            United States Court of Appeals
                      For the First Circuit


Nos.        00-1453
       00-1741
       00-1742
       00-2107

            MANUEL A. BARALT; LIZETTE PENA-AVILES;
    CONJUGAL PARTNERSHIP BARALT-PENA; JUAN GONZALEZ-PEREZ;
   MONSERRATE CANABAL-DURAN; CONJUGAL PARTNERSHIP GONZALEZ-
                            CANABEL,

              Plaintiffs-Appellees/Cross-Appellants,

                                v.

               NATIONWIDE MUTUAL INSURANCE COMPANY,

                Defendant-Appellant/Cross-Appellee,

                       ____________________

NATIONWIDE INSURANCE COMPANY; NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY; NATIONWIDE LIFE INSURANCE COMPANY; NATIONWIDE GENERAL
 INSURANCE COMPANY; NATIONWIDE PROPERTY AND CASUALTY INSURANCE
   COMPANY; NATIONWIDE GROUP OF COMPANIES; WILLIAM P. DEMENO,

                            Defendants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before

                        Selya, Circuit Judge,
            Coffin and Campbell, Senior Circuit Judges.
     Sheldon H. Nahmon, with whom Arturo Diaz-Angueira and
Roberto Feliberti were on brief, for Nationwide.
     Ruben T. Nigaglioni, with whom Antonio A. Arias-Larcada
was on brief, for appellees/cross-appellants.


                        May 24, 2001
    COFFIN, Senior Circuit Judge. A jury found that appellant

Nationwide Mutual Insurance Company ("Nationwide") terminated

appellees Manual Baralt and Juan Gonzalez-Perez ("Gonzalez")

because    of   their   ages,   in   violation   of   both   the   Age

Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"),

and Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146-51 ("Law

100").    The two men and their wives were awarded a total of more

than $6 million in damages and attorney's fees.        See Baralt v.

Nationwide Mut. Ins. Co., 86 F. Supp. 31, 42 (D.P.R. 2000).         On

appeal, Nationwide does not challenge the jury's determination

that the company acted    unjustifiably in terminating appellees,

but contends that the evidence failed to support a finding of

age discrimination.     After a careful review of the record and

caselaw, we agree, and therefore reverse.

                        I. Factual Background

    In the spring of 1993, Nationwide began an investigation

into allegations of fraudulent claims practices by one of its

adjusters, Quinones, after appellee Baralt, claims manager in

the Puerto Rico office ("NPRO"), reported "irregularities" to

company headquarters. Nationwide assigned Joanne McGoldrick, an

investigator in its corporate security department, to research

the allegations.




                                 -3-
       During her investigation, which included three visits to

Puerto Rico between October 1993 and April 1994, 1 McGoldrick

learned of unrelated improper conduct allegedly committed by the

vice       president   of    the    office,    Enrique     Lopez.         Those

improprieties      primarily       concerned   the   unauthorized        use    of

company cars, or "pool" cars, and salvage vehicles, including

the regular borrowing of pool cars by Lopez's sons and "sales"

of salvage vehicles to NPRO employees who had not paid for them.

Lopez also was accused of procuring an insurance policy at less

than full cost for a Plymouth Sundance used by his son in Ohio

by falsely representing that it was being driven by his wife in

Puerto Rico.

       McGoldrick initially verified the accusations against Lopez

by speaking with NPRO’s Sales and Marketing Manager, Blanca

Robles, and then further investigated the claims during her

April visit to Puerto Rico.          Nationwide maintains that appellees

were terminated in May 1994 because they interfered with the

investigation      into     Lopez's    conduct   and     because    of    their

involvement in certain of the asserted improper practices.                     The

company claims that Gonzalez helped Lopez to obtain the Sundance



       1
      That probe eventually led Nationwide's auditors to suspect
substantial   losses,  specifically,   that   Quinones  and   an
accomplice had defrauded the company of $320,000 through
payments for nonexistent property damage.

                                      -4-
insurance policy and also was aware of, and facilitated, the use

of pool cars by Lopez's sons. Baralt was linked to the alleged

improprieties because he was in charge of salvage vehicles for

NPRO.

