
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                             United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1899                               ISABELO VALLEJO-SERRANO,                                Plaintiff, Appellant,                                          v.                             CIGNA INSURANCE CO., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________               Zuleika Llovet-Zurinaga for appellant.               _______________________               Pedro J.  Manzano-Yates with whom Jose  A. Silva-Cofresi was               _______________________           ______________________          on brief for appellees.                                 ____________________                                     May 23, 1997                                 ___________________               Per Curiam.  Appellant Vallejo-Serrano filed this employment               __________          discrimination lawsuit  against Cigna  Insurance Co.  and several          supervisors claiming  that he  was transferred to  an undesirable          position, and later refused  reinstatement after a medical leave,          because  of his age and  disability.  The  district court granted          summary judgment for defendants.   It concluded that Vallejo  had          failed  to  establish  a  prima  facie  case  of  either  age  or          disability  discrimination, and that  he had failed  to show that          the company's proffered reasons  for its actions were pretextual.          We conclude that appellant failed to establish a prima facie case          on  the  disability  claim,  and  that  the  evidence  is  wholly          inadequate to support an age discrimination claim.   We therefore          affirm.                 The  parties  both  maintain  that  the  appropriateness  of          summary  judgment  turns  on  whether Vallejo  made  an  adequate          showing under the fourth  prong of the McDonnell  Douglas burden-                                                 __________________          shifting paradigm, the first  three prongs concededly having been          satisfied.  See McDonnell  Douglas Corp. v. Green, 411  U.S. 792,                      ___ ________________________    _____          802-05  (1973).   They  further  agree that,  for  the disability          discrimination   claim,   this   model   required   appellant  to          demonstrate  that  he  was  replaced by  a  non-disabled  person.          Although  appellant  asserts that  there  is at  least  a factual          dispute concerning  whether he was "replaced"  by Felix Vazquez,1                                        ____________________               1  Although Vallejo's  complaint  also asserts  that he  was          replaced  by Josefina  Bermudez and  her temporary  assistant, he          does  not press this position on appeal, apparently because their          duties were quite distinct.                                         -2-          the evidence does not  support his contention.  It  is undisputed          that Vazquez already held a position equivalent to appellant's in          the Accounting Department, and  that appellant was the accounting          clerk  with the least seniority.   The fact  that Vazquez assumed          most  of  appellant's  tasks,   along  with  his  own  diminished          workload,   is  insufficient  to  establish  that  appellant  was          "replaced."   See LeBlanc v. Great American Ins. Co., 6 F.3d 836,                        ___ _______    _______________________          846 (1st Cir. 1993) ("A discharged employee `is not replaced when          another employee is assigned to perform the plaintiff's duties in          addition to other duties, or when the work is redistributed among          other    existing    employees    already   performing    related          work.'"(citation omitted)).               As  for  the age  discrimination  claim,  which involves  an          alleged   reduction  in  force,   the  burden-shifting  framework          required  appellant to show either  that Cigna did  not treat age          neutrally  or  that  it  retained  younger persons  in  the  same          position.    Arguably, Vallejo's  evidence  satisfied  the fourth          prong  because  it  showed  that   the  others  retained  in  the          accounting clerk positions were younger than him.  The  company's          rationale,  however, was that he  was the least  senior person in          that position -- a fact he does not dispute.  Under the McDonnell                                                                  _________          Douglas framework,  Vallejo needs to respond  to that explanation          _______          by  demonstrating that it  is a  pretext for  age discrimination.          The record,  however, makes  reference to  only  a single  remark          concerning age allegedly made by appellant's supervisor more than          a  year before his transfer from the Accounting Department.  This                                         -3-          is  insufficient to go to the jury.2   See LeBlanc, 6 F.3d at 843                                                 ___ _______          ("[T]he plaintiff cannot avert summary  judgment if the record is          devoid  of  adequate   direct  or   circumstantial  evidence   of          discriminatory animus on the part of the employer.").3               The judgment of the district court is therefore affirmed.4                                        ____________________               2 Indeed, plaintiff did not make reference to this remark in          his  memorandum in  support  of  his  opposition to  the  summary          judgment motion.               3 Although the district court's opinion in certain instances          uses language that suggests factfinding, see, e.g., Opinion at 13                                                   ___  ____          ("We  believe that plaintiff's age or disability was not a factor          when Cigna decided to eliminate Mr. Vallejo's position, and later          deny him reinstatement"; "Cigna eliminated Mr. Vallejo's position          because  the  Accounting  Department  could  operate  efficiently          without  the  extra  accounting  clerk  position.");  id.  at  15                                                                ___          ("Cigna's refusal  to reinstate plaintiff after  his release from          the SIF  was not of a discriminatory  animus."), it is clear from          the opinion as a  whole that the court  found as a matter of  law                                                        ___________________          that Vallejo had failed to adduce sufficient evidence to send the          case  to a factfinder.   We note  that the court's  task was made          more difficult by  the plaintiff's failure  to file the  required          separate statement of contested facts.               4 Vallejo  also alleged  a  retaliation claim  based on  his          having filed a complaint with the Anti-Discrimination Unit of the          Labor Department  following his  transfer in September  1993, and          the company's  subsequent refusal  to reinstate him  in September          1994.   The  decision not  to reinstate  him was  consistent with          Commonwealth  law, however, and there is no support in the record          for a finding that it was motivated by retaliatory animus.                                         -4-
