
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2055                             MARIA DE LOS A. PAGES-CAHUE,                                MARIA PILAR LOPEZ, AND                             GILBERTO IZQUIERDO-SANTIAGO,                               Plaintiffs - Appellants,                                          v.                           IBERIA LINEAS AEREAS DE ESPA A,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Justo Arenas, U.S. Magistrate Judge]                                          _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Enrique  J.  Mendoza-M ndez,  with   whom  Mendoza  &  Bac ,               ___________________________                ________________          Francisco M. Troncoso  and Troncoso  & Becker  were on  brief for          _____________________      __________________          appellants.               James D. Noel III, with whom Ledesma, Palou & Miranda was on               _________________            ________________________          brief for appellee.                                 ____________________                                    April 25, 1996                                 ____________________                    TORRUELLA, Chief Judge.  Plaintiffs-Appellants Mar a de                    TORRUELLA, Chief Judge.                               ___________          los A.  Pages-Cahue ("Pages"),  Mar a Pilar L pez  ("L pez"), and          Gilberto    Izquierdo-Santiago    ("Izquierdo")    (collectively,          "Appellants")  appeal  the  district  court's  grant  of  summary          judgment to Appellee Iberia L neas A reas de Espa a ("Iberia") on          claims  of age  discrimination  under the  Age Discrimination  in          Employment Act of 1967, as amended ("the ADEA"), 29 U.S.C. 621 et                                                                         __          seq.   Pages also seeks appeal  of the district court's  grant of          ___          summary judgment to Iberia on her claim under Puerto Rico Law No.          80,  29  L.P.R.A.   185a  et seq.1    L pez appeals  the district                                    ______          court's grant of summary  judgment to Iberia on her claim  for an                                        ____________________          1  Appellants'  brief only  attempts to raise  an argument  under          Puerto Rico Law No. 80 with respect  to Pages.  The brief makes a          reference to Law No. 80,  suggesting implications for L pez' ADEA          claim,  but does  not actually  include an  argument for  a claim          under Puerto Rico  Law No.  80.  Therefore,  L pez and  Izquierdo          have waived  any issues regarding  the district court's  grant of          summary  judgment on  their Law  No. 80  claims.  See  Frazier v.                                                            ___  _______          Bailey, 957 F.2d  920, 932 n.4 (1st Cir. 1992)  (noting that "[a]          ______          state law claim  which is not addressed  in a brief is  waived").          Pages' Law No. 80 claim, however, has not been waived.             Similarly, appellants have not included any argument regarding          Puerto Rico Law No.  100 beyond a passing reference  under Pages'          Puerto Rico Law No. 80 claim.  As a result,  appellants have also          waived any issues regarding the district court's grant of summary          judgment on their Law No. 100 claims.  Id.                                                 ___             While appellants'  counsel asserted  at oral argument  that we          should  not  find  these   arguments  waived  because  the  facts          necessary to them were  argued in the context of  their appellate          brief's  ADEA argument, we must disagree.   In the absence of any          discussion beyond citations to these Puerto Rico statutes, and in          the  absence of  any submitted argument,  we conclude  that these          arguments are waived.   See United States v. Zannino, 895 F.2d 1,                                  ___ _____________    _______          17 (1st Cir. 1990)  ("Judges are not expected to  be mindreaders.          Consequently,  a  litigant has  an obligation  'to spell  out its          arguments  squarely and  distinctly,'  or else  forever hold  its          peace.")  (quoting Rivera-G mez v.  de Castro, 843  F.2d 631, 635                             ____________     _________          (1st Cir. 1988)).                                         -2-          unpaid balance of sick leave and overtime compensation due  under          Puerto Rico  Law No. 379 of May 15, 1948, as amended, 29 L.P.R.A.          271 et  seq., ("Law 379"  or "Puerto  Rico Overtime  Compensation              _______          Act"),  and Puerto Rico Law No. 96  of June 26, 1959, as amended,          29 Laws of P.R. Anno. 246 et seq. ("Law 96").  We affirm.                                    ______                                    I.  BACKGROUND                                    I.  BACKGROUND                    The  following  facts are  not  in dispute.    In 1992,          Iberia's  net loss for  its San Juan  operations was $14,305,504.          For the seven prior years, plus the year 1992, Iberia's  net loss          in San Juan was $136,795,292.  Beginning in the year 1991, Iberia          implemented   a  worldwide  reorganization   of  its  operations,          including  substantial cutbacks in Puerto Rico.   