Baralt v. Nationwide, (1st Cir. 2001)

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United States Court of Appeals

For the First Circuit

Nos. 00-1453

00-1741

00-1742

00-2107

MANUEL A. BARALT; LIZETTE PENA-AVILES;

CONJUGAL PARTNERSHIP BARALT-PENA; JUAN GONZALEZ-PEREZ;

MONSERRATE CANABAL-DURAN; CONJUGAL PARTNERSHIP GONZALEZ-CANABEL,

Plaintiffs-Appellees/Cross-Appellants,

v.

NATIONWIDE MUTUAL INSURANCE COMPANY,

Defendant-Appellant/Cross-Appellee,

NATIONWIDE INSURANCE COMPANY; NATIONWIDE MUTUAL FIRE INSURANCE

COMPANY; NATIONWIDE LIFE INSURANCE COMPANY; NATIONWIDE GENERAL

INSURANCE COMPANY; NATIONWIDE PROPERTY AND CASUALTY INSURANCE

COMPANY; NATIONWIDE GROUP OF COMPANIES; WILLIAM P. DEMENO,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Sheldon H. Nahmon, with whom Arturo Diaz-Angueira and Roberto

Feliberti were on brief, for Nationwide.

Ruben T. Nigaglioni, with whom Antonio A. Arias-Larcada

was on brief, for appellees/cross-appellants.

May 24, 2001

COFFIN, Senior Circuit Judge. A jury found that appellant

Nationwide Mutual Insurance Company ("Nationwide") terminated

appellees Manual Baralt and Juan Gonzalez-Perez ("Gonzalez")

because of their ages, in violation of both the Age Discrimination

in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), and Puerto Rico

Law 100, P.R. Laws Ann. tit. 29, §§ 146-51 ("Law 100"). The two

men and their wives were awarded a total of more than $6 million in

damages and attorney's fees. See Baralt v. Nationwide Mut. Ins.

Co., 86 F. Supp. 31, 42 (D.P.R. 2000). On appeal, Nationwide does

not challenge the jury's determination that the company acted

unjustifiably in terminating appellees, but contends that the

evidence failed to support a finding of age discrimination. After

a careful review of the record and caselaw, we agree, and therefore

reverse.

I. Factual Background

In the spring of 1993, Nationwide began an investigation into

allegations of fraudulent claims practices by one of its adjusters,

Quinones, after appellee Baralt, claims manager in the Puerto Rico

office ("NPRO"), reported "irregularities" to company headquarters.

Nationwide assigned Joanne McGoldrick, an investigator in its

corporate security department, to research the allegations.

During her investigation, which included three visits to

Puerto Rico between October 1993 and April 1994,(1) McGoldrick

learned of unrelated improper conduct allegedly committed by the

vice president of the office, Enrique Lopez. Those improprieties

primarily concerned the unauthorized use of company cars, or "pool"

cars, and salvage vehicles, including the regular borrowing of pool

cars by Lopez's sons and "sales" of salvage vehicles to NPRO

employees who had not paid for them. Lopez also was accused of

procuring an insurance policy at less than full cost for a Plymouth

Sundance used by his son in Ohio by falsely representing that it

was being driven by his wife in Puerto Rico.

McGoldrick initially verified the accusations against Lopez by

speaking with NPRO's Sales and Marketing Manager, Blanca Robles,

and then further investigated the claims during her April visit to

Puerto Rico. Nationwide maintains that appellees were terminated

in May 1994 because they interfered with the investigation into

Lopez's conduct and because of their involvement in certain of the

asserted improper practices. The company claims that Gonzalez

helped Lopez to obtain the Sundance insurance policy and also was

aware of, and facilitated, the use of pool cars by Lopez's sons.

Baralt was linked to the alleged improprieties because he was in

charge of salvage vehicles for NPRO.

