                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 05-1325

                       AURELIO ROSADO, ET AL.,

                      Plaintiffs - Appellants,

                                      v.

               WACKENHUT PUERTO RICO, INC., ET AL.,

                       Defendants - Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]


                                   Before

                      Lipez, Circuit Judge,
                  Coffin, Senior Circuit Judge,
                 Carter,* Senior District Judge,


     Celina Romany, with whom Juan M. Frontera Suau and Celina
Romany Law Offices were on brief, for appellants.
     José J. Sánchez Vélez, with whom Yldefonso López Morales,
Eileen M. García Wirshing and O’Neill & Borges Law Firm were on
brief, for appellees.


                           December 29, 2005




     *
      Of the District of Maine, sitting by designation.
            CARTER, Senior District Judge. Plaintiffs/Appellants,

Aurelio Rosado, Lydia Rosado, and the conjugal partnership formed

between     them,        filed      the         present      complaint        against

Defendants/Appellees, Wackenhut Puerto Rico (“WPR”) and Wackenhut

International,      Inc.     (“WII”)        (collectively          “the      Wackenhut

defendants”).        Plaintiffs        allege          violations     of     the    Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et

seq. (1994 & Supp. 2003); the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12131 et seq. (1994 & Supp. 2003); and

various    Puerto   Rico    statutes.            The    district     court    granted

Defendants’     Motion     for    Summary       Judgment     on     all    counts   of

Plaintiffs’ Verified Complaint.            Plaintiffs appeal.1

                                          I.

                     Facts and Procedural History

            The district court accurately summarized the facts as

follows.    WII is the parent company of WPR, a subsidiary company

dedicated to providing security and surveillance services in the

Puerto Rico private and public sectors.                 Mr. Rosado worked at WPR

as general manager from January 31, 1989 until July 12, 2002,

when he was terminated.          As general manager, Mr. Rosado possessed

broad responsibility and discretion for WPR’s operations, but his



     1
      In the interest of clarity, we discuss the case with exclusive
reference to appellant Aurelio Rosado. However, this opinion is
also binding on appellant Lydia Rosado and the conjugal partnership
formed between appellants Aurelio and Lydia Rosado.

                                          -2-
actions were ultimately subject to WII corporate headquarters’

approval.        Mr.    Rosado’s      responsibilities        included      submitting

monthly operations reports, balance sheets, and profit and loss

sheets to the Vice-President of WPR Operations, Fernando Hegel,

and the President of WII, William Morrow.                  Mr. Rosado was subject

to periodic performance evaluations, and received yearly bonuses

based upon his performance and operational results.

             During     the    first       several    years     of    Mr.     Rosado’s

managerial guidance, WPR performed well.                   At its peak, WPR drew

$33    million     in    revenues.           Mr.     Rosado    received       positive

evaluations and was rewarded with favorable bonuses.                           Between

1999   and   2001,      WPR   lost    a    significant     number    of     government

contracts, and revenue dropped by half.                While both parties admit

that there was recognition that WPR needed to lessen its reliance

on government contracts, which were ephemeral, and to instead

redirect     sales      toward       the    private    sector,       the     Wackenhut

defendants and Mr. Rosado each claim that the other party was

unresponsive in joining to remedy the problem.

             After the conclusion of a fruitless dialogue between

Mr. Rosado and the Wackenhut defendants on righting WPR’s ship,

in June 2001, Mr. Morrow and Mr. Hegel directed John Griffey, a

WII Field Support Operations Special Project Manager, to visit

WPR.    Mr. Griffey was directed to draft a sensitivity report

assessing     WPR’s      operations        and   issuing      recommendations      for


                                           -3-
improvement,      based   upon   his    visit   to   Puerto   Rico.   The

sensitivity report highlighted the need for improved collections,

operational efficiency, and increased sales.           In late January or

early February 2002, Mr. Morrow and Mr. Hegel met with Mr. Rosado

in Puerto Rico to discuss how to improve WPR’s grim state of

affairs.      Mr. Morrow strongly expressed his dissatisfaction with

WPR’s performance and the need for drastic change, and directed

Mr. Rosado to submit a comprehensive action plan by the end of

February 2002.