During the time          period  from May  1991  to  November  1992,  14  of  Iberia's  32          employees in Puerto  Rico were  laid off or  otherwise ceased  to          work  for Iberia.  On September 30, 1992, the three appellants in          this case were discharged.                    This  appeal  also  contains  several  disputed  facts.          Because we must determine  whether the disputes of fact  are both          genuine and  material, we  discuss  these disputed  facts in  the          course of our discussion of the law.                               II.  STANDARD OF REVIEW                               II.  STANDARD OF REVIEW                    We examine a grant of summary judgment de novo, viewing                                                           _______          the  evidence, and  all reasonable  inferences therefrom,  in the          light  most favorable  to the  party resisting  summary judgment.          Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995);          _______    _________________          see LeBlanc  v. Great Am.  Ins. Co.,  6 F.3d 836,  841 (1st  Cir.          ___ _______     ___________________                                         -3-          1993), cert. denied, 114 S. Ct. 1398 (1994).  Summary judgment is                 ____________          properly  granted where  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); see LeBlanc, 6 F.3d                                                        ___ _______          at 841; Goldman, 985 F.2d at 1116.                  _______                                   III.  DISCUSSION                                   III.  DISCUSSION                                A.  The ADEA Claims                                  A.  The ADEA Claims                                 1.  The Legal Framework                               1.  The Legal Framework                    In  ADEA discrimination  lawsuits, plaintiffs  bear the          ultimate burden of proving that their ages were the determinative          factor in their discharge,  "that is, that [they] would  not have          been  fired but for  [their] age."   LeBlanc, 6 F.3d  at 841; see                                               _______                  ___          Mesnick  v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991),          _______     _________________          cert. denied,  504 U.S.  985 (1992).   "At  least where  there is          ____________          little  overt evidence  of age  discrimination, the  case usually          follows  the ritualized  burden-shifting  paradigm" presented  in          McDonnell  Douglas  v.  Green,   411  U.S.  792,  802-05  (1973).          __________________      _____          LeBlanc, 6 F.3d at 841.   See, e.g., Goldman v. First  Nat'l Bank          _______                   ___  ____  _______    _________________          of  Boston,  985 F.2d  1113, 1117  (1st  Cir. 1993);  Lawrence v.          __________                                            ________          Northrop Corp., 980  F.2d 66,  68 (1st Cir.  1992); Mesnick,  950          ______________                                      _______          F.2d at 823-24.                    Under the McDonnell Douglas test,  plaintiffs must open                              _________________          with  a  prima facie  showing  of  certain standardized  elements          suggestive of possible  discrimination.  LeBlanc, 6 F.3d  at 842.                                                   _______                                         -4-          It  is undisputed that the  employment actions that  gave rise to          the instant case took  place as part of  a reduction in  Iberia's          work force.  As a result,  each of the Appellants was required to          make a prima  facie showing (1)  that he or  she fell within  the          ADEA's protected age  group -- that is, more than  forty years of          age;  (2) that  he or  she  met  Iberia's legitimate  performance          expectations; (3)  that he or she  experienced adverse employment          action;  and (4)  that  Iberia did  not  treat age  neutrally  or          retained younger persons in  the same position.  See  Woodman, 51                                                           ___  _______          F.3d at 1091; Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st                        ____    _____________________          Cir. 1993).                    Establishment  of  the   prescribed  prima  facie  case          creates a presumption that  the employer engaged in impermissible          age discrimination.  LeBlanc, 6 F.3d at 842; Goldman, 985 F.2d at                               _______                 _______          1117.  However, to rebut this presumption, the employer need only          "articulate  a  legitimate   nondiscriminatory  reason  for   the          employee's  termination."  LeBlanc,  6 F.3d at  842; Goldman, 958                                     _______                   _______          F.2d at  1117.   Once the  employer meets this  burden in  an age          discrimination  case, however, "the McDonnell Douglas presumption                                              _________________          'drops out of the picture.'"  LeBlanc, 6 F.3d at 843 (quoting St.                                        _______                         ___          Mary's Honor Ctr.  v. Hicks, 509 U.S. 502, 113  S. Ct. 2742, 2749          _________________     _____          (1993)).  The trier of fact then  must simply determine, based on          the evidence,  whether the  employer's decision to  terminate the          plaintiff  was  motivated   by  intentional  age  discrimination.          LeBlanc, 6 F.3d at 843.          _______                                         -5-                    In the  context of a summary  judgment proceeding, once          the  employer articulates  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 or her was          wrongfully based on age."   LeBlanc, 6 F.3d at 843;  see Goldman,                                      _______                  ___ _______          985  F.2d at  1117;  Lawrence,  980 F.2d  at  69-70.   Direct  or                               ________          indirect evidence of discriminatory  intent may suffice, 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."  Connell v. Bank  of Boston, 924 F.2d 1169, 1172 n.3                        _______    _______________          (1st Cir. 1991); see LeBlanc, 6 F.3d at 836; Goldman, 985 F.2d at                           ___ _______                 _______          1117.  Thus, a district  court's grant of summary judgment to  an          employer  will  be upheld  if the  record  is devoid  of adequate          direct   or   circumstantial    evidence   of   the    employer's          discriminatory intent.                                 2.  L pez and Izquierdo                               2.  L pez and Izquierdo                    We  treat L pez'  and  Izquierdo's  respective  appeals          together because the same case law governs both.                    The district court found that L pez failed to present a          prima facie case.   It found that  while she satisfied the  first          three required elements of the prima facie case -- she belongs to          the protected  class, her job  performance was adequate,  and she          was discharged -- she failed to satisfy the fourth element.  That          is, she  failed to  show either  that  Iberia did  not treat  age                                         -6-          neutrally  or  that younger  persons  were retained  in  the same          position.   Here we  assume, without  concluding, that  L pez has          demonstrated  a prima facie case,  since doing so  does not alter          the outcome of  our analysis.   In contrast,  the district  court          concluded  that Izquierdo  demonstrated a  prima facie  case, but          that he  failed to present  sufficient evidence for  a reasonable          trier  of fact to infer  that Iberia's decision  to terminate him          was motivated by age animus.                    On appeal,  L pez argues that the  district court erred          because, in fact, she  did produce evidence both that  Iberia did          not treat age neutrally and that younger persons were retained to          do  her functions.  With respect to age neutrality, L pez asserts          that Iberia  never considered  her seniority  in its decision  to          terminate her, as she argues  is required by Puerto Rico Law  No.          80.2   However, she cites no authority for the proposition, which          we reject,  that Puerto Rico Law  modifies the ADEA to  take into          account discrimination against  more senior  employees, not  just                                        ____________________          2  Law No. 80 provides, in relevant part, that                      it shall  be the duty of  the employer to                      retain   those   employees   of   greater                      seniority  on  the  job with  preference,                      provided  there  are positions  vacant or                      filled by employees of less  seniority in                      the   job   within   their   occupational                      classification which may be held by them,                      it being understood that preference shall                      be given to  the employees discharged  in                      the event that within the  six (6) months                      following their layoff the employer needs                      to employ  a  person in  like or  similar                      work . . . .          29 L.P.R.A.   185(c) (entitled "Order of retaining employees").                                         -7-          older employees.  She  also points to  the fact that, during  the          reduction in  force, she was not  offered employment alternatives          made  available to Galo Beltr n ("Beltr n")  (age 35) and Ernesto          Rodr guez  ("Rodr guez")  (age  48).    Furthermore,  L pez  also          maintains  that  her  functions  were  taken  over by  a  younger          employee,  Alga  Rivera ("Rivera")  (age  33),  hired soon  after          L pez' termination.                    Similarly, Izquierdo  (age 45) contends on  appeal that          the  fact that he was  not considered for  retention or immediate          re-hiring  as  a Sales  Agent,  as Beltr n  and  Rodr guez3 were,          shows that Iberia  did not treat age  neutrally in the course  of          its  reduction in  force.   