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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1732 <br> <br>                     JORGE RODRIGUEZ-CUERVOS, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                  WAL-MART STORES, INC., ET AL., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Selya, Circuit Judge, <br> <br>                and Acosta, Senior District Judge. <br> <br>                      _____________________ <br> <br>    Maricarmen Almodvar-Daz for appellant. <br>    Frances R. Coln-Rivera, with whom Luis F. Antonetti and <br>Goldman Antonetti & Crdova, P.S.C. were on brief, for appellees. <br> <br> <br>                       ____________________ <br> <br>                          June 11, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  Plaintiff-appellant Jorge <br>Rodrguez-Cuervos ("Rodrguez") filed a complaint charging <br>defendant-appellee Wal-Mart Stores, Inc. ("Wal-Mart") with illegal <br>race and national origin discrimination in violation of federal <br>law.  Rodrguez now appeals the district court's grant of summary <br>judgment in favor of the former employer, Wal-Mart.  We affirm. <br>                            BACKGROUND <br>         Rodrguez, who is a U.S. citizen born in Puerto Rico, <br>began his employment with Wal-Mart in March 1991.  At that time, <br>Wal-Mart was preparing to open its first stores in Puerto Rico.  <br>Rodrguez assisted Wal-Mart with the opening of these stores and <br>received training in order to become a store manager.  Rodrguez <br>participated in Wal-Mart training programs in Florida and Arkansas. <br>         On March 7, 1992, Rodrguez was promoted to the position <br>of Division Manager in Wal-Mart's Store Planning Division, and <br>received a salary increase.  As Division Manager, Rodrguez was <br>responsible for the commencement of Wal-Mart's business operations <br>in Fajardo and Hatillo -- two municipalities located in the <br>northeast and northwest of Puerto Rico, respectively. <br>         On April 15, 1993, Rodrguez's supervisor rated his <br>overall performance as "exceeded expectations."  Under the heading <br>"Overall Strengths," the supervisor described Rodrguez as <br>possessing "a sense of urgency to help when and where he is needed <br>to get Wal-Mart established in Puerto Rico" and "a good caring <br>attitude towards associates." <br>         Shortly after this evaluation, Rodrguez was appointed <br>manager of the Wal-Mart store in Isabela.  On March 19, 1994, <br>Rodrguez's managerial performance was again evaluated.  Although <br>his supervisor cited several areas needing improvement, he <br>concluded that Rodrguez's overall performance again "exceeded <br>expectations."  The evaluator described Rodrguez as a "good <br>communicator" with a winning "Yes I Can" attitude. <br>         Sometime in mid-1994, Rodrguez was named manager of the <br>Fajardo store.  On November 17, 1994, Rodrguez's performance as <br>Fajardo store manager was evaluated by William Cahill, District <br>Manager for Wal-Mart in Puerto Rico, and Hctor Vzquez, Wal-Mart's <br>Human Resources Director for Puerto Rico.  Cahill and Vzquez <br>informed Rodrguez of the results of this evaluation in a <br>memorandum dated November 23, 1994.  The memorandum outlined <br>several "opportunities" for improvement in Rodrguez's management <br>of the Fajardo store, and requested that Rodrguez submit a written <br>action plan in response to the cited "opportunities."  The <br>Cahill/Vzquez memorandum also presented Rodrguez with an <br>ultimatum: either step down from the position of manager of the <br>Fajardo store and be re-trained, or stay on as manager and be held <br>accountable for the results of an attitude survey to be conducted <br>in three days' time, among all of the Fajardo associates.  <br>Rodrguez chose the latter option. <br>         Good to their word, Cahill and Vzquez conducted an <br>opinion survey of the Fajardo associates on November 26, 1994.  On <br>December 27, Rodrguez received the results of this survey, which <br>ranked Rodrguez in several areas as compared with other managers <br>at the store.  Cahill and Rodrguez discussed the survey results, <br>and on January 10, 1995, Cahill again evaluated Rodrguez's <br>performance in Fajardo.  This time Rodrguez received an overall <br>performance rating of "didn't meet expectations."  By memorandum <br>dated May 3, 1995, Wal-Mart removed Rodrguez from the position of <br>store manager.  