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<pre>                  United States Court of Appeals <br>                       For the First Circuit <br>                        ____________________ <br>   <br>  No. 97-2229 <br>   <br>                      JOSE R. ALVAREZ-FONSECA, <br>                       Plaintiff - Appellant, <br>   <br>                                 v. <br>   <br>            PEPSI COLA OF PUERTO RICO BOTTLING COMPANY, <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. Anthony A. Alaimo,   Senior U.S. District Judge] <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br>                                  ____________________ <br>   <br>                               Before <br>   <br>                      Torruella, Chief Judge, <br>   <br>                  Campbell, Senior Circuit Judge, <br>   <br>                     and Selya, Circuit Judge. <br>   <br>                       _____________________ <br>   <br>      Juan Rafael Gonzlez-Muoz, with whom Gonzlez-Muoz & <br>  Quiones-Tridas was on brief for appellant. <br>      Graciela J. Belaval, with whom Martnez, Odell & Calabriawas on brief for appellee. <br>   <br>   <br>   <br>                        ____________________ <br>   <br>                         August 5, 1998 <br>                                   ____________________

          TORRUELLA, Chief Judge.  Plaintiff-appellant Jos R. <br>  Alvarez-Fonseca sued his former employer, defendant-appellee <br>  Pepsi Cola of Puerto Rico Bottling Company, under the Age <br>  Discrimination in Employment Act of 1967 ("ADEA"), as amended, <br>  29 U.S.C.  621-34 (1985 & Supp. 1996), and the Puerto Rico <br>  Anti-Discrimination Act (also known as Law 100), P.R. Laws Ann. <br>  tit. 29,  146, alleging that he was fired because of his age.  <br>  After trial, the jury returned a verdict for Alvarez on both <br>  claims.  The district court, however, granted Pepsi's renewed <br>  motion for judgment as a matter of law, set aside the jury's <br>  verdict, and entered judgment dismissing the complaint.  We <br>  affirm. <br>  I.  Background <br>           Early in the workday on October 13, 1993, Alvarez got <br>  into a fist-fight with another employee.  Alvarez was <br>  eventually discharged.  The fundamental question in this case <br>  is whether Alvarez was fired because of his age, or because of <br>  his involvement in the fight.  We recite the underlying facts <br>  in the light most favorable to the jury's verdict.  See Gibsonv. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994). <br>           Alvarez, the plaintiff, worked for Pepsi for thirty- <br>  four years, having been hired on October 2, 1959, at the age of <br>  20, and rising ultimately to the position of Production Line <br>  Supervisor of the canning line.  At the time of the incident <br>  that gave rise to this case, Alvarez was 54 years old, and the <br>  oldest of the four production supervisors.  During the years <br>  that he worked for Pepsi, Alvarez performed his duties in a <br>  satisfactory manner.  However, Alvarez was also known for his <br>  temper tantrums at work, commonly used obscene language there, <br>  and had been involved in at least two other fights at the <br>  plant. <br>           Alvarez reported to work at 5:00 A.M. on October 13, <br>  1993.  It was his first day of work after a two-week vacation, <br>  and he soon discovered that there were various problems that <br>  required his attention.  When the production line started, he <br>  noticed that the packing machine, which forms cardboard cartons <br>  that hold cans of Pepsi Cola, was producing defective cartons.  <br>  He concluded that the cardboard being used was of sub-standard <br>  quality.  He was also short one employee, who was absent <br>  without explanation.  Alvarez became upset at finding matters <br>  in such disarray upon his return from vacation.  Some time <br>  afterwards, Alvarez spoke with Wilfredo Cordero, the Materials <br> Manager,  to complain in uncouth, expletive-rich language about <br>  the management style of Jos Almeida, the Production Manager, <br>  who had been Alvarez's immediate superior since 1979. <br>       Around 7:00 A.M., Alvarez crawled under the packing <br>  machine to remove some cardboard from it.  Around 7:30 A.M., <br>  Almeida arrived on the premises.  When he noticed that Alvarez <br>  was operating the machine, Almeida reprimanded him for doing <br>  so, reminding Alvarez that company procedure indicated that <br>  supervisors should not perform such work.  