Izquierdo also  alludes to  a younger          individual  in  a  different   department  than  Sales,  who  was          allegedly  offered the opportunity  to continue  work at  a lower          salary.   However, since Izquierdo failed to proffer any evidence          that  this other department experienced a reduction in force at a          similar time  period, or  that Izquierdo was  qualified for  this          position, it would plainly be unreasonable to infer a lack of age          neutrality from this  evidence.   As a result,  we consider  only          Izquierdo's arguments  regarding Beltr n and Rodr guez.   We note          that Izquierdo  does not point to  evidence contravening Iberia's          position that Beltr n and Rodr guez were simply re-hired at lower                                        ____________________          3   Izquierdo argues that although Rodr guez  is older, Izquierdo          was  more  senior at  the time  of  his dismissal.    However, an          inference of age  animus would be plainly  unreasonable where the          retained  person  was  older.    And   Izquierdo  has  not  cited                                 _____          authority,  and we have not  found any, for  the proposition that          more  senior,  but  younger,  employees fall  within  the  ADEA's          protected class.                                         -8-          pay  to do the same job they  had done previously.  Neither L pez          or Izquierdo  has argued  or adduced  evidence that  Sales Agents          Beltr n and Rodr guez were not, as the district  court concluded,          occupying  positions  below  that  of  Coordinators   L pez4  and          Izquierdo.                    In  Holt v. Gamewell Corp.,  797 F.2d 36,  38 (1st Cir.                        ____    ______________          1986),  we  confronted arguments  similar to  those of  L pez and          Izquierdo.  In that  case, the appellant manager argued  that, in          lieu of dismissing  him, his employer should  have discharged one          of the employees he  supervised and given that job  to appellant.          Thus,  we   rejected  that  argument  as   unsupported  by  legal          authority,  as in  the instant  case, and  as requiring  that the          court encroach too far  into areas which should  be left to  "the          company's legitimate management."  Id. at 38.                                             ___                    The  Second Circuit's  opinion in  Parcinski v.  Outlet                                                       _________     ______          Co., 673 F.2d 34, 37 (2d  Cir. 1982), provides a strong statement          ___          of the concerns to  which Holt alludes.  Considering  an argument                                    ____                                        ____________________          4   L pez has also  argued that, while  she was appointed  to the          position  of "Coordinator B" of  the Sales Department  on May 25,          1990, her title was fictitious, as she was actually an "Executive          Secretary."   This  contention  has several  problems.   Although          argued to the court, it was never supported by a sworn statement.          Additionally, L pez herself contradicted this proposition; in her          deposition, she  stated that "regardless  of what they  wanted to          call me, my work was [as a] Sales Coordinator."  Finally,  L pez'          appointment to "Coordinator  B" took place  three years prior  to          her discharge.   It seems  unlikely that Iberia  promoted her  to          this fictitious position  three years in advance  with the intent          of  later using that  title to  discriminate against  her.   As a          result, we conclude that the district court correctly  found that          this  contention  could  not  reasonably  be  inferred  from  the          evidence presented.                                         -9-          resembling that of the instant case and of the appellant in Holt,                                                                      ____          the court stated that:                      Assuming there were lower echelon, poorer                      paying    jobs   in    the   restructured                      enterprise   which   [appellants]    were                      qualified to fill,  [the employer]  would                      be  met  with  serious   morale  problems                      arising out of the substantial reductions                      in  responsibilities  and  salaries  that                      would accompany such moves.          Id.; see Ridenour v. Lawson Co.,  791 F.2d 52, 57 (6th Cir. 1986)          ___  ___ ________    __________          (stating  that "[w]here  an  employer reduces  his workforce  for          economic  reasons, it incurs no  duty to transfer  an employee to          another position within the  company"); Sahadi v. Reynolds Chem.,                                                  ______    ______________          636 F.2d 1116, 1117 (6th Cir. 1980).                    In  accord with  the reasoning  behind these  cases, we          conclude  that we  must reject  L pez' and  Izquierdo's arguments          comparing their  dismissals to Iberia's treatment  of Beltr n and          Rodr guez,  and L pez'  argument with  respect to  Rivera.   