              Several days after the meeting took place, Mr. Rosado

suffered a cardiac arrest.2        Mr. Rosado was hospitalized and in

recovery for approximately fifty-five days before returning to

work.       Mr. Rosado was unable to work on the action plan during

his recovery.      Mr. Morrow and Mr. Hegel directed Mr. Griffey, who

had become familiar with WPR’s operations during his earlier

visit, to return to Puerto Rico, assist in the preparation of the

WPR action plan, and provide leadership in Mr. Rosado’s absence.

              Mr. Rosado returned to work in April 2002, but Mr.

Griffey remained at WPR.         Mr. Rosado claims that WPR employees

were now answering exclusively to Mr. Griffey’s command and that

although when questioned as to his formal role Mr. Griffey was

purposefully ambiguous, Mr. Griffey had become WPR’s de-facto



        2
     This was Mr. Rosado’s second heart attack.           His first heart
attack took place in April 1998.

                                       -4-
general manager.         Mr. Rosado claims that while he retained his

formal title as general manager, he had lost all authority at

WPR.

             Shortly after Mr. Rosado returned, Mr. Hegel requested

that he review Mr. Griffey’s action plan and either approve Mr.

Griffey’s plan or, in the alternative, submit his own action

plan.      Mr. Rosado reviewed and, with some reservations, adopted

Mr. Griffey’s action plan.

             In   or    around   May    2002,    Miguel    Angel   Escobar,     the

President of Wackenhut El Salvador (“WES”), placed a telephone

call to Mr. Rosado.3        During the conversation, Mr. Escobar asked

Mr. Rosado, “Why don’t you retire?”               Mr. Escobar suggested that

“things would probably be easier for everyone” if Mr. Rosado

retired.

             Approximately       one   month    later,    Mr.   Morrow   made   the

decision to terminate Mr. Rosado.               On July 12, 2002, Mr. Hegel

informed Mr. Rosado that he was terminated.                     Upon Mr. Hegel’s

recommendations, Mr. Morrow appointed Mr. Griffey as the new

general manager for WPR.

             Mr. Rosado filed the instant action alleging violations

of the ADEA, the ADA and various Puerto Rico statutes.                          The

district     court     granted   the    Wackenhut    defendants’     Motion     for



       3
     Like WPR, WES is a subsidiary of WII.                 WES’s leadership has
no authority over WPR.

                                        -5-
Summary     Judgment   on    all    counts     of   Mr.   Rosado’s      Verified

Complaint.

                                      II.

                       Summary Judgment Standard

            The standard for summary judgment is straightforward

and   well-established.        A    district    court     may   enter   summary

judgment upon a showing “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”        Fed. R. Civ. P. 56(c). We review summary

judgment rulings de novo, construing the record evidence in the

light most favorable to, and drawing all reasonable inferences in

favor of, the nonmoving party.               Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 33 (1st Cir. 2001); Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.

2000). Summary judgment is appropriate when “there is no genuine

issue as to any material fact.”         Fed. R. Civ. P. 56(c). “Even in

employment discrimination cases where elusive concepts such as

motive or intent are at issue,” summary judgment is appropriate

if    the    non-moving     party    rests      “merely     upon     conclusory

allegations, improbable inferences, and unsupported speculation.”

Feliciano, 218 F.3d at 5 (quoting Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990))(internal quotations

omitted).    It is within this procedural framework that we assess

Mr. Rosado's claims.        Our review is not constrained by the lower


                                      -6-
court's stated rationale; we may affirm the entry of summary

judgment   on     any   ground   supported        by   the     record.      See   Houlton

Citizens' Coal. v. Town of Houlton, 175 F.3d at 178, 184 (1st

Cir. 1999).

