
USCA1 Opinion

	




                                For the First Circuit                                ____________________       No. 96-2000                                 MANUEL T. HIDALGO,                                Plaintiff, Appellant,                                         v.                     OVERSEAS CONDADO INSURANCE AGENCIES, INC.,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Salvador E. Casellas, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                            Coffin, Senior Circuit Judge,                              and Stahl, Circuit Judge.                                ____________________            Andres                     Guillemard-Noble with whom   Joan                                                       S.                                                           Peters and  Nachman,       Santiago & Guillemard were on brief for appellant.            Jorge                   E. Perez                            Diaz with whom Pietrantoni                                                       Mendez                                                              & Alvarez was on       brief for appellee.                                ____________________                                   August 11, 1997                                ____________________                      STAHL,                             Circuit Judge                                         . Plaintiff-appellant Manuel T.            Hidalgo appeals the district court's grant of summary judgment            in favor of defendant-appellee Overseas Condado Insurance            Agencies, Inc. on Hidalgo's claim for damages and equitable            relief pursuant to the Age Discrimination and Employment Act,            29 U.S.C. SS 621-634. Finding that plaintiff-appellant failed            to present evidence sufficient to meet his burden of persuasion            concerning unlawful age animus, we affirm.                                     Background                      On January 15, 1963, Hidalgo and two partners formed            the Condado Insurance Agency, Inc. ("Condado"). Hidalgo            subsequently became the sole shareholder. In September 1982,            Hidalgo sold Condado to Royal Insurance Ltd. ("Royal"). After            the sale, Royal retained Hidalgo as president of Condado. Some            time later, Royal acquired Overseas Insurance Agencies, Inc.,            and, in 1988, merged this agency with Condado to form the            Overseas Condado Insurance Agencies, Inc. ("Overseas"). In the            process of the merger, Royal created the Condado Division of            Overseas and named Hidalgo president of the Division. The            Condado Division consisted of Hidalgo, Sagrario Maiz del Toro            (Hidalgo's secretary) and Doris Rodriguez (Hidalgo's            assistant). Dating from the sale of Condado to Royal,            Hidalgo's functions included promoting and servicing all of            Condado's existing accounts and acquiring new accounts.                       On September 1, 1993, Hidalgo's sixty-fifth birthday,            Hidalgo was to become eligible to retire and receive normal                                         -3-            benefits under Overseas' retirement plan. Approximately five            months before this date, on March 29, 1993, Victor Rios,            President of Royal and Chairman of Overseas, sent Hidalgo a            letter informing him that Overseas recognized that he would            become eligible for normal retirement benefits on September 1,            1993, and that Overseas expected him to retire on that date            "[i]n accordance with the company's established guidelines."                       After receiving this letter, Hidalgo informed Rios            that he did not intend to retire on September 1. On July 2,            1993, Rios sent Hidalgo another communication informing him            that the Condado Division would cease to exist on September 1            because Overseas planned to integrate it into its "regular            operation." In this same communication, Rios instructed            Hidalgo that Overseas would wait until September 1 to allow him            to "fully qualify for . . . [his] pension plan," but that it            did not intend to extend his employment contract after that            date. On August 18, Hidalgo again informed Rios of his desire            to remain as president of the Condado Division. Rios replied            by offering Hidalgo an arrangement whereby he could function as            an "independent producer" with his compensation based on            commissions and bonuses. Hidalgo refused this offer.                       Subsequently, Hidalgo filed complaints with the Equal            Employment Opportunity Commission ("EEOC") and the Department            of Labor and Human Resources of Puerto Rico. On December 30,            1993, the Department of Labor issued Hidalgo a Notice of Right                                         -4-                                          4            to Sue. On March 10, 1994, Hidalgo filed in federal district            court the complaint which underlies this appeal. He alleged            that Overseas dismissed him from his job because of his age and            requested damages and equitable relief pursuant to the Age            Discrimination and Employment Act ("ADEA"), 29 U.S.C. SS 621-            634. Hidalgo also invoked the district court's supplemental            jurisdiction pursuant to 28 U.S.C. S 1367 for his state law            claims seeking compensation for age-based discrimination, 29            P.R. Laws Ann. tit. 29, S 146 (1985).                       On June 24, 1994, Overseas filed a Motion to Dismiss            or for Summary Judgment. On June 20, 1996, the district court            (Casellas, J.), treating the motion as a motion for summary            judgment, determined that Hidalgo failed to establish one of            the elements necessary to state a prima facie case of            employment discrimination under the ADEA. Notwithstanding this            determination, the court further ruled that Hidalgo failed            either to prove that Overseas' articulated legitimate reasons            for his dismissal were a "mere pretext" or to provide evidence            of discriminatory animus on Overseas' behalf. The court also            refused to exercise pendent jurisdiction over Hidalgo's state            law claims. Consequently, the court disposed of Hidalgo's            complaint in its entirety. This appeal ensued.                                 