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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1683 <br> <br>                        JUSTO CRUZ-RAMOS, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                     PUERTO RICO SUN OIL CO., <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Hector M. Laffitte, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>          Coffin and Campbell, Senior Circuit Judges. <br>                                 <br>                                 <br>                                 <br>     Luis R. Mellado-Gonzalez on brief for appellant. <br>     Frances R. Coln Rivera, with whom Jorge Rodrguez Micheo and <br>Goldman Antonetti & Crdova were on brief, for appellee. <br> <br> <br> <br> <br> <br>January 28, 2000 <br> <br> <br> <br>                                 <br>                                

  SELYA, Circuit Judge.  This is an action brought pursuant <br>to the Age Discrimination in Employment Act, 29 U.S.C.  621-634 <br>(the ADEA), with pendent claims under Puerto Rico law. <br>  The background facts are not in dispute.  Defendant- <br>appellee Puerto Rico Sun Oil Co. (Sun) employed plaintiff-appellant <br>Justo Cruz-Ramos for many years.  Over time, he worked in various <br>job capacities.  In 1995, he was working as an emergency response <br>technician (ERT).  During that year, Sun terminated his employment <br>as part of a reduction in force.  As a part of the downsizing, the <br>company claimed that it needed to compress seven technicians' <br>positions within the appellant's department into five, that it <br>rated the seven incumbents on various pertinent criteria (including <br>experience, education, training, job performance, effectiveness, <br>computer skills, and other strengths), and that the appellant <br>scored lowest among the seven.  The appellant sued, averring that <br>the rating system was a sham and that he had been jettisoned <br>because of his age (he was 55 when Sun implemented the reduction in <br>force). <br>  In due course, Sun moved for brevis disposition.  See <br>Fed. R. Civ. P. 56(c).  The district court concluded that the <br>appellant had failed to establish a genuine issue of material fact <br>as to whether Sun's proffered reason for his dismissal constituted <br>a pretext for age discrimination.  Consequently, it granted summary <br>judgment in Sun's favor.  See Cruz Ramos v. Puerto Rico Sun Oil <br>Co., Civ. No. 97-1314 (HL), slip op. at 11 (D.P.R. Apr. 20, 1998) <br>(unpublished).  At the same time, the court eschewed the exercise <br>of supplemental jurisdiction over the pendent claims, dismissing <br>them without prejudice.  See id. at 10.  This appeal ensued. <br>  We need not tarry.  After perusing the record and <br>considering the parties' briefs, we find nothing that would warrant <br>disturbing the district court's decision.  We previously have <br>stated that when a trial court accurately takes the measure of a <br>case and articulates its rationale clearly and convincingly, "an <br>appellate court should refrain from writing at length to no other <br>end than to hear its own words resonate."  Lawton v. State Mut. <br>Life Assur. Co., 101 F.3d 218, 220 (1st Cir. 1996); accord Ayala v. <br>Union de Tronquistas de P.R., Local 901, 74 F.3d 344, 345 (1st Cir. <br>1996); In re San Juan Dupont Plaza Fire Litig., 989 F.2d 36, 38 <br>(1st Cir. 1993).  Applying this tenet, we affirm the judgment below <br>for substantially the reasons elucidated in Judge Laffitte's well- <br>conceived opinion.  We add only three comments, framed by the <br>familiar burden-shifting model engendered by McDonnell Douglas <br>Corp. v. Green, 411 U.S. 792, 802-04 (1973). <br>  A plaintiff in an employment discrimination case may <br>proceed on either a mixed-motive or a pretext approach, or <br>sometimes both, depending on the nature of his evidence.  See <br>Fernandes v. Costa Bros. Masonry, Inc., ___ F.3d ___, ___ (1st Cir. <br>1999) [No. 99-1692, slip op. at 8-12] (delineating the workings of <br>the two approaches).  The appellant has pursued the latter course.  <br>We limn its contours. <br>  Pretext analysis consists of three steps.  First, the <br>plaintiff must establish a prima facie case.  