United States Court of Appeals For the First Circuit

No. 18-1990

ANTONIO SANTANA-VARGAS,

Plaintiff, Appellant,

v.

BANCO SANTANDER PUERTO RICO; SANTANDER FINANCIAL SERVICES, INC.,

Defendants, Appellees.

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

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

Carlos R. Paula, with whom Jaime E. Picó-Rodríguez and Labor Counsels, LLC were on brief, for appellant. Alberto J. Bayouth-Montes, with whom Carlos E. George-Iguina and O'Neill & Borges LLC were on brief, for appellees.

January 27, 2020 KAYATTA, Circuit Judge. Antonio Santana-Vargas

("Santana"), a former branch manager at Santander Financial

Services, claims that Santander Financial Services and Banco

Santander fired him because of his age in violation of the Age

Discrimination in Employment Act of 1967 ("ADEA"),

et seq., and Puerto Rico law. The district court granted summary

judgment to the defendants on Vargas's ADEA claim and relinquished

supplemental jurisdiction over his claims under Commonwealth law.

See Santana-Vargas v. Santander Fin. Servs., Inc., No. 15-cv-1521,

(D.P.R. Sept. 4, 2018) (unpublished opinion).

Santana now appeals the district court decision. For the following

reasons, we affirm.

I.

We set forth the facts of this case "in the light most

favorable to" Santana. Del Valle-Santana v. Servicios Legales de

Puerto Rico, Inc.,

(1st Cir. 2015). Santana

began work as a collections agent at Island Finance in 1986. He

received various promotions over the years and ultimately became

a branch manager in 2001. In March 2006, Santander Financial

acquired Island Finance, and Santana became an employee of

Santander Financial (and, according to Santana, of Banco

Santander). Santana's success at the company eventually stalled.

Beginning in 2009 and continuing through 2013, Santana's

supervisors documented his and his branches' underperformance. In

- 2 - March or April 2014, Santana was placed on a six-month performance

improvement plan. The defendants' reports from May and June of

2014 state that Santana failed to comply with the plan. He was

fired in August -- before the plan ran its full course. By that

time, Santana was forty-nine years old and had worked at Island

Finance or Santander Financial for twenty-eight years. His

replacement was thirty-two.

II.

A.

Santana offers no direct proof of age discrimination.

Rather, to prove that he was fired on account of his age, he relies

on indirect proof under the so-called McDonnell-Douglas framework.

See McDonnell Douglas Corp. v. Green,

, 802–05 (1973).

Under that framework, he can make out a prima facie case by showing

that:

(i) [he] was at least 40; (ii) [his] work was sufficient to meet the employer's legitimate expectations; (iii) [his] employer took adverse action against [him]; and (iv) either younger persons were retained in the same position upon [his] termination or the employer did not treat age neutrally in taking the adverse action.

Del Valle-Santana, 804 F.3d at 129–30 (citing Brennan v. GTE Gov't

Sys. Corp.,

(1st Cir. 1998)). To rebut the

presumption of discrimination generated by a prima facie case, the

defendants must then "articulate a legitimate, nondiscriminatory

- 3 - reason for dismissing the employee."

. If the

defendants successfully do so, "the presumption vanishes and the

burden shifts once again."

At that point, Santana must point

to evidence sufficient to show that the defendants' given reason

was pretextual and that age was the true cause of his termination.

The district court found that Santana's claim failed at

the first step because he failed to "put forth evidence that he

was complying with the legitimate job performance expectations for

his position." See Santana-Vargas,

, at *11-12.

"[O]ut of an abundance of caution," the district court also went

on to apply the entire burden-shifting framework in its analysis,

finding that Santana failed at each step.

. We

review the district court's reasoning de novo. Murray v. Kindred

Nursing Ctrs. W. LLC,

(1st Cir. 2015).

B.

The requirement that the plaintiff show he was meeting

the defendants' legitimate performance expectations is "not

particularly onerous." Meléndez v. Autogermana, Inc.,

(1st Cir. 2010) (citing Benoit v. Tech. Mfg. Corp.,

(1st Cir. 2003)); see also Vélez v. Thermo King de

Puerto Rico, Inc.,

(1st Cir. 2009) ("We have

described this prima facie showing as 'modest,' and a 'low

standard.'" (quoting Rathbun v. Autozone, Inc.,

, 71

- 4 - (1st Cir. 2004) and Zapata-Matos v. Reckitt & Colman, Inc.,

(1st Cir. 2002))). Whether the district court

correctly found that Santana failed to make this prima facie

showing poses a close question that we need not decide.

