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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br>                                 <br> <br> <br> <br>No. 98-1693 <br> <br>      ROSA CARDONA JIMENEZ AND CHARLES E. CASELLAS ROSARIO, <br> <br>                      Plaintiffs, Appellees, <br> <br>                                v. <br> <br>                   BANCOMERCIO DE PUERTO RICO, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Jesus A. Castellanos, U.S. Magistrate Judge] <br> <br> <br> <br>                              Before <br> <br>                       Selya, Circuit Judge, <br>             Coffin and Cyr, Senior Circuit Judges. <br>                                 <br>                                 <br> <br> <br>     William Santiago Sastre with whom Marcos Valls Sanchez was on <br>brief for appellants. <br>     Fernando L. Gallardo for appellee. <br> <br> <br> <br> <br> <br>April 6, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  COFFIN, Senior Circuit Judge.  Plaintiff-appellee Rosa <br>Cardona Jimnez ("Cardona") was fired from her employment with <br>defendant-appellant Bancomercio de Puerto Rico ("Bancomercio").  <br>She subsequently brought suit under the Age Discrimination in <br>Employment Act, 29 U.S.C.  621-34, ("ADEA"), and under Puerto <br>Rico Law 100, P.R. Laws Ann. tit. 29,  146-51, ("Law 100").  <br>Cardona prevailed at trial, and on appeal Bancomercio claims that <br>the court incorrectly denied its motion for judgment as a matter of <br>law, in addition to committing other errors.  We agree that Cardona <br>failed to present sufficient evidence for a jury to find she had <br>been the victim of age discrimination, and therefore reverse. <br>                          I. Background <br>  The following facts are undisputed.  Cardona was <br>originally hired to work in the banking industry in 1972.  Through <br>a series of bank mergers and acquisitions, she eventually became an <br>employee of Bancomercio in 1991.  The following year Bancomercio <br>promoted her to manager of the Puerto Nuevo branch, where she was <br>in charge of half a dozen tellers and other employees.  During her <br>tenure at Bancomercio and its predecessors, Cardona had <br>consistently received highly positive evaluations of her <br>performance. <br>  From 1993 to 1995, Bancomercio was not performing as <br>profitably as it should have been, due apparently in part to <br>periodic discrepancies between cash inventories in tellers' drawers <br>and the amounts that ought to have been there.  As a consequence, <br>the bank began concentrating on those discrepancies to reduce <br>unaccounted for losses.  Bancomercio instructed the branch managers <br>to implement three specific procedures to safeguard the money <br>against possible theft.  First, the tellers had limits on the cash <br>they were allowed to have in their drawers.  If a teller received <br>deposits which increased the amounts in the drawer above that <br>limit, the manager would transfer some cash from that teller's <br>drawer to the vault.  Second, the manager was supposed to engage in <br>periodic verifications of the tellers' cash levels.  Managers did <br>not personally reconcile the actual cash in the drawers with the <br>teller's transactions on a daily basis.  To ensure that the tellers <br>were not dipping into the till, managers were instructed to conduct <br>random surprise counts of the drawers to check for discrepancies.  <br>Third, managers were responsible for checking daily whether each <br>drawer contained roughly the correct number of bundles of large <br>denomination bills. <br>  Consistent with these actions to be taken by managers, <br>Bancomercio also instituted a policy to be implemented by the Human <br>Resources department.  In light of the fact that Bancomercio <br>permitted its tellers to maintain personal accounts at the bank, <br>the Human Resources department was instructed to monitor the <br>tellers' accounts periodically, looking for unusual or suspicious <br>activity. <br>  Despite these procedures, a teller supervised by Cardona <br>at the Puerto Nuevo branch stole a significant amount of money.  An <br>auditor of the branch noticed that the teller, Lorna Ramirez <br>("Ramirez"), had developed a habit of making small deposits into <br>her bank account two or three times a week.  The auditor found this <br>pattern suspicious and informed the assistant vice president of <br>operations.  The assistant vice president, in turn, instructed <br>Cardona to perform a surprise cash verification the following day.  <br>When the check was performed, it was discovered that Ramirez's <br>drawer was more than $8,000 short of the $13,000 it should have <br>contained.  Ramirez was immediately dismissed, consistent with bank <br>policy. <br>  Bancomercio conducted an internal investigation and found <br>that Cardona had failed to take the three precautions required to <br>prevent precisely this sort of theft.  First, Cardona had permitted <br>Ramirez to retain $13,000 in her cash drawer, well in excess of her <br>$10,000 limit.  Second, Cardona had established a pattern for the <br>"surprise" cash verifications, thereby allowing Ramirez to <br>determine when such audits would take place and eliminating the <br>benefit of any surprise.  Third, the bank concluded that Cardona <br>had not counted the bundles of $20 bills, and consequently Ramirez <br>had placed rolls of coins under the bundles to artificially inflate <br>their appearance.  Ramirez, in fact, admitted that she had been <br>able to steal the money because she knew Cardona was not taking <br>these precautions.  The auditor also criticized the Human Resources <br>department for failing to give adequate attention to the pattern of <br>deposits in Ramirez's account. <br>  Bancomercio's Human Resources Committee met to discuss <br>the situation.  The members testified that they decided to fire <br>Cardona for failure to supervise her tellers adequately.  Cardona <br>was summoned to the bank's central offices and informed of the <br>bank's decision.  At that meeting, the bank told her that she would <br>receive her week's pay and all accrued vacation pay.  Bancomercio <br>also offered to pay her an extra $5000 in return for a release from <br>any claims against it, but she refused.  At the time of firing, she <br>was 41.  She was temporarily replaced by another employee, Wilfredo <br>Robles, who was also 41.  Her permanent replacement was Luisa <br>Guerrero, age 37.  Although Cardona was dismissed, the bank merely <br>reprimanded Giselle Lebron ("Lebron"), the head of Human Resources, <br>for failure to monitor Ramirez's account. <br>  Cardona sued Bancomercio, claiming age discrimination.  <br>The parties consented to trial before a magistrate judge.  See 28 <br>U.S.C.  636(c).  At trial, the parties stipulated that, of the 166 <br>employees hired between 1993 and 1995, 49 were born before 1955.  <br>Testimony also revealed that 9 of the 33 employees fired between <br>1993 and 1995 were born before 1955. <br>  At the close of Cardona's case, Bancomercio presented a <br>motion for judgment as a matter of law.  It renewed the motion at <br>the close of its case, and after the jury verdict.  Each time the <br>court denied it. <br>                          II. Discussion <br>  Bancomercio is entitled to judgment as a matter of law <br>only if there is no legally sufficient evidentiary basis for a <br>reasonable jury to find for the plaintiff.  See Fed. R. Civ. P. <br>50(a).  We review the court's denial of the bank's motion de novo, <br>taking the facts in the light most favorable to Cardona. See Russov. Baxter Healthcare Corp., 140 F.3d 6, 7-8 (1st Cir. 1998).  <br>Cardona must provide "more than a mere scintilla of evidence and <br>may not rely on conjecture or speculation to justify the submission <br>of an issue to the jury."  Id. (internal quotation marks omitted).  <br>Although she had other related subsidiary claims, Cardona's verdict <br>was premised on either her ADEA or her Law 100 claim, and our <br>analysis must start there. <br>  A. ADEA.  In relevant part, the ADEA prohibits <br>Bancomercio from discharging Cardona because of her age.  In a <br>wrongful discharge case such as this one, Cardona bears the <br>ultimate burden of proving that she would not have been fired but <br>for her age.  See Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d <br>23, 25 (1st Cir. 1997).  When the plaintiff has direct evidence of <br>discriminatory animus, the case may be put to the jury without <br>further ado.  See Trans World Airlines, Inc. v. Thurston, 469 U.S. <br>111, 121 (1985).  When, as here, direct evidence is lacking, the <br>plaintiff's ADEA claim is governed by the familiar McDonnell <br>Douglas burden-shifting framework.  See McDonnell Douglas Corp. v. <br>Green, 411 U.S. 792, 802-05 (1973); Alvarez-Fonseca v. Pepsi Cola <br>of Puerto Rico Bottling Co., 152 F.3d 17, 24 (1st Cir. 1998).   <br>  Under McDonnell Douglas, Cardona must first present a <br>prima facie case of age discrimination, which requires that she <br>show: 1) she was a member of a protected age group, i.e., at least <br>40 years old; 2) she was meeting Bancomercio's legitimate job <br>expectations; 3) she was fired; and 4) the employer had a <br>continuing need for the same services, and they subsequently were <br>performed by one with the same or similar qualifications as the <br>plaintiff.  