

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1877

                    GILBERTO MULERO-RODRIGUEZ,
                      GLADYS ORTIZ-MARGARYS,

                     Plaintiffs - Appellants,

                                v.

                 PONTE, INC. AND HAYDEE SABINES,
                         WIDOW OF PONTE,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Coffin, Senior Circuit Judge,                                                        

                     and Cyr, Circuit Judge.                                                     

                                           

     Kevin G. Little, with whom David Efr n and Law Offices David                                                                           
Efr n were on brief for appellants.               
     Jay A.  Garc a-Gregory, with  whom Juan  C. Guzm n-Rodr guez                                                                           
and Fiddler Gonz lez &amp; Rodr guez were on brief for appellees.                                          

                                           

                         October 28, 1996
                                           

          TORRUELLA, Chief Judge.  Appellants-Plaintiffs Gilberto                    TORRUELLA, Chief Judge.                                          

Mulero-Rodr guez   ("Mulero")  and  his   spouse,  Gladys  Ortiz-

Margarys, appeal  the district court's grant  of summary judgment

to defendants Ponte,  Inc. and Hayde  Sabines ("Sabines") in this

wrongful  termination   case  for   their  suit  under   the  Age

Discrimination  in  Employment  Act  (the "ADEA"),  29  U.S.C.   

626(c), and Title VII of the Civil Rights Act of  1964, 42 U.S.C.

  2000e, et seq.  The  Muleros also presented claims under Puerto                          

Rico Law  100, 29 L.P.R.A.    185(a), Law 80, 29  L.P.R.A.   146,

and  the  Puerto  Rico Civil  Code  for  breach  of contract  and

tortious conduct provisions.   For the reasons  stated herein, we

affirm in part and reverse in part.

                            BACKGROUND                                      BACKGROUND

          As always,  in reviewing the district  court's grant of

summary  judgment, we  present  the facts,  drawn  here from  the

district court opinion and order, see  Mulero Rodr guez v. Ponte,                                                                           

Inc.,  891 F. Supp. 680, 682-83  (D.P.R. 1995), in the light most              

favorable  to the  nonmovant, see,  e.g., Woodman  v. Haemonetics                                                                           

Corp., 51 F.3d  1087, 1089 n.1 (1st Cir. 1995).   Appellee Ponte,               

Inc. is a  corporation whose  principal place of  business is  in

Puerto Rico and is incorporated there.  It is owned by members of

two families  of  Cuban  descent, the  Pontes  and  the  Sabines.

Appellant Mulero worked for Ponte, Inc. for 29 years, starting as

a  driver  and  eventually  attaining the  positions  of  general

manager  and director.  By  January of 1993,  he bore substantial

responsibility for the day-to-day  operations of Ponte, Inc., and

                               -2-

received compensation of some $150,000 per year.

          Mar a  Luisa Ponte  ("Ponte"),  one of  the owners  and

officers  of Ponte, Inc.,  began to work  at the  company in late

1991.  She  soon moved to  restrict Mulero's authority,  limiting

his  ability to hire and fire employees by requiring her approval

for  personnel actions.   During  the course  of 1992,  Ponte and

Mulero  clashed over a series of issues, relating to Mulero's job

performance,  employee  bonuses,  control  over   inventory,  and

Mulero's interaction  with other employees.   Mulero's employment

was terminated on January 26, 1993, by Sabines and her son-in-law

Jorge Redondo ("Redondo"),  who was not a  Ponte, Inc., employee.

Mulero  was  47  years  old.    The  appellants   sued,  alleging

discrimination under  the ADEA  and Title  VII, and the  district

court  granted summary  judgment  for Ponte,  Inc., and  Sabines.

This appeal followed.

                            DISCUSSION                                      DISCUSSION

                  A.  Title VII and ADEA Claims                            A.  Title VII and ADEA Claims                                                         

          In the summary judgment context, we review the district

court's  grant of summary judgment  de novo, and  "are obliged to                                                     

review  the record in the  light most favorable  to the nonmoving

party, and  to draw all  reasonable inferences  in the  nonmoving

party's favor."  LeBlanc v. Great American  Ins. Co., 6 F.3d 836,                                                              

841 (1st  Cir. 1993), cert. denied,     U.S.   , 114  S. Ct. 1398                                            

(1994);  see, e.g.,  Woods v.  Friction Materials, Inc.,  30 F.3d                                                                 

255, 259 (1st Cir. 1994).  "An inference is reasonable only if it

can  be drawn from  the evidence without  resort to speculation."