Baralt, NPRO's claims manager, was 49 and had been employed by

Nationwide for 25 years; Gonzalez, who was 60, had worked for the

company for 28 years and was manager of the personal and commercial

lines underwriting department. Baralt and Gonzalez were two of the

six high-ranking employees at NPRO known as the "Cabinet." Two

others -- Lopez and the company's comptroller, Luis Flores Dieppa

("Flores") -- also were terminated for improper conduct. The

remaining two Cabinet members, one of whom was Robles, left the

company about a year after the terminations. The only evidence

presented at trial explaining their departures was Robles's

testimony that she took advantage of the company's early retirement

plan. Five non-Cabinet employees also were terminated.

At trial, in addition to presenting evidence of appellees'

involvement in practices the company deemed improper, Nationwide

attempted to show that both men interfered in the investigation

after being instructed not to do so. McGoldrick accused Gonzalez

of intimidating two female employees, whom she had found crying.(2)

She also reported that on multiple occasions she found Gonzalez

standing near an office where she was interviewing employees. In

a report admitted as a trial exhibit, McGoldrick stated that

another employee told her that Baralt had contacted all of the

claims division employees who possessed salvage vehicles "and

warned them of the scope of our investigation" and advised them not

to tell the truth or they would lose their jobs. She further

reported that other employees had stated that Baralt had discussed

the interview he had with investigators even though he had been

told expressly of the requirement of confidentiality.(3)

Appellees sought to rebut Nationwide's evidence of improper

conduct in a variety of ways. They presented evidence that there

was no company policy against after-hours use of pool cars by

family members,(4) and that, moreover, giving Lopez's sons use of

cars in the evening served to protect the vehicles from possible

theft from the unsecured company lot, which was in a high-crime

area. Although Gonzalez acknowledged arranging the sons' use of

the pool cars, he testified that he did so upon instructions from

another Cabinet member, Rafael Gonzalez, and further testified that

it was Rafael who had responsibility over the pool vehicles. In an

effort to negate Nationwide's suggestion that company officials

permitted employees to acquire salvage vehicles at no cost,

plaintiffs also presented evidence that the company's books showed

the debts for the cars. Testimony elicited on behalf of Gonzalez

distanced him from the insurance policy obtained by Lopez on the

Plymouth Sundance by suggesting that it was not issued under his

authority, and there also was evidence indicating that the policy

was not improper.(5) As noted, both plaintiffs denied that they had

breached the confidentiality of the investigation. Gonzalez

defended his frequent appearance near the room where McGoldrick was

conducting interviews by explaining that he was using the nearby

copy machine, not intimidating employees.

Appellees also emphasized the abruptness and insensitivity

exhibited in the circumstances leading up to and accompanying

plaintiffs' terminations. After McGoldrick reported on her

investigation to Nationwide headquarters, Lucas, the Human

Resources officer, was sent to Puerto Rico with final decision-making authority. He had not reviewed plaintiffs' personnel files,

claiming that he did not want his decision to be influenced by

anything in the files and noting that even a thirty-year record of

good employment could be wiped out by one serious improper act. He

interviewed each plaintiff for only a brief time, and, at the end

of the interviews, pronounced his decision to terminate. Security

personnel were standing by to escort each plaintiff with his

personal belongings out of the building.

The sum total of evidence relating to age is the following:

-- Baralt, 49, was replaced by Morales, 47. Although Baralt

at first testified that Morales was replaced by "a much younger

man," he later admitted that he had no idea why Morales left the

company or whether his replacement was younger or much younger.

-- Gonzalez, 60, was replaced by Guzman, 43.

-- Lopez, the NPRO vice president, 54, was temporarily replaced

by Robles, also 54, indeed three weeks older than Lopez. His

permanent replacement was Jack Wood, whose age was not made of

record.

-- Flores, NPRO's comptroller, was 44 when he was terminated.

There is no evidence of his replacement's age.

-- The two Cabinet members who were not fired were Robles, 54,

and Rafael Gonzalez, 57.