Alvarez explained <br>  that he had to operate the machine because he was short one <br>  employee and the operator was in the bathroom.  Almeida <br>  responded, however, by pointing out that during Alvarez's <br>  vacation, the work had been performed by one operator, without <br>  a supervisor, which suggested that supervisors did not need to <br>  operate the machines.  Alvarez retorted that Almeida's failure <br>  to supervise effectively was precisely the reason why the <br>  production line had continued to use inferior quality <br>  cardboard. <br>       Shortly thereafter, when Cordero approached Alvarez, <br>  the latter complained to him that there was a problem with the <br>  quality of the cardboard, and pointed to the pile of defective <br>  cartons that had been produced that morning.  As Materials <br>  Manager, Cordero was in charge of purchasing cardboard for use <br>  in the packing machine.  An  argument ensued, and Cordero told <br>  Alvarez that he was senile.  Alvarez responded by throwing a <br>  piece of cardboard at Cordero, which hit him on the chest, and <br>  telling Cordero to see whether the piece of cardboard was any <br>  good.  The argument escalated, and Cordero told Alvarez that he <br>  was ill-bred and belligerent.  Cordero also said that he would <br>  figure out a way to have Alvarez fired.  The Production <br>  Manager, Almeida, returned at that point and, after asking what <br>  was going on, told Alvarez to just go home, noting that he was <br>  getting into an argument, as usual.  Cordero then asked Almeida <br>  to talk to the Plant Manager, David Cuthberson, to have Alvarez <br>  fired. <br>       The argument became physical at that point, and other <br>  Pepsi employees intervened to attempt to break up the <br>  altercation.  Alvarez threw an object at Cordero, which struck <br>  him on the face and made his lower lip bleed.  Alvarez and <br>  Cordero fell to the floor in the course of pushing and shoving <br>  each other.  Cordero tried to overcome Alvarez, but was <br>  restrained by other employees.  While Cordero was being held by <br>  others, Alvarez punched him on the forehead.  Finally, a <br>  security guard arrived and ordered both Alvarez and Cordero to <br>  leave the premises immediately. <br>       Pursuant to Pepsi procedures, Almeida immediately <br>  prepared a contact sheet that documented the incident.  He <br>  wrote that Alvarez had demonstrated "aggressive conduct against <br>  a fellow worker without considering the consequences caused by <br>  his conduct, that he was engaged in a fight." <br>       Pepsi conducted an investigation of the incident.  On <br>  October 16, 1993, the Personnel Director, Vanessa Boneta, held <br>  a meeting with both Alvarez and Cordero, and asked them to <br>  present their versions of what had happened.  Alvarez admitted <br>  having provoked the incident, asked Cordero for forgiveness, <br>  and stated that he felt "repentant and sad for what [he] had <br>  done."  Boneta advised Alvarez that he could be fired or <br>  suspended for his conduct.  Pursuant to its workplace safety <br>  rules, Pepsi reserved its right to suspend or fire an employee <br>  who instigated a fight, threatened others with aggression, or <br>  became involved in physical horseplay.  Alvarez admits that he <br>  has been involved in several violent episodes at work over the <br>  years, explaining that it is sometimes necessary to use force <br>  in order to maintain discipline. <br>       After the meeting, Cordero was suspended without pay <br>  for thirty days, but no further disciplinary action was taken <br>  against him.  At the end of the thirty-day period, he returned <br>  to work as Materials Manager.  Alvarez, however, was suspended <br>  for sixty days.  He admits that he could have been fired, but <br>  notes that Pepsi chose merely to suspend him, in consideration <br>  of the many years that he had worked there.  It was the first <br>  time that he had ever been suspended from work. <br>       During the suspension period, Alvarez became <br>  depressed, nervous, and his blood pressure, which had risen <br>  dangerously before his vacation, rose again.  He thus sought <br>  treatment from the State Insurance Fund.  His condition <br>  improved some time soon after the sixty-day period ended, and <br>  he received a medical certificate stating that he was able to <br>  work, although he continued under the supervision of the State <br>  Insurance Fund.  