Standard of Review                                            1.  We note that Hidalgo did not appeal the dismissal of the            state law claims he stated in his complaint.                                         -5-                                          5                      "[O]ur review of a grant of summary judgment is  de            novo, [and] we, like the district court, 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                                       Am.                                           Ins.                                                Co., 6 F.3d 836, 841 (1st            Cir. 1993). "'An inference is reasonable only if it can be            drawn from the evidence without resort to speculation.'"            Mulero-Rodriguez v. Ponte,                                        Inc., 98 F.3d 670, 672 (1st Cir.            1996) (quoting Frieze v. Boatmen's                                                 Bank                                                      of                                                         Boston, 950 F.2d            538, 541 (8th Cir. 1991)). The district court's award of            summary judgment is appropriate when "the pleadings,            depositions, answers to 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). "[T]o defeat a properly supported motion for summary            judgment, the nonmoving party must establish a trial-worthy            issue by presenting 'enough competent evidence to enable a            finding favorable to the nonmoving party.'"                                                        LeBlanc, 6 F.3d at            842 (quoting Goldman v. First                                           Nat'l                                                 Bank                                                      of                                                         Boston, 985 F.2d            1113, 1116 (1st Cir. 1993)). "An appellate panel is not            restricted to the district court's reasoning but can affirm a            summary judgment on any independently sufficient ground."            Mesnick v. General                                 Elec.                                       Co., 950 F.2d 816, 822 (1st Cir.            1991).                                         -6-                                          6                                     Discussion                      Hidalgo makes two primary arguments.    He first            argues that the district court erred in determining that he            failed to establish a prima facie case of age discrimination            under the ADEA. He then contends that the district court            improperly concluded that he did not prove that Overseas'            reasons for dismissing him were pretextual and that Overseas'            actions derived from discriminatory animus. We address these            contentions in turn.                      In an ADEA discrimination action, the plaintiff bears            the ultimate "'burden of proving that his years were the            determinative factor in his discharge, that is, that he would            not have been fired but for his age.'"    Mesnick v.  General            Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (quoting Freeman            v. Package                        Mach.                              Co., 865 F.2d 1331, 1335 (1st Cir. 1988)).            "[W]hen there is little overt evidence of age discrimination,            the case usually follows the ritualized burden-shifting            paradigm" set forth in McDonnell                                              Douglas                                                      Corp. v. Green, 411            U.S. 792, 802-05 (1973). LeBlanc, 6 F.3d at 842. Pursuant to            McDonnell                        Douglas, a plaintiff must present a prima facie                                            2.  Interspersed with these two arguments, in addition to being            designated in a separate section of his brief, is Hidalgo's            argument that the district court committed reversible error            because it viewed the facts in the light most favorable to the            nonmoving party, namely Overseas. Instead of analyzing this            assertion independently, we address it in the context of our            analysis of Hidalgo's two primary contentions concerning the            district court's disposition of his ADEA claim.                                          -7-                                          7            "showing of certain standardized elements suggestive of            possible discrimination."  Id.                       In this circuit, McDonnell Douglas' burden shifting            paradigm assumes a slightly different form in age            discrimination cases depending on whether or not the dismissal            represented part of a reduction in force. If the plaintiff was            not dismissed as part of a reduction in force, the plaintiff            establishes a prima facie case by demonstrating the following:            "(1) [he] was at least forty years of age, (2) [he] met the            employer's legitimate job performance expectations, (3) [he]            experienced adverse employment action, and (4) [he] was            replaced by a person with roughly equivalent job            qualifications."  Goldman, 985 F.2d at 1117. With respect to            the fourth element necessary to establish a prima facie case in            a nonreduction in force scenario, "[i]t is enough for [the]            plaintiff to show that the employer sought some form of            replacement performance, which would demonstrate its 'continued            need for the same services and skills.'"                                                     Kale v.                                                             