performance for 1993 as "need[ing] improvement" in          three areas: accepting criticism, solving problems, and quality of          performance. Rivera noted that Ruiz blamed others for his own          deficiencies, responded lackadaisically to guest requests, and          provided inadequate supervision to subordinates. After Ruiz com-          plained to Rivera, the performance evaluation was changed from          "need[ing] improvement" to "satisfactory," but Rivera did not          soften the negative written commentary. The average rating Ruiz          received for 1993 was 3.69.  See supra note 2.                    Beginning in 1993, Victoria Greber, Executive Assistant          Manager, "Rooms Division," likewise complained that Hotel public          areas were found to be untidy following Ruiz's shift. Felipe          Mercado, the night manager ultimately responsible for supervising          Ruiz, complained directly to Greber about uncleanliness in areas          for which Ruiz was responsible. Other unfavorable comments          relating to the untidiness of Hotel public areas following Ruiz's          shift were noted in the Hotel log books    daily diaries describ-                                        "result in disciplinary action."                The annual ratings Ruiz received during his tenure were:                    Evaluation Date     Score     Comparison                                                                 to                                                                      Rivera's                                                  Rating                                                           of                                                               Ruiz                                                                    for                                                                         1993                                                  calendar year                         03-02-94       3.69      the rating given by                                                  Rivera                         11-12-92       3.68      lower than Rivera's score                         11-01-91       3.39      lower "        " "                          10-30-90       4.02      higher "       " "                          11-10-89       3.30      lower "        " "                          07-30-89       3.47      lower "        " "                          01-06-87       3.30      lower "        " "                                           4          ing,               inter                     alia, the physical condition of the Hotel                                                                  by various          Hotel employees including Rivera.                    During the Spring of 1994, the occupancy rate at the          Hotel dropped dramatically, resulting in severe shortfalls in Hotel          revenues and prompting work-force reductions by the administration.          In May 1994, Greber met with Rivera and Egidio Colon, Human          Resources Director, to evaluate the personnel records of all          employees holding an employment position within any category          targeted for reduction, which included a Team Leader position in          the Housekeeping Department, "Rooms Division."                    After the personnel file on each Team Leader in the          Housekeeping Department had been reviewed, and following receipt of          input from Colon and Rivera, Greber determined to discharge Ruiz.          According to both Colon and Greber, the dispositive factors were          the negative written evaluations (Ruiz posted the lowest average          scores of any Team Leader), the negative commentaries, the disci-          plinary warnings, the complaints from night manager Felipe Mercado,          and the negative log-book notations regarding the uncleanliness of          the public areas following Ruiz's shifts.                     On June 2, 1994, Ruiz was fired, after being told that          the Hotel was undergoing "reorganization," and "adjustments" in the                                             At the time, there were four Team Leaders in the Housekeeping          Department: John Waters, age 61, Steven Rosado, age 27, Carlos          Carrasquillo, age 34    all of whom worked the day shift     and          Ruiz, age 61, who worked the night shift only. Carrasquillo and          Rosado had less seniority in their respective Team Leader positions          than Ruiz. Rosado had been a Team Leader for only seven months,          and Carrasquillo had become a Team Leader one year after Ruiz.                                           5          "Rooms Division" were necessary. Following Ruiz's dismissal,          supervisory responsibility for the night shift was divided between          Carrasquillo and Waters, both of whom continued to serve as Team          Leaders on their daytime shifts as well.                     On June 7, 1994, Ruiz filed age-discrimination charges          with the Equal Employment Opportunity Commission and the          Antidiscrimination Unit of the Puerto Rico Department of Labor,          requesting reinstatement. On November 18, 1994, a preexisting Team          Leader position in the Housekeeping Department became vacant when          Mr. Rosado,                      see                          supra note 5, was promoted to Public Areas Manager.          The Hotel did not inform Ruiz of the vacancy, however, instead          promoting Alexis Vargas, age 26, to Team Leader.                    