He reported to work in early January 1994, but <br>  although Pepsi then renewed payment of his salary, Boneta told <br>  him that he could not start working again until he had obtained <br>  another medical certificate, this time from a physician <br>  designated by Pepsi.  He complied with this request, and <br>  returned with the second certificate on January 11, 1994.  <br>  Boneta, however, instructed Alvarez to return home and wait <br>  until further notice from Pepsi. <br>       For the next few weeks, Alvarez and Boneta remained <br>  in contact, but nothing concrete resulted either from Boneta's <br>  calls to Alvarez, or from Alvarez's visits to her office.  In <br>  February 1994, Alvarez met with Boneta and the Plant Manager, <br>  David Cuthberson.  At that meeting, Alvarez was offered an <br>  early retirement plan.  According to the offer, Pepsi would <br>  continue to pay his salary until December 31, 1994, if he <br>  agreed to retire early, on May 15, 1994, the date of his 55th <br> birthday.   The company would process his early retirement on <br>  that date, and permit him to liquidate his accumulated vacation <br>  pay.  The following month, in addition to his regular salary, <br>  he would begin to collect a pension payment of $392.39 per <br>  month for the rest of his life.   <br>       Alvarez, however, rejected the offer.  Instead, he <br>  and his attorney submitted a counterproposal for early <br>  retirement.  Upon receipt of this proposal, Pepsi ordered a new <br>  investigation of the October 13, 1993, incident.  Alvarez <br>  refused to participate in the new investigation. <br>       Nothing else happened until August 8, 1994, when the <br>  State Insurance Fund released him, having concluded that his <br>  condition was not related to work.  Later that month, Pepsi's <br>  payroll records were changed to reflect Alvarez's separation <br>  from Pepsi, and Pepsi stopped paying Alvarez his salary.  <br>  Alvarez never tendered his resignation to Pepsi, nor did Pepsi <br>  give him notice that he had been discharged. <br>       On August 16, 1995, Alvarez filed the instant suit <br>  against Pepsi in the U.S. District Court for the District of <br>  Puerto Rico, bringing claims under the ADEA and Puerto Rico Law <br>  100 on the basis of the allegation that the disparate treatment <br>  in the disciplinary measures imposed by Pepsi on Cordero and <br>  Alvarez was motivated by discriminatory age animus.  A one-day <br>  jury trial was held on February 13, 1997.  At the end of the <br>  plaintiff's case, Pepsi moved for a directed verdict, but the <br>  court denied the motion.  On the following day, the jury <br>  returned a verdict for Alvarez on both claims, and in addition <br>  found that Pepsi had willfully violated the ADEA.  The jury <br>  awarded Alvarez $73,373.39 in back pay, and $55,000 in <br>  compensatory damages. <br>       On April 1, 1997, Pepsi filed a motion under Fed. R. <br>  Civ. P. 50 renewing its earlier motion for judgment as a matter <br>  of law, as well as a motion under Fed. R. Civ. P. 59(a) for new <br>  trial and to amend judgment.  On July 25, 1997, the district <br>  court granted Pepsi's Rule 50 motion.  On September 12, 1997, <br>  the court entered judgment in favor of Pepsi dismissing the <br>  complaint.  Alvarez filed a timely notice of appeal on October <br>  14, 1997. <br>  II.  Jurisdiction and Standard of Review <br>       We have jurisdiction over this appeal, which is from <br>  a final decision of the U.S. District Court for the District of <br>  Puerto Rico.  See 28 U.S.C. 1291.  We review de novo a district <br>  court's decision to grant a motion under Rule 50 for judgment <br>  as a matter of law.  See Speen v. Crown Clothing Corp., 102 <br>  F.3d 625, 628 (1st Cir. 1996).  When the court grants the <br>  motion and enters judgment for the movant notwithstanding the <br>  jury's verdict for the non-movant, we examine the evidence <br>  presented to the jury, and all reasonable inferences that may <br>  be drawn from such evidence, in the light most favorable to the <br>  jury verdict.  See Roln v. Municipality of San Juan, 1 F.3d <br>  74, 76 (1st Cir. 1993).  In doing so, moreover, we may not take <br>  into consideration the credibility of witnesses, resolve <br>  conflicts in testimony, or in any other manner weigh the <br>  evidence.  See Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir. <br>  1996).  We assume the veracity, however, of any admissions made <br>  and stipulations entered into by the party opposing the Rule 50 <br>  motion, see Fed. R. Civ. P. 36(b), as well as any evidence <br>  derived from disinterested witnesses that has not been <br>  contradicted or impeached.  