          United States Court of Appeals
                      For the First Circuit


No. 17-1544

                    WILBUR L. HOFFMAN-GARCÍA,

                      Plaintiff, Appellant,

                    ZORAIDA I. RODRÍGUEZ-DÍAZ;
              CONJUGAL PARTNERSHIP HOFFMAN-RODRÍGUEZ

                           Plaintiffs,

                                v.

         METROHEALTH, INC., d/b/a HOSPITAL METROPOLITANO

                       Defendant, Appellee,

     KAREN ARTAU-FELICIANO; FACILITIES SERVICES MANAGEMENT &
 MAINTENANCE, INC.; IAN RODRÍGUEZ-ALVARADO; XYZ INSURANCE CORP.;
       AMERICAN INTERNATIONAL INSURANCE GROUP, INC. (AIG),

                           Defendants.


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

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Boudin, Circuit Judges.


     Erick Morales-Perez on brief for appellant.
     José R. González-Nogueras, Lloyd Isgut-Rivera, and Pizarro &
González, on brief for appellee.
March 19, 2019
             BOUDIN, Circuit Judge. Wilbur Hoffman-García ("Hoffman")

was employed by Hospital Metropolitano in San Juan, Puerto Rico,

from 1995 until 2012, when he was laid off.             At the time of his

termination he served as Physical Plant Director, and his duties

included handling maintenance issues, managing the Physical Plant

Department's budget, overseeing utilities management and repairs,

attending meetings with other senior personnel at the hospital,

procuring supplies to keep the hospital in good physical condition,

hiring contractors to perform larger projects, and maintaining

premises safety and security.

             The hospital explained Hoffman's dismissal as part of an

effort to cut costs, as it subsequently hired an outside contractor

to perform maintenance services.        Along with Hoffman, the hospital

laid   off   all   of   the   staff   employed    in   the   Physical     Plant

Department,     including     Hoffman's      deputy,   Giovanni    Martínez.

However, Martínez was rehired some months later for the newly

created position of Safety Officer.          Hoffman calls the rehiring of

Martínez instead of him discriminatory based on age, but Hoffman

did not apply for the position of Safety Officer when it became

available.     Martínez was thirty-six years old at the time he was

rehired, while Hoffman was sixty-two.

             Hoffman sued the hospital under the Age Discrimination

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

antidiscrimination      and   tort    law.     Following     discovery,    the


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district court granted in part the hospital's summary judgment

motion, Fed. R. Civ. P. 56, finding that the hospital had facially

legitimate, non-discriminatory grounds to close the Physical Plant

Department and to terminate Hoffman's position; but absent trial,

the court declined to decide whether the hospital treated age

neutrally when it rehired Martínez rather than Hoffman.                  Hoffman-

Garcia v. Metrohealth, Inc., No. 14-CV-1162, 2016 WL 4146098

(D.P.R. Aug. 3, 2016).1

            A jury trial then ensued, but at the close of evidence

the district court granted the hospital's motion for judgment as

a matter of law, Fed. R. Civ. P. 50(a).                   In that ruling, see

Hoffman-Garcia     v.   Metrohealth,      Inc.,    No.    14-CV-1162,      2018   WL

671200   (D.P.R.    Jan.   31,    2018),    the    district     court    rejected

Hoffman's    two   separate      though     overlapping       theories     of     age

discrimination,     the    first    predicated       on     Hoffman's      initial

termination and his claim that a younger employee (Martínez) was

retained    to   perform   his    same    job     function,    and   the    second

predicated on the hospital's failure to hire Hoffman as Safety

Officer and to instead hire Martínez for that position.

            The court found as to both theories that the position of

Safety Officer varied significantly in its duties and requirements


     1 The court granted summary judgment to the hospital with
respect to Hoffman's claim under Puerto Rico's general tort
statute, P.R. Laws Ann. tit. 31, § 5141, for reasons not pertinent
here.


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from those of Physical Plant Director and that the two were not

"situated similarly in all relevant aspects," Cardona Jimenez v.

Bancomercio de Puerto Rico, 174 F.3d 36, 42 (1st Cir. 1999).

Further, Hoffman never applied for the position of Safety Officer,

which undercut his argument that he had experienced an adverse

employment action.       Cf. Velez v. Janssen Ortho, LLC, 467 F.3d 802,

807-08 (1st Cir. 2006).          The court therefore dismissed the ADEA

claim as a matter of law.                See, e.g., Del Valle-Santana v.