                               -3-

Friezev. Boatmen'sBank of Belton,950 F.2d538, 541(8th Cir. 1991).                                          

          We will  uphold summary judgment where  "the pleadings,

depositions, answers to  the interrogatories,  and admissions  on

file, together with  affidavits, if  any, show 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 are  not  restricted to  the  scope of  the  district

court's logic,  but can  affirm on "any  independently sufficient

ground."  Mesnick  v. General Elec.  Co., 950 F.2d 816,  822 (1st                                                  

Cir. 1991), cert. denied, 504 U.S. 985 (1992).  Of course,                                  

            [n]ot  every  factual controversy  bars a
            litigant's access to the Rule 56 anodyne:
               [T]he   mere   existence  of   some
               alleged factual dispute between the
               parties   will    not   defeat   an
               otherwise properly supported motion
               for    summary     judgment;    the
               requirement  is  that  there be  no
               genuine issue of material fact.

Medina-Mu oz v. R.J.  Reynolds Tobacco  Co., 896 F.2d  5, 8  (1st                                                     

Cir. 1990)  (quoting Anderson  v. Liberty Lobby,  Inc., 477  U.S.                                                                

242, 247-48 (1986)).   The nonmovant bears the burden  of setting

forth "specific facts showing  that there is a genuine  issue for

trial."  Fed. R. Civ. P. 56(e).  An issue is  genuine if it "must

be decided at  trial because  the evidence, viewed  in the  light

most  flattering  to  the  nonmovant,  would  permit  a  rational

factfinder  to  resolve  the  issue in  favor  of  either party."

Medina-Mu oz, 896 F.2d at 8 (citation omitted).                      

          In the absence of direct evidence of discrimination, we

apply   the  familiar  burden-shifting   framework  of  McDonnell                                                                           

                               -4-

Douglass Corp. v.  Green, 411 U.S. 792 (1973),  to ADEA and Title                                  

VII claims.   See Ayala-Gerena  v. Bristol Myers-Squibb  Co., No.                                                                      

95-1867,  slip op. at  17 (1st Cir.  Sept. 5,  1996) (noting that

"direct  evidence   does  not   include  stray  remarks   in  the

workplace"); see,  e.g., Pages-Cahue  v. Iberia L neas  A reas de                                                                           

Espa a, 82  F.2d 533, 536-37  (1st Cir. 1996); Woods,  30 F.3d at                                                              

259.  First,  the plaintiffs  must establish a  prima facie  case

that  Mulero (1)  was within  a protected  class; (2)  met Ponte,

Inc.'s  legitimate performance  expectations;  (3) was  adversely

affected; and (4) was replaced by another with similar skills and

qualifications.  See Smith v. Stratus Computer, Inc., 40 F.3d 11,                                                              

15 (1st  Cir. 1994), cert.  denied,    U.S.    , 115 S.  Ct. 1958                                            

(1995); Vega v. Kodak  Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.                                                

1993).   Once they  do so, the  burden shifts to  Ponte, Inc., to

produce a  valid and nondiscriminatory reason  for the dismissal.

In the final  stage, the burden shifts back to  the plaintiffs to

show  that Ponte, Inc.'s stated reason for Mulero's dismissal was

false and but a pretext for discrimination.  See, e.g., Woods, 30                                                                       

F.3d  at 260;  Medina-Mu oz,  896 F.2d  at 8.    In this  summary                                     

judgment  context,  plaintiffs,  as  the  nonmovants,  must  show

evidence sufficient for a  factfinder to reasonably conclude that

Ponte,   Inc.'s   decision  to   terminate   was   driven  by   a

discriminatory  animus.  See  LeBlanc, 6 F.3d  at 843.   "Thus, a                                               

district court's grant of summary judgment to an employer will be

upheld  if  the   record  is   devoid  of   adequate  direct   or

circumstantial evidence of the employer's discriminatory intent."

                               -5-

Pages-Cahue, 82 F.3d at 537.                     

                               -6-

                     1.  The Prima Facie Case                               1.  The Prima Facie Case                                                       

          The parties agree  that only the second  element of the

prima facie case, i.e., that Mulero met Ponte,  Inc.'s legitimate                                

job expectations, is in  dispute.  Finding little support  in the

depositions  cited, and noting  that the  record did  not include

affirmative  evidence   of  satisfactory  performance,   such  as

evaluations or appraisals, the district court nonetheless assumed

that the plaintiffs satisfied the second element, on the basis of

Mulero's  long history  at  Ponte, Inc.    We take  the  district

court's reasoning a  step further and  find that plaintiffs  did,

indeed, fulfill the second element.

          Mulero  was at  Ponte, Inc.,  for almost  thirty years.