See Brennan v. GTE Government Systems Corp., 150 F.3d <br>21, 26 (1st Cir. 1998).  Once she has met this modest burden, a <br>presumption of discrimination attaches, and Bancomercio must <br>articulate a legitimate, nondiscriminatory reason for firing her.  <br>See id.  If it does so, the presumption of discrimination vanishes <br>and Cardona must show by a preponderance of the evidence both that <br>the bank's reason was a pretext and that the real reason was age- <br>based animus.  See Alvarez-Fonseca, 152 F.3d at 24; Brennan, 150 <br>F.3d at 26.  While Bancomercio briefly has the burden of producing <br>a legitimate reason for her discharge, Cardona shoulders the burden <br>of persuasion throughout.  See St. Mary's Honor Ctr. v. Hicks, 509 <br>U.S. 502, 511 (1993); Serrano-Cruz, 109 F.3d at 26. <br>  Bancomercio concedes that Cardona has established her <br>prima facie case but argues that it has articulated a legitimate <br>reason which she failed to rebut.  We note that, even considering <br>the evidence in the light most favorable to Cardona, the bank's <br>reason is compelling.  The bank instructed branch managers to <br>undertake three specific measures to safeguard its capital, which <br>is the bank's very raison d'etre.  Whatever her previous <br>evaluations, the uncontested evidence showed that Cardona failed to <br>implement any of the three in the manner required by the bank.  As <br>a result of her dereliction, a teller under her supervision stole <br>more than $8,000. <br>     Cardona highlights two additional pieces of evidence to <br>meet her responsibility of demonstrating that the alleged reason <br>was pretextual and that her firing was actually motivated by age <br>animus.  First, she claims that between 1993 and 1995, 9 out of 33 <br>individuals fired by the bank were over the age of 40.  Second, she <br>argues that Lebron, the head of Human Resources, was similarly <br>situated, was under 40, and was not punished as harshly as she was.  <br>Neither rationale carries the day. <br>     The evidence regarding the number of individuals whose <br>employment was terminated does not produce an inference of <br>discrimination.  In fact, it suggests the opposite.  Nine of the 33 <br>dismissed translates into 27.3% of those fired being over 40.  <br>However, counsel also acknowledged that 49 of the 161 employees <br>hired during the same period, or 30.4%, were over 40.  The fact <br>that Bancomercio's pool of new employees contained a higher <br>percentage of individuals over 40 than its pool of discharged <br>employees suggests a lack of discrimination.  It is axiomatic that <br>in order to survive a motion for judgment as a matter of law, the <br>evidence Cardona presented must make the existence of the facts to <br>be inferred, namely pretext and age discrimination, more probable <br>than their nonexistence.  See Resare v. Raytheon Co., 981 F.2d 32, <br>34 (1st Cir. 1992).  Contrary to her argument, the numerical <br>comparison offered by Cardona actually makes age discrimination and <br>pretext less probable. <br>     The comparison with Lebron is equally unhelpful.  Cardona <br>claims that pretext and animus can be inferred from the fact that <br>Lebron was a similarly situated employee, was not over 40, was also <br>involved, but was not dismissed.  The problem with Cardona's <br>argument is that she and Lebron were not "similarly situated."  To <br>be "similarly situated" for the purpose of our discrimination <br>jurisprudence, the two individuals or situations must be similar <br>"in all relevant aspects."  Dartmouth Review v. Dartmouth College, <br>889 F.2d 13, 19 (1st Cir. 1989) (quotation omitted).  In order that <br>"apples [are] compared to apples[,]" we have stated that "the <br>'relevant aspects' are those factual elements which determine <br>whether reasoned analogy supports, or demands, a like result."  Id. <br>     Here it is obvious that Cardona and Lebron were not <br>situated similarly in all relevant aspects.  Cardona was the <br>branch manager who directly supervised Ramirez.  Bancomercio had <br>instructed Cardona to take several concrete steps to prevent <br>tellers from stealing, but she failed to do so.  Lebron, on the <br>other hand, was the head of Human Resources, and had no direct <br>supervisory responsibilities over Ramirez.  