Rodrguez was subsequently demoted to an assistant <br>manager position in the Hatillo store. <br>         In due course, Rodrguez filed a complaint alleging  Wal- <br>Mart discriminated against him based on his race, ethnicity, and <br>national origin, in violation of Title VII of the Civil Rights Act <br>of 1964, 42 U.S.C.  2000-e, and 42 U.S.C.  1981.  Wal-Mart moved <br>to dismiss Rodrguez's complaint on the ground that it failed to <br>state a prima facie case of race or national origin discrimination <br>as required under the burden-shifting framework established in <br>McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).  In <br>its subsequent Reply to Plaintiff's Response to Dispositive Motion, <br>Wal-Mart also argued that Rodrguez failed to establish that its <br>legitimate and non-discriminatory reason for Rodrguez's demotion <br>was, in reality, a pretext for race or national origin <br>discrimination. <br>         On April 8, 1997, the district court issued an order <br>advising the parties that the motion to dismiss would be treated as <br>a motion for summary judgment.  On April 30, the district court <br>clarified its April 8 order and advised Rodrguez "to proceed to <br>engage in discovery . . . in order to adequately oppose the motion <br>for summary judgment."  Finally, on January 9, 1998, the district <br>court granted summary judgment in favor of Wal-Mart.  Rodrguez now <br>appeals. <br>                            DISCUSSION <br>         We review the district court's grant of summary judgment <br>de novo, viewing the facts in the light most favorable to the non- <br>moving party, Rodrguez.  See Dominique v. Weld, 73 F.3d 1156, 1158 <br>(1st Cir. 1996). <br>         Absent direct evidence of discrimination, a Title VII <br>plaintiff must resort to the three-stage burden-shifting framework <br>set forth in McDonnell Douglas.  See Ayala-Gerena v. Bristol Myers- <br>Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996).  Under this framework, <br>the plaintiff shoulders the initial burden of adducing a prima <br>facie case of unlawful discrimination.  This includes a showing <br>that: (1) plaintiff is a member of a protected class; (2) <br>plaintiff's employer took an adverse employment action against him; <br>(3) plaintiff was qualified for the employment he held; and (4) <br>plaintiff's position remained open or was filled by a person whose <br>qualifications were similar to his.  See St. Mary's Honor Center v. <br>Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at <br>802; Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. <br>1999).  Establishment of a prima facie case creates a presumption <br>of unlawful discrimination.  See Texas Dep't of Community Affairs <br>v. Burdine, 450 U.S. 248, 254 (1981).  Once a plaintiff establishes <br>a prima facie case, the burden shifts to the employer to rebut this <br>presumption by articulating a legitimate, non-discriminatory reason <br>for its adverse employment action.  See McDonnell Douglas 411 U.S. <br>at 802; Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 12 (1st <br>Cir. 1998).  In the third and final stage, the burden devolves <br>upon the plaintiff to prove that the reasons advanced by the <br>defendant-employer constitute mere pretext for unlawful <br>discrimination.  See Hicks, 509 U.S. at 507-508; Woods v. Friction <br>Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994).  To meet this <br>burden, the plaintiff must prove not only that the reason <br>articulated by the employer was a sham, but also that its true <br>reason was plaintiff's race or national origin.  See Shorette, 155 <br>F.3d at 13. <br>         As mentioned above, see supra, note 1, at all times <br>Rodrguez bears the burden of proving that Wal-Mart discriminated <br>against him on the basis of race and/or national origin.  Thus, at <br>the summary judgment stage, Wal-Mart could prevail only if <br>Rodrguez failed to adduce sufficient evidence from which a <br>rational fact-finder could conclude that he was demoted because he <br>is Puerto Rican.  See Shorette, 155 F.3d at 12.  Put another way, <br>Rodrguez cannot avert summary judgment if the record is devoid of <br>adequate direct or circumstantial evidence of intentional racial, <br>ethnic, or national origin discrimination on the part of Wal-Mart.  <br>On appeal, Rodrguez contends that he did adduce adequate evidence <br>to generate a trialworthy issue as to whether Wal-Mart <br>discriminated against him in violation of Title VII.  In the <br>alternative, Rodrguez argues that the district judge abused his <br>discretion in denying his post-judgment request for additional time <br>to conduct discovery in order to properly oppose Wal-Mart's motion <br>for summary judgment.  We disagree on both counts. <br>A.  