During that  time, he  rose from  being a  driver to holding  the

posts  of  general  manager  and  director,  with  the  attendant

promotions  and pay raises.   We have previously  found that such

evidence supports an inference that an employee's job performance

was  adequate to meet an employer's needs, even when the evidence

did not extend  all the way to  the time of  the discharge.   See                                                                           

Keisling  v. SER-Jobs for Progress,  Inc., 19 F.3d  755, 760 (1st                                                   

Cir.  1994); see also Woodman, 51 F.2d at 1092; Stratus Computer,                                                                          

40 F.3d at  15 n.4; Woods, 30 F.2d at 261.   We do so again here,                                   

and so find that plaintiffs established their prima facie case.

              2.  Ponte, Inc.'s Reason for Dismissal                        2.  Ponte, Inc.'s Reason for Dismissal                                                              

          The  parties  do  not  contest   that  defendants  have

articulated a non-discriminatory  reason for Mulero's  discharge,

namely, that  he "made  poor hiring decisions;  argued repeatedly

                               -7-

with, threatened and vandalized  the automobile belonging to, the

company's  accountant,  Luis Caceiro  [("Caceiro")]; inadequately

controlled inventory; permitted his children inappropriate access

to the  company's  resources; and  misallocated bonus  payments."

Mulero Rodr guez,  891 F. Supp. at 685.  We therefore turn to the                          

final step of the McDonnell Douglass framework.                                              

                  3.  Pretext for Discrimination                            3.  Pretext for Discrimination                                                          

          In  their  effort  to demonstrate  that  Ponte,  Inc.'s

stated  reason   for  Mulero's   dismissal  was  a   pretext  for

discrimination,  the  plaintiffs weave  a tale  of discriminatory

comments, pretextual business decisions, and favoritism.  Finding

little substance in the  story, the district court held  that the

plaintiffs did not meet their burden of demonstrating pretext and

unlawful animus, in either the  ADEA or the Title VII claim.   We

now  weigh  the evidence  for each  in  turn, "focus[ing]  on the

ultimate  question, [and] scrapping the burden-shifting framework

in  favor of considering the evidence  as a whole."  Mesnick, 950                                                                      

F.2d at  827.  Like the district court,  we find that much of the

Muleros' evidence  merely "reflects the  existence of differences

of  opinion between Mulero and others at the company with respect

to  a  wide variety  of issues  affecting  the company."   Mulero                                                                           

Rodr guez, 891 F.  Supp. at 686.   However, because we find  more                   

content  in the plaintiffs' case than did the district court, our

review  of the  record  leads us  to  conclude that,  taking  all

inferences in  their favor,  the Muleros have  offered sufficient

evidence to fulfill the  third McDonnell Douglass requirement and                                                           

                               -8-

survive summary  judgment.  Accordingly, we  reverse the district

court's grant of  summary judgment  on their Title  VII and  ADEA

claims.

           a.  The National Origin Discrimination Claim                     a.  The National Origin Discrimination Claim

          The  plaintiffs contend  that Mulero  was discriminated

against  because he  is Puerto  Rican, and  the owners  of Ponte,

Inc., were  Cuban and  preferred to  have a Cuban  employee.   As

noted above, at  this stage  of our analysis,  the Muleros  "must

introduce sufficient evidence to support  two findings:  (1) that

the employer's articulated reason for laying off the plaintiff is

a pretext, and (2) that the true  reason is discriminatory."  Udo                                                                           

v. Tomes, 54 F.3d 9, 13 (1st  Cir. 1995).  The Muleros rely  upon                  

one set of evidence  to establish both findings.  See Woodman, 51                                                                       

F.3d at  1092  (noting that  a  plaintiff may  rely on  the  same

evidence for both findings); see also Udo, 54 F.3d at 13.                                                   

          We  turn  first  to  the  question  of  pretext.    The

defendants  spell out a series of reasons for Mulero's dismissal,

listed above.   In  weighing whether  the Muleros  have presented

enough  evidence for  a reasonable factfinder  to deem  the cited

reasons pretextual,  we remember  that the  issue is  not whether

Ponte, Inc.'s  reasons  to  fire  Mulero were  real,  but  merely

whether the decisionmakers  -- Sabines and Ponte -- believed them

to be real.  See Woodman, 51 F.3d at 1093.  As the district court                                  

noted,  the  defendants support  their  reasons  with substantial

deposition testimony  and sworn statements.   The Muleros counter

with  evidence challenging the veracity of many of the underlying

                               -9-

reasons,  but with little evidence that Sabines and Ponte did not

actually believe  them.   Nonetheless, our  review of  the record

leads us  to  conclude  that  the Muleros  have  indeed  produced

evidence sufficient  for a  reasonable factfinder to  find Ponte,

Inc.'s cited reasons pretextual.

