          United States Court of Appeals
                      For the First Circuit


No. 14-2057

                     RAQUEL DEL VALLE-SANTANA,

                       Plaintiff, Appellant,

                                v.

              SERVICIOS LEGALES DE PUERTO RICO, INC.,
                      CHARLES S. HEY-MAESTRE,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                              Before

                   Lynch, Thompson, and Kayatta,
                          Circuit Judges.


     José R. Olmo-Rodríguez on brief for appellant.
     Guillermo Ramos-Luiña on brief for appellees.


                         October 20, 2015
            THOMPSON, Circuit Judge. Plaintiff-Appellant Raquel Del

Valle-Santana ("Del Valle-Santana") claims her employer Servicios

Legales de Puerto Rico, Inc. ("SLPR") wrongfully terminated her on

the basis of her age in violation of the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.     The district judge

entered summary judgment in favor of the employer.      Coming to the

same conclusion after our de novo review, we affirm.

                              BACKGROUND

            As required when reviewing an order granting summary

judgment, we outline the facts in the light most favorable to the

non-movant, in this case Del Valle-Santana.     See Penn-Am. Ins. Co.

v. Lavigne, 617 F.3d 82, 84 (1st Cir. 2010).

            On January 12, 2012, Del Valle-Santana was fired from

SLPR, a non-profit legal services organization, where she had

worked for nearly 28 years.    Del Valle-Santana began her career at

SLPR as sub-director in the Villa Palmeras office on January 16,

1984, and during her tenure was transferred several times to

different    directorial   positions    in   various   SLPR   offices.

Defendant-Appellee Charles S. Hey-Maestre ("Hey") became Executive

Director of SLPR on May 8, 2006.

            In September 2008, upon her return from a year-long leave

of absence, Del Valle-Santana was made a sub-director at the

Carolina office because, at the time, the other director positions

were occupied. She was then transferred to Director of the Appeals


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Unit on August 10, 2009.            Her transfer letter, signed by Hey,

stated that the transfer was a "lateral movement," and that her

salary and marginal benefits would remain the same.                    During this

time, in addition to serving as Director, Del Valle-Santana also

performed some director duties for the Corozal and Rio Piedras

offices, and worked on appeals as a litigating attorney.

               In mid-November of 2011, Congress announced a major cut

in the amount of federal funds that would be allotted to the Legal

Services Corporation ("LSC"), the congressionally-created non-

profit        corporation   that    manages      annual    appropriations        from

Congress and allocates them to legal services organizations across

the United States.          The LSC is a major funding source for SLPR,

and     the     appropriations     cut    translated      into    a   decrease     of

approximately $2.7 million, or 15 percent, of the SLPR budget for

2012.     In response, SLPR's Board of Directors convened several

emergency meetings and ultimately decided to reduce staff, laying

off ten employees.          As part of the lay-offs, SLPR eliminated the

Appeals Unit, which consisted of Del Valle-Santana's director

position and that of an administrative secretary.                 The ages of the

ten laid-off employees ranged from 28 to 76.                No replacements were

sought for the Appeals Unit, as the unit was completely eliminated.

               Del Valle-Santana was terminated on January 12, 2012 at

the   age      of   63.     On   June    25,     2012,    after   exhausting      her

administrative remedies, Del Valle-Santana filed an employment


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discrimination complaint in federal court against SLPR and Hey

alleging that she had been unlawfully terminated on the basis of

her age.

                                DISCUSSION

            I. Standard of Review

            We review a district court's grant of summary judgment

de novo, and review the record in the light most favorable to the

nonmoving    party,   drawing    all    reasonable   inferences   in     the

nonmoving party's favor.        Maldonado-Denis v. Castillo-Rodriguez,

23 F.3d 576, 581 (1st Cir. 1994).          In a wrongful discharge case

under the ADEA, the plaintiff bears the burden of proving that her

age was the "determinative factor" in her discharge, that is, that

she "would not have been fired but for [her] age."            Freeman v.

Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988).                Where

there is no direct proof of discrimination, as is the case here,

we apply the now-familiar burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), which has

been adapted for ADEA cases.           Woodman v. Haemonetics Corp., 51

F.3d 1087, 1091 (1st Cir. 1995).

            Under the McDonnell Douglas framework, the plaintiff

must first make out a prima facie case for age discrimination by

showing that (i) she was at least 40; (ii) her work was sufficient

to meet the employer's legitimate expectations; (iii) her employer

took adverse action against her; and (iv) either younger persons


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were retained in the same position upon her termination or the

employer did not treat age neutrally in taking the adverse action.

Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 26 (1st Cir. 1998).

Once the plaintiff establishes her prima facie case, there is a

rebuttable presumption of discrimination, and the burden shifts to

the employer to articulate a legitimate, nondiscriminatory reason

for dismissing the employee.    Id.    If the employer does so, the

presumption vanishes and the burden shifts once again.   This time,

the plaintiff is required to show that the employer's proffered

reason is but a pretext, and "that age was the but-for cause of

the employer's adverse action."       Vélez v. Thermo King de P.R.,

Inc., 585 F.3d 441, 447-48 (1st Cir. 2009) (quoting Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).