Combined Ins.            Co. of Am.                     , 861 F.2d 746, 760 (1st Cir. 1988) (quoting                                                                   Loeb v.            Textron,                       Inc., 600 F.2d 1003, 1013 (1st Cir. 1979));      see            Keisling v.                        SER-Jobs for Progress, Inc.                                                  , 19 F.3d 755, 760 (1st            Cir. 1994);                        Vega v.                                Kodak Caribbean, Ltd.                                                   , 3 F.3d 476, 479 (1st            Cir. 1993). "A replacement need not be sought from outside the            company, of course, nor need he be designated formally as                                         -8-                                          8            such."  Loeb, 600 F.2d at 1013 n.11; see Keisling, 19 F.3d at            760.                       If the employer dismissed the plaintiff as part of a            reduction in force, the plaintiff "need not show replacement by            someone with equivalent job qualifications. Instead, to            satisfy element (4), the plaintiff may demonstrate either that            'the employer did not treat age neutrally or that younger            persons were retained in the same position.'" LeBlanc, 6 F.3d            at 842 (quoting Hebert v.  Mohawk                                               Rubber                                                      Co., 872 F.2d 1104,            1111 (1st Cir. 1989)).                      The district court granted summary judgment in            Overseas' favor because it found that Hidalgo had failed to            make out a prima facie case of age discrimination. Although                                            3.  In his opposition to Overseas' summary judgment motion and            his surreply to Overseas' response to his opposition, Hidalgo            argued that his termination was not part of a reduction in            force; he failed even to articulate an argument addressing the            potentiality that his dismissal was part of a reduction in            force. In his appellate brief, Hidalgo, for the first time,            insists that even if his dismissal occurred as part of a            reduction in force scenario, Overseas did not treat age            neutrally. "It is well established that this court will not            consider an argument presented for the first time on appeal."            Villafane-Neriz v.                               F.D.I.C., 75 F.3d 727, 734 (1st Cir. 1996);            see Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir.            1993); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).            Because Hidalgo did not address the argument that his            termination constituted a reduction in force before the            district court, we will not consider his reduction of force            arguments on appeal.  See Johnston v. Holiday Inns, Inc., 595            F.2d 890, 894 (1st Cir. 1979) (indicating that exceptions to            the general rule proscribing the assertion of arguments for the            first time on appeal exist only "'in horrendous cases where a            gross miscarriage of justice would occur'") (quoting   Newark            Morning Ledger Co.                              v.                                  United States                                              , 539 F.2d 929, 932 (3d Cir.            1976)).                                          -9-                                          9            the court regarded this case as presenting a reduction in force            scenario, it considered whether Hidalgo's claim had merit under            the law governing a non-reduction in force scenario as well.            The district court concluded specifically that Overseas did not            have a continuing need for someone of Hidalgo's skills, that            Hidalgo failed to establish that Overseas did not treat age            neutrally, and that Overseas did not retain younger persons in            the same position. The court further ruled that Hidalgo failed            to "properly show he was 'replaced by a person with roughly            equivalent job qualifications.'"                       "While it is not clear to us that the court erred in            this regard, we prefer--because the question is so close--to            assume for present purposes that . . . [Hidalgo] did establish            a prima facie case within the McDonnell Douglas formulation."            LeBlanc, 6 F.3d at 844;                                    see                                       Pages-Cahue v.                                                      Iberia Lineas Aereas            de Espana                    , 82 F.3d 533, 537 (1st Cir. 1996) (assuming, without            concluding, that plaintiff established a prima facie case            because doing so did not alter the ultimate outcome); Udo v.            Tomes, 54 F.3d 9, 13 (1st Cir. 1995) (same);                                                         Mesnick, 950 F.2d            at 825 n.7 (same). Hidalgo lacks direct evidence that Overseas            terminated him because of his age, and the parties do not            dispute that he satisfied the first three of the four elements                                        -10-                                         10            necessary to establish a prima facie case under     McDonnell            Douglas.                       With respect to the fourth element at issue in this            case, Hidalgo presented, and the district court accepted,            evidence that subsequent to his dismissal, Overseas assigned            certain accounts for which Hidalgo had been responsible to            other Overseas employees who handled them in addition to the            work they performed prior to his dismissal. Hidalgo also            submitted evidence that subsequent to his termination Overseas            informed certain of his former accounts of its desire to            "continue servicing" them "as heretofore." It seems plausible,            viewing Hidalgo's evidence concerning the servicing of his            accounts by other Overseas employees after September 1, 1993            and Overseas' communications to at least one of his former            accounts in the light most favorable to him,  see LeBlanc, 6            F.3d at 841, that Overseas had a "'continued need for the same            services and skills'" that Hidalgo offered before his            termination, Kale, 861 F.2d at 760 (quoting Loeb, 600 F.2d at            1013); see also Keisling, 19 F.3d at 760 (quoting  Loeb, 600            F.2d at 1013).  