265 F.3d 15 (1st Cir. 2001)
VICTOR F. RIVERA-RODRIGUEZ, SANDRA BELTRAN-MCENTEE, CONJUGAL PARTNERSHIP RODRIGUEZ-MCENTEE, Plaintiffs, Appellants,v.FRITO LAY SNACKS CARIBBEAN, A DIVISION OF PEPSICO PUERTO RICO, INC. JOSE LUIS PRADO, ROSA ELENA ACEVEDO, CONJUGAL PARTNERSHIP PRADO-ACEVEDO, ENRIQUE NINO, LAURA ANDRADE, CONJUGAL PARTNERSHIP NINO-ANDRADE, ABC INSURANCE, Defendants, Appellees.
No. 01-1023
United States Court of Appeals For the First Circuit
Heard June 8, 2001Decided September 10, 2001

1
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO


2
[Hon. Hector M. Laffitte, U.S. District Judge][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]


3
Roberto Buso-Aboy, for appellants.


4
Jeffrey A. Van Detta, with whom Lespier & Munoz-Noya, Roberto  Ariel Fernandez, Kilpatrick Stockton, LLP and Carolyn Sawyer, were on  brief, for appellees.


5
Before Torruella and Lipez, Circuit Judges, and Tauro,* District Judge.


6
TAURO, District Judge.


7
Plaintiff Victor F. Rivera-Rodriguez  ("Rivera") sued his former employer Frito Lay Snacks Caribbean, Inc.  ("Frito Lay"); Jose Luis Prado ("Prado"), Frito Lay's President; and  Enrique Nino ("Nino"), Frito Lay's Director of Human Resources.  Rivera  claims that Defendants violated Title VII of the Civil Rights Act  (Title VII), 42 U.S.C. §§ 2000e-2000e-17 (2000); the Age Discrimination  in Employment Act (ADEA),29 U.S.C. §§ 621-634; and the Americans with  Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, when they created a  hostile work environment and terminated him based on his age,  disability, and national origin.


8
The district court granted Defendants' Motion for Summary  Judgment, and Rivera appeals.  For the following reasons, the district  court's decision is affirmed in part and reversed in part.

I.  BACKGROUND

9
Rivera is fifty years-old, and suffers from chronic asthma  and malignant lymphoma.  In 1984, he began working for Frito Lay, a  division of Pepsico, Puerto Rico, Inc.  In September 1985, Rivera  became Frito Lay's Director of Human Resources for the Caribbean, where  his chief responsibility was communicating with the company's sales  force.  Throughout his tenure, Rivera was supervised by Don McFarlane,  Regional Human Resources Vice President for Frito Lay's Latin American  Region.  Rivera consistently received high marks in his performance  reviews.


10
In March 1993, Frito Lay's Puerto Rican operations moved  under Pepsico's Latin American Region operations, headquartered in  Mexico City.  The reorganization resulted in a number of Mexican  nationals assuming high-ranking positions, including that of president  filled by Defendant Prado.  Prado supervised McFarlane, and both Prado  and MacFarlane reported to another Mexican national, Rogelio Rebolledo  - Latin American Region President.


11
In the spring of 1995, Frito Lay's sales employees filed a  petition with the National Labor Relations Board for representation by  the Seafarers' International Union.  Rivera worked with MacFarlane and  Prado to discourage the employees from electing to unionize.  But  despite their efforts, the union prevailed by a close margin in  September 1995.


12
After the election, Frito Lay brought in Defendant Nino,  allegedly for his experience dealing with unions.  Frito Lay  immediately reassigned many of Rivera's tasks to Nino, a Mexican  national who is seven years younger than Rivera. Soon thereafter, in  March 1996, MacFarlane told Rivera that his position was being  eliminated and gave Rivera three employment options:  transfer to the  Dominican Republic; transfer to Brazil; or become a human-resources  consultant to Frito Lay.  Rivera opted to transfer to the Dominican  Republic.


13
Rivera had worked in the Dominican Republic for eight months  when MacFarlane informed him that Frito Lay was eliminating his  position because of a significant financial downturn in the company's  Dominican Republic operations.  Rivera met with Prado on November 6,  1996 to discuss employment alternatives.  Prado suggested that Rivera  consider becoming a human-resources consultant to Frito Lay.  Rivera  rejected this proposal, asking instead to be reinstated to his prior  position in Puerto Rico.