On March 24, 1995, his administrative remedies exhausted          and a "right to sue" letter in hand, Ruiz (and spouse) filed a          complaint in the United States District Court for the District of          Puerto Rico, alleging that the Hotel, during 1993-94, had a policy          of discharging older employees, in violation of the ADEA and "Law          100." Following extended discovery proceedings, the Hotel moved          for summary judgment. In their opposition, appellants asserted,          for the first time, that the Hotel's failure to rehire Ruiz, and                                             The Hotel fired ten employees in all; two within the protected          age group, including Ruiz. Ruiz was the only Team Leader in the          Housekeeping Department to be fired. Two nonsupervisory employees          in the same department were fired, aged 25 and 29.                In addition, another 111 employees left the Hotel between          April and June, 1994. These included temporary employees whose          contracts were not renewed; retirements; resignations; and          terminations for cause. Among these 111 employees, nine (                                                                  i.e., 8%)          were 40 years or older.                                          6          its hiring of Vargas, likewise violated Puerto Rico "Law 100."          Thereafter, appellants sought leave to amend their original          complaint to state additional ADEA claims, alleging a failure to          rehire based on age and claiming retaliation in response to Ruiz's          filing of administrative charges against the Hotel.                    The district court granted summary judgment for the          Hotel, after determining that the proffered evidence on the ADEA          discriminatory discharge claim was inadequate for a  prima  facie          showing that the Hotel either failed to treat age neutrally or          replaced Ruiz with a younger worker,                                              see                                                  McDonnell Douglas Corp.                                                                         v.          Green, 411 U.S. 792 (1973); Woodman v. Haemonetics Corp., 51 F.3d          1087 (1st Cir. 1995). It also dismissed the pendent Commonwealth          claim under "Law 100," as there was no longer an independent basis          for asserting federal jurisdiction. Finally, the court denied the          motion to amend the complaint, on the ground that its new allega-          tions, "even if supported, . . . [would] not sustain an ADEA claim.          That is, plaintiffs would [sic] have established a                                                            prima                                                                  facie case          of age discrimination."                                         II                                     DISCUSSION                                             We consider the summary judgment ruling                                                        de                                                           novo, viewing the          record in the light most favorable to Ruiz, the nonmoving party,          and drawing all reasonable inferences in his favor.   LeBlanc v.          Great American Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). On the          other hand, we must affirm if the record reveals no trialworthy          issue of material fact and the Hotel was entitled to judgment as a          matter of law.  See id. Moreover, we may affirm "on any indepen-          dently sufficient ground." Polyplastics, Inc.                                                       v.                                                           Transconex, Inc.                                                                          ,          827 F.2d 859, 860-61 (1st Cir. 1987).                                          7          A.   Wrongful Discharge Claim Under ADEA                    1.  Prima Facie Case                    Our analysis is governed by the familiar burden-shifting          framework enunciated in                                  McDonnell Douglas                                                  , 411 U.S. at 802-04, and          adapted for use in ADEA cases,                                         see,                                             e.g.,                                                   Woodman, 51 F.3d at 1091.          Absent direct evidence of age discrimination, a claimant whose          employment was terminated through a reduction in force ("RIF")          first must make a prima facie showing that: 1) he was at least          forty years old; 2) met the employer's legitimate job expectations;          3) was fired; and 4) that age was not treated neutrally in imple-          menting the RIF, or younger individuals were retained in the same          position.  Id. We need not consider the fourth prong, however,          including Ruiz's contention that the Hotel retained two younger          employees    i.e., Rosado and Carrasquillo    in the same occupa-          tional classification, since there is an alternative ground for          affirmance.  See Polyplastics, Inc. v. Transconex, Inc., 827 F.2d          859, 860-61 (1st Cir. 1987). We therefore assume, without          deciding, that Ruiz made out a                                         prima                                               facie case of age discrimina-          tion by demonstrating that younger workers were retained in the          same position. See                              Pages-Cahue v.                                             Iberia Lineas Aereas De Espana                                                                          ,          82 F.3d 533, 538 (1st Cir. 1996).                    2.  