Specifically, like the plaintiffs in    Loeb,                                            4.  The parties do not dispute that Hidalgo was at least forty            years of age, that he met Overseas' legitimate job performance            expectations, and that he experienced adverse employment            action.            5.  We find                        Loeb,                              Kale, and                                       Keisling particularly persuasive in            this context because they constituted nonreduction of force            cases. Despite Overseas' contention and the district court's            ruling that this case actually entailed a reduction of force,                                        -11-                                         11            Kale, and  Keisling, Hidalgo may well have met his burden            concerning the fourth element necessary to establish a prima            facie case under   McDonnell                                           Douglas through evidence that            Hidalgo's "'job functions were absorbed by several different            employees of defendant.'" Kale, 861 F.2d at 760 (quoting                                                                     Loeb,            600 F.2d at 1013);                               see                                   Keisling, 19 F.3d at 760. We recognize                                            we afford Hidalgo the benefit of the doubt for purposes of            argument and thus treat this as a nonreduction of force case.            6.  In his Unsworn Declaration Under Penalty of Perjury, Rios            stated that "[n]obody performs the services that [Hidalgo] . .            . was performing or assumed his job responsibilities, as there            is no continued need for an individual of Mr. Hidalgo's skills            or who could provide the services he provided." This assertion            does not jibe with Rios' subsequent admission that certain            accounts for which Hidalgo had responsibility prior to his            termination "were assigned to other Overseas[] employees who            handle[d] them in addition to the work they performed before            the Condado [D]ivision was eliminated." Moreover, Hidalgo            presented testimony from employees of his former accounts            indicating that subsequent to his termination, Overseas            employees contacted them concerning these accounts. The fact            that certain of Hidalgo's former accounts were "handled" by            several other Overseas employees subsequent to his termination            would seem to satisfy the                                     McDonnell Douglas                                                     ' fourth requirement            for establishing a prima facie ADEA claim, at least as            interpreted in Loeb, Kale, and  Keisling. We recognize that            LeBlanc stated specifically that "[a] discharged employee 'is            not replaced when another employee is assigned to perform the            plaintiff's duties in addition to other duties, or when the            work is redistributed among other existing employees already            performing related work.' Rather, '[a] person is replaced only            when another employee is hired or reassigned to perform            plaintiff's duties.'"    LeBlanc, 6 F.3d at 846 (internal            citations omitted) (quoting Barnes v. Gencorp                                                           Inc., 896 F.2d            1457, 1465 (6th Cir. 1990)); see Pages-Cahue v. Iberia Lineas            Aereas                    de                       Espana, 82 F.3d 533, 536 (1st Cir. 1996) (same).            LeBlanc,                     Barnes and                                Pages-Cahue, however, constituted reduction            of force cases, and, thus, the analytical construct they set            forth with respect to McDonnell                                             Douglas' fourth element does            not appear as persuasive as that of                                               Loeb,                                                     Kale, and                                                               Keisling in            a nonreduction of force scenario.                                        -12-                                         12            that this evidence is not overwhelming; however, as in                                                                  LeBlanc,            see 6 F.3d at 844, we assume, without concluding, that Hidalgo            has satisfied                          McDonnell Douglas                                          ' fourth element, mindful of the            fact that "'the burden of making out a prima facie case is 'not            onerous.'"  Mesnick, 950 F.2d at 823 (1st Cir. 1991) (quoting            Texas Dep't                                                of Community Affairs                                             v.                                                Burdine, 450 U.S. 248, 253            (1981)).                      "Establishment of the prescribed prima facie case            creates a presumption that the employer engaged in            impermissible age discrimination."   LeBlanc, 6 F.3d at 842.            Once a plaintiff has presented a prima facie case of            discrimination, the burden shifts to the defendant "to rebut            the presumption of discrimination by producing evidence that            the plaintiff was rejected . . . for a legitimate,            nondiscriminatory reason."  Burdine, 450 U.S. at 254. "The            employer's burden at this stage is one of production; the            burden of persuasion remains plaintiff's at all times."            