       Baralt, NPRO's claims manager, was 49 and had been employed

by Nationwide for 25 years; Gonzalez, who was 60, had worked for

the company for 28 years and was manager of the personal and

commercial lines underwriting department.                  Baralt and Gonzalez

were two of the six high-ranking employees at NPRO known as the

"Cabinet." Two others — Lopez and the company's comptroller,

Luis    Flores     Dieppa    ("Flores")      —    also   were    terminated      for

improper conduct.           The remaining two Cabinet members, one of

whom    was   Robles,   left    the    company     about    a    year    after   the

terminations.       The only evidence presented at trial explaining

their departures was Robles's testimony that she took advantage

of   the    company's   early    retirement        plan.        Five    non-Cabinet

employees also were terminated.

       At trial, in addition to presenting evidence of appellees'

involvement in practices the company deemed improper, Nationwide

attempted to show that both men interfered in the investigation

after      being   instructed    not   to    do    so.     McGoldrick       accused

Gonzalez of intimidating two female employees, whom she had




                                       -5-
found crying.2   She also reported that on multiple occasions she

found   Gonzalez       standing   near    an   office   where   she     was

interviewing employees.           In a report admitted as a trial

exhibit, McGoldrick stated that another employee told her that

Baralt had contacted all of the claims division employees who

possessed salvage vehicles "and warned them of the scope of our

investigation" and advised them not to tell the truth or they

would   lose   their    jobs.     She    further   reported   that    other

employees had stated that Baralt had discussed the interview he

had with investigators even though he had been told expressly of

the requirement of confidentiality.3

    Appellees sought to rebut Nationwide's evidence of improper

conduct in a variety of ways.            They presented evidence that

there was no company policy against after-hours use of pool cars




    2  The hearsay rule prevented McGoldrick from specifically
relating what the two employees said to her, but she testified
that, after the first such encounter, she went to Gonzalez's
office and said: "Stay out of this investigation.       You're
intimidating people, they're afraid to talk, they're crying."
After the second encounter, she said she asked Gonzalez "to
please refrain from contacting our people because it could be
subject   to   disciplinary  action   up  until  grounds   for
termination."
    3  A Nationwide Human Resources officer, James Lucas,
testified that both Baralt and Gonzalez admitted during
interviews    that they had spoken to employees about the
investigation, but both denied at trial that they had spoken to
coworkers about the inquiry.

                                   -6-
by family members,4 and that, moreover, giving Lopez's sons use

of cars in the evening served to protect the vehicles from

possible theft from the unsecured company lot, which was in a

high-crime area.         Although Gonzalez acknowledged arranging the

sons' use of the pool cars, he testified that he did so upon

instructions from another Cabinet member, Rafael Gonzalez, and

further testified that it was Rafael who had responsibility over

the    pool      vehicles.     In     an    effort      to    negate    Nationwide's

suggestion that company officials permitted employees to acquire

salvage vehicles at no cost, plaintiffs also presented evidence

that       the   company's    books    showed      the       debts   for   the    cars.

Testimony elicited on behalf of Gonzalez distanced him from the

insurance policy obtained by Lopez on the Plymouth Sundance by

suggesting that it was not issued under his authority, and there

also was evidence indicating that the policy was not improper.5

As noted, both plaintiffs denied that they had breached the

confidentiality of the investigation.                        Gonzalez defended his

frequent         appearance   near     the       room    where       McGoldrick     was



       4
       Robles testified that employees who used pool cars were
required to obtain permission and record in a log the reason for
the use and the specific period of time the car was needed.
       5
      Plaintiffs’ counsel elicited evidence indicating that the
policy was renewed after the terminations, although Robles also
testified that Lopez was required to pay additional premiums for
"the discrepancies" in the application.

                                           -7-
conducting interviews by explaining that he was using the nearby

copy machine, not intimidating employees.

    Appellees also emphasized the abruptness and insensitivity

exhibited in the circumstances leading up to and accompanying

plaintiffs’ terminations.         After McGoldrick reported on her

investigation   to   Nationwide        headquarters,   Lucas,   the   Human

Resources officer, was sent to Puerto Rico with final decision-

making authority.      He had not reviewed plaintiffs’ personnel

files,   claiming    that   he   did    not   want   his   decision   to   be

influenced by anything in the files and noting that even a

thirty-year record of good employment could be wiped out by one

serious improper act.       He interviewed each plaintiff for only a

brief time, and, at the end of the interviews, pronounced his

decision to terminate.       Security personnel were standing by to

escort each plaintiff with his personal belongings out of the

building.

