
USCA1 Opinion

	




          September 29, 1992    [NOT FOR PUBLICATION]                              _________________________          No. 92-1454                            CECILIA DE LA GARZA BLIZZARD,                                Plaintiff, Appellant,                                          v.                          SOCIEDAD ESPANOLA DE AUXILIO MUTUO                            Y BENEFICENCIA DE PUERTO RICO,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Boyle,* District Judge.                                         ______________                              _________________________               Jose E. Fernandez-Sein, with  whom Nachman &  Fernandez-Sein               ______________________             _________________________          was on brief, for appellant.               R.  Alex  Fleming, with  whom Lespier  &  Munoz Noya  was on               _________________             ______________________          brief, for appellee.                              _________________________                              _________________________          __________          *Chief Judge, United  States District Court  for the District  of          Rhode Island, sitting by designation.                    Per  Curiam.   This is  a failure-to-hire  suit brought                    ___________          pursuant  to the  federal  Age Discrimination  in Employment  Act          (ADEA),  29  U.S.C.       621-634  (1988).    The complaint  also          asserted  pendent claims  under Puerto  Rico law.    The district          court  granted summary judgment  in the defendant's  favor on the          ADEA claim and on an age discrimination claim brought pursuant to          Puerto Rico  Law No. 100, 29 L.P.R.A.   146  (1985).  De La Garza                                                                ___________          Blizzard  v. Sociedad  Espanola, Etc.,  787  F. Supp.  31 (D.P.R.          ________     ________________________          1992).1  Plaintiff appeals.  We affirm.                    This case  is governed  in  the first  instance by  the          burden-shifting framework of McDonell Douglas Corp. v. Green, 411                                       ______________________    _____          U.S.  792,  802-05  (1973).    Here,  although  the  lower  court          questioned whether  the plaintiff  had established a  prima facie                                                                _____ _____          case, we assume arquendo, favorably to plaintiff,  that the first                          ________          burden,   plaintiff's  demonstration of  a prima facie  case, was                                                     _____ _____          met.         The  next  burden  --  articulating   a  legitimate,          nondiscriminatory basis for  the adverse  employment decision  --          belongs to the employer.  See, e.g., Hebert v. Mohawk Rubber Co.,                                    ___  ____  ______    _________________          872  F.2d 1104,  1110 (1st  Cir. 1989).   This  burden, too,  was          satisfied:   the  defendant supplied  evidence that  the job  was          offered  to the plaintiff, but that  she "failed unqualifiedly to          accept the  position or report  for work. .  . , "   De  La Garza                                                               ____________          Blizzard,  787 F. Supp. at  32-33, thus leaving  the defendant no          ________          choice but to hire another person.                                          ____________________               1The district  court dismissed other pendent  claims without          prejudice, there  being no  remaining federal question.   787  F.          Supp. at 34.  The plaintiff does not contest this ruling.                                          2                    This brings us to the third, and last, step.  The court          below  found this step dispositive.  It premised its order, inter                                                                      _____          alia,  on a finding  that plaintiff "failed to  demonstrate . . .          ____          [or]  suggest  a   discriminatory  animus  on  the  part  of  the          defendant."   Id. at 33.  On appeal, plaintiff has been unable to                        __          cast the slightest  doubt upon this finding.  That ends the case.          When, as here, the focus is on what we have  termed "the ultimate          question,"  that is, "whether, on  all the evidence  of record, a          rational  factfinder could  conclude that  age was  a determining          factor in the employer's decision" to  fire (or not to hire)  the          affected individual, Mesnick v. General  Elec. Co., 950 F.2d 816,                               _______    __________________          825 (1st Cir. 1991),  cert. denied, 112  S. Ct. 2965 (1992),  the                                _____ ______          plaintiff   must   produce   some   probative   evidence   of   a          particularized discriminatory  animus in order to survive summary          judgment.   Id.  at  825-26.    