          First, defendants present evidence that complaints made

by  Ponte, Inc., salesmen over  a shortage of  inventory acted as

the  "catalyst" for the decision to terminate Mulero.  They argue

that  Ponte and Sabines met with the complaining salesmen in late

1992, because the salesmen were concerned about a shortage in the

inventory  and  its  impact  on their  clients  and  commissions.

Mulero  still had  the responsibility  for buying  the inventory.

Defendants  present  deposition testimony  of  Sabines and  Ponte

about  the meeting, as  well as  sworn statements  by two  of the

salesmen.   Defendants  further attest  that they brought  up the

complaints with Mulero, and that the  complaints "were the straws

that broke the camel's back."  Appellants' Brief at 12.

          However, the  Muleros  have offered  evidence that  the

complaints were false.  Mulero's deposition testimony states that

in fact  a shortage of inventory was  a regular occurrence at the

end of every calendar year, because the company ceased purchasing

between  December 1  and January  15 so  that inventory  could be

taken. Although  he  testified that  in  1992 he  discussed  with

Sabines  that  he was  behind in  taking  the inventory,  he also

testified that it was in fact finished in time and that he had no

recollection  of  Sabines   or  Ponte  --  or  the   salesmen  --

                               -10-

complaining about  a shortage  of  inventory.   The Muleros  also

point out  that, although they  requested them, Ponte,  Inc., has

produced  no business records in any way reflecting a shortage or

lost sales or income  based thereon.  In sum,  giving credence to

Mulero's testimony,  a rational factfinder could  find that there

was  in fact no shortage of inventory beyond the standard end-of-

year freeze  on purchases.  This casts doubt on whether Ponte and

Sabines actually believed the  complaints, and whether they could

have  served  as  the  catalyst  for  Mulero's  dismissal.    The

conclusion  is not an inevitable one, but as the issues centering

on  the salesmen's  complaints involve  real issues  of fact,  it

should be left to the factfinders.

          Second,  according to  Ponte's testimony,  the salesmen

also complained that when they asked for merchandise Mulero would

tell them to go ask Sabines  or Ponte.  The defendants argue that

they found this attitude  to be problematic, as Mulero  still had

buying and selling authority.  Mulero testified, however, that if

he ever  said that, it was because he  was no longer in charge of

the salesmen.  Clearly, an issue of fact exists as to whether the

salesmen's  complaints  on  this  point are  a  real  reason  for

Mulero's dismissal, as  it is  unresolved what the  scope of  his

responsibility was.

          Finally, Ponte attests that  she started working at the

company because  of complaints about Mulero's conduct made to her

mother, Sabines.  Mulero, however, testified  that Ponte told him

she  was starting work at Ponte, Inc., "in order to relieve [him]

                               -11-

of some work."   Mulero Deposition,  at 102.   At the same  time,

although he said they  were not needed, she hired  labor lawyers.

While  this  is   hardly  condemning  evidence,  the   reasonable

factfinder could see Ponte's dissimulation regarding  her motives

for becoming active in the company and her contemporaneous hiring

of  attorneys as  further  reason to  disbelieve the  defendants'

proffered reasons  for firing Mulero.   Cf. Sinai, 3  F.3d at 474                                                           

(noting that  fact that employer "advanced  different reasons for

refusing  to hire appellant at different times could have led the

jury simply to disbelieve" the employer).

          Having  determined  that  the  Muleros  have marshalled

enough evidence  regarding pretext to defeat  summary judgment on

that point, we turn to the question of whether they can show that

the real  reason  was national  origin discrimination.   The  key

evidence   in   the   plaintiffs'  argument   that   Mulero   was

discriminated against because he is Puerto Rican is his testimony

that  Luis Caceiro repeatedly commented to Mulero that Mulero was

the only  Puerto Rican  running a  Cuban company.   Acknowledging

that   "[h]ad  the  comment  .  .  .  been  attributable  to  the

defendants, it might  have sufficed to satisfy  the low threshold

required to  escape dismissal  at this stage,"  Mulero-Rodr guez,                                                                          

891 F. Supp. at 685, the district court dismissed the evidence of

Caceiro's comment  and granted  the defendants  summary judgment.

The court found that  Mulero had not offered sufficient  evidence

to show  that  Caceiro was  in  any way  a decision-maker  --  or

influenced  the decision-makers --  regarding Mulero's dismissal.