We instead take advantage of the district court's

caution and assume that Santana has established a prima facie case.

We train our focus on whether a reasonable jury could find pretext.

The defendants clearly advanced a legitimate reason to terminate

Santana: his poor performance documented by over three years of

poor reviews. And for the reasons set out by the district court,

Santana has failed to show that his poor performance reviews were

pretextual. See generally Santana-Vargas,

; see

also Seaco Ins. Co. v. Davis-Irish,

(1st Cir. 2002)

("[W]hen a lower court accurately takes the measure of a case and

articulates a cogent rationale, it serves no useful purpose for a

reviewing court to write at length."). We also agree generally

with the district court's analyses of Santana's allegations of

disparate treatment and a hostile work environment (including

possibly biased remarks by higher-ups in the companies and the

deprivation of tools to accomplish business goals). See Santana-

Vargas,

, at *14–15, *16–18.

We add only a response to Santana's argument on appeal

that the defendants' decision to let him go before he completed

his six-month performance improvement plan showed pretext. The

- 5 - March 2014 letter setting out the plan made clear that Santana

could lose his job if he "fail[ed] to comply [with] and

successfully surpass" the minimum requirements set forth in the

plan. The plan neither stated nor implied that Santana could not

be fired until six months had run. Rather, it pointed to an

expected performance score of 2.65, and stated that he would be

"monitored monthly . . . for a period of six (6) months," warning

that a failure to comply could result in dismissal. Santana signed

that letter on April 4, 2014. He then promptly failed to meet the

minimum performance requirements in April and May, in each month

rating even less than he had before the plan began. So it was not

as if Santana was not given a chance to show that he could meet

expectations for six consecutive months. Rather, he failed from

the outset. Santana does argue that his branch's "production

numbers" improved in May, June, and July 2014. But he makes no

argument that the numbers satisfied the plan's minimum

requirements. On such a record, we see no reasonable basis for

inferring age discrimination from the fact that the defendants

chose not to overlook his initial and repeated failures.

Santana also points to another employee whose

performance improvement plan was extended after the first six

months. But there is no evidence in the record about that other

employee's work, her progress during her improvement plan, or her

history of performance at the company. Although evidence "that an

- 6 - employer has deviated inexplicably from one of its standard

business practices," can demonstrate pretext, Kouvchinov v.

Parametric Tech. Corp.,

(1st Cir. 2008), Santana

has failed to put forward evidence to establish any real deviation

here.

C.

The district court declined to exercise supplemental

jurisdiction over Santana's state-law claims given its decision

that the ADEA claims failed. See Santana-Vargas,

,

at *18. Although state law claims should often be dismissed when

"the federal claims are dismissed before trial," United Mine

Workers of Am. v. Gibbs,

(1966), "a district

court must exercise 'informed discretion' when deciding whether to

assert supplemental jurisdiction over state law claims," Redondo

Const. Corp. v. Izquierdo,

(1st Cir. 2011) (quoting

Roche v. John Hancock Mut. Life Ins. Co.,

, 256–57 (1st

Cir. 1996)). Courts must consider "concerns of comity, judicial

economy, convenience, and fairness."

(citing Roche,

).

We have previously found that a district court abused

its discretion in dismissing state-law claims where the case had

been pending for six years, the trial was only four days away, the

discovery that had already been taken was relevant to the state-

law claims, the plaintiff would have faced a significant burden in

- 7 - shifting to litigate the state-court claims in Spanish instead of

English, and principles of comity did not favor dismissal because

the state-law issues required only an additional damages

calculation.

at 49–50. We have also found that a district

court acted within its discretion by continuing to exercise

supplemental jurisdiction where "[t]he litigation had matured well

beyond its nascent stages." Roche,

.

This litigation was also well beyond its nascent stages,

having been pending for three years by the time it was dismissed.

Although a final trial date was not yet set, discovery was

complete, presumably largely in English. And there is clearly

some substantive overlap between the federal and Commonwealth

claims. Nevertheless, the premise of Santana's continuing

litigation will be that the Commonwealth causes of action are

indeed materially different. And the defendants, who would benefit

most from retention if the differences in the applicable law are

not material, raise no objection to the district court's decision.

All in all, while retention was certainly an option, the district

court did not exceed the outer boundary of its discretion in

declining to exercise continued supplemental jurisdiction.

III.

For the foregoing reasons, we affirm the district

court's grant of summary judgment to the defendants and its

dismissal without prejudice of the non-federal claims.

- 8 -