-- In addition to the above four Cabinet members, there were

five subordinate employees discharged for misappropriation of

vehicles. Nothing appears in the record concerning their ages or

those of any replacements.

When Gonzalez was asked directly what support he had for his

age discrimination claim, he replied:

Well, based on the performance that I was

realizing or that I was doing, my devotion to the

company, the success that the agency was having

every year, over 18 long years and always willing

to make a maximum effort to the company's benefit,

to the benefit of our customers. I was in a good

state of health, there was no reason.

The jury nonetheless found that age played a motivating role

in the terminations of Gonzalez and Baralt in violation of both the

ADEA and Law 100, which prohibits employment discrimination based

on a variety of factors, including age.(6) The jury also returned a

verdict for plaintiffs on a third count for unjust dismissal under

Puerto Rico's "Law 80," P.R. Laws Ann. tit. 29, §§ 185a-185m, which

prohibits discharges "made by the mere whim of the employer or

without cause relative to the proper and normal operation of the

establishment." Id. at § 185b. The jury awarded Baralt $1 million

in non-economic damages and Gonzalez $1.5 million, plus $500,000 to

each of their wives. The district court modified these amounts by

reducing the wives' damages to $100,000 each and by doubling the

compensatory awards, as prescribed by Law 100, to $2 million (for

Baralt) and $3 million (for Gonzalez). The jury also awarded back

pay in the amount of $500,000 to Baralt and $400,000 to Gonzalez.

Plaintiffs also were awarded more than $140,000 in attorney's fees,

for a total of approximately $6.24 million.

The court, which had taken under advisement Nationwide's

motion for judgment as a matter of law, ruled first that the jury

was entitled to find that the company's reasons for the

terminations were pretexts. Baralt, 86 F. Supp. at 37. It then

cited, as the evidentiary support for the jury finding of age

discrimination, testimony by Robles that Nationwide had a company-wide retirement plan of which she had taken advantage.(7) Id.

On appeal, Nationwide challenges the district court's denial

of its motion for judgment as a matter of law on the federal and

Commonwealth age discrimination claims and further contends that,

if it is unsuccessful in overturning the liability finding, the

damage awards must be reduced because they are unsupported and

excessive. Plaintiffs filed cross-appeals, claiming that they are

entitled to a higher amount of both damages and attorney's fees.

Our disposition in favor of Nationwide on the merits makes it

unnecessary to address plaintiffs' assertions or Nationwide's

challenge to the amount of damages.

II. Discussion

The primary issue we face is whether the evidence was

sufficient to support the jury's finding of age discrimination.

The parties agree that, if we were to conclude that plaintiffs are

not entitled to recover under Law 100, they also would have failed

to prove age discrimination under the ADEA because Law 100 offers

a "significantly more favorable" standard to plaintiffs than does

the ADEA. Cardona Jimenez v. Bancomercio de Puerto Rico, 174 F.3d

36, 42 (lst Cir. 1999). Our analysis therefore begins with Law

100, and, because we conclude that plaintiffs have not shown a

violation of that statute, it also ends there.

Under Law 100, a plaintiff establishes a prima facie case of

age discrimination by (1) demonstrating that he was actually or

constructively discharged, and (2) alleging that the decision was

discriminatory. Id. If this minimal showing is made, the burden

shifts to the employer to prove by a preponderance of the evidence

that it had "just cause" for its actions. Id. at 42-43; Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 28

(lst Cir. 1998). If the employer establishes just cause, the

burden of proof returns to the plaintiff. Bancomercio, 174 F.3d at

43. If the employer fails to prove just cause, however, it bears

the burden of proving by a preponderance of the evidence that the

decision was not motivated by age discrimination. Id.(8)

Nationwide acknowledges that the record permitted the jury to

find that Baralt and Gonzalez were terminated without just cause,(9)

requiring the company to prove that the dismissals were not

motivated by age-based animus. The company asserts that the total

lack of evidence suggestive of age bias, together with Nationwide's

substantial evidence of a non-pretextual inquiry into improper

activities at the Puerto Rico office, required the jury to reject

plaintiffs' Law 100 claims. We review de novo the district court's

contrary judgment, taking the facts in the light most favorable to

plaintiffs. Id. at 41. For Nationwide to prevail, we must

conclude that "there is no legally sufficient evidentiary basis for

a reasonable jury to find for the plaintiff[s]." Id. at 40.