Even          assuming, without holding, that  L pez and Izquierdo stated prima          facie  cases, we reject their  arguments that anti-age animus can          be reasonably inferred from  the fact that they were  not offered          alternative  employment opportunities,  as Beltr n  and Rodr guez          were.     Accordingly,  we  also  reject   L pez'  argument  that          discriminatory animus can be  reasonably inferred from the hiring          of  Rivera  for a  position inferior  to  L pez' previous  job as          "Coordinator B."   Because we conclude that  the evidence adduced          by  L pez and Izquierdo, taken as true, cannot suffice to support          a reasonable inference of anti-age animus, we uphold the district          court's grant of summary judgment on their ADEA claims.                                         -10-                                      3.  Pages                                      3.  Pages                    The  district court  found  that  Pages demonstrated  a          prima facie case, but failed to present sufficient  evidence from          which  a  reasonable  factfinder  could  infer  anti-age  animus.          Because  it  does  not  change our  analysis,  we  assume without          concluding that the district court properly found that Pages (age          51) carried  her burden of presenting  a prima facie case.   As a          result, we review her case to determine whether the evidence as a          whole was  sufficient to  support a  reasonable inference  of age          animus in the decision to dismiss her.  LeBlanc, 6 F.3d at 836.                                                  _______                    Pages argued  that  Iberia's anti-age  animus could  be          inferred by comparing her  dismissal with the retention of:   (1)          Mar a  Garc a ("Garc a")  (age 61),  an Executive  Secretary; (2)          Sandra Medina ("Medina") (48), an Executive Secretary; (3) Rivera          (33), a Sales  Assistant; and  (4) Nitza Al s  ("Al s") (30),  an          employee  of an  independent contractor  who performed  functions          similar to  Pages'.   Even assuming that  three comparisons  with          non-discharged  employees could permit  an inference  of anti-age          animus in a  reduction in force  case as a  matter of law,  these          three particular  comparisons cannot.   First, Garc a is  in fact          older than Pages, a fact that  Pages does not dispute.  Second, a          reasonable inference of  anti-age animus cannot be drawn from the          comparison of the retention of Medina, an  executive secretary at          Iberia's administrative offices in  Miramar, Puerto Rico, and the          discharge of Pages,  "Secretary to the  Airport Manager," at  the          airport  in Isla Verde, Puerto Rico.  Pages does not dispute that                                         -11-          the  position of Airport Manager  had been eliminated.   Thus, to          retain  her rather than Medina, Iberia would have had to transfer          Pages  to another position  or location.   And,  as noted  in the          discussion of  L pez and Izquierdo, Appellants  cite no authority          for  the proposition that  an employer conducting  a reduction in          force  must  offer  such transfers  or  relocations  --  in fact,          authority exists for the proposition that  employers face no such          obligation.   See Holt, 797 F.2d at 38; Ridenour, 791 F.2d at 57;                        ___ ____                  ________          Parcinski, 673 F.2d  at 37.  We must reject  any inference of age          _________          animus drawn from  a comparison of Pages with Rivera for the same          reason   we  rejected  comparisons   between  L pez  and  Rivera:          employers  conducting a reduction in force  face no obligation to          offer  "lower echelon,  poorer  paying jobs  in the  restructured          enterprise" to all older  employees.  Parcinski, 673 F.2d  at 37;                                                _________          see Holt, 797 F.2d at 38.          ___ ____                    Finally,  the comparison  with  Al s  cannot justify  a          reasonable  inference of  anti-age  animus because  Al s was  not          employed  by  Iberia, but  by  another  company, G.M.D.,  with  a          contract  to perform  services  for  Iberia.   This  circuit  has          previously stated 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   the                      plaintiff's duties.'                                         -12-          LeBlanc,  6 F.3d  at 846 (citations  omitted) (quoting  Barnes v.          _______                                                 ______          GenCorp,  Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498          ______________                                  ____________          U.S.  878  (1990)).   Thus, to  reasonably  infer that  Pages was          replaced  by a younger employee,  we would have  to conclude that          Pages'  duties, and no others,  were allocated to  Al s, and that          Al s  should  be  considered an  Iberia  employee.    However, in          Mitchell v. Worldwide  Underwriters Ins. Co.,  967 F.2d 565,  566          ________    ________________________________          (11th Cir. 1992), the court rejected as insufficient to establish          a  prima facie case, without  more, an employee's  claim that his          employer  assigned  his   work  to   an  independent   contractor          corporation that  decided to employ  younger employees to  do the          work.  