See Collazo-Santiago v. Toyota <br>  Motor Corp., No. 97-1365, ___ F.3d ___, slip op. at 12-13 (1st <br>  Cir. July 9, 1998). <br>       On review, the question before us is whether there <br>  was sufficient evidence to allow a reasonable jury to find that <br>  the plaintiff met his burden of proof under the ADEA and Puerto <br>  Rico Law 100.  See Acevedo-Daz v. Aponte, 1 F.3d 62, 66-67 <br>  (1st Cir. 1993).  A non-moving party must submit more than a <br>  scintilla of evidence as to an issue on which it bears the <br>  burden of persuasion in order to resist or reverse the entry of <br>  judgment as a matter of law on that issue.  See Coyante v. <br>  Puerto Rico Ports Authority, 105 F.3d 17, 21 (1st Cir. 1997).  <br>  Thus, in order to support a jury finding on such an issue, the <br>  evidence presented must make the existence of the fact to be <br>  inferred more probable than its nonexistence.  See Katz, 87 <br>  F.3d at 28. <br>  III.  Age Discrimination in Employment Act <br>       "The ADEA makes it unlawful for an employer to <br>  'discharge any individual or otherwise discriminate against any <br>  individual with respect to his compensation, terms, conditions, <br>  or privileges of employment, because of such individual's <br>  age.'"  Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 <br>  (1st Cir. 1997) (quoting from text of the ADEA).  In raising a <br>  disparate treatment claim under the ADEA, a plaintiff bears the <br>  burden of persuading the factfinder that, because of his age, <br>  he was treated less favorably than other persons who were <br>  similarly situated in all relevant respects.  See DiBiase v. <br>  Smith Kline Beecham Corp., 48 F.3d 719, 726 (3d Cir. 1995); cf.Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 <br>  (1981) (disparate treatment claim under Title VII); Mack v. <br>  Great Atlantic and Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. <br>  1989) (same).   <br>       When a plaintiff provides direct evidence of <br>  discrimination, the issue may be put to a finder of fact <br>  without further ado.  However, when a plaintiff has not <br>  provided "direct evidence that the employer's actions were <br>  motivated by age, the familiar McDonnell Douglas framework <br>  governs" the order in which the evidence is presented.  <br>  Serrano-Cruz, 109 F.3d at 25 (citing McDonnell Douglas Corp. v. <br>  Green, 411 U.S. 792, 802-05 (1973)); see also Kelley v. <br>  Airborne Freight Corp., 140 F.3d 335, 348 (1st Cir. 1998).  <br>  Under that framework, the employee must first "prov[e] by the <br>  preponderance of the evidence a prima facie case of <br>  discrimination."  Burdine, 450 U.S. at 252-53.  In an ADEA <br>  case, the plaintiff must show "that: 1) he was at least 40 <br>  years old; 2) met the employer's legitimate job expectations; <br>  3) was fired or constructively discharged; and 4) that age was <br>  not treated neutrally."  Ruiz v. Posadas de San Juan <br>  Associates, 124 F.3d 243, 247-48 (1st Cir. 1997). <br>       "[I]f the plaintiff succeeds in proving the prima <br>  facie case, the burden shifts to the defendant to articulate <br>  some legitimate, nondiscriminatory reason for the" adverse <br>  employment action suffered by the employee.  Burdine, 450 U.S. <br>  at 252-53; see also Kelley, 140 F.3d at 348.  To meet that <br>  burden, the defendant need only produce an explanation, and <br>  thus "need not persuade the court that it was actually <br>  motivated by the proffered reasons."  Burdine, 450 U.S. at 254.  <br>       A failure to comply with this easily-met requirement <br>  can be fatal, because defendant's "failure to introduce <br>  evidence of a nondiscriminatory reason will cause judgment to <br>  go against it unless the plaintiff's prima facie case is held <br>  to be inadequate in law or fails to convince the factfinder."  <br>  St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 n.3 (1993).  <br>  If the defendant satisfies its burden of production, however, <br>  then "the McDonnell Douglas framework -- with its presumptions <br>  and burdens -- is no longer relevant."  Id. at 510.  In such a <br>  situation, "[t]he plaintiff then has 'the full and fair <br>  opportunity to demonstrate,' through presentation of his own <br>  case and through examination of the defendant's witnesses, <br>  'that the proffered reason was not the true reason for the <br>  employment decision,' . . . and that [age] was."  