It is undisputed that the record contains no direct evidence

of age discrimination, not even the sorts of stray remarks that are

suggestive but often found insufficient to prove discrimination in

the absence of more meaningful evidence. See, e.g., Williams v.

Raytheon Co., 220 F.3d 16, 18 (lst Cir. 2000) (rejecting age and

gender claims where supervisor told colleagues that the company was

run by "old, white men," that she intended to change the corporate

culture, and would favor the hiring of women and younger people);

Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (lst Cir. 1998)

(rejecting age discrimination claim where district manager had

asked plaintiff "how old he was and when he planned to retire").

Although Gonzalez, who was 60, was replaced by someone

significantly younger - a 43-year-old - that successor also was

within the protected age group, diminishing the force of the age

difference as an indicator of bias. This solitary fact gains no

strength from the evidence that Baralt's replacement was only two

years his junior, a difference that is insufficient to support even

a prima facie case of age discrimination. See Raytheon, 220 F.3d

at 20. Moreover, the two Cabinet members who were not discharged

also were over 40; Rafael Gonzalez was 57 and Robles was 54.

Lopez, the office vice president, was immediately succeeded by

Robles, who was slightly older than he. The parties have not

identified the ages of Lopez's ultimate replacement or the

replacement for Flores, the fourth Cabinet member who was

terminated. In addition, as noted earlier, there was no evidence

of the ages of the five lower-level employees who were terminated.

Thus, plaintiffs' affirmative showing of age discrimination

consisted entirely of three facts: they were within the protected

class, they were fired, and one of them was replaced by someone

significantly younger -- though that individual was still within the

protected age group.

Nationwide's rationale for the firings, on the other hand, was

far from compelling. Taken in the light most favorable to

plaintiffs, the company's position was that the two men - each with

more than two decades of apparently high quality service to the

company - were terminated summarily for (1) their peripheral

involvement in a series of improper but relatively minor acts in

which their boss and other employees had taken advantage of the

company, and (2) their discussions with co-workers, in violation of

instructions, about the investigation into those improper acts.

Moreover, as we have noted earlier, the circumstances surrounding

the terminations executed by Lucas gave every appearance of an

insensitive overreaction to a series of minor transgressions.

We have no problem accepting that a jury reasonably could

conclude that a large, reputable company would not act as

precipitously as Nationwide could be found to have acted if its

actual concern were the minor transgressions that it claimed

underlay the terminations. In other words, we think the jury was

entitled to disbelieve Nationwide's stated reasons for the firings.

Our problem, rather, arises from the absence of evidence that would

permit a conclusion that the actual reason for the firings was

plaintiffs' ages. For, even in the face of Law 100's presumption,

we conclude that the evidence presented by Nationwide, in the

context of the evidence presented by plaintiffs, was sufficient to

meet its burden under Law 100 to demonstrate that "the existence of

discrimination was less probable than its nonexistence," Belk Arce

v. Martinez, 98 J.T.S. 92 (P.R. 1998), Official Translation at 16.

The evidence was undisputed that Nationwide began

investigating the Puerto Rico office as a result of Baralt's report

concerning Quinones's allegedly fraudulent conduct, and that the

specific probe leading to plaintiffs' dismissals was triggered by

a tip from someone in the office about Lopez's personal use of a

salvage vehicle. Robles corroborated the tip for McGoldrick before

the investigator traveled to Puerto Rico in April 1994. The

inquiry into Lopez's actions led to Gonzalez and Baralt - the

former because of his involvement with the fraudulent automobile

policy and the pool cars, and the latter because he was responsible

for salvage vehicles.