    The sum total of evidence relating to age is the following:

    — Baralt, 49, was replaced by Morales, 47.             Although Baralt

at first testified that Morales was replaced by "a much younger

man," he later admitted that he had no idea why Morales left the

company or whether his replacement was younger or much younger.

    — Gonzalez, 60, was replaced by Guzman, 43.




                                   -8-
    — Lopez, the NPRO vice president, 54, was temporarily

replaced by Robles, also 54, indeed three weeks older than

Lopez.   His permanent replacement was Jack Wood, whose age was

not made of record.

    — Flores, NPRO’s comptroller, was 44 when he was terminated.

There is no evidence of his replacement's age.

    — The two Cabinet members who were not fired were Robles,

54, and Rafael Gonzalez, 57.

    — In addition to the above four Cabinet members, there were

five subordinate employees discharged for misappropriation of

vehicles.    Nothing appears in the record concerning their ages

or those of any replacements.

    When Gonzalez was asked directly what support he had for his

age discrimination claim, he replied:

                 Well, based on the performance that I was
            realizing or that I was doing, my devotion to the
            company, the success that the agency was having
            every year, over 18 long years and always willing
            to make a maximum effort to the company's
            benefit, to the benefit of our customers. I was
            in a good state of health, there was no reason.

    The jury nonetheless found that age played a motivating role

in the terminations of Gonzalez and Baralt in violation of both

the ADEA and Law 100, which prohibits employment discrimination




                                -9-
based on a variety of factors, including age. 6              The jury also

returned a verdict for plaintiffs on a third count for unjust

dismissal under Puerto Rico's "Law 80," P.R. Laws Ann. tit. 29,

§§ 185a-185m, which prohibits discharges "made by the mere whim

of the employer or without cause relative to the proper and

normal operation of the establishment."           Id. at § 185b.       The

jury awarded Baralt $1 million in non-economic damages and

Gonzalez $1.5 million, plus $500,000 to each of their wives.

The district court modified these amounts by reducing the wives'

damages   to   $100,000   each   and   by   doubling   the    compensatory

awards, as prescribed by Law 100, to $2 million (for Baralt) and

$3 million (for Gonzalez).        The jury also awarded back pay in

the amount of $500,000 to Baralt and $400,000 to Gonzalez.

Plaintiffs also were awarded more than $140,000 in attorney's

fees, for a total of approximately $6.24 million.

    The court, which had taken under advisement Nationwide’s

motion for judgment as a matter of law, ruled first that the

jury was entitled to find that the company's reasons for the

terminations were pretexts.      Baralt, 86 F. Supp. at 37.        It then

cited, as the evidentiary support for the jury finding of age



    6  Law 100 also bars employment discrimination because of
race, color, gender, social or national origin, social position,
political affiliation, political or religious ideology, and
marital status. P.R. Laws Ann. tit. 29, § 146.

                                  -10-
discrimination,            testimony   by    Robles     that   Nationwide         had    a

company-wide retirement plan of which she had taken advantage.7

Id.

      On appeal, Nationwide challenges the district court's denial

of its motion for judgment as a matter of law on the federal and

Commonwealth age discrimination claims and further contends

that,     if   it     is    unsuccessful     in   overturning        the    liability

finding, the damage awards must be reduced because they are

unsupported and excessive.                  Plaintiffs filed cross-appeals,

claiming that they are entitled to a higher amount of both

damages    and      attorney's     fees.      Our      disposition    in        favor   of

Nationwide       on    the    merits   makes      it    unnecessary        to    address

plaintiffs' assertions or Nationwide's challenge to the amount

of damages.

                                  II. Discussion

      The primary issue we face is whether the evidence was

sufficient to support the jury's finding of age discrimination.