14
On January 29, 1997, MacFarlane offered Rivera a four-year  consulting contract that Rivera rejected.  On February 28, 1997, Nino  gave Rivera a termination letter signed by Prado.  Rivera's termination  was effective March 3, 1997.  He was forty-six-years old.


15
Rivera filed an administrative charge with the Equal  Opportunity Employment Commission (EEOC) on March 10, 1997, and the  EEOC issued a right-to-sue letter on May 19, 1997.

II.  DISCUSSION

16
Rivera alleges that Defendants' discriminatory acts created  both a hostile work environment and resulted in his unlawful  termination.  We review the district court's decision to grant Summary  Judgment de novo, with all reasonable doubts and issues of credibility  resolved in the non-movant's favor. Landrau-Romero v. Banco Popular De  Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000); Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 51 (1st Cir. 2000).

A. Hostile Work Environment

17
Rivera claims that he was subjected to a hostile work  environment at Frito Lay.  In granting Summary Judgment, the district  court first concluded that all alleged discriminatory events occurring  before May 10, 1996 were time-barred and could not be considered in its  hostile-work-environment analysis.  The court then determined that only  Rivera's termination from Frito Lay occurred after that date.


18
Under Title VII, the ADEA, and the ADA, a plaintiff must file  an employment-discrimination charge with the EEOC within 300 days of  the alleged discrimination.  42 U.S.C. § 2000e-5(e)(1) (2000) (noting  Title VII's charge-filing requirement); 29 U.S.C. § 626(d)(2) (stating  ADEA's charge-filing requirement); Bonilla v. Muebles J.J. Alvarez,  Inc., 194 F.3d 275, 277-78 (1st Cir. 1999) (stating that Title VII's  charge-filing requirement applies to the ADA).  A plaintiff generally  cannot litigate claims based on conduct falling outside of this period. Provencher v. CVS Pharmacy, 145 F.3d 5, 13-14 (1st Cir. 1998).  But  where the violation is "of a continuing nature, the charge of  discrimination filed . . . may be timely as to all discriminatory acts  encompassed by the violation so long as the charge is filed during the  life of the violation or within the statutory period . . . ."  Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997)  (internal quotations omitted).


19
Continuing violations can be systemic or serial.  Id. at 869. Systemic violations occur where an employer maintains a discriminatory  policy, responsible for multiple discriminatory acts that may fall  outside of the limitations period.  Id.  If the policy or practice  continues into the limitations period, the complaint is considered  timely.  Sabree v. United Bhd. of Carpenters and Joiners Local No. 33,  921 F.2d 396, 400-02 (1st Cir. 1990) (citations omitted).


20
Serial violations, however, occur where the plaintiff  experiences a number of similar discriminatory acts arising from the  same discriminatory animus.  Id. at 400.  Such acts are timely if at  least one discriminatory event occurs within the statutory period that  anchors the earlier claims.  Id.  This anchor violation is only timely  if it is part of and exposes a pattern of actionable discrimination. Provencher, 145 F.3d at 14.


21
In O'Rourke v. City of Providence, this court set forth three  factors to assess the sufficiency of a serial-continuing-violation  claim: (1) whether the subject matter of the discriminatory acts is  sufficiently similar to render the otherwise untimely acts  substantially related to the timely acts; (2) whether the acts occur  frequently, repetitively, or continuously or are isolated and discrete;  and (3) whether the acts are sufficiently permanent to make the  plaintiff aware of the need to assert his or her rights. 235 F.3d 713,  731 (1st Cir. 2001) (internal citations omitted); see Sabree, 921 F.2d  at 402.