Pretext                    In order to rebut the presumption that arises upon the          establishment of a prima  facie case     i.e., that the employer          engaged in intentional age-based discrimination,  see Woodman, 51          F.3d at 1091    the employer need only produce enough competent                                          8          evidence, taken  as  true, to enable a rational factfinder to          conclude that there existed a nondiscriminatory reason for the          challenged employment action,                                        see                                            St. Mary's Honor Center                                                                  v.                                                                      Hicks,          509 U.S. at 502, 509 (1993); Woodman, 51 F.3d at 1091 (same). At          that point, the employee "must demonstrate that the proffered          reason for the adverse employment action was simply a pretext for          age discrimination," Goldman v. First                                                  Nat'l                                                        Bank                                                             of                                                                Boston, 985          F.2d 1113, 1117 (1st Cir. 1993), which in turn requires that the          employee proffer enough competent evidence to support                                                               two findings:          1) the employer's proffered reason was pretextual;                                                            and, 2) its true          motive was age discrimination. Udo v.                                                Tomes, 54 F.3d 9, 12-13 (1st          Cir. 1995). The burden of   persuasion remains on the plaintiff          employee at all times.  LeBlanc, 6 F.3d at 842.                    There is no dispute that the Hotel experienced signifi-          cant financial difficulties in the Spring of 1994 and terminated          ten employees as part of a legitimate RIF.   Moreover, Victoria          Greber, the executive directly responsible for the decision to          discharge Ruiz, attested that financial difficulties prompted the          employee discharges, both in her own department and throughout the          Hotel. She explained, again without contradiction, that she          determined to discharge a Team Leader in the Housekeeping Depart-          ment because she considered it an expendable "medial" position          between the housekeepers, who do the cleaning, and the Hotel                                             Ruiz so concedes on appeal.  See Brief for Appellants at 14          ("Ruiz does not contest that a reduction in force was necessary in          order to confront the Hotel's economic problems. . . .").                                           9          management. She further explained that Ruiz was selected for          termination because his employment record was the weakest among all          Team Leaders. Careful review bears out that Greber's explanation          is entirely consistent with the undisputed documentary evidence          that Ruiz had received more disciplinary warnings, and the lowest          average evaluation ratings, of any Team Leader in the Housekeeping          Department, as well as the only negative written commentary. Thus,          the Hotel met its burden of production under the second prong of          the McDonnell Douglas test.  See LeBlanc, 6 F.3d at 844-45.                    Accordingly, the presumption of age discrimination has          vanished, see id., and we inquire whether the evidence, " in  its          entirety," would permit a reasonable factfinder to infer that the          proffered reason for the dismissal was pretextual                                                           and that the true          reason was an age-based animus,   see id. (emphasis added). In          pursuing this inquiry, we focus on whether the employer believed          that its proffered reason was credible.   See Mesnick v.  General          Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991). That is, Ruiz must          do more than cast doubt on the rationale proffered by the employer,          see              Connell v.                         Bank of Boston                                      , 924 F.2d 1169, 1172 (1st Cir. 1991),          the "evidence must be of such strength and quality as to permit a          reasonable finding that the . . . [termination] was obviously  or          manifestly unsupported."  Brown v. Trustees                                                       of                                                          Boston                                                                 Univ., 891          F.2d 337, 346 (1st Cir. 1989) (emphasis added) (internal quotation          marks omitted). The summary judgment record generated no                                         10          trialworthy issue on the ADEA wrongful discharge claim.                     Ruiz attempted to demonstrate that Rivera was responsible          for an atmosphere of age-based discrimination, in the Housekeeping          Department, which influenced the decision to terminate him. He          relied on an affidavit from Carmen Pena, age 54, formerly employed          in the Housekeeping Department, who attested that Rivera expected          more from her than from younger workers; asked her age; stated that          she didn't look good for her age; inquired about her health and          suggested that a job change might be beneficial. Pena acknowl-          edged, however, that Rivera never asked, let alone ordered, her to          transfer. Moreover, Pena attributed another remark to Rivera                                                  An affidavit from Miguel Moreales, formerly a housekeeper with          the Hotel, concludes that Ruiz was an excellent supervisor, but          does not purport to compare Ruiz's work record with that of other          Team Leaders. Moreales also opines that Ruiz's disciplinary          warnings were unfounded because Ruiz always assigned a housekeeper          to clean, and checked the area afterward. However, these          conclusory statements did not demonstrate that the areas about          which Ruiz was warned had been properly cleaned on the particular          occasions identified in the warnings he received, much less that          the warnings were unfounded, nor that Victoria Greber    who made          the decision to fire Ruiz, see supra p. 5    could not reasonably          have believed that the disciplinary warnings were warranted.  