          United States Court of Appeals
                       For the First Circuit

No. 99-1810

        MARIA D. FELICIANO DE LA CRUZ, ERASMO JIMENEZ,
                AND THEIR CONJUGAL PARTNERSHIP,
                    Plaintiffs, Appellants,

                                 v.

              EL CONQUISTADOR RESORT AND COUNTRY CLUB
                         AND HUGH A. ANDREWS
                       Defendants, Appellees.



         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]


                               Before

                        Selya, Circuit Judge,
                   Coffin, Senior Circuit Judge,
                     and Lipez, Circuit Judge.



                   ORDER DENYING PANEL REHEARING
                       Entered: July 28, 2000




          In this order, we address the appellant's argument that
our decision in Feliciano v. El Conquistador, 2000 WL 709928,
No. 99-1810 (1st Cir. June 6, 2000) (evaluating employment
discrimination claim under Title VII), is contrary to the recent
decision of the Supreme Court in Reeves v. Sanderson Plumbing
Products, Inc., 120 S. Ct. 2097 (2000) (evaluating claim under
the Age Discrimination in Employment Act).        In Reeves, the
Supreme Court said it was resolving the conflict between the
Courts of Appeals "as to whether a plaintiff's prima facie case
of discrimination . . ., combined with sufficient evidence for
a   reasonable    factfinder    to   reject    the   employer's
nondiscriminatory explanation for its decision, is adequate to
sustain liability for intentional discrimination." Id. at 2104.
In some circuits a plaintiff's evidence of a prima facie case
and pretext, without more, was adequate to get to the jury on a
discrimination claim; in others, there was a requirement that
the plaintiff produce additional evidence that the employer
acted with discriminatory animus.     See id. at 2104-05.   The
Court placed the First Circuit in the latter group, see id.
(citing   Woods v. Friction Materials, Inc., 30 F.3d 255 (1st
Cir. 1994)).

          Although our prior use of the label, "pretext plus,"
may have resulted in a misunderstanding about the proof required
to state a discrimination claim in this circuit, we have been
careful to explain that the phrase did not mean that the
plaintiff always must present evidence beyond the proof of
pretext in order to establish discrimination. In both Woods and
Thomas v. Eastman Kodak Co., we emphatically said that this is
not the case. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 57
(1st Cir. 1999) cert. denied, 120 S.Ct. 1174 (2000) ("Although
it uses the label 'plus,' the First Circuit's 'pretext plus'
standard does not necessarily require the introduction of
additional    evidence    beyond   that    required   to    show
pretext.")(internal quotation marks omitted); Woods, 30 F.3d
255, at 260 n.3 ("[S]ome cases exist where a prima facie case
and the disbelief of a pretext could provide a strong enough
inference of actual discrimination to permit the fact-finder to
find for the plaintiff.").

          Our precedents are consistent with Reeves, and our
application of those precedents in the case at hand was
consistent with Reeves.    We explained that Feliciano was not
required to show any evidence in addition to her evidence of
pretext in order to get to the jury. Although we concluded that
Feliciano's explanations of her job performance problems
generated a triable issue of pretext, we found her evidence of
pretext “thin” (consisting primarily of her own explanations of
why she was unable to perform her job adequately).         That
evidence did not "shed any light on what El Conquistador's true
reason for firing her was, let alone show that the reason was
discrimination based on Feliciano's Puerto Rican origin."


                               2
          Our approach was therefore consistent with Reeves,
which makes clear that "[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
120 S. Ct. at 2106. Although the Court emphasized that "[p]roof
that the defendant's explanation is unworthy of credence is
simply one form of circumstantial evidence that is probative of
intentional discrimination, . . . [and that] [i]n appropriate
circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose," it did not announce a rule
that a showing of pretext alone always precludes summary
judgment in a case alleging intentional discrimination. To the
contrary, the Court emphasized that, "Whether judgment as a
matter of law is appropriate in any particular case will depend
on a number of factors.     Those include 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. Our conclusion that Feliciano failed to adduce sufficient
evidence to survive summary judgment based on the particular
weakness of her case, therefore, is entirely consistent with the
Supreme Court's conclusion that the plaintiff in Reeves was
entitled to have his claim heard by a jury.
     The petition for panel rehearing is denied.

                                   By the Court:
                                   Phoebe Morse, Clerk




                                    By: Janice M. O'Neil
                                        Chief Deputy Clerk




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