22
Rivera alleges that Defendants' actions constitute serial-continuing violations of age, disability, and national-origin  discrimination.  Particularly, he states that the following incidents  establish a clear discriminatory pattern:


23
(1)  At an April 1994 staff meeting, Rebolledo told Rivera  to "be quiet, you're stale" (Rivera Dec. 5, 1998 Dep. at 24.);


24
(2)  At an April 28, 1995 human-resources-plan meeting in  Mexico, Prado and Rebolledo referred to Puerto Ricans as monkeys.  When  talking about the Frito Lay administration, for example, Rebolledo  stated that "those monkeys [don't] know what they [are] doing" (Id. at  46.);


25
(3)  At an October 10, 1995 meeting with a recruiting firm,  Prado expressed a preference for employees with "youth and  intelligence" and voiced concern that "some of the candidates referred  to him were over forty years old" (Id. at 34-37.);


26
(4)  On October 23, 1995, Prado and Nino told labor  consultant Ray Micus that the decisive factor in terminating  supervisory-sales employees was age (Id. at 41-44.);


27
(5)  During a November 1995 lunch meeting, Rivera commented  that he was not feeling well, to which Nino responded that Rivera's  health problems were due to "ansia", meaning antiquity or old age (Id. at 40-41.);


28
(6)  On January 24, 1996, Nino told labor lawyer Dwayne  Aldrich that Rivera's gray hair must mean he's sixty years old (Id. at  39.); and


29
(7)  On January 18, 1997, Prado and Nino stated that Rivera's  health condition was due to "La bola de anos", which translates to ball  of years (Id. at 31-33.).


30
Rivera argues that the subject matter of the alleged acts  always related to his age, medical condition, and nationality; that  there were numerous incidents; and that until February 1997, he had no  reason to believe that he was being discriminated against and did not  have a future with the company.  Defendants counter that Rivera merely  advances discrete, isolated events - unrelated to his ultimate  termination.  Counting back 300 days from March 10, 1997, the date  Rivera filed his EEOC charge, only Prado's and Nino's comments that  Rivera's health condition was due to "la bola de anos" are timely.1


31
1. Disability-Based Hostile Work Environment


32
Rivera argues that because this anchoring violation  refers to Rivera's health, the comments demonstrate disability  discrimination, thus rendering timely all similar incidents.  Rivera,  however, overlooks the fact that he has not shown that he is  statutorily disabled.


33
The ADA proscribes employers from discriminating against a  qualified individual with a disability.  42 U.S.C. § 12112(a).  A  "qualified individual" is "an individual with a disability who, with or  without reasonable accommodation, can perform the essential functions  of the employment position that such individual holds or desires."  Id. § 12111(8).  A "disability" includes "a physical or mental impairment  that substantially limits one or more major life activities."  Id. §  12102(2)(A).  "Substantially limits" means that the person  cannot  perform a major life function or is "significantly [limited in] the  condition, manner or duration under which [the] individual can perform  a particular major life activity, as compared to the average person in  the general population . . . ." 29 C.F.R. § 1630.2(j)(ii).


34
We apply a three-step analysis when considering statutory  disability.  Bragdon v. Abbott, 524 U.S. 624, 631 (1998).  First, we  determine whether Rivera's asthma and lymphoma are physical  impairments.  Second, we determine whether Rivera's work -- the life  activity he claims was affected -- meets the ADA definition of a major  life activity.  Id.  Third, "tying the statutory phrases together, we  ask whether the impairment substantially limits the activity found to  be a major life activity."  Lebron-Torres v. Whitehall Labs., 251 F.3d  236, 239-40 (1st Cir. 2001).


35
Rivera's conditions -- asthma and lymphoma -- meet the EEOC  definition of impairment, and the EEOC recognizes working as a "major  life activity."  Id.  But Rivera has not presented any evidence that  either condition substantially limits his ability to work.  In fact,  Rivera argues that he was capable of performing all tasks required of  him by Frito Lay without assistance.  Absent evidence that Rivera  suffered from a substantially limiting impairment, he has not  demonstrated that he is disabled.  The district court correctly granted  Defendants' Summary Judgment Motion on Rivera's disability-based,  hostile-work-environment claim.


36
2.   National-Origin Hostile Work Environment


37
As stated above, the anchoring violation concerning  Prado's and Nino's "la bola de anos" comments references only Rivera's  age and health.  Any prior incidents allegedly supporting a national-origin-based, hostile-work-environment claim are time-barred.  Hence,  the district court correctly granted Summary Judgment on this claim.