Lawrence v. Northrop                                  Corp., 980 F.2d 66, 69 (1st Cir. 1992).            The parties in this case do not dispute that Overseas met its            burden of production and offered non-discriminatory rationale            for its decision to terminate Hidalgo.                      In rebutting Hidalgo's claim of age discrimination,            Overseas advanced two nondiscriminatory reasons for its            actions. First, Overseas indicated that it decided to            eliminate the Condado Division, and thus terminate Hidalgo's                                        -13-                                         13            position as president of the Division, because the Division had            become unprofitable since 1990. Second, according to Overseas,            "various insurance agents and brokers who placed policies with            Royal were complaining that the Condado Division, and            particularly Mr. Hidalgo, was interfering with some of its            [sic] clients. These actions affected Royal's business            relationship with these independent brokers and agents, some of            which were among the largest in Puerto Rico and responsible for            a substantial part of Royal's business."                      "'If the defendant carries the burden of production,            the presumption raised by the prima facie cases is rebutted,'            and 'drops from the case.'"  St.                                              Mary's                                                     Honor                                                           Ctr. v.  Hicks,            509 U.S. 502, 507 (1993) (internal citations omitted) (quoting            Burdine, 450 U.S. at 255, 255 n.10). The plaintiff then            "retains the burden of persuasion." Burdine, 450 U.S. at 256.            "In the context of a summary judgment proceeding,       Hicks            requires that, once the employer has advanced a legitimate,            nondiscriminatory basis for its adverse employment decision,            the plaintiff, before becoming entitled to bring the case            before the trier of fact, must show evidence sufficient for the            factfinder reasonably to conclude that the employer's decision            to discharge him . . . was wrongfully based on age." LeBlanc,            6 F.3d at 843; see Hicks, 509 U.S. at 515 ("[A] reason cannot                                            7.  The Hicks decision, unlike this decision, derived from an            appeal of a bench trial.                                        -14-                                         14            be proved to be 'a pretext  for discrimination' unless it is            shown both that the reason was false, and that discrimination            was the real reason."); Medina-Munoz v. R.J. Reynolds Tobacco            Co., 896 F.2d 5, 9 (1st Cir. 1988) ("[W]hen, as here, the            employer has articulated a presumptively legitimate reason for            discharging an employee, the latter must elucidate specific            facts which would enable a jury to find that the reason given            was not only a sham, but a sham intended to cover up the            employer's real motive: age discrimination.");  Mesnick, 950            F.2d at 825 ("[I]n a case where the first two steps of the            McDonnell                           Douglas pavane have been satisfactorily            choreographed, a plaintiff must offer                                                 some minimally sufficient            evidence, direct or indirect, both of pretext and of the            employer's discriminatory animus to prevail in the face of a            properly drawn Rule 56 motion.") (emphasis added);  see  also            Sanchez v. Puerto                               Rico                                     Oil                                         Co., 37 F.3d 712, 720 (1st Cir.            1994);                   Woods v.                            Friction Materials, Inc.                                                   , 30 F.3d 255, 260 (1st            Cir. 1994). Thus, Hidalgo "now must . . . demonstrate that the            proffered reason was not the true reason for the employment            decision. This burden now merges with the ultimate burden of            persuading the court that . . . [the plaintiff] has been the            victim of intentional discrimination."  Burdine, 450 U.S. at            256; see Hicks, 509 U.S. at 511, 515.                       At this stage, "the                                          facts that comprised plaintiff's            prima facie case may be considered, but the inference of                                        -15-                                         15            discrimination originally attributable to those facts no longer            pertains."  Sanchez, 37 F.3d at 720. "Direct or indirect            evidence of discriminatory motive may do, but 'the evidence as            a whole . . . must be sufficient for a reasonable factfinder to            infer that the employer's decision was motivated by age            animus.'"  Goldman, 985 F.2d at 1117 (quoting Connell v. Bank            of Boston                    , 924 F.2d 1169, 1172 n.3 (1st Cir. 1991)),                                                                 quoted                                                                        in            LeBlanc, 6 F.3d at 843. "Thus, the plaintiff cannot avert            summary judgment if the record is devoid of adequate direct or            circumstantial evidence of discriminatory animus on the part of            the employer."  LeBlanc, 6 F.3d at 843.                        