      7 As we have elsewhere observed, an offer of early
retirement is not, on its own, evidence of discriminatory
animus.    See Alvarez-Fonseca v. Pepsi Cola of Puerto Rico
Bottling Co., 152 F.3d 17, 27 (lst Cir. 1998); Vega v. Kodak
Caribbean, Ltd., 3 F.3d 476, 480 (lst Cir. 1993). A fortiori,
an early retirement plan embracing all of a company’s many
branches throughout the nation is even more distanced from proof
of animus. Were this not so, a host of progressive companies
with such policies would be surprised to find themselves
vulnerable to age discrimination suits.

                                        -11-
The parties agree that, if we were to conclude that plaintiffs

are not entitled to recover under Law 100, they also would have

failed to prove age discrimination under the ADEA because Law

100    offers   a   "significantly        more     favorable"       standard      to

plaintiffs than does the ADEA.            Cardona Jimenez v. Bancomercio

de Puerto Rico, 174 F.3d 36, 42 (lst Cir. 1999).                    Our analysis

therefore begins with Law 100, and, because we conclude that

plaintiffs have not shown a violation of that statute, it also

ends there.

       Under Law 100, a plaintiff establishes a prima facie case

of age discrimination by (1) demonstrating that he was actually

or constructively discharged, and (2) alleging that the decision

was discriminatory.        Id.   If this minimal showing is made, the

burden shifts to the employer to prove by a preponderance of the

evidence that it had "just cause" for its actions.                      Id. at 42-

43; Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co.,

152 F.3d 17, 28 (lst Cir. 1998).              If the employer establishes

just   cause,   the   burden     of   proof    returns      to    the   plaintiff.

Bancomercio, 174 F.3d at 43.            If the employer fails to prove

just   cause,   however,    it    bears      the   burden    of    proving   by    a




                                      -12-
preponderance   of   the   evidence    that   the   decision   was   not

motivated by age discrimination.       Id.8

    Nationwide acknowledges that the record permitted the jury

to find that Baralt and Gonzalez were terminated without just

cause,9 requiring the company to prove that the dismissals were

not motivated by age-based animus.      The company asserts that the

total lack of evidence suggestive of age bias, together with

Nationwide's substantial evidence of a non-pretextual inquiry

into improper activities at the Puerto Rico office, required the


    8 The burden-shifting framework under the ADEA requires more
of a showing by the plaintiff, beginning with the prima facie
case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973); Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (lst
Cir. 2000). To establish a prima facie case, the plaintiff must
show that: (1) he was at least 40 years old; (2) his job
performance   was  meeting   the   employer's   legitimate   job
expectations; (3) he was fired or suffered other adverse
employment action attributable to the employer; and (4) the
employer had a continuing need for the     same services he had
been performing. Suarez, 229 F.3d at 53.     If this showing is
made, a presumption of discrimination attaches.     Bancomercio,
174 F.3d at 41. The employer at that point need only articulate
a legitimate, non-discriminatory reason for the termination to
shift the burden back to the plaintiff to prove by a
preponderance of the evidence that the employer's reason was a
pretext and that the real reason was age-based animus.       Id.
Although the employer in this framework briefly has the burden
of producing a legitimate reason for the discharge, the burden
of persuasion always remains on the employee. Id.
    9 Although the company states that it assumes only arguendo,
for purposes of the appeals, that the record supports such a
finding, the jury made the specific determination that the
company had violated Law 80 by discharging each plaintiff
without just cause.    The company did not appeal the Law 80
verdicts.

                                -13-
jury to reject plaintiffs' Law 100 claims.                    We review de novo

the district court's contrary judgment, taking the facts in the

light most favorable to plaintiffs.               Id. at 41.     For Nationwide

to    prevail,    we   must     conclude       that   "there    is   no    legally

sufficient evidentiary basis for a reasonable jury to find for

the plaintiff[s]."       Id. at 40.

      It is undisputed that the record contains no direct evidence

of age discrimination, not even the sorts of stray remarks that

are      suggestive      but     often     found      insufficient    to    prove

discrimination in the absence of more meaningful evidence.                    See,

e.g., Williams v. Raytheon Co., 220 F.3d 16, 18 (lst Cir. 2000)

(rejecting       age   and     gender    claims       where    supervisor     told

colleagues that the company was run by "old, white men," that

she intended to change the corporate culture, and would favor

the hiring of women and younger people);                 Shorette v. Rite Aid

of Maine, Inc., 155 F.3d 8, 13 (lst Cir. 1998) (rejecting age

discrimination claim where district manager had asked plaintiff

"how old he was and when he planned to retire").