3. Age-Based Hostile Work Environment

38
As stated above, the anchoring violation refers to  Rivera's age.  As a threshold matter, we find that the seven-year age  difference between Rivera and Nino, who allegedly took over Rivera's  job duties, is sufficient to support a prima-facie case of age  discrimination.  See Williams v. Raytheon Co., 220 F.3d 16, 21 (1st  Cir. 2000) (collecting cases holding that age difference of less than  five years is insufficient for a prima-facie showing).  Of the seven  allegedly discriminatory incidents, all but one -- Rebolledo's  reference to Puerto Ricans as monkeys -- refers to Rivera's age.  The  subject matter of these six incidents is sufficiently similar to the  anchoring violation to meet the first O'Rourke criterion of whether the  subject matter of the discriminatory acts is sufficiently similar to  render the otherwise untimely acts substantially related to the timely  acts.  O'Rourke, 235 F.3d at 731.


39
The second O'Rourke criterion requires that the acts occur  frequently, repetitively, or continuously, and are not isolated and  discrete.  The six age-related comments occurred within a two-year  period, sufficiently numerous to be considered continuous.  Id.


40
We next are faced with the most difficult of the O'Rourke criteria: whether the volume of discriminatory acts, as a matter of  law, should have alerted Rivera of the need to file a discrimination  claim.  Id. at 732.  The issue is difficult because "[a] plaintiff may  be unable to appreciate that he is being discriminated against until he  has lived through a series of acts and is thereby able to perceive the  overall discriminatory pattern."  Id. (quoting Sabree, 921 F.2d at  402). Although in certain circumstances, notice may be resolved as a  matter of law, the question is often better determined by juries, who  can reflect on their own experiences.  Id.


41
Rivera argues that he did not realize Defendants'  discriminatory animus or that he had an actionable claim until February  1997, when his position in the Dominican Republic was eliminated.  In  support, Rivera points to MacFarlane's testimony, stating that Rivera  was told the company wanted him to remain a part of the team.  Rivera  also notes that Prado testified at his deposition that Rivera did not  express any uneasiness with Nino's presence in the Puerto Rican  operations.  Such reassurance and lack of complaint lends support to  Rivera's contention that he could not have perceived an overall  discriminatory pattern any earlier.


42
Because a jury could find that all O'Rourke criteria were met  on the six age-related incidents, the district court erred by ruling  that they were time-barred.  From these incidents, we next consider  whether a reasonable jury could find that Rivera was subjected to a  hostile work environment.


43
Hostile-work-environment claims were first recognized in the  sex-discrimination context, but have since been recognized for members  of any protected class.  Lattimore v. Polaroid Corp., 99 F.3d 456, 463  (1st Cir. 1996).  To prove a hostile-work-environment claim, a  plaintiff must provide sufficient evidence from which a reasonable jury  could conclude that the offensive conduct "is severe and pervasive  enough to create an objectively hostile or abusive work environment and  is subjectively perceived by the victim as abusive."  Landrau-Romero,  212 F.3d at 613.  When assessing whether a workplace is a hostile  environment, courts look to the totality of the circumstances,  including the frequency of the discriminatory conduct; its severity;  whether it is threatening or humiliating, or merely an offensive  utterance; and whether it unreasonably interferes with the employee's  work performance.  Id. (quoting Harris v. Forklift Systems, Inc., 510  U.S. 17, 21 (1993).


44
The district court concluded that no reasonable jury could  find that Rivera was subjected to a hostile work environment because  even if timely, the incidents were inadmissible because Rivera failed  to show personal knowledge.  Our review of the record reveals  otherwise.


45
Neither Party disputes that Rivera is competent to testify  to those allegedly discriminatory statements made directly to him. These include Rebolledo's statement to Rivera that he was "stale",  Nino's comment to Rivera that his health problems were due to "ansia",  and Prado's and Nino's statements that Rivera's health problems were  due to "la bola de anos".


46
The remaining allegations include Prado's statements to a  recruiting firm that Frito Lay needed employees with youth and  intelligence and should discourage candidates over forty, Prado's and  Nino's discussions with Micus that the decisive factor in terminating  supervisory-sales employees was age, and Nino's comment to Aldrich that  Rivera's gray hair must mean he's sixty years old.  The record  indicates that Rivera was present on all three occasions.