Summary Judgment <br>         For present purposes, we assume arguendo that Rodrguez <br>carried his initial burden of establishing a prima facie case.  <br>Further, it is clear that Wal-Mart satisfied its limited burden of <br>production  by articulating a legitimate, non-discriminatory reason <br>for demoting Rodrguez: namely, his unsatisfactory performance.  <br>Thus, we focus on the ultimate issue: whether Rodrguez adduced <br>sufficient evidence from which a rational factfinder could have <br>inferred both that Wal-Mart's articulated reason was a pretext, and <br>that its true reason for demoting Rodrguez was racial, ethnic, or <br>national origin discrimination.  See Shorette, 155 F.3d at 15. <br>         To prove that Wal-Mart's proffered reason for demoting <br>him was merely pretextual, Rodrguez points to two previous <br>performance evaluations in which he was rated as exceeding the <br>company's expectations.  Rodrguez argues that because the contents <br>of his prior evaluations contradict Cahill's findings in the <br>January 10 evaluation, Cahill's findings must be pretextual.  The <br>problem with this argument is that in relying on his past <br>performance evaluations, Rodrguez fails to take into account the <br>fact that he was working in different capacities at different <br>stores, under different supervisors with different expectations.  <br>As a result, Cahill's evaluation is not necessarily inconsistent <br>with Rodrguez's past positive reviews.  As the district court <br>noted, from this evidence "a reasonable juror could only infer <br>. . . that Plaintiff at one time exceeded expectations . . . under <br>the first district manager but that the later ratings by Cahill in <br>late 1994 and early 1995 found Rodrguez's performance lacking."  <br>(1/9/98 Op. & Order at 20.)  The fact that Cahill may have had <br>different expectations for Rodrguez, even if those expectations <br>were contrary to those of Rodrguez's prior supervisors, does not <br>support a finding of pretext.  See Orisek v. American Institute of <br>Aeronautics & Astronautics, 938 F. Supp. 185, 191 (S.D.N.Y. 1996). <br>         In addition to his history of positive performance <br>evaluations, Rodrguez offered comparative evidence of Wal-Mart's <br>disparate treatment of non-Puerto Rican store managers.  It is <br>fundamental that "[a] claim of disparate treatment based on <br>comparative evidence must rest on proof that the proposed analogue <br>is similarly situated in all material respects."  Perkins v. <br>Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996).  The <br>comparison cases need not be perfect replicas. See Conward, 171 <br>F.3d at 20.  Rather, the test is whether a "prudent person, looking <br>objectively at the incidents, would think them roughly equivalent <br>and the protagonists similarly situated."  Dartmouth Review v. <br>Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989).  Thus, in <br>offering this comparative evidence, Rodrguez bears the burden of <br>showing that the individuals with whom he seeks to be compared <br>"have been subject to the same standards and have engaged in the <br>same conduct without such differentiating or mitigating <br>circumstances that would distinguish their conduct or the <br>employer's treatment of them for it."  Mitchell v. Toledo Hosp., <br>964 F.2d 577, 583 (6th Cir. 1992).  Rodrguez's evidence fails to <br>satisfy this test. <br>         The comparative evidence submitted by Rodrguez consists <br>of a performance evaluation of Russ Steiner, a non-Puerto Rican <br>manager of the Hatillo Wal-Mart store.  Rodrguez contends that he <br>and Steiner were similarly situated to the extent that they were <br>both managers of Wal-Mart stores, and their evaluations identify <br>many of the same weaknesses and areas of improvement.  Rodrguez <br>argues that despite these similarities, Steiner received a rating <br>of "met expectations," while Rodrguez was rated as below <br>expectations.  Rodrguez further argues that Steiner was never <br>subjected to an opinion survey, and was not demoted.  In making <br>this comparison, however, Rodrguez fails to take into account the <br>fact that Steiner's evaluation was performed by a different <br>supervisor, covered a different period of time, and related to a <br>different store.  Because Rodrguez's and Steiner's evaluations <br>differ in these material respects, their comparison fails to <br>support a finding that Wal-Mart acted inconsistently in its <br>treatment of them.  