Hidalgo offered circumstantial evidence to            demonstrate both that Overseas' stated reasons for his            termination was pretextual and that it was pretext for            discriminatory age animus. While we find that Hidalgo failed            to produce evidence sufficient to meet his ultimate burden of            persuasion,                        see                            Burdine, 450 U.S. at 253, we present Hidalgo's            evidence in detail in light of his contention that the district            court failed to consider this evidence in the light most            favorable to his claim. In his Unsworn Declaration Upon            Penalty of Perjury, Hidalgo indicated that between 1984 and            1986, the net underwriting profit for the Condado Division            climbed from $249,803.00 to $422,826.00. Hidalgo did not            present figures for the period after 1988, when the Overseas            and Condado operations merged, because, according to Hidalgo,                                        -16-                                         16            Overseas failed to make these figures available upon his            request. Yet, he did state in his Unsworn Declaration that            Overseas underestimated the profitability of the Condado            Division since 1990. Hidalgo contends that Overseas' failure            to provide the figures concerning the profitability of the            Condado Division, combined with his testimony concerning            additional profits stemming from the Division, suffices to            demonstrate pretext on Overseas' part.                       Hidalgo also submitted two communications from his            supervisor, Ramon Lozada, dated April 10, 1991 and January 16,            1993, as proof of Overseas' enthusiasm for Hidalgo's work as            president of the Condado Division and its belief that his            prospects with Overseas were excellent. In addition, Hidalgo            declared in his Unsworn Declaration that as a member of the            Overseas Board of Directors, he was present at a March 25, 1993            meeting during which the alleged unprofitability of the Condado            Division was never discussed. Hidalgo also stated in his            Unsworn Declaration that it was not until he informed Overseas            that he did not intend to retire on September 1 that Overseas            informed him that his termination constituted part of a plan to            eliminate the Condado Division effective September 1.                       Hidalgo offered evidence that immediately after his            dismissal and the elimination of the Condado Division,            Rodriguez on several occasions performed some of the tasks that            she previously had performed as his assistant. According to                                        -17-                                         17            Hidalgo, this activity, considered in conjunction with the fact            that certain accounts for which he previously was responsible            remained with Overseas and were attended to by other Overseas            employees after his dismissal, demonstrated that the Condado            Division "continued to function as before, albeit under a            different name." Hidalgo insists that this evidence            "combine[d] to prove that defendant's alleged reason, a            decision to close the Condado Division, was a sham, masking            defendant's illegal age discrimination."                       Hidalgo finally maintains that Overseas never            informed him of the alleged complaints of brokers and agents            concerning his interference with their business. Instead,            Hidalgo offered an evaluation of his work that Lozada prepared            on January 16, 1993 (slightly more than two months before Rios            informed him that Overseas expected him to retire effective            September 1) in which he received the best possible ratings in            all categories, including the category labeled: "How            successful is he in getting along with people in his day-to-day            work relationships?" In fact, the evaluation indicated that he            "stands out as being among the best . . . known" and that he            "will qualify for advancement beyond the next higher job            classification or level of responsibility." Hidalgo insists            that this evidence "raises a genuine issue of fact as to                                        -18-                                         18            whether age discrimination motivated the retirement or the            dismissal decision of defendant."                      We doubt that the evidence that Hidalgo submitted,            taken in the light most favorable to his claim,                                                            see                                                                LeBlanc, 6            F.3d at 841, demonstrates that Overseas' asserted reasons for            dismissing him were pretextual, see Lehman v. Prudential Ins.            Co.                  of                      Am., 74 F.3d 323, 330 (1st Cir. 1996). We note,            however, that Hidalgo cites  Mulero-Rodriguez to support his            pretext argument.  In    Mulero-Rodriguez, the plaintiff, a            director of the defendant corporation, stated in his deposition            testimony that the defendant never informed him of its            dissatisfaction with his ability to assure an inventory level                                            8.  Overseas argues that much of the evidence Hidalgo submits            to demonstrate pretext and age-based animus fails to comply            with the requirements of Fed. R. Civ. P. 56(e) and thus should            not be considered on appeal. Overseas also contends that much            of this evidence was untimely presented to the district court.            Given the ultimate disposition of this appeal, we deem it            unnecessary to address these arguments. We assume for the sake            of argument, without concluding, that the evidence Hidalgo            submitted satisfies the minimum requirements of Rule 56(e).            9.  In addition to Mulero-Rodriguez, Hidalgo cites Hebert and            Woodman v.                       Haemonetics Corp.                                       , 51 F.3d 1087 (1st Cir. 1995), to            support his contention that the evidence he submitted sufficed            to demonstrate a material issue of fact concerning pretext. In            these cases, however, the evidence that the plaintiffs            submitted to demonstrate pretext was far more extensive and far            more persuasive than the evidence Hidalgo presents in this            instance.  