47
Rivera's December 5, 1998 deposition reveals that he was  present when Prado made the statement to the recruiting firm. Specifically, Rivera testified that "[o]ne time that we were with a  company, a group of head hunters, [Prado] mentioned that the  company...needed...young and intelligent blood...."  (Rivera's Dec. 5,  1998 Dep. at 34, 36 (emphasis added).)


48
As for Prado's and Nino's discussions with Micus that the  decisive factor in terminating supervisory-sales employees was age,  Rivera's testimony again reveals his presence.  Rivera stated that  "[t]here was one time we were in the big conference room, when we were  discussing with a consultant called Ray Micus, post-election strategies  in sales.  And we were, in fact, looking into who we could retire, who  were over 50-something years old. . . [Prado] wanted to retire anybody  that was over 50 years old in the company."  (Id. at 41, 44 (emphasis  added).)


49
Rivera also was present when Nino commented to Aldrich that  Rivera's gray hair must mean he's sixty years old.  Rivera  testified  in his deposition that "[t]here was one time when we were with the  attorney[] Duane Aldridge...[who] asked where I was from.  And I said  Vieques.  And he said, ah, they must grow tall people with grey hair  there.  And [Nino] said yes, yes, yes, also 60 year[] old[s]. . .." (Id. at 39.)  Because Rivera was present when each of these statements  were made, the district court erred in disregarding his testimony.


50
Considering the totality of the circumstances, a reasonable  jury could find that Rivera was subjected to a hostile work environment  based on his age.  On six separate occasions, Frito Lay's president,  its Latin American Region President, and/or the Director Human  Resources for the Caribbean made seemingly derogatory, age-related  statements about Rivera.  Because a question of fact exists over  whether these comments created a hostile work environment, the district  court erred in granting Summary Judgment on Rivera's age-based,  hostile-work-environment claim.

B. Termination

51
We turn now to Rivera's wrongful-termination claim.  Where  a plaintiff has no direct evidence of discrimination and must prove his  or her case circumstantially, this court looks to the totality of the  evidence, guided by the familiar McDonnell Douglas-Burdine-Hicks framework.  Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430  (1st Cir. 2000).  Under this burden-shifting test, the plaintiff first  must prove a prima-facie case of discrimination.  An employee alleging  discrimination must show that: (1) he was a member of a protected  class; (2) he was qualified for the position; (3) he was discharged;  and (4) other similarly situated employees who were not members of the  protected class were treated more favorably.  Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673 (1st Cir. 1996).


52
If the plaintiff demonstrates a prima-facie case, the burden  shifts to the defendant to articulate a legitimate, non-discriminatory  reason for its challenged actions.  Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).  If the defendant carries this  burden of production, the plaintiff must prove that the legitimate  reasons were mere pretext for discrimination.  Id. at 253.


53
The district court assumed that Rivera made out a prima-facie  case that he was wrongfully terminated as a result of age and national-origin discrimination, assumptions Frito Lay does not appeal.  The  burden of production then shifted to Frito Lay to demonstrate  legitimate reasons for terminating Rivera.  The district court  concluded that Frito Lay met its burden by proffering that:  a severe  downturn in the Dominican Republic operations during the second half of  1996 required Frito Lay to eliminate Rivera's position; the company  refused to rehire Rivera in Puerto Rico as the Director of Human  Resources because that position no longer existed; the company was  unhappy with the fact that the sales force unionized during Rivera's  tenure; and the company preferred Nino as Director of Human Resources. Finding most of Rivera's testimony time-barred, the district court  concluded that Rivera failed to produce sufficient evidence of pretext.


54
As stated above, the court correctly granted Summary Judgment  on Rivera's disability-discrimination claim because Rivera failed to  produce any evidence of a statutory disability.  We only consider  Rivera's contention that the district court erred by disregarding  evidence from which a reasonable jury could conclude that Frito Lay's  reasons were pretext for age and national-origin discrimination.


55
Rivera theorizes that Frito Lay, motivated by discriminatory  animus, conspired to force him from the company.  He contends that  Frito Lay knew of the economic situation in the Dominican Republic  before transferring him, but did so to free his position for Nino, a  younger, non-Puerto Rican.