                                 The ADEA Claim

            The ADEA makes it unlawful for an employer to discharge

any individual or otherwise discriminate against him on the basis

of his age.       See 29 U.S.C. § 623(a)(1).            Since there is no direct

evidence   which     demonstrates      the       Wackenhut         defendants’    alleged

discriminatory animus against Mr. Rosado, we must consider the

multi-part McDonnell Douglas test.                  McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-805 (1973).                     Applying the McDonnell

Douglas framework, Mr. Rosado must first                       “demonstrate that he

(1) was at least forty years of age, (2) met the employer’s

legitimate job performance expectations, (3) experienced adverse

employment action; and (4) was replaced by a person with roughly

equivalent job qualifications.”              Goldman v. First Nat’l Bank of

Boston, 985 F.2d 1113, 1117 (1st Cir. 1993).                       The record supports

the conclusion that Mr. Rosado satisfies the prima facie case

factors.      The    burden   of     production        then    shifts      back   to   the

employer    who     must   rebut     the    inference         of    discrimination      by

articulating some legitimate, non-discriminatory reason for the

adverse    employment      action.         Dominquez-Cruz           v.   Suttle   Caribe,

Inc., 202 F.3d 424, 430 (1st Cir. 2000).                  Mr. Rosado admits, and


                                           -7-
this Court finds, that the Wackenhut defendants have satisfied

their   burden      of   production    by    asserting     that   Mr.   Rosado   was

discharged     because     his    managerial    performance       since   1998    was

unsatisfactory and because WPR was suffering a lack of effective

leadership.

              In the final stage of the analysis the burden shifts

back    to    Mr.    Rosado      to   show    that   the    employer’s      alleged

justification was not its true reason for the adverse employment

action, but was a mere pretext for age discrimination.                           Id.;

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991).

The ADEA “does not stop a company from discharging an employee

for any reason (fair or unfair) or for no reason, so long as the

decision to fire does not stem from the person’s age.”                     Freeman

v. Package Mach. Co., 865 F.2d 1331, 1341 (1st Cir. 1988).                       Mr.

Rosado must produce evidence beyond the mere assertion that the

alleged justification is implausible and show that the employer’s

discriminatory animus actually motivated the adverse employment

action.      See Mesnick, 950 F.2d at 825.

              The record is devoid of any sign that anyone in a

decision-making role, including Mr. Morrow and Mr. Hegel, bore

any discriminatory animus toward Mr. Rosado.                 Appellant fails to

present evidence necessary to show that the Wackenhut defendants’

given reasons for the termination were pretextual.                        Appellant

makes sweeping statements but fails to cite to any material fact


                                        -8-
in controversy in the record.                 Although appellant states that

“the district court has completely ignored most, if not all, of

Plaintiff’s pretext evidence,” he never discloses what evidence

the    district      court    disregarded.          Appellant’s       Brief      at     21.

Generally, appellant criticizes the district court for missing

important considerations such as “the significance of assessing

the whole picture, proximity in time, and the employer’s control

of information.”        Appellant’s Brief at 22.               But, here again, he

never states what is that pertinent evidence.

             Even if we were to consider appellant’s unsupported

arguments,     the     evidence      fails    to    create     a   trial-worthy         age

discrimination        claim.         Appellant      states     that       according      to

Wackenhut     corporate        officers      Mr.    Rosado     was    aware      that     a

sensitivity report was being prepared but Mr. Rosado denies that

he    knew   the    reasons    for    Mr.    Griffey’s    visit      to    the   island.

Assuming that there is contradictory testimony on this point,

such conflict does not support the inference that the reason

given by the Wackenhut defendants for Mr. Rosado’s termination

was a pretext for age discrimination.                Appellant also attempts to

draw some inference of pretext from the February 2002 meeting

between Mr. Morrow and Mr. Rosado wherein Morrow discussed the

sensitivity        report’s    conclusions        with   Mr.   Rosado,      which     were

apparently unknown to Rosado until that time.                      However, the fact

that Mr. Rosado was kept out of the loop on the sensitivity


                                            -9-
report does not in any way suggest that the Wackenhut defendants’

performance-based reasons for terminating Mr. Rosado were false.

            Finally, appellant suggests that when Mr. Morrow asked

him to create an action plan for WPR, Mr. Morrow was giving Mr.

