United States Court of Appeals For the First Circuit

No. 19-2249

LUZ GONZÁLEZ-BERMÚDEZ,

Plaintiff, Appellee,

v.

ABBOTT LABORATORIES P.R. INC.; KIM PÉREZ,

Defendants, Appellants.

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

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

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Virginia A. Seitz, with whom Kathleen Moriarty Mueller, Sidley Austin LLP, Ricardo F. Casellas Sánchez, Carla S. Loubriel, and Casellas Alcover & Burgos PSC were on brief, for appellants. Juan Rafael González Muñoz, with whom Juan C. Nieves- González, González Muñoz Law Offices, P.S.C., Carlos M. Vergne- Vargas, and Law Office of Carlos Vergne were on brief, for appellee.

March 3, 2021 KAYATTA, Circuit Judge. After being demoted, threatened

with termination, and denied several promotions in 2013 and 2014,

Luz González-Bermúdez filed suit against her employer, Abbott

Laboratories, and her direct supervisor, Kim Pérez (collectively,

"Abbott"), alleging age discrimination and retaliation under the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–34;

Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146–51; and Puerto

Rico Law 115, id. §§ 194–194b. After a six-day trial, the jury

found for González, awarding back pay in the amount of $250,000

and an additional $4 million for emotional distress. The district

court upheld the liability verdict and entered judgment against

Abbott on all counts but reduced the damages to just over $500,000

(to be doubled under Law 100, see id. § 146(a)(1)). On appeal,

Abbott argues that the evidence was insufficient to support the

jury's verdict. For the following reasons, we find that Abbott is

entitled to judgment as a matter of law on González's ADEA claims

and her corresponding claims under Law 100 and Law 115. But

because Abbott failed to preserve its challenge to the jury's

separate finding that Abbott retaliated against González for

reporting to the State Insurance Fund (SIF), in violation of

Law 115, we decline to upset the jury's verdict in that respect.

I.

We begin by briefly summarizing the facts, viewing the

record in the light most favorable to González and drawing all

- 2 - reasonable inferences in her favor. See Muñoz v. Sociedad Española

de Auxilio Mutuo y Beneficiencia de P.R.,

(1st

Cir. 2012). González began working at Abbott Laboratories in 1984.

Over the next twenty-five years, she eventually became a National

Sales Manager, which was designated as a Level 18 position on the

Abbott Laboratories pay scale. In November 2010, Abbott underwent

a reorganization and eliminated González's position, as well as

the positions of two other employees, Rocio Oliver and Dennis

Torres. All three employees accepted transfers to lower-level

positions. As a result, González assumed the role of Institutional

Marketing Manager, a newly created Level 17 position supervised by

Kim Pérez. González does not challenge the lawfulness of this

transfer.

González's transition to the new position was less than

smooth. She disliked Pérez's style of supervision, and in November

2011 she filed an internal complaint against Pérez for harassment,

which was ultimately found unsubstantiated. In addition to getting

used to a new supervisor, González had to adjust to a new workload:

While she had previously supervised twenty-eight employees in her

role as a National Sales Manager, she was expected to complete her

tasks independently in her new Institutional Marketing Manager

position. At trial, González admitted that she was unable to

timely perform all the duties of her new position, resulting in a

"partially achieved" performance rating for 2011 -- her first ever

- 3 - negative performance evaluation at Abbott. González's duties were

subsequently redistributed at her request, and she received an

overall positive "achieved expectations" rating for 2012.

However, she still received a negative "partially achieved" rating

for two categories of tasks relating to communication,

organization, and meeting deadlines.

On March 18, 2013, Abbott reassigned González to a

Level 15 Product Manager position supervised by Pérez. At trial,

Pérez testified that the reassignment decision was made to reflect

the duties González had been performing since some of her

responsibilities from the Level 17 position were redistributed in

2012. González, by contrast, testified that she believed she was

demoted in 2013 because of her age: She was fifty-three years old

at the time, and the two other employees who had accepted lower-

level positions as a result of the 2010 reorganization, Oliver

(age forty-four) and Torres (age forty-one), were not similarly

demoted.

Upon learning that she was being demoted on March 18,

2013, González experienced symptoms of anxiety and immediately

reported to the company doctor. On the doctor's advice, she

reported to the SIF and was placed on rest until July 10, 2013.

But she returned to work just a few weeks later, cutting her

medical leave short, after receiving a letter from Abbott

- 4 - threatening to terminate her employment if she did not report to

work by April 8, 2013.