56
To show pretext, Rivera first points to the undisputed fact  that Frito Lay did not move his family to the Dominican Republic, while  it moved Nino's family to Puerto Rico.  This conduct, Rivera argues,  indicates that Frito Lay knew - before moving Rivera - that his  position in the Dominican Republic would be eliminated, and hired Nino  to permanently replace Rivera and prevent Rivera from later returning  to Puerto Rico.


57
To counter Frito Lay's stated rationale that it did not  rehire Rivera because he was responsible for the 1994 unionization of  the sales force, Rivera argues that he successfully directed an anti-unionization campaign for Frito Lay in 1989.  As part of that campaign,  Rivera implemented procedures viewed favorably by employees.  He claims  that the 1994 unionization resulted from the Mexican management's  violation of those procedures.


58
Rivera states, without dispute, that he had extensive  collective-bargaining experience with a former employer.  Thus, he  claims, Frito Lay's purported reasons for not reassigning Nino and  rehiring him -- that only Nino had collective-bargaining experience at  Frito Lay and was capable of implementing an organizational-development  strategy for dealing with the new union -- were false.


59
Rivera also contends that the evidence contradicts Frito  Lay's argument that Rivera was not replaced by the younger Nino.  Frito  Lay states that Rivera's position in Puerto Rico was eliminated, and  that his duties were split between Nino and Luis Noriega, a Puerto  Rican several years Rivera's senior.  Rivera counters, however, that  Nino assumed many, if not most of his responsibilities, and was given  Rivera's title of Director of Human Resources.  From this, he argues a  jury could find that Nino replaced him.


60
Rivera lastly argues that Prado and Nino made discriminatory  remarks based on Rivera's age and national origin: Rebolledo called  Rivera stale; Prado and Rebolledo referred to Puerto Ricans as monkeys;  and Prado, in discussions with a recruiting firm, expressed a  preference for young, intelligent employees and a lack of preference  for candidates in their forties.  Frito Lay asserts that the court must  disregard all of these allegedly discriminatory statements because they  were not made by the sole decision-maker regarding Rivera's employment  -- MacFarlane.


61
But Rivera contends that Prado and Rebolledo approved, and  thereby influenced, MacFarlane's decisions concerning Rivera's  employment.  Prado testified in his deposition that he participated in  some respect in Rivera's employment decisions.  (Prado Dep. at 50.) Moreover, MacFarlane testified that he discussed his decisions about  Rivera's employment with Prado and Rebolledo.  (MacFarlane Dep. at 53.)


62
A plaintiff's prima-facie case, combined with sufficient  evidence to find that an employer's asserted justification is false,  may permit a trier of fact to conclude that the employer unlawfully  terminated the plaintiff.  See Reeves v. Sanderson Plumbing, 530 U.S.  133, 148 (2000).  Evidence of biased comments may support an inference  of pretext.  Dominguez-Cruz, 202 F.3d at 433.  And discriminatory  statements related to the decisional process may be sufficient to prove  an employer's alleged discriminatory animus.  Shorett v. Rite Aid of  Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998).


63
Certainly Rivera has proffered sufficient evidence to  overcome Summary Judgment on his age and national-origin-based,  wrongful-termination claims.  Rivera has shown a genuine dispute over  material facts regarding whether Frito Lay knew of the financial  situation in the Dominican Republic before transferring Rivera, whether  the 1994 unionization was Frito Lay's true reason for not rehiring  Rivera, whether Rivera was replaced by a younger non-Puerto Rican, and  whether MacFarlane was the sole decision-maker on Rivera's employment. Accordingly, the district court erred by granting Frito Lay's Summary-Judgment Motion on Rivera's wrongful-termination claims based on his  age and national origin.

CONCLUSION

64
For the foregoing reasons, the district court's grant of  summary judgment is AFFIRMED in part and REVERSED in part.


65
Judgment affirmed in part, and reversed in part.



Notes:


*
   Of the District of Massachusetts, sitting by designation.


1
   Although the district court only considered Rivera's termination  timely, Rivera alleges that Prado's and Nino's comments, not the  termination itself, are the anchoring violation.