Rosado     an    opportunity       to   improve       the      company’s          economic

situation.        Because he was terminated less than three months

after returning to work from the heart attack, appellant suggests

that there is sufficient evidence in the record for a trier of

fact to conclude that the chance Mr. Morrow gave him was just a

false gesture in a discriminatory cover-up scheme.                           However, the

timing of his termination, standing alone or even in conjunction

with being kept out of the loop on the sensitivity report, does

not   in    any     way    suggest      that    the       Wackenhut           defendants’

performance-based reasons for terminating Mr. Rosado were false.

Appellant has not presented any evidence besides his age and Mr.

Griffey’s       presence    pointing     to    age        as    a   factor        in    his

termination.           Moreover,    appellant       has     made       no     attempt   to

demonstrate       that    WPR’s    economic     losses         under        Mr.   Rosado’s

leadership      were     fabricated     by    the    company        to       conceal    his

superiors’ discriminatory motives.

                                   The ADA Claim

            To establish a claim of disability discrimination under

the ADA, a plaintiff must prove, by a preponderance of evidence,

that he (1) was disabled within the meaning of the ADA, (2) was


                                        -10-
able   to    perform   the   essential   functions    of   the   job    with   or

without reasonable accommodation, and (3) was discharged by the

employer in whole or in part because of his disability.                  Jacques

v. Clean-Up Group, 96 F.3d 506, 511 (1st Cir. 1996).                   Appellant

does not allege any direct evidence of disability discrimination.

Here again, in the absence of direct evidence, Mr. Rosado may

“indirectly” prove his case by “using the prima facie case and

burden      shifting   methods    originated     in   McDonnell        Douglas.”

Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co., 87 F.3d

26, 30 n.2 (1st Cir. 1996)).

             Under McDonnell Douglas Mr. Rosado must demonstrate by

a preponderance of evidence that he (1) has a disability within

the meaning of the ADA, (2) is qualified to perform the essential

functions of the job, with or without reasonable accommodations,

(3) was subject to an adverse employment action by a company

subject to the ADA, (4) was replaced by a non-disabled person or

treated     less   favorably   than   non-disabled     employees,       and    (5)

suffered damages as a result.            Id.   The district court granted

defendants’ motion for summary judgment after finding that Mr.

Rosado failed to establish a prima facie case under the ADA.

             Appellant correctly asserts that it is not necessary

that he actually be disabled, but that it is sufficient that his

employer regarded him as disabled.             Considering this theory of

liability, the district court found that Mr. Rosado’s assertion


                                      -11-
that he “must have been generally perceived as impaired because

of his shortness of breath” was not supported by the record.                On

appeal Mr. Rosado again contends that the Wackenhut defendants

terminated him because he was perceived as being “an old man who

had   suffered   a   second   heart    attack   which   prevented   him    from

performing the task required from a manager in the industry.”

Appellant’s Brief at 34.            To support this statement, appellant

states that anyone observing him after he returned would have

noticed physical changes that would have led them to conclude

that he was disabled or could not do the job.            However, appellant

does not cite to any evidence in the summary judgment record that

even upon noticing his shortness of breath, anyone entertained

the belief that he was disabled.          Without providing evidence of a

single instance of misperception by any particular person or

group of persons, Mr. Rosado can not satisfy his prima facie

burden under the ADA.

             Although appellant suggests that after he returned to

work he was universally treated as if he was completely incapable

of performing the duties of general manager, his only support for

this conclusion is that he was required to have Mr. Griffey

authorize his decisions before they became final.                 Mr. Rosado

makes   no   citation   to    the    evidentiary   record   to   support    the

assertion that his decisions had to receive prior authorization

from Mr. Griffey.       However, even if Mr. Griffey was exercising


                                      -12-
oversight over Mr. Rosado’s decisionmaking at WPR, there is no

evidence that this is related to a perception by the Wackenhut

defendants    that    Mr.    Rosado   is    disabled   rather     than    to   the

troubled financial condition of WPR and the corporate effort to

implement the action plan, which Mr. Griffey was instrumental in

developing.    Without record support for the inference that the

alleged   oversight    was    in   some    way   connected   to   Mr.    Rosado’s

shortness of breath, Mr. Rosado can not establish a prima facie

case under the ADA.

           The district court’s judgment is affirmed.




                                      -13-