In short, we agree with the district court that <br>a comparison of these evaluations yields no evidence of <br>discrimination, but rather evidence of different opinions by <br>different evaluators under different circumstances. <br>         Rodrguez next contends that he was subjected to <br>disparate treatment by Wal-Mart to the extent that he was held <br>accountable for the results of an opinion survey, while no other <br>non-Puerto Rican managers were subject to such an evaluation <br>procedure.  Rodrguez has presented no evidence to support this <br>claim.  However, even assuming arguendo that Rodrguez was in fact <br>the only manager subjected to an opinion survey, this is not <br>sufficient to prove intentional racial or national origin <br>discrimination on the part of Wal-Mart.  While this may prove <br>disparate treatment, there is simply no evidence that such <br>treatment was on account of Rodrguez's status as a Puerto Rican.  <br>Absent such evidence, Rodrguez cannot avert summary judgment. <br>         The same problem undermines Rodrguez's claim that the <br>timing of his evaluations by Cahill raises a "serious inference of <br>suspicious motives."  (Pl.'s Resp. to Def.'s Dispositive Mot. at <br>15.)  Cahill's initial November 17, 1994 evaluation was rendered <br>only eight months after Rodrguez started as manager of the Fajardo <br>store, and four months prior to his anniversary date of March 1995.  <br>Rodrguez points to Wal-Mart's Associate Handbook as evidence that <br>it was Wal-Mart's standard operating procedure to evaluate its <br>associates annually, on or near the associate's anniversary date.  <br>Rodrguez contends that Wal-Mart's deviation from this standard <br>operating procedure is evidence that Wal-Mart's proffered reasons <br>for demoting him were mere pretexts for discrimination.  Again, we <br>disagree.  As this court has previously explained, "[c]ourts may <br>not sit as super personnel departments, assessing the merits -- or <br>even the rationality of employers' nondiscriminatory business <br>decisions."  Mesnick, 950 F.2d at 825.  Although the evaluation <br>process may not have treated Rodrguez fairly, there is simply no <br>evidence that Wal-Mart's hasty evaluation was a pretext for <br>unlawful discrimination. <br>         In sum, Rodrguez has presented evidence that the reasons <br>proffered by Wal-Mart for his demotion may have been inaccurate.  <br>He has also presented evidence that he may have been treated <br>differently from other Wal-Mart managers to the extent that he was <br>subjected to an opinion survey.  But the fatal weakness in <br>Rodrguez's case is his failure to present any evidence that Wal- <br>Mart's actions were predicated on the basis of race or national <br>origin.  Unfortunately for Rodrguez, Title VII does not stop a <br>company from demoting an employee for any reason -- fair or unfair <br>-- so long as the decision to demote does not stem from a protected <br>characteristic, here, race or ethnicity.  See Mesnick, 950 F.2d at <br>825.  Based on our careful review of the record, we agree with the <br>district court that Rodrguez failed to present sufficient evidence <br>with respect to the ultimate issue in this case: whether Wal-Mart's <br>proffered reason for demoting him was actually a pretext for <br>unlawful discrimination. <br>B.  Rule 56(f) <br>         After the district court's grant of summary judgment, <br>Rodrguez filed a motion requesting a continuance in order to <br>conduct further discovery pursuant to Fed. R. Civ. P. 56(f).  The <br>gist of Rodrguez's argument is that he was misled by the district <br>court into believing that the only issue to be resolved by summary <br>judgment was the legal issue of whether  1981 was intended to <br>protect Puerto Ricans working in Puerto Rico.  As a result, <br>Rodrguez claims that his pre-judgment discovery efforts and the <br>evidence he submitted in opposition to Wal-Mart's motion were <br>limited to that specific legal issue.  In light of the district <br>court's unexpected ruling on the merits, Rodrguez argues that the <br>court's denial of his Rule 56(f) motion for a continuance <br>constituted an abuse of discretion. <br>         "It is well settled that the trial judge has broad  <br>discretion in ruling on pre-trial management matters."  Ayala- <br>Gerena, 95 F.3d at 91.  An appellate court will intervene in such <br>matters "only upon a clear showing of manifest injustice, that is, <br>where the lower court's discovery order was plainly wrong and <br>resulted in substantial prejudice to the aggrieved party."  Id. <br>(quoting Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, <br>186 (1st Cir. 1989)).  