                               -12-

See Medina-Mu oz, 896 F.2d at 10 ("The biases of one who  neither                          

makes nor  influences the  challenged personnel decision  are not

probative  in  an  employment  discrimination case.");  see  also                                                                           

Woods, 30  F.3d at  258.   The  district court  also noted  that,               

although not determinative, it "need  not ignore" the absence  of

any evidence that defendants were aware of his Puerto Rican birth

and heritage during his lengthy career at Ponte, Inc.

          Review of the record in the light most favorable to the

Muleros,  however,  leads  us   to  conclude  that  a  reasonable

factfinder could in fact  reasonably infer that Caceiro was  in a

position to influence Ponte,  Inc.'s decision-making.  Ponte took

away   Mulero's  authority   over   the  salesmen,   giving   the

responsibility to  Caceiro.  She also  shifted Mulero's inventory

duties to Caceiro, proposing to computerize the inventory system.

When she changed the bonus system, Caceiro's bonus was increased.

According to Mulero, Ponte  trusted Caceiro's word over Mulero's.

Finally, as the district court noted, Ponte "learned from Caceiro

about Caceiro's conflicts with Mulero."  Mulero Rodr guez, 891 F.                                                                   

Supp. at 685.  Given the favor with which Caceiro was treated and

the  responsibilities  given  him,  on this  record  Caceiro  may

reasonably be thought  to have  been in a  position to  influence

Ponte's  decision-making.    While  this is  not  the  inevitable

conclusion,  it is a  reasonable one.   Accordingly, a reasonable

jury could  infer that, based  on Caceiro's comments  that Mulero

was  the  only Puerto  Rican  running a  Cuban  company, national

origin animus played a role in the decision to terminate Mulero's

                               -13-

employment, and  so the district court erred  in granting summary

judgment on the Muleros' Title VII claim.1

                 b.  The Age Discrimination Claim                           b.  The Age Discrimination Claim

          The district  court  found the  record insufficient  to

demonstrate  genuine issues  of  material fact  regarding whether

Mulero's discharge was due to age-based animus.  It  focused on a

comment Ponte  made to Mulero in April of 1992, some eight months

before  his  discharge,  that he  was  "too  old  to handle"  the

salespeople,  and so was to be relieved of his supervisory duties

over the sales  force.  The court  found that this  statement was

followed by no additional evidence of age-related bias, and that,

standing alone, it was too remote in time for a sufficient  nexus

to exist between  it and  the decision to  terminate Mulero.   We

review  the record de  novo.  As  we have already  found that the                                     

Muleros  have produced  enough evidence  to support a  finding of

pretext, we turn  directly to  the question of  whether they  can

show that the real reason was age discrimination.

          There is no question that statements like Ponte's, when

made by a decision-maker, can be evidence of age  discrimination.

See, e.g., Mesnick,  950 F.2d  at 824; Olivera  v. Nestl   Puerto                                                                           

Rico, 922 F.2d  43, 49 (1st Cir. 1990).   Granted, Ponte made the              
                                                  

1  We note that the district court's recognition  that Mulero had
been  promoted   over  a  29-year  period   in  which  defendants
undoubtedly knew of  his Puerto Rican  origin is not  conclusive.
As the  district court  found, only  in late  1991 did Ponte,  an
acknowledged decision maker,  begin to  work at the  company.   A
jury  could infer from this and the policy changes she instituted
that  Ponte was  a  "new  broom"  and  wanted  to  "sweep  clean"
according  to  her  own  prejudices, which  had  heretofore  been
ignored.

                               -14-

comment in  relation to Mulero's ability to  handle the salesmen,

but "an employer's willingness  to consider impermissible factors

such  as . . . age . . . while  engaging in one set of presumably

neutral  employment  decisions .  . .  might  tend to  support an

inference that such impermissible considerations may have entered

into another  area of ostensibly neutral  employment decisions --

here,  an  employee's termination."    Conway  v. Electro  Switch                                                                           

Corp., 825 F.2d 593, 597-98 (1st Cir. 1987).               