See Woodman, 51 F.3d at 1093 (discussing not only            performance evaluations but also defendant's admission of            disfavoring older employers as creating a reasonable inference            of pretext for intentional age discrimination);  Hebert, 872            F.2d at 1115 (listing employer's failure to inform plaintiff of            adverse feedback on his work as only one of many pieces of            circumstantial evidence that the plaintiff submitted in            addition to statistical evidence).                                         -19-                                         19            necessary for the smooth operation of the business.   See 98            F.3d at 675. The plaintiff also indicated that the defendant            failed to produce "business records in any way reflecting a            shortage [of inventory] or lost sales or income based thereon."            Id. Considering only this evidence, the                                                    Mulero-Rodriguez court            determined, "giving credence to [the plaintiff's] . . .            testimony," that the issue of pretext "should be left to the            factfinders."  Id.                      Much like the plaintiff in                                                 Mulero-Rodriguez, Hidalgo            testified in his Unsworn Declaration both that Overseas never            informed him of the alleged complaints against him and that            Overseas failed to produce any business records supporting its            allegation of the Condado Division's unprofitability. While we            doubt that these similarities suffice to demonstrate pretext on            Overseas' part, we recognize that this is a close call and,            therefore, we assume, without deciding, that Hidalgo            established pretext. See                                      Udo, 54 F.3d at 13 (assuming                                                                  arguendo            that employer's action was pretextual). We thus "turn directly            to the question of whether [Hidalgo] . . . can show that the            real reason [for his dismissal] was age discrimination."  Id.            at 676.                      In this case, "even if [Hidalgo] . . . fashioned a            triable issue as to pretext, there was . . . no 'significantly            probative' evidence to show that the pretext masked age            discrimination." Medina-Munoz, 896 F.2d at 9 (quoting                                                                  Anderson                                        -20-                                         20            v.               Liberty Lobby, Inc.                                 , 477 U.S. 242, 249-50 (1986)). Hidalgo            offered no evidence that reasonably could be construed to            indicate that Overseas intended to discriminate against him            because of his age. None of Hidalgo's evidence concerning            either the profitability of the Condado Division or Overseas'            failure to inform him of the alleged complaints against him by            brokers and agents points to any     age                                                        related                                                                 animus on            Overseas' behalf. Similarly, the evidence concerning the            ongoing servicing of Hidalgo's former accounts by Overseas            employees, including Rodriguez's work on these accounts, and            Overseas' apparent satisfaction with his performance, though            perhaps indicative of pretext on Overseas' part, does not            evidence any                         age-based discriminatory intent                                                       . As we previously            have stated, "[t]he 'ADEA does not stop a company from            discharging an employee for any reason (fair or unfair) or for            no reason, so long as the decision to fire does not stem from            the person's age.' Courts may not sit as super personnel            departments, assessing the merits--or even the rationality--of            employers' nondiscriminatory business decisions."                                                              Mesnick, 950            F.2d at 825 (internal citations omitted) (quoting                                                              Freeman, 865            F.2d at 1341).                      The only circumstantial evidence that Hidalgo sets            forth bearing upon Overseas' regard for his age comprises the            memorandum Rios sent to him on March 29, 1993 informing him            that Overseas, "[i]n accordance with the company's established                                        -21-                                         21            guidelines . . . fully expect[ed]" him to retire when he became            eligible for normal retirement benefits on September 1, 1993.            Hidalgo makes much of this letter in light of the Royal            Retirement Plan's provision that despite the fact that Royal            employees' "Normal Retirement Date" was the first day of the            month after they turned sixty-five, if an employee "decide[d]            to continue working past [his] . . . Normal Retirement Date,            [he could] . . . do so."                       This evidence does not "raise a genuine issue of fact            as to whether discrimination motivated the adverse employment            action."  Olivera v. Nestle                                         P.R.,                                               Inc., 922 F.2d 43, 50 (1st            Cir. 1990). The reasonable inference,                                                  see                                                      Mulero-Rodriguez, 98            F.3d at 672, deriving from this evidence is that Overseas            expected its employees to retire when they became eligible for            normal retirement benefits at the age of sixty-five. The Royal            Retirement Plan indicates that the normal retirement date for            Overseas employees falls at or near their sixty-fifth birthday.            