After careful review of the record, we <br>conclude that the district court acted within its discretion in <br>denying Rodrguez's post-judgment motion for a continuance. <br>         Although we agree that the district court did not act in <br>accordance with its own instructions and orders, we do not agree <br>that the court's inconsistency resulted in "substantial prejudice" <br>to Rodrguez.  Rodrguez's contention that he limited his discovery <br>efforts and legal arguments to the specific legal issue of whether <br>Puerto Ricans working in Puerto Rico are protected by  1981 is <br>disingenuous.  It is clear from our review of the record that, like <br>the district court itself, both parties disregarded the court's <br>limiting order.  In its motion to dismiss, Wal-Mart never even <br>addressed the issue of whether  1981 protected Puerto Ricans <br>working in Puerto Rico, but rather directly challenged the merits <br>of Rodrguez's claim.  Similarly, each of Rodrguez's three <br>oppositions marshaled factual evidence in support of his Title VII <br>claim.  In short, both parties blatantly disregarded the court's <br>categorization of the issue and briefed all three stages of a <br> 1981 claim under the McDonnell-Douglas framework. <br>         In order to "savor the balm" of Rule 56(f), a party must <br>move for a discovery continuance in a timely fashion.  <br>Massachusetts Sch. of Law at Andover, Inc.  v.  American Bar.  <br>Assoc., 142 F.3d 26, 44 (1st Cir. 1998).  Although Rodrguez <br>requested time for additional discovery as early as his initial <br>opposition, he never claimed an inability to avert "the swing of <br>the summary judgment axe."  Paterson-Leitch Co. v. Mass. Municipal <br>Wholesale Elec. Co., 840 F.2d 985, 989 (1st Cir. 1988).  Instead, <br>Rodrguez continually  maintained that he had provided sufficient <br>evidence to raise the specter of intentional racial and/or ethnic <br>discrimination and withstand summary judgment on all grounds argued <br>by Wal-Mart.  Even Rodrguez's Rule 56(f) motion requested, in the <br>alternative, that judgment be vacated on the ground that he had <br>adduced sufficient evidence to preclude summary disposition of his <br>claim. <br>         In this respect, Rodrguez's position is similar to that <br>of the Title VII plaintiffs in Ayala-Gerena, who did not claim that <br>they were unable to oppose summary judgment because of incomplete <br>discovery, but rather, maintained that "although incomplete . . . <br>[these records] clearly reveal discriminatory animus."  Ayala- <br>Gerena, 95 F.3d at 92 n.4.  Ordinarily, a party "may not attempt to <br>meet a summary judgment challenge head-on but fall back on Rule <br>56(f) if its first effort is unsuccessful."  C.B. Trucking, Inc. v. <br>Waste Management, Inc., 137 F.3d 41, 44 (1st Cir. 1998). <br>         In addition, Rodrguez never sufficiently identified the <br>outstanding discovery that he believed would influence the outcome <br>of the summary judgment motion.  See Resolution Trust Co. v. North <br>Bridge Assoc., Inc., 22 F.3d  1198, 1203 (1st Cir. 1994) (Rule <br>56(f) motion "should set forth a plausible basis for believing that <br>specified facts, susceptible of collection within a reasonable time <br>frame, probably exist; and it should indicate how the emergent <br>facts, if adduced, will influence the outcome of the pending <br>summary judgment motion.").  In his third supplemental motion in  <br>opposition to summary judgment, Rodrguez merely stated that he was <br>"unable to provide in this Motion the additional evidence he <br>anticipated," (Pl.'s Supp. Mot. to His Opp. to Summ. Disposition at <br>2), without specifying what that additional evidence was or how it <br>might affect the pending motion. <br>         Finally, we agree with the district court that Rodrguez <br>had adequate time to conduct discovery, or at least to marshal <br>enough evidence to properly support a Rule 56(f) request for a <br>continuance.  Even assuming that Rodrguez did not initiate the <br>discovery process until the district court's April 30 discovery <br>order, almost nine months elapsed until judgment was granted on <br>January 13, 1998.  During this time, Rodrguez never requested <br>concrete measures by the district court to intervene in discovery.  <br>As a result, we conclude that the district court acted within its <br>discretion in denying Rodrguez's Rule 56(f) motion for a <br>continuance to conduct further discovery. <br>                            CONCLUSION <br>         For the above reasons, we affirm the district court's <br>grant of summary judgment in favor of defendant-appellee Wal-Mart. <br></pre>

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