What is more, the instant  case has a grave flaw that  was          not present  in Mitchell: Iberia's contract  with G.M.D. predates                          ________          the  reduction in force  that gave rise  to Pages'  claim.  Since          Pages  has  failed to  present  evidence  suggesting that  Iberia          could, at its  discretion, retain her  and have G.M.D.  eliminate          Al s, any inference of age animus drawn from Iberia's "retention"          of Al s would be simply unreasonable.                    As  a result,  we conclude  that the  comparisons Pages          points  to cannot support a reasonable inference of age animus on          the part of Iberia.                       B.  Pages' Puerto Rico Law No. 80 Claim                       B.  Pages' Puerto Rico Law No. 80 Claim                    Pages  also argues  that  the District  Court erred  in          granting summary  judgment for Iberia  on her claim  under Puerto          Rico Law No. 80.  Law No. 80 provides, in relevant part, that                       [e]very employee in commerce, industry or                      any  other   business  .   .  .   who  is                                         -13-                      discharged from his  [or her]  employment                      without good cause,  shall be entitled to                      __________________                      receive from his employer, in addition to                      the salary he may have earned:                      (a)  The  salary  corresponding   to  one                      month, as indemnity;                      (b)  An additional  progressive indemnity                      equivalent to  one week for  each year of                      service.          29  L.P.R.A.   185a (emphasis added).  In response, Iberia argues          that it had "good  cause" to discharge Pages, pointing to   185b,          which provides that "[j]ust cause . . . shall be understood to be          . . .  reorganization   changes  .  .  .   [or]  [r]eductions  in          employment made  necessary by a  reduction in the  anticipated or          prevailing  volume of production, sales or profits at the time of          the  discharge."   29  L.P.R.A.    185b(e)-(f).   Pages  has  not          presented evidence to rebut  Iberia's evidence that it eliminated          its Sales Department after  it had incurred substantial operating          losses in San Juan.                    However, Pages  points to   185c,  which provides that,          where  employees  are  discharged  due  to  reorganization  or  a          reduction  in production, sales or profits, "it shall be the duty          of the employer to retain those employees of greater seniority on          the job with preference,  provided there are positions  vacant or          filled by employees  of less  seniority in the  job within  their          occupational classification  which may be  held by them .  . . ."          29  L.P.R.A.   185c.  In the context  of her Law No. 80 argument,          Pages  suggests  that a  comparison  of  her discharge  with  the          retention  of Executive  Secretaries Garc a  and Medina  raises a          genuine issue of material fact as to whether Iberia complied with                                         -14-          Law No. 80.  According to Pages, she was more  senior than Garc a          or Medina.                    In  fact,  Pages  has  provided no  evidence  to  rebut          Garc a's testimony, in  her sworn affidavit,  that Garc a has  in          fact been with Iberia as long or longer than Pages.  We thus turn          to  the comparison  with Medina,  since the record  evidence does          suggest that Medina  was less  senior than Pages.   Pages  argues          that even though  Medina's position was in Miramar,  Puerto Rico,          and Pages'  was at the airport in  Isla Verde, Iberia should have          given  Pages the option to transfer to Miramar to replace Medina.          This argument  neglects two different  provisions in Law  No. 80.          First,  Law No.  80 states  that seniority  need not  be followed          where "there is a clear and conclusive difference in favor of the          efficiency  or capacity  of the  workers compared  . .  . ."   29          L.P.R.A.    185c.    The relevant  evidence  shows that  Medina's          position at the Miramar office and Pages' position at the airport          in Isla  Verde were not  fungible.  Medina had  worked in Miramar          since  1972, while  Pages had  worked in  Isla Verde  since 1970.          Without more  evidence, the district court could  have found that          no genuine  issue of material fact was  raised as to the relative          efficiency of  keeping Medina in  her own  position, rather  than          transferring Pages, as  it was Pages'  airport position that  was          being eliminated.                    Furthermore, Pages ignores    185c(a), which states  in          relevant part that                      [i]n  the case  of discharges  or layoffs                      . . .  in  companies  that  have  several                                         -15-                      offices . . . and whose usual and regular                      practice  is  not  to transfer  employees                      from  one office  . .  . to  another, and                      that said units  operate in a  relatively                      independent   manner   with   regard   to                      personnel aspects, the  seniority of  the                      employees    within    the   occupational                      classification  subject   to  the  layoff                      shall   be   computed   by  taking   into                      consideration only those employees in the                      office .  . . in which  said layoff shall                      occur.          29 L.P.R.A.   185c(a).  Iberia has argued throughout that all but          one  position at the Airport  has been eliminated  since 1991, in          accord with its reorganization plan, and that  transfers were not          possible  due  to the  different nature  of  the tasks  which the          airport  employees performed  as compared  to the  Miramar office          employees.   The  only evidence  to which  Pages points  fails to          generate an issue  of fact,  since neither she,  nor Medina,  nor          Garc a, has  apparently been  transferred since 1970,  when Pages          began work at Iberia.                    As a  result, we affirm  the district court's  grant of          summary judgment to Iberia on Pages' Law No. 80 claim.                       C.  L pez' Puerto Rico Law No. 379 Claim                       C.  L pez' Puerto Rico Law No. 379 Claim                    L pez  also challenges  the district  court's grant  of          summary judgment on her  claim under Puerto Rico Law  No. 379 for          overtime pay she  contends Iberia owed her.  Puerto  Rico Law No.          379  states,  in  pertinent  part,  that  "forty  hours  of  work          constitute a  workweek," 29 L.P.R.A.   271,  "extra working hours          are . . . hours that an employee works for his employer in excess          of  forty during any week,"    273(b), and  "[e]very employer who          employs  or permits an employee to work during extra hours, shall                                         -16-          be  bound to pay  him for each  extra hour  a wage rate  equal to          double the rate agreed upon for regular hours,"   274.                       The  district   court,  however,  concluded   that  the          overtime  provisions did not apply  to L pez, since    288 states          that Law No. 379 does not  apply to exempt "employees" working as          "executives, administrators, or professionals, as these terms may          be defined by the Puerto Rico Minimum Wage Board."  29 L.P.R.A.            288; see, e.g.,  Lehman v. Ehret Inc., 103 D.P.R.  264, 267 (P.R.               ___  ____   ______    __________          1975)  (discussing the  definition  of  "administrator").   L pez          challenges the  district court's application of  the Minimum Wage          Board's Regulations.                    Under the  authority granted it  by   288,  the Minimum          Wage  Board promulgated  regulations  by  substantially  adopting          definitions found in the federal  regulation on the same  matter.          See Santiago  v. Corco,  114 D.P.R.  267,  269 (P.R.  1983).   On          ___ ________     _____          appeal,  both  parties  argue   for,  and  we  agree   with,  the          application of the short test, since it is undisputed that Pages'          weekly  salary  was  "not  less than  $295,"  as  the  regulation          requires for the  short test's application.   Regulation No.  13,          Article  III(f),  Fourth Revision,  Commonwealth  of Puerto  Rico          Minimum Wage Board (1990).  As a result, she is excluded from the          coverage of Law No. 379's provisions if:                      (a) [she] perform[ed] office or nonmanual                      field work directly related to management                      policies    or   to    general   business                      operations  of  the  employer  or  of the                      customers of the employer; and                                         -17-                      (b)   [she]  customarily   and  regularly                      exercise[d]  discretion  and  independent                      judgment.          Id., Article III.          ___                    L pez  argues that  a  genuine issue  of material  fact          existed as to whether she performed office  work directly related          to  management  policies  or  general  business  operations,  and          whether she  customarily and  regularly exercised discretion  and          independent judgment.   She argues specifically that she  did not          perform  supervisory  functions  and  that she  was  in  fact  an          "Executive  Secretary"  despite  her  title of  "Coordinator  B."          However, Article III(a)  and (b) contain no  requirement that one          perform  supervisory functions.  To be exempted from Law No. 379,          one need  only perform  "office .  . .  work directly related  to          management policies or to  general business operations of [one's]          employer."  Article III(a).   Thus, L pez' first assertion,  even          if  believed, cannot create a genuine issue that would preclude a          grant of summary judgment  for Iberia, since it fails  to respond          to any relevant requirement in Regulation No. 13.                    