Servicios Legales de Puerto Rico, Inc., 804 F.3d 127, 131-32 (1st

Cir. 2015) (affirming dismissal for failure to establish prima

facie case of discrimination).

              The court also granted judgment as a matter of law to

the hospital on Hoffman's two surviving Puerto Rico law claims,

one of which alleged age discrimination, P.R. Laws Ann. tit. 29,

§ 146 et seq., and the other of which alleged unjust discharge

from employment, P.R. Laws Ann. tit. 29, § 185a et seq.                   As to

these   two    claims,     the   court   found   that   the    closure   of   the

hospital's      Physical     Plant   Department     for       business   reasons

constituted just cause, that nobody was hired to perform the duties

or job earlier held by Hoffman, and that given the similarities

between the burden-shifting framework governing ADEA claims and

the test for the Puerto Rico Law claims, Caraballo-Cecilio v.

Marina PDR Tallyman LLC, 14-CV-1454, 2016 WL 6068117, at *2-3

(D.P.R. Oct. 13, 2016), the same analysis governed.


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            Hoffman now appeals, claiming that the court erred in

granting judgment as a matter of law to the hospital and that a

jury question existed as to the hospital's motivations in rehiring

Martínez rather than Hoffman for the position of Safety Officer.

Such claims are reviewed de novo, Delgado v. Pawtucket Police

Dep't, 668 F.3d 42, 50 (1st Cir. 2012), taking the evidence in the

light most favorable to the non-moving party, Malone v. Lockheed

Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010).                This court asks

whether in the trial record a rational jury could find in favor of

Hoffman.    Wilson v. Moreau, 492 F.3d 50, 52 (1st Cir. 2007).

            Hoffman's brief principally seizes on language from the

district court's oral announcement and subsequent written order of

its decision which mentions the uncontradicted testimony from José

Samuel Rosado, the hospital's director, that age did not factor in

his decision to rehire Martínez and that because the safety officer

position was inferior in authority and salary to Hoffman's prior

position,   he     did   not   believe   that    Hoffman    would   have   been

interested.       Hoffman ties this in with various cases noting the

traditional rule that in the Rule 50 context it is improper to

consider the credibility of witnesses, see, e.g., Barkan v. Dunkin'

Donuts, Inc., 627 F.3d 34, 39 (1st Cir. 2010), such matters being

the province of the jury.

            The    problem     for   Hoffman    is   that   much   of   Rosado's

testimony and the district court's mention of it were beside the


                                         - 6 -
point: here, Hoffman plainly failed to meet his burden of showing

that his previous position of Physical Plant Director, or a

position involving comparable duties and responsibilities at the

hospital, was subsequently filled by a younger person, or that he

applied for a position and did not get the job because the employer

preferred a younger candidate. Under the burden shifting framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), there

were fatal and uncontradicted defects in Hoffman's prima facie

theory of liability as established by the evidence at trial.

          The Physical Plant Director position at the hospital was

eliminated entirely; Martínez was rehired for the position of

Safety Officer, which came with a monthly salary of $2,183 (Hoffman

had been earning $7,432 a month at the time his position was

terminated). Hoffman never himself applied for the position, which

we have noted is a fatal defect in the similar context of Title

VII failure-to-rehire retaliation cases. See Velez, 467 F.3d at

807   (noting     the   requirement     that   "plaintiffs   asserting

discriminatory retaliation must show that they applied for a

specific vacant position for which they were qualified, and that

they did not get the job").

          Hoffman's duties as Physical Plant Director at best

minimally overlapped with Martínez's duties as Safety Officer.

Martínez in his new role had no director-level, decision-making

responsibility.    He did not attend meetings with other directors,


                                      - 7 -
supervise contractors, oversee the budget, or otherwise manage the

physical plant.

           That Martínez in his new position inherited Hoffman's

responsibility for safety issues is not sufficient, for this was

but a small portion of Hoffman's duties.       See LeBlanc v. Great Am.

Ins. Co., 6 F.3d 836, 846 (1st Cir. 1993).       Nor can discriminatory

animus be inferred solely from the subsequent hiring of a younger

employee   for   a   position   plainly   inferior   to   the   plaintiff's

previous position. Pagues-Cahue v. Iberia Lineas Aereas de España,

82 F.3d 533, 538 (1st Cir. 1996).

           Affirmed.




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