See Texas Dep't of <br>Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).  When a <br>plaintiff challenges his ouster in the context of a reduction in <br>force, he must establish that he was at least forty years old; that <br>his job performance met the employer's legitimate expectations; <br>that his employment nonetheless was terminated; and that the <br>employer retained younger persons in the same position or otherwise <br>failed to treat age neutrally in implementing the reduction in <br>force.  See Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 247- <br>48 (1st Cir. 1997); Hidalgo v. Overseas Condado Ins. Agencies, 120 <br>F.3d 328, 332-33 (1st Cir. 1997); Vega v. Kodak Caribbean, Ltd., 3 <br>F.3d 476, 479 (1st Cir. 1993).  The task of making out a prima <br>facie case is not onerous and, once the plaintiff succeeds in doing <br>so, the employer must then articulate a legitimate, <br>nondiscriminatory reason for the adverse employment action.  See <br>St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).  Upon <br>the emergence of such an explanation, it falls to the plaintiff to <br>show both that the employer's "proffered reason is a sham, and that <br>discriminatory animus sparked [its] actions."  Conward v. Cambridge <br>Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999). <br>  In this instance, we assume, arguendo, the correctness of <br>the district court's determination that the appellant limned a <br>prima facie case.  See Cruz Ramos, slip op. at 5-6.  Sun plainly <br>advanced a legitimate, nondiscriminatory reason for the decision to <br>lay off the appellant.  Thus, the case hinges on the last step of <br>the McDonnell Douglas pavane, and it is to that aspect that our <br>three particularized comments pertain. <br>  First:  We have scoured the record and find it barren of <br>any evidence which, fairly viewed, rebuts Sun's explanation that it <br>devised a neutral rating system to grade the seven incumbents, <br>commissioned a troika of executives to evaluate them on this basis, <br>and let the chips fall where they might.  The appellant does not <br>challenge the neutrality of the criteria employed but, rather, <br>cites three events as "evidence" of pretext.  None serves to cast <br>legitimate doubt upon Sun's actions. <br>  The appellant's most stentorian assertion is that Darwin <br>Rodriguez, a thirty-year-old, replaced him.  The record belies this <br>allegation; it shows only that the overall number of positions was <br>reduced by two, and that the five persons who were retained in <br>those positions   Rodriguez included   thereafter performed all the <br>work that had been done by the original seven.  When the functions <br>of a furloughed employee are absorbed into the responsibilities of <br>existing employees, who perform these duties along with their own, <br>no legally cognizable "replacement" occurs.  See LeBlanc v. Great <br>American Ins. Co., 6 F.3d 836, 846 (1st Cir. 1993). <br>  Next, the appellant asserts that, after he was cashiered, <br>Sun hired a temporary ERT who was under forty.  This is plainly an <br>irrelevancy; the record reveals that the hiring in question took <br>place nearly three years after the reduction in force.  Thus, the <br>hiring has no probative value as to the pretextuality vel non of <br>Sun's stated basis for terminating the appellant's employment in <br>1995. <br>  Finally, the appellant mistakenly alleges that all the <br>retained technicians were "not in the protected class."  This is <br>patently wrong.  The ADEA protects persons 40 years of age and <br>older.  See 29 U.S.C.  631(a).  In this instance, the <br>uncontradicted evidence shows the ages of the five retained <br>employees to be as follows:  Flix Bez (46), Ramon Cruz (55), <br>Vctor Merced (45), Darwin Rodrguez (30), and Emrito Rodrguez <br>(42).  Thus, all but one were within the protected class. <br>  Here, moreover, the fact that the appellant was older <br>than all but one of the persons retained proves nothing of any <br>consequence.  The appellant's burden was to adduce facts tending to <br>show that Sun furloughed him because of his age, see Koster v. <br>Trans World Airlines, 181 F.3d 24, 32 (1st Cir.), cert. denied, 120 <br>S. Ct. 532 (1999), and he cannot carry that burden simply by a <br>comparison of ages within a sample that lacks statistical <br>significance.  