      Although Gonzalez, who was 60, was replaced by someone

significantly younger – a 43-year-old – that successor also was

within the protected age group, diminishing the force of the age

difference as an indicator of bias.              This solitary fact gains no

strength from the evidence that Baralt's replacement was only


                                        -14-
two years his junior, a difference that is insufficient to

support even a prima facie case of age discrimination.                          See

Raytheon, 220 F.3d at 20.           Moreover, the two Cabinet members who

were not discharged also were over 40; Rafael Gonzalez was 57

and Robles was 54.             Lopez, the office vice president, was

immediately succeeded by            Robles, who was slightly older than

he.     The   parties       have   not   identified    the   ages   of    Lopez's

ultimate replacement or the replacement for Flores, the fourth

Cabinet    member     who    was   terminated.     In   addition,        as   noted

earlier, there was no evidence of the ages of the five lower-

level     employees     who    were      terminated.     Thus,      plaintiffs'

affirmative showing of age discrimination consisted entirely of

three facts: they were within the protected class, they were

fired, and one of them was replaced by someone significantly

younger — though that individual was still within the protected

age group.

      Nationwide's rationale for the firings, on the other hand,

was far from compelling.           Taken in the light most favorable to

plaintiffs, the company's position was that the two men – each

with more than two decades of apparently high quality service to

the company – were terminated summarily for (1) their peripheral

involvement in a series of improper but relatively minor acts in

which their boss and other employees had taken advantage of the


                                         -15-
company, and (2) their discussions with co-workers, in violation

of instructions, about the investigation into those improper

acts.   Moreover, as we have noted earlier, the circumstances

surrounding    the      terminations    executed      by   Lucas   gave    every

appearance of an insensitive overreaction to a series of minor

transgressions.

    We have no problem accepting that a jury reasonably could

conclude   that     a   large,    reputable    company     would   not    act   as

precipitously as Nationwide could be found to have acted if its

actual concern were the minor transgressions that it claimed

underlay the terminations.           In other words, we think the jury

was entitled to disbelieve Nationwide's stated reasons for the

firings.      Our    problem,     rather,    arises   from   the   absence      of

evidence that would permit a conclusion that the actual reason

for the firings was plaintiffs' ages.              For, even in the face of

Law 100's presumption, we conclude that the evidence presented

by Nationwide, in the context of the evidence presented by

plaintiffs, was sufficient to meet its burden under Law 100 to

demonstrate    that     "the     existence    of   discrimination    was    less

probable than its nonexistence," Belk Arce v. Martinez, 98

J.T.S. 92 (P.R. 1998), Official Translation at 16.

    The    evidence        was     undisputed      that    Nationwide      began

investigating the Puerto Rico office as a result of Baralt's


                                      -16-
report concerning Quinones's allegedly fraudulent conduct, and

that the specific probe leading to plaintiffs' dismissals was

triggered by a tip from someone in the office about Lopez's

personal use of a salvage vehicle.       Robles corroborated the tip

for McGoldrick before the investigator traveled to Puerto Rico

in April 1994.    The inquiry into Lopez's actions led to Gonzalez

and Baralt – the former because of his involvement with the

fraudulent automobile policy and the pool cars, and the latter

because he was responsible for salvage vehicles.

    That    the   investigation   unquestionably    was   triggered   by

employees in the Puerto Rico office, rather than by the home

office executives who carried out the terminations, makes it

unlikely that the inquiry was fabricated as a ruse to accomplish

age-based    terminations.        Moreover,   the    fact    that     the

investigation was launched in 1993 rules out any rational theory

that it was conceived as a device to target plaintiffs, each of

whom had received letters of commendation in early 1994.10             A

company seeking pretextual reasons to discharge employees on the

basis of their advancing ages would be unlikely to offer thanks




    10  Both received letters dated March 4, 1994, from the
senior vice president for business operations, William P.
DeMeno, with information about their payments under the 1993
Management Incentive Plan.

                                  -17-
for those employees' "efforts and contributions to the successes

of this past year."