As  a result, we turn to L pez' contention that she was          an Executive  Secretary rather than  a Coordinator, and  that Law          No.  379 cannot  apply to  her  as an  Executive  Secretary.   In          addressing  this assertion  in the  ADEA context,  see  supra, we                                                             ___  _____          rejected  this contention  as unsupported  by a  sworn statement,          explicitly and directly contradicted by her sworn deposition, and          rebutted  by  evidence Iberia  proffered.   However, in  the ADEA          context  the standard of review was whether L pez showed evidence                                         -18-          sufficient for the factfinder reasonably to conclude that she was          discharged due  to discriminatory  intent.   We noted  in passing          that because Iberia's alleged mistitling of her position occurred          three  years' before her discharge,  that fact, together with her          lack  of  evidence,  rendered  any  age  inference  unreasonable.          However,  while it would be unreasonable  for a finder of fact to          think that an employer mistitled an  employee's position to cloak          its age  discrimination years  later, it would  not be  similarly          unreasonable to  believe that  employers seeking to  avoid paying          overtime would mislabel a  position to take advantage of  Law No.          379's exemptions for managers, professionals and administrators.                    As  a result, we evaluate L pez'  argument that she was          in fact  an "executive  secretary,"  assuming without  concluding          that she  adequately  proffered evidence  to raise  this issue.            Neither party has cited Puerto Rico case law interpreting Law No.          379  with  respect  to supervisory  duties  or  to  the title  of          "Executive  Secretary."   To  determine whether  L pez' assertion          could create a triable issue of fact, we may consider the federal          regulations which implement the Federal Fair Labor Standards Act.          See L pez Vega v. Vega Otero, Inc., 103 P.R.R. 243,  246-47 (P.R.          ___ __________    ________________          1974) (deciding  that where appellee  was an executive  under the          provisions of  the  Federal  Fair Labor  Standards  Act  and  its          regulation,  he could not  maintain a claim  against his employer          for extra  hours); Rodr guez v.  Concreto Mixto, Inc.,  98 P.R.R.                             _________     ____________________          568, 575-76 (P.R. 1970)  (determining whether or not  an employee          or  worker is a person employed in a bona fide executive capacity                                         -19-          by  following the rules set forth in  29 C.F.R.   541.1 et seq.).                                                                  ______          These regulations, in describing those exempt as "administrative"          employees, note that                       [i]n modern industrial parlance there has                      been  a  steady  and  increasing  use  of                      persons  who assist  an executive  in the                      performance   of   his   duties   without                      themselves  having  executive  authority.                      Typical  titles of persons  in this group                      [include] .  . . executive secretary. . .                                       ___________________                      .            29 C.F.R.   541.201 (emphasis added).  As a result, even assuming          that  she was an  Executive Secretary, that  would not disqualify          her from being an  exempt employee, assuming that she  did office          work  related   to  management  policies  and   general  business          operations,  and that  she  customarily  and regularly  exercised          discretion and independent judgment.  Iberia's submitted evidence          and L pez' co-appellant Izquierdo's testimony as to L pez' duties          both presented ample evidence that L pez exercised discretion and          independent judgment.  In particular, Izquierdo stated that L pez          helped him supervise sales personnel; coordinated the work of the          salesmen; attended social and  civic activities "to represent the          company"; and  exercised her own  discretion with respect  to her          work.    Because  L pez  failed  to  present  evidence  to  rebut          Izquierdo's  testimony,  and  given  Iberia's  evidence that  she          exercised discretion  and independent judgment,  we conclude that          no  issue of fact existed regarding this  point.  As a result, we          conclude that she falls under  Regulation No. 13's exemption from          Law No.  379,  and  thus  the district  court  correctly  granted          summary judgment on her overtime pay claim to Iberia.                                           -20-                                      CONCLUSION                                      CONCLUSION                    As  a result  of  the foregoing,  the  judgment of  the          district court is affirmed.                            affirmed                            ________                                         -21-