Id. at 507-08 <br>  (quoting Burdine, 450 U.S. at 256).   <br>       Although the plaintiff must then prove both that the <br>  defendant's explanation is false, and that the real reason <br>  behind the defendant's actions was discriminatory animus, it <br>  will not always be necessary for the plaintiff to present <br>  additional evidence of discrimination beyond that necessary to <br>  prove that the proffered reasons are pretextual.  As the <br>  Supreme Court has explained, "[t]he factfinder's disbelief of <br>  the reasons put forward by the defendant (particularly if the <br>  disbelief is accompanied by a suspicion of mendacity), may, <br>  together with the elements of the prima facie case, . . . <br>  permit the trier of fact to infer the ultimate fact of <br>  intentional discrimination."  St. Mary's Honor Center, 509 U.S. <br>  at 511 (emphasis added); see also Kelley, 140 F.3d at 349.  The <br>  reasonableness of the jury making such inference, however, is <br>  subject to review under Fed. R. Civ. P. 50, just as any other <br>  finding of fact. <br>       Pepsi, for the sake of argument, chooses not to <br>  dispute that Alvarez established a prima facie case under the <br>  ADEA, and Alvarez does not dispute that Pepsi articulated a <br>  legitimate, non-discriminatory reason for the way it treated <br>  him.  The only question before us is therefore whether a <br>  reasonable jury could have found that the reasons given by <br>  Pepsi were a sham, and that the actions taken by Pepsi with <br>  regard to Alvarez were motivated by discriminatory animus based <br>  on age.  In this case, we believe that no reasonable jury could <br>  find that Pepsi's proffered explanation for its actions with <br>  regard to Alvarez was a pretext masking discriminatory animus. <br>       Pepsi explained that it discharged Alvarez because he <br>  had violated its internal disciplinary rules, and that its <br>  decision to dismiss Alvarez was mandated by such rules.  <br>  Alvarez contends, however, that this explanation is false.  He <br>  argues that the pretextual character of Pepsi's explanation was <br>  shown by the fact that Cordero was suspended for only 30 days, <br>  as compared to the 60-day suspension and subsequent discharge <br>  imposed upon him.  The evidence showed that Pepsi had <br>  established rules and regulations for the workplace that <br>  prohibited fighting and horseplay, among other things, and that <br>  any violation could render the employee subject to dismissal at <br>  Pepsi's discretion.   <br>       Alvarez is only partly correct.  A jury could have <br>  disbelieved Pepsi's claim that its workplace rules required the <br>  dismissal of an employee who initiated a fight in all cases.  <br>  The rules themselves speak of Pepsi's discretion with regard to <br>  the sanctions that it could impose, which hardly supports the <br>  claim that dismissal was mandatory.  Pepsi sought to explain <br>  the apparent inconsistency by arguing that, although the rules <br>  did not specify that dismissal was mandatory, as a matter of <br>  policy it would always dismiss employees who had initiated <br>  fights.  However, this argument is undermined by the evidence <br>  that several years earlier, Alvarez had initiated a fight, and <br>  although he had been sanctioned, he had not been fired.  There <br>  was more than enough evidence for the jury to find that it was <br>  within Pepsi's discretion whether or not to discharge an <br>  employee when that employee had initiated a fight in the <br>  workplace.   <br>       As a result of the inconsistencies in Pepsi's <br>  argument pointed out above, a reasonable jury could question <br>  Pepsi's credibility.  There is, however, no direct evidence <br>  that Alvarez was not discharged because of the fight.  Alvarez <br>  claims that the fact that he was initially only suspended, and <br>  only later offered early retirement (and ultimately <br>  discharged), indicates that the latter two decisions had <br>  nothing to do with the fight.  This argument tests, and perhaps <br>  surpasses, the outer limits of the inferences that could <br>  permissibly be drawn from the facts.  The fact that Pepsi's <br>  proffered explanation was not entirely consistent does not give <br>  a jury license to disbelieve all of the uncontradicted evidence <br>  indicating that Alvarez was discharged as a result of the <br>  fight. <br>       But even assuming that a reasonable jury could find <br>  Pepsi's explanation to be pretextual, Alvarez failed to show <br>  that Pepsi discriminated against him because of his age.  <br>  Alvarez makes much of the language from St. Mary's Honor Centerstating that "[t]he factfinder's disbelief of the reasons put <br>  forward by the defendant (particularly if the disbelief is <br>  accompanied by a suspicion of mendacity), may, together with <br>  the elements of the prima facie case, . . . permit the trier of <br>  fact to infer the ultimate fact of intentional discrimination."  <br>  509 U.S. at 511 (emphasis added).  However, not only is a jury <br>  not required to infer discrimination from a showing of pretext <br>  together with the evidence underlying the prima facie case, but <br>  the facts will most often not permit a jury to do so.  That is <br>  certainly the case here, where both the prima facie case and <br>  the showing of pretext are weak, and there is no independent <br>  evidence that would reasonably allow the inference that age <br>  discrimination was the motivation for Pepsi's actions. <br>       With regard to the evidence underlying the prima <br>  facie case, there is no doubt that, at 54 years of age, Alvarez <br>  fell within the category of persons protected by the Act, and <br>  that he was subjected to adverse employment action, namely, <br>  suspension and termination.  Pepsi contends that there is scant <br>  evidence to support a finding that Alvarez was performing his <br>  job adequately, noting that Alvarez did not delegate properly, <br>  and that he was rude and offensive to other workers.  However, <br>  as the district court found, a reasonable jury could find for <br>  Alvarez on this point, given his 34 years of service with the <br>  company, as well as the raises, performance bonuses, and <br>  commendations that he received during that time.   <br>       The fourth and last prong of the prima facie case, <br>  however, presents a more difficult question.  Undoubtedly, <br>  Pepsi treated Cordero, who was under 40 years of age, more <br>  leniently than it did Alvarez.  The district court found, <br>  because the burden on Alvarez was exceedingly light, that he <br>  had proved this element of his prima facie case.  Pepsi <br>  contends that the district court erred, because no reasonable <br>  jury could have found that Alvarez and Cordero were similarly <br>  situated. <br>       We agree with Pepsi.  We note here that Alvarez had <br>  the burden of proof on this issue, not merely a burden of <br>  production.  As the Court explained in St. Mary's Honor Center, <br>  the defendant "feels the burden" to provide a legitimate, <br>  nondiscriminatory reason for its actions as soon as the <br>  plaintiff has presented some evidence to support his prima <br>  facie case.  See 509 U.S. at 510 n.3.  That does not mean, <br>  however, that the plaintiff need not prove his prima facie <br>  case.  To the contrary, if the finder of fact subsequently <br>  fails to be convinced by the evidence adduced by the plaintiff <br>  in support of his prima facie case, the burden of production is <br>  lifted from the defendant.  See id.  <br>       The evidence presented at trial established that <br>  Alvarez initiated the fight, and, in any case, that he had been <br>  most at fault.  Although he denies that he initiated the fight, <br>  he admits, inconsistently, that he threw a piece of cardboard <br>  at Cordero at the beginning of their argument, and that he <br>  later threw either a radio or a flashlight at Cordero's face.  <br>  Alvarez also admits that he had problems controlling his anger, <br>  frequently used offensive language, often used physical force <br>  to maintain order among the workers that he supervised, and had <br>  been involved in at least two previous fights on the premises, <br>  albeit a long time before.  In contrast, it was shown that <br>  Cordero had never been involved in a violent incident at work, <br>  that he had not initiated this particular fight, and that he <br>  was otherwise a well-behaved employee.  This evidence <br>  undermines any argument that Alvarez and Cordero were similarly <br>  situated for purposes of the sanctions imposed upon them by <br>  Pepsi.  Cf. Perkins v. Brigham & Women's Hosp., 78 F.3d 747, <br>  751 (1st Cir. 1996) (disparate treatment claim under Title <br>  VII).  Consequently, there is no support for the conclusion <br>  that age was not treated neutrally by Pepsi in deciding to <br>  impose sanctions of different severity upon Cordero and <br>  Alvarez. <br>       Moreover, at this stage of the McDonnell Douglasanalysis it is irrelevant whether or not the facts in question <br>  sufficed to establish a prima facie case or not.  