Any action on Lebron's <br>part would not have prevented the theft in the first instance; it <br>only would have led to a more prompt discovery of Ramirez's <br>conduct.  Bancomercio chose to dismiss the person who stole the <br>money, namely Ramirez, and her supervisor, namely Cardona, but not <br>a third person who lacked direct involvement in the branch's <br>operations, namely Lebron.  No prudent person could conclude that <br>Cardona's and Lebron's roles were sufficiently equivalent that <br>failure to dismiss Lebron bore on whether firing Cardona was based <br>on pretext and actually resulted from age animus. <br>     To withstand a motion for judgment as a matter of law, <br>Cardona must "elucidate specific facts which would enable a jury to <br>find the reason given [by Bancomercio] was not only a sham, but a <br>sham intended to cover up the [bank's] real motive: age <br>discrimination."  Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 <br>F.2d 5, 9 (1st Cir. 1990) (citations omitted).  She has failed to <br>present any such facts, and judgment as a matter of law should have <br>been entered for Bancomercio on her ADEA claim. <br>     B. Law 100.  Law 100 is the Puerto Rico equivalent of the <br>federal ADEA, providing for civil liability in age discrimination <br>actions.  Similar in several respects, the two statutes diverge on <br>how discrimination is to be proved. <br>     The most important difference involves the shifting of <br>the burden of proof.  Although the plaintiff in an ADEA case always <br>bears the burden of proof, Law 100 temporarily places that burden <br>on the employer, and thus is significantly more favorable to <br>plaintiffs than is the ADEA.  See Ibanez-Benitez v. Molinos de <br>Puerto Rico, Inc., 114 P.R. Dec. 42, 52 (1983).  Under Law 100, the <br>plaintiff has two requirements to establish a prima facie case: 1) <br>she must demonstrate that she was actually or constructively <br>discharged; and 2) she must allege that the decision was <br>discriminatory.  See Alvarez-Fonseca, 152 F.3d at 28.  Once this <br>minimal showing has been established, the burden shifts to the <br>employer to prove by a preponderance of the evidence that it had <br>"just cause" for its actions.  Id.  If the employer establishes <br>"just cause," the burden of proof returns to the plaintiff to show <br>that the employer's decision was motivated by age discrimination, <br>thereby placing the plaintiff "in the same situation as an ADEA <br>plaintiff after the defendant has articulated a legitimate non- <br>discriminatory reason[.]"  Id.  If, however, the employer fails to <br>prove "just cause," the employer bears the burden of proving that <br>the decision was not motivated by age discrimination.  Id. <br>     There can be no doubt that Cardona both proved she was <br>discharged and alleged that Bancomercio's decision was <br>discriminatory.  The burden then shifted to Bancomercio, but the <br>bank failed to present any developed argument about whether just <br>cause existed.  However, even if we assume that the bank has not <br>shown just cause, Bancomercio met its burden of proving by a <br>preponderance of the evidence that the decision was not motivated <br>by age discrimination.  Simply put, the closest approximation to <br>evidence of age discrimination was the basic fact that Cardona was <br>over 40 when fired and was replaced by someone slightly under 40.  <br>This fact is inconsequential in light of the compelling weight of <br>the bank's legitimate reason: her failure to take the precautions <br>necessary to protect the depositors' funds.  As has been said <br>several times, the uncontroverted evidence showed that she had been <br>instructed to monitor her tellers and to take certain security <br>measures but failed to do so.  While it may have been a severe <br>punishment, it is clear that Cardona was dismissed for her <br>dereliction and not for her age.  No reasonable jury could have <br>found otherwise. <br>                         III. Conclusion <br>     We conclude that no reasonable jury could have found for <br>Cardona under either the ADEA or Law 100.  Bancomercio proved by a <br>preponderance of the evidence that the decision to fire her was <br>based on her own failings and was not motivated by age <br>discrimination.  She was unable to present any sufficient reason to <br>disbelieve Bancomercio's proffered explanation.  Since she has not <br>presented enough evidence to prevail on the ADEA or Law 100 claims, <br>Cardona's subsidiary, related claims must also fail. <br>     For the foregoing reasons, the judgment is reversed.</pre>

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