Cf.          Mulero-Rodriguez v. Ponte,                                       Inc., 98 F.3d 670, 674-75 (1st Cir.          1996) (wherein plaintiff presented evidence that employer's cited          reasons were pretextual).               Similarly, Ruiz attests that he was discharged due to his age,          a belief based on his judgment that he had a good employment          record. Even assuming his employment record passed muster,          however, Ruiz proffered no evidence which would enable a rational          jury to find that the Hotel's employment action was not soundly          founded on its determination that Ruiz possessed the least worthy          work-performance-record among all competing Team Leaders.                Finally, Ruiz alleged that the Hotel conducted a systematic          purge of older workers, but admits he has no such personal          knowledge or evidence. It is axiomatic that more is required than          mere conclusory allegations and unsupported conjecture.       See          LeBlanc, 6 F.3d at 841; Goldman, 985 F.2d at 1116.                                         11          that all female workers at the Hotel were                                                   overworked. In addition,          the Moreales affidavit states, inter alia, see also supra note 9,          that Rivera harbored an "obvious" bias toward younger workers. The          only explication Moreales offered for this conclusion, however, was          that Rivera had pressured older workers, unfairly reprimanded older          workers in front of younger ones, and treated two older supervi-          sors, including Ms. Pena, in a "disrespectful manner," but without          providing an evidentiary foundation upon which it might reasonably          be inferred that any pressure, reprimand, or disrespect was either          discriminatory or age-based.  See LeBlanc, 6 F.3d at 841.                    Although we have allowed as how circumstantial evidence          of a general discriminatory environment may add "color" to an          employer's decisionmaking process, see  Conway v. Electro                                                                      Switch          Corp., 825 F.2d 593, 597 (1st Cir. 1987), we have explained that          "[p]roof of a general atmosphere of discrimination is not the          equivalent of proof of discrimination against an individual,"          Sweeney v.                     Board of Trustees of Keene State College                                                            , 604 F.2d 106,          113 (1st Cir. 1979). In all events, these proffers failed to          establish a trialworthy claim that a "general" atmosphere of age-          based discrimination existed in the Housekeeping Department, let          alone that Ruiz was "riffed" for any reason other than the relative          weakness of his work record.  Instead, without confronting the                                              Ruiz presented no competent evidence that the Hotel "riffed"          him, or any other employee,                                      based                                            on                                               age. There is no evidence of          any comment by anyone associated with the Hotel, including Rivera          and Greber, about Ruiz's age or that age played     any  part in          determining which employees would be let go. Moreover, the 1993          annual rating received from Rivera was the second highest Ruiz ever                                         12          evidence, Ruiz concludes that he   must have been discriminated          against because his record had been improving before Rivera became          his supervisor and because his eight-year employment record cannot          fairly be compared to the records of Team Leaders with less tenure.          Ruiz's logic escapes us on both scores. First, as already noted,          Ruiz received his next best performance rating ever from none other          than Rivera. Second, if Team Leaders with less tenure                                                                                                                                     i.e. less          experience    received better performance ratings than the more          experienced Ruiz, it is difficult to discern how their superior          performance reflects less well on them.                    Furthermore, as we have stated repeatedly, we do not          assume the role of a "super personnel department[], assessing the          merits                    or even the rationality                                              of employers' nondiscriminato-          ry business decisions."   Mesnick, 950 F.2d at 825;     see  also          LeBlanc, 6 F.3d at 846 (similar). So it must be here.   See Smith          v. Stratus                      Computer,                                Inc., 40 F.3d 11, 16 (1st Cir. 1994),  cert.          denied, --- U.S. ---, 115 S. Ct. 1958, 131 L.Ed.2d 850 (1995)          (stating that relief will not be granted "to a plaintiff who has          been discharged unfairly, even by the most irrational of managers,                                        received. Nor did Ruiz address the undisputed evidence that all          but two employees "riffed" by the Hotel were under forty,                                                                   see                                                                       supra          note 6, which tends to suggest that the alleged systematic purge of          employees was age-blind. Cf.                                        