          However,  we  agree  with   the  district  court  that,

standing alone,  it is too remote  in time to be  linked with the

decision to  terminate Mulero.   See Birkbeck v.  Marvel Lighting                                                                           

Co.,   30  F.3d   507,   512  (4th   Cir.  1994)   (finding  that             

discriminatory comment made over two years prior to discharge was

not  evidence of  age discrimination);  Phelps v.  Yale Security,                                                                           

Inc.,  986 F.2d  1020, 1026  (6th Cir.) (holding  that statements              

made almost  a year before  layoff were  too far removed  to have

influenced decision), cert. denied, 510 U.S. 861 (1993); see also                                                                           

Cooley v. Carmike  Cinemas, Inc.,  25 F.3d 1325,  1330 (6th  Cir.                                          

1994)  (listing timing  of  remarks  as  factor in  whether  they

evidenced  discrimination); Frieze  v. Boatmen's Bank  of Belton,                                                                          

950  F.2d 538,  541 (8th  Cir. 1991).   Indeed, "[t]he  fact that

[Ponte] made  such  a  statement on  only  one  occasion  further

supports this conclusion."  Birkbeck, 30 F.3d at 512.                                              

          If,  however,  the  Muleros  have offered  evidence  to

establish  the needed  nexus  between Ponte's  statement and  the

decision  to  fire  Mulero,  the statement  may  become  pivotal.

                               -15-

Unlike the district court,  we find such  a nexus in the  record.

Specifically,  at the  time she  made the  "too old"  comment and

altered  Mulero's  supervisory  duties,  Ponte  instituted  other

changes, including the method  by which bonuses were apportioned.

In the  past, bonuses had  been awarded  in April on  a seniority

basis;  she switched  to a  merit-based system.   Ponte testified

that she changed the system  for two reasons.  First,  she wanted

to provide an incentive to new  employees.  Second, she felt that

the old employees gave all their loyalty to Mulero, and that they

knew that  no matter what they  did, they would still  get a good

bonus.  Thus the change was designed  to change their work habits

and "attitude problems."  Ponte Deposition, at 61.  Under the new

system, Mulero's bonus  was decreased -- Ponte testified that she

did  not believe Mulero deserved the bonus he had previously been

receiving --  while those  of several newer  employees, including

the younger Caceiro, were increased.

          The  policy change  regarding the  bonus system  can be

viewed in  several ways.  First,  the change in the  system was a

business  decision --  which we  will not  normally second-guess.

See LeBlanc, 6  F.3d at 845.  That  does not mean we  must ignore                     

its existence, however.  Cf. Sinai,  3 F.3d at 474 (finding  that                                            

the multiple reasons  employer advanced for  its failure to  hire

appellant,  including policy  against hiring  spouses of  current

employees, meant  that jury could  easily have found  the reasons

were pretextual).   Second, although the  change reduced Mulero's

bonus, it did not change his base  salary.  At the same time, the

                               -16-

bonus was  part of Mulero's expected compensation.   Finally, the

old  bonus  system was  based on  seniority,  not age  --  but in

Mulero's case, seniority could serve as  a proxy for his age.  In

sum,  the evidence  regarding the  bonus system  is  anything but

conclusive:  it can be viewed as a reasonable measure in the face

of a perceived problem, or as a method used to strip away part of

Mulero's compensation and  hurt those employees  loyal to him  --

those who  had been there the  longest.  Thus it  is prime fodder

for a jury.

          It  also serves  Mulero's purpose  here.   Ponte's "too

old"  comment is  strong evidence.   The  Muleros have  found the

needed  nexus between  it  and Mulero's  dismissal  in the  bonus

change, as in  this context  we find the  combination of  Ponte's

"too old" comment with the change in the bonus system disfavoring

long-term --  and therefore  often older --  employees troubling.

Thus we  think there  is a  material issue  as to  whether Ponte,

Inc.'s real reason for firing Mulero was rooted in discriminatory

animus.   Cf.   Conway, 825  F.2d at 598  (holding that statement                                

made eight months before  employee was dismissed and one  made at

least  ten months before were  not too remote  from the dismissal

and,   thus,  properly  admitted  at  trial   as  evidence  of  a

discriminatory atmosphere  where he who made  the first statement

may have participated  in the decision to fire  her and the other

refused to block her termination).

            Of  course,  the  full   presentation  of
            evidence on  both sides might  alter this
            judgment  and  show  that the  plaintiffs
            fell just short and would be subject to a

                               -17-

            directed  verdict.   But  at  the summary
            judgment  stage,  with the  obligation to
            draw all reasonable  inferences in  favor
            of the party  opposing summary  judgment,
            we  think  that this  case  could  not be
            dismissed against [the] defendants.

Rubinovitz  v.  Rogato,  60  F.3d   906,  912  (1st  Cir.  1995).                                

Accordingly, and  with a nod to the  premise that "determinations

of motive  and intent, particularly in  discrimination cases, are

questions  better suited for the  jury,"  Petitti  v. New England                                                                           

Tel.  &amp; Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990), we reverse the                          

district court's grant of summary  judgment on the Muleros'  ADEA

claim.