Instead, the <br>  question is whether the whole of the evidence mustered by the <br>  plaintiff, regardless of whether it was initially presented to <br>  establish the prima facie case or to show pretext, suffices to <br>  allow a finding that the defendant intentionally discriminated <br>  against him.  See Snchez v. Puerto Oil Co., 37 F.3d 712, 720 <br>  (1st Cir. 1994).  We find that, even if the evidence described <br>  above were sufficient to establish the fourth and final <br>  requirement of the prima facie case, this evidence would still <br> not be probative of discriminatory intent.  <br>      Nor is there evidence that could independently <br>  support a finding that Pepsi discriminated against Alvarez <br>  because of his age.  Cordero did tell Alvarez that he was <br>  senile, but, aside from the fact that he said that in the <br>  context of an altercation with Alvarez, it was shown that <br>  Cordero had no authority to influence Pepsi's decision to <br>  discharge Alvarez. <br>      As for the offer of early retirement, we note that <br>  such an offer is not, by itself, evidence of constructive <br>  discharge or discriminatory animus.  See Vega v. Kodak <br>  Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993); Hebert v. <br>  Mohawk Rubber Co., 872 F.2d 1104, 1110-11 (1st Cir. 1989); Grayv. New England Tele. and Tele. Co., 792 F.2d 251, 255 (1st Cir. <br>  1986).  Something more must be shown that would tie the <br>  decision to offer early retirement to discrimination.   <br>      The evidence here, however, suggests only that Pepsi <br>  had decided to terminate Alvarez, but because of his many years <br>  of service, sought to find a way to soften the economic impact <br>  of that decision.  As we indicated above in the background <br>  section, Pepsi began paying Alvarez's salary after his <br>  suspension ended, even though he was not working at the time, <br>  and offered to continue doing so until the end of the calendar <br>  year, even after he had retired and begun to receive his <br>  pension payments.  Pepsi also suggested that Alvarez wait until <br>  May 15, 1994, the date of his 55th birthday, so that he could <br>  qualify for his full pension.  The uncontroverted evidence <br>  indicated that, had Pepsi fired Alvarez before May 15, 1994, he <br>  would not have been eligible for a full pension until he <br>  reached his 62nd birthday, seven years later.  In view of this <br>  evidence, we find that no reasonable jury could find that <br>  Pepsi's offer of early retirement is evidence of discriminatory <br>  animus.  We therefore conclude that the district court did not <br>  err in dismissing with prejudice Alvarez's ADEA claim.  <br>  IV.  Puerto Rico Law 100 <br>      Puerto Rico Law 100, like the ADEA, "provides a <br>  cause[] of action in favor of those persons who suffer <br>  discrimination in their employment because of their age.  <br>  However, [the statutes] differ with regard to the burden[s] of <br>  proof that they impose upon the employer and the employee," <br>  under certain circumstances.  Soto v. Caribe Hilton Hotel, No. <br>  RE-93-603, ___ P.R. Dec. ___, 1994 WL 909663, at 4 (October 17, <br> 1994).   In particular, Law 100 establishes a rebuttable <br>  presumption that the employer has discriminated illegally <br>  unless the employer can show that the discharge was justified.  <br> See P.R. Laws Ann. tit. 29,  148.  <br>      The most important difference between Law 100 and the <br>  ADEA is that when the Law 100 presumption has been triggered, <br>  it shifts not only the burden of production, but also the <br>  burden of persuasion, from the employee to the employer.  SeeIbaez-Bentez v. Molinos de Puerto Rico, Inc., 114 P.R. Dec. <br> 42, 52 (1983).   Thus, in order to rebut the Law 100 <br>  presumption, the employer must prove, by a preponderance of the <br>  evidence, that the challenged action was not motivated by <br>  discriminatory age animus.  See id. at 53. <br>      As noted above, see supra note 5, the Law 100 <br>  presumption of discrimination is triggered when it is shown <br>  that the employer lacked "just cause" to discharge or take <br>  other adverse action with regard to the employee.  In Bez- <br>  Garca v. Cooper Labs, Inc., 120 P.R. Dec. 145, 155 (1987), the <br>  Supreme Court of the Commonwealth of Puerto Rico determined <br>  that, because Law 100 did not define the term "just cause," the <br>  term's definition would be sought in an analogous statute - the <br>  Puerto Rico Law on Unjustified Dismissals, Law 80 of May 30, <br>  1976, P.R. Laws Ann. tit. 29,  185a-185k.  