       Plaintiffs     presented      no     evidence     to    discredit    the

authenticity of the investigation.            While, as we have noted, the

callous severity of the punishment in all likelihood moved

jurors to doubt that the discharges occurred for the stated

reasons, the evidence was substantial that the firings were in

some way a byproduct of the home office probe into the Puerto

Rico operations.      On this record, various investigation-related

explanations for terminating plaintiffs were much more likely

than    the   completely     unsubstantiated       age    bias   asserted    by

plaintiffs: Nationwide may have sought to clean house at the

highest   levels     of   NPRO's     management    after      concluding   that

"business     as    usual"   there    did    not   satisfy     the   company's

standards; it may have interpreted reports from McGoldrick as

well as the auditors as indicating a widespread laxness and

invitation to corruption that had to be wiped out; the company

may have decided to terminate any manager who failed to comply

fully with the investigation as a show of authority to assure

fidelity on the part of branch supervisors; the Human Resources

officer, Lucas, may have felt the need to justify the time and

expense of the investigation by terminating a sufficiently large

number of employees, whether or not they in fact committed


                                      -18-
wrongdoing, or he may simply have lost perspective and acted

rashly.   None of these reasons would support liability under Law

100.

       In sum, with virtually no evidence besides the discharges

themselves pointing to age as a factor and none indicating that

the investigation was fabricated by company officials to conceal

other motives, a reasonable jury could not entirely reject the

company's    abundant     evidence     that   the   terminations      stemmed,

however unwisely, from the investigation.               Even under Law 100's

pro-plaintiff system of shifting burdens, Baralt and Gonzalez

could not prevail with the mere allegation of age bias that

established their prima facie case once Nationwide presented

uncontroverted evidence of a real, if overly aggressive, inquiry

into office protocols.         Cf.       Bancomercio, 174 F.3d at 42-43

(reversing jury verdict for plaintiff under Law 100 where "the

closest approximation to evidence of age discrimination was the

basic fact that [plaintiff] was over 40 when fired and was

replaced by someone slightly under 40").

       Nationwide's   burden      to    defeat   the    presumption    was   to

"present evidence of sufficient quality to convince the judge

that the existence of discrimination was less probable than its

nonexistence," Belk Arce, Official Translation at 16; Ibanez v.

Molinos     de   Puerto   Rico,    114    D.P.R.       42   (1983),   Official


                                       -19-
Translation at 75-76.       Circumstantial evidence is sufficient to

meet the defendant's burden.        Ibanez, Official Translation at 72

("For the presumption to be rebutted it suffices that [the

employer] proves, even through circumstantial evidence, that the

motive for the discharge was not discriminatory.") (emphasis in

original).        Plaintiffs'      efforts     to    counter      Nationwide's

substantial evidence of a genuine investigation with proof that

they did little or nothing wrong shores up their claim for

unjust dismissal, but such evidence is not on its own probative

of    age    discrimination.       Cf.   Feliciano    de    la    Cruz   v.    El

Conquistador Resort and Country Club, 218 F.3d 1, 9 (lst Cir.

2000) (affirming summary judgment against plaintiff on claim of

national      origin   discrimination    because     "if   we     remanded    for

trial, the jury 'would be left to guess at the reasons behind

the pretext'" (citation omitted)); Ibanez, Official Translation

at 77 (reversing trial judge's finding of discrimination under

Law 100 where plaintiff offered only "speculative" argument that

she    was    discharged   based    on   age   rather      than    because     of

confidentiality breach).11


       11
      The strength of Nationwide's evidence of a legitimate
investigation distinguishes this case from Reeves v. Sanderson
Plumbing Prods., Inc., 120 S. Ct. 2097, 2104 (2000), in which
the Supreme Court upheld a jury's finding of an ADEA violation
based on plaintiff's prima facie case and "sufficient evidence
for  a   reasonable  factfinder   to  reject   the  employer's
nondiscriminatory explanation for its decision." Although Law