That the investigation unquestionably was triggered by

employees in the Puerto Rico office, rather than by the home office

executives who carried out the terminations, makes it unlikely that

the inquiry was fabricated as a ruse to accomplish age-based

terminations. Moreover, the fact that the investigation was

launched in 1993 rules out any rational theory that it was

conceived as a device to target plaintiffs, each of whom had

received letters of commendation in early 1994.(10) A company seeking

pretextual reasons to discharge employees on the basis of their

advancing ages would be unlikely to offer thanks for those

employees' "efforts and contributions to the successes of this past

year."

Plaintiffs presented no evidence to discredit the authenticity

of the investigation. While, as we have noted, the callous

severity of the punishment in all likelihood moved jurors to doubt

that the discharges occurred for the stated reasons, the evidence

was substantial that the firings were in some way a byproduct of

the home office probe into the Puerto Rico operations. On this

record, various investigation-related explanations for terminating

plaintiffs were much more likely than the completely

unsubstantiated age bias asserted by plaintiffs: Nationwide may

have sought to clean house at the highest levels of NPRO's

management after concluding that "business as usual" there did not

satisfy the company's standards; it may have interpreted reports

from McGoldrick as well as the auditors as indicating a widespread

laxness and invitation to corruption that had to be wiped out; the

company may have decided to terminate any manager who failed to

comply fully with the investigation as a show of authority to

assure fidelity on the part of branch supervisors; the Human

Resources officer, Lucas, may have felt the need to justify the

time and expense of the investigation by terminating a sufficiently

large number of employees, whether or not they in fact committed

wrongdoing, or he may simply have lost perspective and acted

rashly. None of these reasons would support liability under Law

100.

In sum, with virtually no evidence besides the discharges

themselves pointing to age as a factor and none indicating that the

investigation was fabricated by company officials to conceal other

motives, a reasonable jury could not entirely reject the company's

abundant evidence that the terminations stemmed, however unwisely,

from the investigation. Even under Law 100's pro-plaintiff system

of shifting burdens, Baralt and Gonzalez could not prevail with the

mere allegation of age bias that established their prima facie case

once Nationwide presented uncontroverted evidence of a real, if

overly aggressive, inquiry into office protocols. Cf.

Bancomercio, 174 F.3d at 42-43 (reversing jury verdict for

plaintiff under Law 100 where "the closest approximation to

evidence of age discrimination was the basic fact that [plaintiff]

was over 40 when fired and was replaced by someone slightly under

40").

Nationwide's burden to defeat the presumption was to "present

evidence of sufficient quality to convince the judge that the

existence of discrimination was less probable than its

nonexistence," Belk Arce, Official Translation at 16; Ibanez v.

Molinos de Puerto Rico, 114 D.P.R. 42 (1983), Official Translation

at 75-76. Circumstantial evidence is sufficient to meet the

defendant's burden. Ibanez, Official Translation at 72 ("For the

presumption to be rebutted it suffices that [the employer] proves,

even through circumstantial evidence, that the motive for the

discharge was not discriminatory.") (emphasis in original).

Plaintiffs' efforts to counter Nationwide's substantial evidence of

a genuine investigation with proof that they did little or nothing

wrong shores up their claim for unjust dismissal, but such evidence

is not on its own probative of age discrimination. Cf. Feliciano

de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1,

9 (lst Cir. 2000) (affirming summary judgment against plaintiff on

claim of national origin discrimination because "if we remanded for

trial, the jury 'would be left to guess at the reasons behind the

pretext'" (citation omitted)); Ibanez, Official Translation at 77

(reversing trial judge's finding of discrimination under Law 100

where plaintiff offered only "speculative" argument that she was

discharged based on age rather than because of confidentiality

breach).(11)

We have intently scrutinized the Puerto Rico cases cited to us

to see what light they shed on a record as bereft of indicia of

discriminatory intent as this. In every case we have examined,

there was some evidence of discriminatory intent beyond the

allegations necessary to make a prima facie case of

discrimination. In Casto Soto v. Caribe Hilton Hotel, 137 D.P.R.