Law 80 defines a <br>  dismissal without just cause as a dismissal based on a reason <br> not allowed by the statute.   The statute allows dismissals for <br>  a number of reasons, including an employee's improper or <br>  disorderly conduct, negligent attitude towards his work, and <br>  violations of the employer's rules and regulations.  See P.R. <br>  Laws Ann. tit. 29,  185b.  However, "[a] discharge made by <br>  mere whim or fancy of the employer or without cause related to <br>  the proper and normal operation of the establishment shall not <br>  be considered as a discharge for [just] cause."  Id. (Official <br>  translation 1985).  Once the plaintiff has proven that he was <br>  directly or constructively discharged, Law 80 shifts the burden <br>  of proof to the employer to show that the discharge was <br>  justified.  See P.R. Laws Ann. tit. 29,  185k; see also Bez- <br> Garca, 120 P.R. Dec. at 152.  <br>      It follows that the Law 100 presumption that a <br>  dismissal was discriminatory depends on the Law 80 presumption <br>  that the dismissal was unjustified.  Stated more explicitly, <br>  the Law 80 presumption is triggered when the plaintiff alleges <br>  unjustified dismissal and proves by a preponderance of the <br>  evidence that he was actually or constructively discharged.  <br>  The burden then shifts to the employer to prove by a <br>  preponderance of the evidence that it had just cause to dismiss <br>  the employee.  If the employer fails to make this showing, the <br>  Law 100 presumption of discrimination is triggered, shifting <br>  the burden to the employer of proving by a preponderance of the <br>  evidence that the otherwise-unjustified dismissal was not <br>  motivated by discriminatory animus. <br>      Conversely, if the employer proves that the discharge <br>  was justified, then the Law 100 presumption disappears.  SeeP.R. Laws Ann. tit. 29,  148.  Consequently, the burden of <br>  proof on the ultimate issue of discrimination remains with the <br>  plaintiff, as in any other civil case.  The plaintiff must <br>  prove that, even if the dismissal was justified, the defendant <br>  nevertheless violated Law 100 because the dismissal was <br>  motivated by discriminatory animus instead of or in addition to <br>  the legitimate reasons for dismissal.  The Law 100 plaintiff is <br>  then in same situation as an ADEA plaintiff after the defendant <br>  has articulated a legitimate, non-discriminatory reason for its <br>  actions. <br>      This is such a case, because the evidence presented <br>  at trial would not permit a reasonable jury to find that Pepsi <br>  had failed to meet its burden under Law 80 of proving that <br>  Alvarez's discharge was justified.  The evidence is clear.  <br>  Pepsi had established rules and regulations for the workplace <br>  that prohibited fighting and horseplay, and specifically warned <br>  employees that any violation of such rule could render the <br>  employee subject to dismissal at Pepsi's discretion.  Alvarez <br>  admitted that he was aware of that rule, including the fact <br>  that dismissal was a possible sanction for a violation of the <br>  rule.  It is not disputed that Alvarez was involved in the <br>  fight, and, although he denies it, there is overwhelming <br>  evidence that he instigated the fight with Cordero, and not the <br>  other way around.  It is also undisputed that Alvarez had been <br>  previously involved in other fights, and had been warned in <br>  writing that any further violations would entail his dismissal.  <br>  Alvarez also admitted that he used offensive language and <br>  physical force on numerous occasions in the workplace.   <br>      Given this evidence, no reasonable jury could have <br>  failed to find that Pepsi had just cause to dismiss Alvarez, <br>  regardless of the allocation of the burden of persuasion.  <br>  Furthermore, as we have discussed above with regard to his ADEA <br>  claim, no reasonable jury could have found that Alvarez carried <br>  his burden of proof on the ultimate issue of discrimination.  <br>  We therefore conclude that the district court did not err in <br> dismissing with prejudice Alvarez's Law 100 claim.  <br>  V.  Conclusion <br>      For the reasons discussed above, we affirm the <br>  judgment of the district court. <br>  </pre>

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