The  evidence  produced  must  be                      ___          sufficiently sturdy so that "a rational jury could infer, without          the  most  tenuous insinuation,"  that  the  employer's professed          reason for taking  the adverse employment action  "was actually a          pretext  for  age  discrimination."    Id.  at  826  (emphasis in                   ________________________      ___          original).  The record before us contains no such evidence.                      The inference of discrimination that the plaintiff asks          us to draw is too attenuated to be taken seriously.   Indeed, the          documented  facts  of  record  here,  viewed  in the  light  most          congenial to plaintiff's cause, have less heft than evidence that          we  have judged in other,  comparable cases to  weigh too little.          See,  e.g., id.; Medina-Munoz  v. R.J. Reynolds  Tobacco Co., 896          ___   ____  ___  ____________     __________________________                                          3          F.2d 5, 9-10 (lst Cir. 1990); Menzel v. Western Auto Supply  Co.,                                        ______    ________________________          848 F.2d 327, 329-30 (1st  Cir. 1988); Dea v. Look, 810  F.2d 12,                                                 ___    ____          15 (lst Cir. 1987).  At  bottom, the plaintiff is arguing that it          was  unnecessary for  her to  produce evidence  of discriminatory          animus  per se because such  animus can (and  should) be inferred                  ___ __          from a  showing of pretext,  without more. Because  this argument          flies  in  the teeth  of  settled circuit  precedent,  see, e.g.,                                                                 ___  ____          Mesnick, supra;  Medina-Munoz, supra; Menzel, supra;  Dea, supra;          _______  _____   ____________  _____  ______  _____   ___  _____          see  also Connell  v. Bank of  Boston, 924  F.2d 1169,  1175 (lst          ___  ____ _______     _______________          Cir.), cert. denied, 111 S. Ct. 2828 (1991), it must be rejected.                 _____ ______                    We  refuse to linger  over the Law  100 claim.   In the          district court, plaintiff argued  the ADEA and Law 100  claims as          an  indivisible unit.   See Plaintiff's Opposition  to Motion for                                  ___          Summary  Judgment (March 16, 1992).   She cannot  now be heard to          complain  that the Law 100 claim should be judged  by a different          standard. See  Mesnick, 950 F.2d  at 829 n.11; see  also McCoy v.                    ___  _______                         ___  ____ _____          Massachusetts  Inst. of  Technology, 950  F.2d 13,  22 (1st  Cir.          ___________________________________          1991) ("It is hornbook  law that theories not raised  squarely in          the  district  court cannot  be surfaced  for  the first  time on          appeal."), cert. denied, 112 S.Ct. 1939 (1992).                       _____ ______                    We  need go no further.2  Because we, like the district                                        ____________________               2Plaintiff asserts  that she made out a  question of pretext          vel non by  her assertion that she was willing  to accept the job          ___ ___          if  offered, and that the  district court mistakenly  held to the          contrary.   If this is so  - and it appears  to us that plaintiff          misreads the district court's opinion - it is beside any relevant          point.    To  survive  summary judgment,  an  age  discrimination          plaintiff must adduce evidence of both pretext and discriminatory                                                         ___                                          4          court,  are unable  to find  in this  record any  evidence fairly          probative of age  discrimination, and because we  are both unable          and unwilling  to alter clear  circuit precedent,  we affirm  the          judgment  below.  The ADEA,  after all, "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 Machinery Co.,  865 F.2d                                _______    _____________________          1331,  1341 (1st Cir.  1988).  By the  same token, the ADEA  does          not prohibit an employer  from refusing to hire an  applicant for          any reason (fair or unfair) or for no reason, so long as age does          not creep into the calculus.          Affirmed.          ________                                        ____________________          animus.   See text and cases,  supra.  Absent any  showing of the                    ___                  _____          latter,  a  dispute about  the former,  even  if genuine,  is not          material.  See, e.g.,  Rivera-Muriente v. Agosto-Alicea, 959 F.2d                     ___  ____   _______________    ______ ______          349, 352 (lst Cir.  1992) (a "material" fact "is  one susceptible          of  altering the  outcome of  the litigation").   Hence,  summary          judgment  was  appropriate,  notwithstanding  the  dispute  about          pretext.                                          5