294 (1994), Official Translation at 12-13, the court noted that

plaintiff not only had rebutted the employer's proffered reason for

termination, but also had submitted evidence of the dominating

presence of under-40 personnel and the company's efforts to create

unfavorable disciplinary records for its older employees. In Belk

Arce, Official Translation at 10-11, there was a consultant's

report indicating anti-marriage animus within the defendant law

firm, as well as a partner's specific anti-marriage statement

referring to plaintiffs. In Sandoval v. Caribe Hilton Int'l, 99

J.T.S. 166 (P.R. 1999), Official Translation at 4, 6, the plaintiff

introduced evidence that new management had instructed supervisors

to exert pressure on older workers to retire.(12)

In a leading case in which the court reversed a judgment for

plaintiff, Ibanez, Official Translation at 76-77, we find a

concatenation of circumstances similar to those present here: a

qualified 63-year-old plaintiff, replaced by a 20-year-old, then a

28-year-old, and finally a 57-year-old individual; and a five-week

delay between the occasion relied on as the cause of discharge

(impermissibly viewing confidential records) and the actual

termination. In other words, a prima facie case had been made and

there was a basis for rejecting the employer's explanation. But

there was no evidence of animus. Five of twelve executive

secretaries in plaintiff's class were over 40, plaintiff herself

had been 60 when hired, and, like plaintiffs in the case at bar,

she had been looked on favorably up until the incident in question.

Having canvassed both the record and caselaw, we conclude that

a decision holding that the requirements of Law 100 were met by the

facts of this case would extend the statute far beyond its intended

reach. If this record were enough, the result would be a virtual

merging of Law 80, which bars unjust dismissals, with Law 100.

Notwithstanding Law 100's presumption, proof of unjust cause cannot

suffice to establish liability where there is considerable evidence

of a non-discriminatory reason for the discharge and no evidence of

age bias other than the employee's age. That this must be so is

evident when one considers the hypothetical claim allowable under

Law 100 of a minority woman over the age of 40 who alleges race,

gender, and age discrimination in a termination arising from

similar circumstances. Without the need for some evidence linked

to the particular animus, she could recover on any, or all, of her

theories by virtue of her protected status. The jury's verdict

would be both speculative and unsupported with respect to each

claim.

Plaintiffs may well have been terminated too precipitously,

but we conclude that Nationwide met its burden to demonstrate, by

a preponderance of the evidence, that Baralt and Gonzalez were not

fired on account of age.

The judgments for plaintiffs on the age discrimination counts

are therefore reversed, the award of attorney's fees is vacated,

and the case is remanded for further proceedings as necessary to

enter judgment in connection with the claim for unjust dismissal

under Law 80.

1. That probe eventually led Nationwide's auditors to suspect

substantial losses, specifically, that Quinones and an accomplice

had defrauded the company of $320,000 through payments for

nonexistent property damage.

2. The hearsay rule prevented McGoldrick from specifically

relating what the two employees said to her, but she testified

that, after the first such encounter, she went to Gonzalez's office

and said: "Stay out of this investigation. You're intimidating

people, they're afraid to talk, they're crying." After the second

encounter, she said she asked Gonzalez "to please refrain from

contacting our people because it could be subject to disciplinary

action up until grounds for termination."

3. A Nationwide Human Resources officer, James Lucas,

testified that both Baralt and Gonzalez admitted during interviews

that they had spoken to employees about the investigation, but both

denied at trial that they had spoken to coworkers about the

inquiry.

4. Robles testified that employees who used pool cars were

required to obtain permission and record in a log the reason for

the use and the specific period of time the car was needed.