At a bare minimum, he must offer some evidence to <br>show that the rating system used by the employer was flawed in its <br>design or distorted in its implementation.  Because Sun's stated <br>basis for reaching the disputed employment decision was not in any <br>way impugned by a mere recitation of the ages of those in the <br>relevant labor pool, that datum, standing alone, could not defeat <br>Sun's summary judgment initiative. <br>  Second:  This canvass of the appellant's "pretext" claim <br>leads to our next comment.  From time to time, the parties use the <br>statutorily protected class as a line of demarcation and draw <br>distinctions between persons over forty and persons under forty.  <br>This emphasis is misplaced.  The mere fact that an ADEA plaintiff's <br>duties are assumed by someone outside the protected class lacks <br>probative value.  See O'Connor v. Consolidated Coin Caterers Corp., <br>517 U.S. 308, 312 (1996).  The fact that a replacement is <br>"substantially younger than the plaintiff is a far more reliable <br>indicator of age discrimination."  Id. at 313.  Thus, despite the <br>parties' emphasis on the bright-line boundary of the protected <br>class, our review of the record has focused on the relative ages of <br>the affected employees rather than their placement on either side <br>of a rigid divide. <br>  Third:  Our last comment addresses the appellant's <br>reliance on a statement contained in his deposition, submitted as <br>part of his opposition to Sun's motion for summary judgment.  In <br>it, he vouchsafed that, at about the time of the reduction in <br>force, he asked the manager of the department in which he worked, <br>Henry McLeod, why he was being furloughed.  According to the <br>appellant, McLeod told him "that they had to get rid of one <br>supervisor, and that because I was the one less affected by a <br>discharge, since due to my age and years of service I qualified for <br>early retirement, they selected me." <br>  Consistent with the summary judgment standard, we accept, <br>arguendo, that McLeod made the comment.  Unlike the district <br>court, we would not characterize it, strictly speaking, as a stray <br>remark because McLeod (the department head and a member of the team <br>that rated the seven aspirants) was one of the decisionmakers and <br>his comment directly addressed the challenged employment decision.  <br>See Fernandes, ___ F.3d at ___ [slip op. at 16].  But for purposes <br>of this case, the most that can be extracted from McLeod's <br>statement is that the rankings may have been motivated by <br>considerations of retirement eligibility.  Although factoring <br>pension status into the decisional mix in a reduction-in-force <br>situation may seem unfair, it is not probative of age <br>discrimination.  As a matter of federal law, employment decisions <br>sparked by factors other than age, such as pension status, do not <br>prove age discrimination even though such factors correlate with <br>age to some extent.  See Hazen Paper Co. v. Biggins, 507 U.S. 604, <br>611-12 (1993) (explaining that an employment decision based on <br>pension status "would not be the result of an inaccurate and <br>denigrating generalization about age"); accord Broaddus v. Florida <br>Power Corp., 145 F.3d 1283, 1287 (11th Cir. 1998); Bramble v. <br>American Postal Workers Union, Providence Local, 135 F.3d 21, 25-26 <br>(1st Cir. 1998); Hanebrink v. Brown Shoe Co., 110 F.3d 644, 647 <br>(8th Cir. 1997).  This is but another iteration of the settled <br>principle that "[t]he ADEA does not stop a company from discharging <br>an employee for any reason (fair or unfair) or for no reason, so <br>long as the decision to fire does not stem from the person's age."  <br>Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991). <br>  We need go no further.  Because the lower court <br>appropriately entered summary judgment on the appellant's ADEA <br>claim, it permissibly declined to exercise supplemental <br>jurisdiction over his claims under Puerto Rico law.  See Ruiz, 124 <br>F.3d at 251; see also 28 U.S.C.  1367(c). <br> <br>Affirmed.</pre>

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