Overseas' March 29 letter to Hidalgo indicated its expectation            that Hidalgo would retire on or near his Normal Retirement            Date. We thus do not believe that the March 29 letter            constituted "'significantly probative,'"                                                    Medina-Munoz, 896 F.2d            at 9 (quoting  Anderson, 477 U.S. at 249-50), "probative,"            Sanchez, 37 F.3d at 720, "adequate,"                                                 Mulero-Rodriguez, 98 F.3d            at 673, "sufficient,"   LeBlanc, 6 F.3d at 849, or even            "minimally sufficient," Vega, 3 F.3d at 479, circumstantial                                        -22-                                         22            evidence to permit a reasonable jury to find discriminatory            animus on Overseas' part,     see  Lehman, 74 F.3d at 330            (concluding that the plaintiff's "evidence, taken at its best,            was insufficient to show that . . . [the defendant] was            motivated by age discrimination");                                               see                                                   also                                                        LeBlanc, 6 F.3d at            846-49;                    Goldman, 985 F.2d at 119-21;                                                 Mesnick, 950 F.2d at 826;            Menard v.                      First Sec. Servs. Corp.                                            , 848 F.2d 281, 289 (1st Cir.            1988). In our view, the fact that Overseas expected Hidalgo to            retire when he became eligible for his normal retirement            benefits would not permit a jury determination that Overseas            was motivated by age animus when it decided to dismiss Hidalgo.            See Udo, 54 F.3d at 14 (finding letter employer sent to            employee informing him that employer expected him to retire            when he turned sixty-five did not evidence age animus on            employer's behalf).                       When considered in the context of the record evidence            as a whole,  see  Connell, 924 F.2d at 1172 n.3;    see  also            Goldman, 985 F.2d at 1119 ("[T]he totality of the circumstances            must permit a reasonable inference that the employer's            justification for the challenged action was pretext for age            discrimination."), viewed in the light most favorable to            Hidalgo, see LeBlanc, 6 F.3d at 841, the March 29 letter and            the Royal Retirement Plan still would not suffice to allow a            jury reasonably to find that Overseas exhibited age-based            animus in this case. Overseas sent Hidalgo the letter                                        -23-                                         23            concerning its expectation that he retire on his Normal            Retirement Date more than five months prior to his sixty-fifth            birthday and repeatedly declared its intention to take no            action that would interfere with his ability to qualify for            normal retirement benefits. On July 2, 1993, Overseas            explained to Hidalgo its independent business decision to            eliminate the Condado Division effective September 1, 1993,            which accommodated the full vesting of his pension plan.            Despite its decision to eliminate the Condado Division, on            August 19, 1993, Overseas offered to employ Hidalgo as an            independent producer, with compensation based on commission and            bonuses. Hidalgo rejected these offers, and, on September 1,            Overseas implemented the plan it had enunciated to Hidalgo on            July 2 to eliminate the Condado Division as a separate entity.                      Contrary to Hidalgo's assertions, we believe the only            inference that the evidence in the record supports, without            improper speculation on our part, is that Overseas simply timed            its elimination of the Condado Division to dovetail with            Hidalgo's Normal Retirement Date. This would be entirely            appropriate.  See Goldman, 985 F.2d at 1118 n.4 ("[A] 'mere            showing that the employer's articulated reason may shield            another (possibly nondiscriminatory) reason does not create a            dispute of material fact' sufficient to withstand summary            judgment.");                         Mesnick, 950 F.2d at 825;                                                  see                                                      also                                                           Udo, 54 F.3d at            14 (finding letter expressing employer's expectation that                                        -24-                                         24            employee would retire at age sixty-five insufficient evidence            of discriminatory age animus to withstand summary judgment            where employer subsequently articulated nondiscriminatory            rationale for dismissing employee).                       As we previously have noted, "the material creating            the factual dispute must herald the existence of 'definite,            competent evidence' fortifying the plaintiff's version of the            truth. Optimistic conjecture . . . or hopeful surmise will not            suffice."  Vega, 3 F.3d at 479 (internal citations omitted)            (quoting Mesnick, 950 F.2d at 822). In this case, Hidalgo's            arguments "are based largely upon . . . improbable inferences[]            and unsupported speculation,"                                          LeBlanc, 6 F.3d at 849, and thus            fall short. In light of the evidence in the record, viewed in            the light most favorable to Hidalgo, we do not believe that a            trier of fact could conclude that Overseas unlawfully            discriminated against Hidalgo. We thus affirm the district            court's award of summary judgment in favor of Overseas.                      Costs to Appellee.                                        -25-                                         25