5. Plaintiffs' counsel elicited evidence indicating that the

policy was renewed after the terminations, although Robles also

testified that Lopez was required to pay additional premiums for

"the discrepancies" in the application.

6. Law 100 also bars employment discrimination because of race,

color, gender, social or national origin, social position,

political affiliation, political or religious ideology, and marital

status. P.R. Laws Ann. tit. 29, § 146.

7. As we have elsewhere observed, an offer of early retirement

is not, on its own, evidence of discriminatory animus. See

Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d

17, 27 (lst Cir. 1998); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476,

480 (lst Cir. 1993). A fortiori, an early retirement plan

embracing all of a company's many branches throughout the nation is

even more distanced from proof of animus. Were this not so, a host

of progressive companies with such policies would be surprised to

find themselves vulnerable to age discrimination suits.

8. The burden-shifting framework under the ADEA requires more

of a showing by the plaintiff, beginning with the prima facie case.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);

Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (lst Cir. 2000). To

establish a prima facie case, the plaintiff must show that: (1) he

was at least 40 years old; (2) his job performance was meeting the

employer's legitimate job expectations; (3) he was fired or

suffered other adverse employment action attributable to the

employer; and (4) the employer had a continuing need for the same

services he had been performing. Suarez, 229 F.3d at 53. If this

showing is made, a presumption of discrimination attaches.

Bancomercio, 174 F.3d at 41. The employer at that point need only

articulate a legitimate, non-discriminatory reason for the

termination to shift the burden back to the plaintiff to prove by

a preponderance of the evidence that the employer's reason was a

pretext and that the real reason was age-based animus. Id.

Although the employer in this framework briefly has the burden of

producing a legitimate reason for the discharge, the burden of

persuasion always remains on the employee. Id.

9. Although the company states that it assumes only arguendo,

for purposes of the appeals, that the record supports such a

finding, the jury made the specific determination that the company

had violated Law 80 by discharging each plaintiff without just

cause. The company did not appeal the Law 80 verdicts.

10. Both received letters dated March 4, 1994, from the senior

vice president for business operations, William P. DeMeno, with

information about their payments under the 1993 Management

Incentive Plan.

11. The strength of Nationwide's evidence of a legitimate

investigation distinguishes this case from Reeves v. Sanderson

Plumbing Prods., Inc., 120 S. Ct. 2097, 2104 (2000), in which the

Supreme Court upheld a jury's finding of an ADEA violation based on

plaintiff's prima facie case and "sufficient evidence for a

reasonable factfinder to reject the employer's nondiscriminatory

explanation for its decision." Although Law 100 differs from the

ADEA in that the defendant bears the burden of disproving

discrimination, the factors we consider in assessing the evidence

are the same:

the strength of the plaintiff's prima facie case, the

probative value of the proof that the employer's

explanation is false, and any other evidence that

supports the employer's case and that properly may be

considered on a motion for judgment as a matter of law.

Id. at 2109. Here, as we have explained, consideration of these

factors, including the failure of plaintiffs' evidence to "shed any

light on . . . [the employer's] true reason for firing" them,

Feliciano de la Cruz, 218 F.3d at 8, reveals "the particular

weakness" of plaintiffs' case, id. at 10.

12. We note that Sandoval constitutes a "judgment," rather than

an opinion of the Puerto Rico Supreme Court, and therefore carries

no precedential value beyond the "'intrinsic persuasive value of

its rationale.'" Clemente v. Carnicon-Puerto Rico Mgmt. Assocs., 52

F.3d 383, 389 n.6 (lst Cir. 1995) (quoting Rivera Maldonado v.

Commonwealth of Puerto Rico, 119 D.P.R. 74 (1987) (Official English

Translation, No. R117, slip op. at 4-5)),abrogated on other

grounds by United States v. Gray, 199 F.3d 547 (lst Cir. 1999).

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