           II. The Age Discrimination Claim

           On the motion for summary judgment below, the district

court assumed that Del Valle-Santana had established a prima facie

case, and accepted the defendants' proffered non-discriminatory

reason that the termination was a result of the unexpected budget

cuts.   The district court then granted judgment in the defendants'

favor on grounds that Del Valle-Santana had failed to show that

this reason was pretext and that the termination was motivated by

age animus.   Having reviewed the record, we affirm the grant of

summary judgment to the defendants, but do so on the ground that

Del Valle-Santana failed to establish a prima facie case for age


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discrimination.1        See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,

173 (1st Cir. 1998) ("We will affirm a correct result reached by

the    court    below      on    any   independently       sufficient    ground      made

manifest by the record." (citation omitted)).

               There is no dispute that Del Valle-Santana has satisfied

the first three elements of the prima facie case: (i) she was over

40 years old when she was terminated; (ii) her work met the

employer's       legitimate        expectations          until   the   time    of     her

termination; and (iii) her termination constitutes an adverse

employment action.              The parties disagree as to whether she has

established the fourth element: that younger persons were retained

in    her   same     position     after    she     was    terminated    (or   that    the

defendants otherwise did not treat age neutrally in their decision

to terminate her).          See Brennan, 150 F.3d at 26.

               The defendants argue that younger employees were not

retained in the same position because the Appeals Unit Director

position was "unique," and remained unoccupied after the Appeals

Unit was completely eliminated as a result of the budget cuts.

Del Valle-Santana disagrees, arguing that when SLPR transferred

her over to the Appeals Unit in the first place, they called it a

"lateral" move.         Therefore, she contends the Appeals Unit Director

position       was   not    unique,       and    the     younger,   less-experienced


       1
       Therefore, we do not reach the second and third steps of
the McDonnell Douglas framework.


                                           - 6 -
directors who were retained in other SLPR offices remained in the

same director position she had held before she was terminated.              At

the very least, she says, whether these director positions were

the same or different is a disputed issue that should be submitted

to a jury.

             We do not need to make a decision on the question of

whether the Appeals Unit Director position was the same as the

other director positions because even if we assume, favorably to

the plaintiff, that they were the same, Del Valle-Santana still

fails to state a prima facie case.              Del Valle-Santana fails to

show that the younger employees who occupied these assumedly same

positions were significantly younger than her.              See O'Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996).                 As the

Supreme Court explained in O'Connor, a prima facie case of age

discrimination "requires evidence adequate to create an inference

that an employment decision was based on an illegal discriminatory

criterion," and "such an inference cannot be drawn from the

replacement of one worker with another worker insignificantly

younger."      Id.   at   312-13   (emphasis     added)(citation     omitted).

Applying O'Connor, this Court has held that a three-year age

difference    between     a   plaintiff   and    his   replacement    is   "too

insignificant to support a prima facie case of age discrimination."

Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).




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               While the burden of establishing a prima facie case is

"not onerous," the plaintiff is still required to prove the prima

facie elements by a "preponderance of the evidence."                Tex. Dep't

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).                  Here, the

sole piece of evidence Del Valle-Santana has produced to prove

that younger employees were retained in her position after she was

terminated is a single paragraph in her affidavit that states:

"Several younger directors with less experience and seniority were

not fired.      These were Yolanda Bonilla, Eduardo Escribano, Roberto

Laboy, Consuelo Melendez, Janice Gutierrez and Jamila Canario."

Del Valle-Santana does not provide the actual ages of these other

directors in her affidavit, nor is there anything in the record

that would otherwise indicate that these other "younger" directors

were significantly younger than Del Valle-Santana, so as to permit

an inference of age discrimination.             Del Valle-Santana argues that

she was not required to provide the directors' ages, but provides

no case law to support this contention and no explanation of how,

given       O'Connor,   she   can   state   a    prima   facie   case    for   age

discrimination without doing so.2               Thus, Del Valle-Santana has




        2
      Del Valle-Santana addresses O'Connor in her reply brief only
to argue that O'Connor does not require her to prove that the
retained directors were substantially younger. But, as we have
already explained, O'Connor does require a minimum showing that a
replacement (or in this case retained) employee was significantly
younger.


                                      - 8 -
failed   to    carry   her    plaintiff's     burden     to    produce   evidence

supporting a prima facie case for age discrimination.

              Furthermore,    other    than    these     purported       "younger"

comparators,     Del   Valle-Santana       provides    no     evidence   that   the

defendants     otherwise     failed   to   treat   age      neutrally    in   their

decision to terminate her.            See Brennan, 150 F.3d at 26.3             For

example, she has not provided any evidence of incidents of age-

based animus.4     The result is that Del Valle-Santana has failed to

establish the fourth prima facie element.                   She has not met her

burden to prove either that the "younger" directors who were

retained were sufficiently younger to support an inference of age

discrimination, or that the defendants did not otherwise treat age

neutrally in deciding to terminate her.




     3 For example, lack of age-neutrality "may be manifested
either by a facially discriminatory policy or by a policy which,
though age-neutral on its face, has the effect of discriminating
against older persons, say, by leading inexorably to the retention
of younger employees while similarly situated older employees are
given their walking papers."    Brennan, 150 F.3d at 27 (quoting
Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir. 1993)).

     4  In her complaint, Del Valle-Santana alleged that Hey
referred to her and older directors as the "Medicare group,"
however the record contains no evidence to support this allegation.
In his affidavit, Hey denies ever making this statement.        Del
Valle-Santana does not dispute the denial or make any other
reference to it, either in her affidavit or in her response to the
statement of facts in support of summary judgment, therefore we do
not consider it.


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          We   therefore   conclude   the   district   court   properly

granted summary judgment in favor of defendants.       Accordingly, we

affirm.




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