                                     -20-
      We have intently scrutinized the Puerto Rico cases cited to

us to see what light they shed on a record as bereft of indicia

of   discriminatory       intent      as    this.         In    every    case    we   have

examined,   there       was    some   evidence          of     discriminatory     intent

beyond the allegations necessary to make a prima facie case of

discrimination.         In    Casto Soto v.             Caribe Hilton Hotel, 137

D.P.R. 294 (1994), Official Translation at 12-13, the court

noted   that    plaintiff       not   only        had    rebutted       the   employer’s

proffered      reason    for    termination,             but    also    had     submitted

evidence of the dominating presence of under-40 personnel and

the company's efforts to create unfavorable disciplinary records

for its older employees.           In Belk Arce, Official Translation at

10-11, there was a consultant's report indicating anti-marriage

animus within the defendant law firm, as well as a partner’s



100 differs from the ADEA in that the defendant bears the burden
of disproving discrimination, the factors we consider in
assessing the evidence are the same:

      the strength of the plaintiff's prima facie case, the
      probative value of the proof that the employer's
      explanation is false, and any other evidence that
      supports the employer's case and that properly may be
      considered on a motion for judgment as a matter of
      law.

Id. at 2109. Here, as we have explained, consideration of these
factors, including the failure of plaintiffs' evidence to "shed
any light on . . . [the employer's] true reason for firing"
them, Feliciano de la Cruz, 218 F.3d at 8, reveals "the
particular weakness" of plaintiffs' case, id. at 10.

                                           -21-
specific anti-marriage statement referring to plaintiffs.                In

Sandoval v.     Caribe Hilton Int'l, 99 J.T.S. 166 (P.R. 1999),

Official Translation at 4, 6, the plaintiff introduced evidence

that new management had instructed supervisors to exert pressure

on older workers to retire.12

       In a leading case in which the court reversed a judgment for

plaintiff,    Ibanez, Official Translation at 76-77, we find a

concatenation of circumstances similar to those present here: a

qualified 63-year-old plaintiff, replaced by a 20-year-old, then

a 28-year-old, and finally a 57-year-old individual; and a five-

week delay between the occasion relied on as the cause of

discharge (impermissibly viewing confidential records) and the

actual termination.         In other words, a prima facie case had been

made    and   there   was    a   basis   for   rejecting   the   employer’s

explanation.      But there was no evidence of animus.             Five of

twelve executive secretaries in plaintiff’s class were over 40,

plaintiff herself had been 60 when hired, and, like plaintiffs




       12
       We note that Sandoval constitutes a "judgment," rather
than an opinion of the Puerto Rico Supreme Court, and therefore
carries no precedential value beyond the "'intrinsic persuasive
value of its rationale.'" Clemente v. Carnicon-Puerto Rico Mgmt.
Assocs., 52 F.3d 383, 389 n.6 (lst Cir. 1995) (quoting Rivera
Maldonado v. Commonwealth of Puerto Rico, 119 D.P.R. 74 (1987)
(Official English Translation, No. R-85-117, slip op. at 4-
5)),abrogated on other grounds by United States v. Gray, 199
F.3d 547 (lst Cir. 1999).

                                     -22-
in the case at bar, she had been looked on favorably up until

the incident in question.

      Having canvassed both the record and caselaw, we conclude

that a decision holding that the requirements of Law 100 were

met by the facts of this case would extend the statute far

beyond its intended reach. If this record were enough, the

result would be a virtual merging of Law 80, which bars unjust

dismissals, with Law 100. Notwithstanding Law 100's presumption,

proof of unjust cause cannot suffice to establish liability

where there is considerable evidence of a non-discriminatory

reason for the discharge and no evidence of age bias other than

the employee's age.    That this must be so is evident when one

considers the hypothetical claim allowable under Law 100 of a

minority woman over the age of 40 who alleges race, gender, and

age   discrimination   in   a   termination   arising   from   similar

circumstances.   Without the need for some evidence linked to the

particular animus, she could recover on any, or all, of her

theories by virtue of her protected status.      The jury's verdict

would be both speculative and unsupported with respect to each

claim.

      Plaintiffs may well have been terminated too precipitously,

but we conclude that Nationwide met its burden to demonstrate,




                                 -23-
by a preponderance of the evidence, that Baralt and Gonzalez

were not fired on account of age.

    The judgments for plaintiffs on the age discrimination

counts are therefore reversed, the award of attorney’s fees is

vacated, and the case is remanded for further proceedings as

necessary to enter judgment in connection with the claim for

unjust dismissal under Law 80.




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