          A final note.  Without pointing  to a specific example,

the  Muleros argue that the district court misapplied the summary

judgment standard by founding its  grant of summary judgment upon

its  acceptance  of  the  defendants'  testimonial   evidence  as

"substantial," see Mulero Rodr guez, 891 F. Supp. at 685, and its                                             

rejection of contrasting testimony.   See LeBlanc, 6 F.3d  at 836                                                           

(noting  that, in  summary  judgment, reviewing  court must  view

record and draw all  reasonable inferences in nonmovant's favor).

We  disagree.    First, the  district  court's  comment  was made

regarding  the  defendants' rebuttal  in the  second step  of the

McDonnell  Douglass  framework,  and  was  merely describing  the                             

strength  with  which  the  defendants  supported  their asserted

reasons.  See Mulero Rodr guez, 891 F. Supp. at 685 ("Defendants,                                        

now tossed  the ball, run quite  a distance with it.").   Second,

although we reverse the court below, we find no misapplication of

the summary judgment standard in this difficult case.  Indeed, we

                               -18-

remind  appellants  that  "the  mere existence  of  some  alleged

factual dispute between the parties  will not defeat an otherwise

properly supported motion  for summary judgment; the  requirement

is that  there  be  no genuine  issue  of material  fact."    See                                                                           

Anderson, 477 U.S. at 247-48.                  

          In  making their  allegation, the Muleros  contend that

the district court should not have  credited Sabines' and Ponte's

testimony because  of their  invocation of the  privilege against

self-incrimination.   The defendants  retort that this  issue was

not  raised below,  and so,  as this  is not an  exceptional case

requiring a  deviation from the  norm, the Muleros  are precluded

from raising it here.  See Villafa e-Neriz v. FDIC, 75 F.3d  727,                                                            

734 (1st Cir.  1996).   Even if the  argument were raised  below,

however, the  defendants' invocation of the  privilege is largely

irrelevant here.   The Muleros' argument goes to credibility, and

it  is well established that  the nonmovants are  entitled to all

reasonable  inferences in a summary judgment case, whether or not

the moving  party invoked their privilege.  At the same time, the

Muleros misapprehend the nature of the  case law they cite:  "the

Fifth  Amendment  does  not  forbid  adverse  inferences  against

parties  in civil actions when they refuse to testify," Baxter v.                                                                        

Palmigiano, 425 U.S. 308,  318 (1976), see FDIC v. Elio,  39 F.3d                                                                 

1239,  1248 (1st  Cir.  1994),  but  nor  does  it  mandate  such                                                                     

inferences, especially as regards  topics unrelated to the issues

they refused to testify about.  Cf. Serafino  v. Hasbro, Inc., 82                                                                       

F.3d  515, 518  (1st Cir.  1996) (noting  that "assertion  of the

                               -19-

privilege may  sometimes disadvantage a party" (emphasis added)).                                  

Indeed,  to hold otherwise would  seem to go  against the premise

that the Fifth Amendment "'guarantees . . . the right of a person

to remain silent .  . . and to suffer  no penalty . . .  for such                                                           

silence.'"  Id.  at 517 (quoting Spevack v. Klein,  385 U.S. 511,                                                           

514 (1967) (emphasis added)).  Therefore, we do not find that the

district court misapplied Baxter v. Palmigiano.                                                        

                               -20-

                          B.  Discovery                                    B.  Discovery                                                 

          The Muleros next contend that the district court abused

its discretion  in refusing the  parties' joint motion  to extend

discovery.2   See  Ayala-Gerena, Slip  Op. at  5 (noting  that we                                         

review district  court's pre-trial  discovery order for  abuse of

discretion).    They argue  that  protracted discovery  disputes,

interruptions in the discovery process, and an early cutoff date3

made the  requested four-month extension essential.   The result,

they  continue, was  a  prejudicial impact  on  their ability  to

contest  the  testimonial  evidence  presented   in  the  summary

judgment motion.

          However, the  Muleros did not  seek reconsideration  of

the  district court's denial of  the parties' stipulation for the

extension  of  the  discovery  period.   Nor  did  the appellants

mention  the  need for  further discovery  in  their part  of the

Proposed  Pretrial  Order;  indeed,  they  cited  the  fact  that

"discovery  [had]   long  since  closed"  in   arguing  that  the

defendants' summary judgment motion was untimely  and contravened

                                                  

2  The Muleros do not seem to address their argument to either of
the Magistrate Judge's two orders  regarding discovery deadlines.
Nonetheless,  we note that, although they  filed a motion seeking
clarification  of one  aspect  of the  second magistrate's  order
(which was denied),  they did not  in fact  file an objection  to
either  order  regarding  the  discovery  deadline,  and  so  any
argument regarding the Magistrate  Judge's order has been waived.
See  Fed. R.  Civ.  P. 72(a)  (party  must object  to  magistrate             
judge's  order within ten days);  Pagano v. Frank,  983 F.2d 343,                                                           
345-46 (1st Cir. 1993).