Hebert v.                                                 Mohawk Rubber Co.                                                                 , 872 F.2d          1104, 1114 (1st Cir. 1989) (noting "rather startling" statistical          evidence that 76% of all older employees were "riffed"). Finally,          and most importantly, Ruiz proffered no evidence that he, among all          employees holding a targeted Team Leader position, had not received          the most disciplinary warnings, negative written comments,          complaints from the night manager, and the lowest average annual          performance rating    an average compiled from ratings given by          various supervisors in addition to Rivera.                                          13          unless the facts and circumstances indicate that discriminatory          animus was the reason for the decision").                     For the foregoing reasons, we hold that Ruiz failed to          proffer competent evidence adequate to ward off summary judgment on          the ADEA claim for wrongful discharge.          B.   The Motion to Amend                     Ruiz next contends that the district court erred in          denying the motion to amend the complaint,                                                     see Fed. R. Civ. P. 15,          to include ADEA claims based on the Hotel's allegedly discriminato-          ry and retaliatory failure to rehire him.  See supra p. 6.                     1.   Standard of Review                    As Ruiz did not propose the amended complaint until seven          months after the Hotel had moved for summary judgment, we treat the          motion to amend as "an attempt to alter the shape of the case in          order to defeat summary judgment."    Glassman v.  Computervision          Corp., 90 F.3d 617, 623, (1st Cir. 1996). Consequently, Ruiz must          "demonstrate . . . that the proposed amendments were supported by          substantial and convincing evidence,"  Resolution                                                             Trust                                                                   Corp. v.          Gold, 30 F.3d 251, 253 (1st Cir. 1994) (citations and internal          quotation marks omitted). Under the abuse of discretion standard,          any sound reason apparent from the record is sufficient to support          the district court ruling, see id., including but not limited to          undue delay, bad faith, dilatory motive, and the futility of the                                              We review the ruling on the motion to amend for "abuse of          discretion." Resolution Trust Corp.                                              v.                                                 Gold, 30 F.3d 251, 253 (1st          Cir. 1994).                                         14          amendment,                     see                         Grant v.                                  News Group Boston, Inc.                                                        , 55 F.3d 1, 5 (1st          Cir. 1995).                    2.   The District Court Ruling                     Ruiz contends that the district court confused the          requirements an ADEA plaintiff must meet to establish a                                                                 prima                                                                       facie          discriminatory discharge claim, with the separate standards for          establishing prima facie claims of retaliation and discriminatory          failure to rehire. He points to the district court's statement          that the retaliation and failure-to-rehire claims, "even if          supported, will not sustain an ADEA claim. That is, plaintiffs          would [sic] have established a                                         prima                                               facie case of age discrimina-          tion[,]" and argues that the district court erroneously ruled that          Ruiz could not prevail on the proposed                                                 retaliation and                                                                 failure-to-          rehire claims because he could not meet the  prima facie showing          required for a                         discriminatory                                        discharge claim. We need not address          this contention, however, as the record discloses an adequate          alternative ground for affirmance. See                                                  Resolution Trust Corp.                                                                       , 30          F.3d at 253.                    Given the tardiness of the motion to amend, the question          before us is whether Ruiz supported the proposed amended complaint          with enough "substantial and convincing evidence,"                                                             id., of an age-          based discriminatory animus.   See Woods v.  Friction                                                                  Materials,          Inc., 30 F.3d 255, 260 (1st Cir. 1994) (stating that plaintiff must          show discriminatory animus in failure-to-hire case);  Fennell v.          First Step Designs, Ltd.                                 , 83 F.3d 526, 535 (1st Cir. 1996) (stating          that employee must demonstrate retaliatory animus); see also  id.                                         15          (stating that court may dispense with burden-shifting framework,          and focus instead on whether the "evidence as a whole was suffi-          cient to generate a jury question on pretext and discriminatory          animus"). First of all, it must be noted that the mere fact Ruiz          was not rehired does not itself afford a basis for inferring age          discrimination.  