
USCA1 Opinion

	




                            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 & 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.  & 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-