3   The  discovery cutoff date  was set  for September  12, 1994,
seven  months  after the  defendants  answered  the complaint  on
February 11, 1994.

                               -21-

Local Rule  312.   Plaintiffs'  Proposed Pretrial  Order, at  23.

Further,  the  Muleros'  Opposition  to  Defendants'  Motion  for

Summary  Judgment and  their  Surreply in  Further Opposition  to

Motion  for Summary Judgment are  both silent as  to the district

court denial of additional time for  discovery, as well as to any

need for additional discovery.  Finally, the Muleros did not file

a Rule 56(f) motion  requesting additional discovery in  order to

oppose  the Motion for Summary Judgment.  In these circumstances,

the Muleros have well and fully waived their right to  argue this

issue on appeal.  See Correa  v. Hospital San Francisco, 69  F.3d                                                                 

1184, 1195 (1st Cir. 1995) (noting that failure to raise an issue

in the final pretrial  order generally constitutes waiver), cert.                                                                           

denied,    U.S.   , 116 S. Ct. 1423 (1996); Beaulieu  v. IRS, 865                                                                      

F.2d  1351,  1352  (1st Cir.  1989)  ("[I]t  is  a party's  first

obligation to seek any relief that might fairly have been thought

available in the district court before seeking it on appeal.").

                   C.  The Supplemental Claims                             C.  The Supplemental Claims                                                        

          Finally, the  Muleros  argue that  the  district  court

erred  in entering  a  judgment on  the  merits on  the  Muleros'

supplemental Puerto Rico law claims.  They argue that the summary

judgment  motion focused solely on the Title VII and ADEA claims,

such that the Puerto Rico law claims were not even the subject of

the motion.    Accordingly, they  posit,  when it  dismissed  the

Muleros'  federal  law claims,  the  district  court should  have

dismissed  the  supplemental  Puerto  Rico  law   claims  without

prejudice  to  their  being  refiled  in  a  court  of  competent

                               -22-

jurisdiction.

          The  defendants contest  that  the issue  has not  been

properly  raised before  this  court, as  the  Muleros failed  to

designate the dismissal of the supplemental claims as an issue on

appeal, and so the appeal  should be deemed waived.  See  Fed. R.                                                                  

App. P.  10(b)(3).  Specifically, the Muleros' first stated issue

was that the court below erred in granting the motion for summary

judgment  and dismissing  the  action "as  there existed  genuine

issues of material fact requiring  trial."  Appellants' Brief, at

1.   The second stated issue regarded  the discovery continuance.

We agree with the defendants that the  issues as presented do not

encompass the question whether the Puerto Rico law  claims should

have been dismissed.

          Moreover,  even  if  the Muleros'  statement  of issues

encompassed  the question  now raised,  it would still  have been

deemed  waived.   The  defendants'  Motion  for Summary  Judgment

specifically  requests  summary  judgment  as  regards  both  the

federal  and  state  law  claims,  as  did  their  Reply  to  the

plaintiffs' Opposition, such that the district court did have the

Puerto Rico  law claims in front of  it.  The Muleros' Opposition

and  Surreply, however, remained silent as to the Puerto Rico law

claims:   they  argued neither  that the  Puerto Rico  law claims

should be dismissed without  prejudice, as they do now,  nor that

the  court  should exercise  its  supplemental  jurisdiction over

these  claims.  Nor did  they file a  motion for reconsideration.

In  these circumstances,  we find  that  the Muleros  have indeed

                               -23-

waived this argument.   See McCoy  v. Massachusetts Institute  of                                                                           

Technology,  950 F.2d 13, 22  (1st Cir. 1991),  cert. denied, 504                                                                      

U.S. 910 (1992).

                               -24-

                            CONCLUSION                                      CONCLUSION

          For the  reasons presented above, the  district court's

denial of the joint motion to extend discovery  is affirmed.  The                                                             affirmed                                                                     

opinion  of  the  district  court granting  summary  judgment  is

reversed as  to the Title VII and ADEA claims, and affirmed as to          reversed                                           affirmed                                                                     

the pendent Puerto  Rico Law claims.  We remand  this case to the

district court for proceedings consistent with this decision.

                               -25-