See Udo, 54 F.3d at 14 (stating that failure to          rehire may simply show employer did not want to rehire employee).          Second, though the timing of the decision to hire Vargas                                                                      coming          as it did five months after Ruiz filed administrative charges              tends to favor Ruiz, it does    not amount to "substantial and          convincing evidence" of an age-based animus. See                                                            Resolution Trust          Corp., 30 F.3d at 253.                     In addition, the essential thrust of the proposed amended          complaint is that    coupled with Rivera's alleged discriminatory          animus toward older employees     the decision to hire Vargas,          rather than recall Ruiz, was patently irrational and, therefore,          must have been a pretext for discrimination. However, the underly-          ing thesis    that Vargas's qualifications were so inferior that          the Hotel                    could                          only have been engaging in age-based discrimination          and/or retaliation against Ruiz when it chose not to notify or          rehire him    is seriously flawed.                    First, Ruiz did not proffer sufficient evidence to enable          a finding of discriminatory animus, either in the Housekeeping          Department at large or toward him in particular.                                                           See                                                               supra pp. 11-          14. Second, the fact that Ruiz, based on experience and past          performance, may have been   qualified to hold the Team Leader                                         16          position which was given to Vargas, is                                                 not evidence that the Hotel          was motivated by an age-based animus in withholding it from Ruiz.          See Woods, 30 F.3d at 262.                    In conclusion, whether or not it was short-sighted to          bypass Ruiz in favor of Vargas, who had never received a disciplin-          ary warning, it cannot be said that it was so absurd as to defy          rational belief. See                                Lehman v.                                          Prudential Ins. Co. of America                                                                       , 74          F.3d 323, 329 (1st Cir. 1996) (refusing to "second-guess" hiring          decision "absent clearer evidence of irrationality"). According-          ly, we are not confronted with such disparities in their respective          employment records as would "virtually jump off the page and slap          us in the face," Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)          (quoted in                     Lehman, 74 F.3d at 329), let alone combine with evidence          of discriminatory animus to defeat summary judgment,                                                               see                                                                   Smith, 40          F.3d at 16 (requiring minimally sufficient evidence of discrimina-          tory animus). Consequently, we are not at liberty to "substitute          . . . [our] views for those of the individuals charged with the          evaluation duty by virtue of their own years of experience and          expertise in the field in question."  Id. (quoted in  Lehman, 74          F.3d at 329).                                              Moreover, Vargas also received several commendations for work          performance in the Housekeeping Department, the Hotel laundry, and          as a driver and chauffeur, as well as performance ratings                                                                    at                                                                       least          comparable to those received by Ruiz. Vargas earned the following          annual performance ratings: 1987, 4.4; 1988, 3.74; 1989, 3.1;          1990, 4.0; 1991, 4.48; 1992, 4.3; 1993, 3.45; 1994, 3.59.     See          also supra note 4. In addition, Vargas had worked the day shift,          which was regarded by Hotel management as more demanding than the          night shift worked by Ruiz.                                          17                    Therefore, as Ruiz proffered insufficient evidence from          which an age-based discriminatory animus might reasonably be          inferred in connection with the Hotel's decision to promote Vargas,          rather than rehire Ruiz, see Smith, 40 F.3d at 16, he has not met          the heavy burden of establishing that the proposed amended          complaint was supported by "substantial and convincing evidence."          Resolution Trust Corp., 30 F.3d at 253.                                         18                                         III                                     CONCLUSION                    Finally, since the district court supportably dismissed          the federal claims, it permissibly declined to retain,    see 28          U.S.C. S 1367, supplemental jurisdiction of the pendent claim under          Commonwealth "Law 100."   See United                                                Mine                                                      Workers                                                              of                                                                 America v.          Gibbs, 383 U.S. 715, 726 (1966). Accordingly, the district court          judgment is affirmed.                     SO ORDERED.                                         19