According to González's 2013 mid-year performance

evaluation, González continued to miss project deadlines after

returning to work. Nevertheless, González testified that based on

her mid-year review, she believed she was "on track" and achieving

the expectations of her position. One month later, in mid-October

2013, González's attorneys informed Pérez that González intended

to sue her for age discrimination, based on the March 2013 demotion

decision. Later that month, González filed an administrative claim

of age discrimination. According to González's testimony at trial,

her professional relationship with Pérez worsened after she filed

her complaint of age discrimination. For example, González

testified that Pérez deprived her of information she needed to

participate in a meeting held on October 30, 2013.

In November 2013, González became aware that a Level 16

Senior Product Manager position had opened up. She emailed Matt

Harris, Abbott's general manager in Puerto Rico, expressing her

interest in the position and her belief that she had not been

informed of the opening out of retaliation for her complaint of

age discrimination. Unbeknownst to González, Abbott had begun

recruiting externally for the position via LinkedIn in August 2013.

After receiving González's email, Harris had the position posted

internally so that Abbott employees could compete with external

- 5 - candidates. González subsequently submitted her name for

consideration. Meanwhile, the hiring committee designed the

process by which they would select a candidate to fill the

position. In doing so, the members of the hiring committee --

Harris, Pérez, and two members of Abbott's human resources

department -- discussed González's discrimination complaint among

themselves and with counsel. After conducting an initial review

of the candidate slate, the hiring committee selected three

finalists -- González and two external candidates.

In December 2013, the hiring committee interviewed

González and the other two finalists for the Senior Product Manager

position. After the interviews, the hiring committee informed all

three finalists that they would each be required to give a mock

sales presentation the following day. González had never heard of

such a requirement in an Abbott interview process. And she thought

it was unnecessary for her to fulfill such a requirement because

she had given similar presentations in the course of her employment

at Abbott to various individuals, including members of the hiring

committee. Concluding that the presentation requirement was

imposed specifically to prevent her promotion, González refused to

participate. Despite her withdrawal from the presentation

component of the selection process, González emailed one of the

members of the hiring committee two days later to reiterate her

interest in the position, at which point she was informed that one

- 6 - of the other finalists -- who had fulfilled the presentation

requirement -- had already been hired.

In January 2014, González sought to be promoted to a

Level 18 Regional Sales Manager position that had been posted

internally. The following month, she received her end-of-year

evaluation for 2013. Pérez had given her an overall negative,

"partially achieved" performance rating, rendering her ineligible

for promotion in 2014 according to Abbott's general policy or

practice. Pérez testified at trial that she gave González a

negative evaluation because González had repeatedly missed

deadlines and lost her composure with colleagues when confronted

about her untimely work. González did not specifically dispute

the contents of the evaluation but disagreed with Pérez's overall

assessment of her performance and requested that the human

resources department conduct its own review. In connection with

that request, she asked that her emails from 2013 be reinstated,

but was informed that the emails had already been deleted and could

not be retrieved. Hearing this, González filed an administrative

complaint for retaliation.

While González's request for review of her performance

evaluation and her administrative complaints were pending, Abbott

determined that a different employee should be promoted to the

Level 18 Regional Sales Manager position. Because promoting that

employee would leave a Level 16 Senior District Manager position

- 7 - open, Abbott began looking for yet another employee to promote.

Harris directed the hiring committee to keep this news quiet, but

González found out about the Senior District Manager opening anyway

and emailed Harris in March 2013 asking to be considered. Harris

flatly denied her request, stating that she had failed to meet

minimum expectations in several areas for the last three years.

Ultimately, Abbott preselected another employee for the Senior

District Manager position without requiring her to compete with

other candidates for the promotion.

In April 2014, the human resources department developed

a "Talent Management Review" document, which listed developmental

actions and future potential promotions for some Abbott employees.

The document did not identify any developmental actions or

potential promotions for González. Nor was González placed on an

official "performance improvement plan" to help her raise her

performance rating from a negative "partially achieved" in 2013 to

a positive "achieved expectations" in 2014. González nevertheless

received a positive performance evaluation for both 2014 and 2015,

albeit from a new supervisor.

II.

We review de novo the district court's denial of Abbott's

motion for judgment as a matter of law. See Muñoz,

. Reversal is appropriate only if, based on the evidence in the

record, "reasonable persons could not have reached the conclusion

- 8 - that the jury embraced."

(quoting Sanchez v. P.R. Oil Co.,

(1st Cir. 1994)).

A.

We begin with González's claim of age discrimination.

This claim is based solely on her demotion in March 2013. The

district court held that the jury could have found age

discrimination under both the ADEA and Law 100 on a theory of

disparate treatment, citing evidence that two employees younger

than the fifty-three-year-old González -- Rocio Oliver (age forty-

four) and Dennis Torres (age forty-one) -- were not demoted in

2013.

This was error. "[I]n order to be probative of

discriminatory animus, a claim of disparate treatment 'must rest

on proof that the proposed analogue is similarly situated in

material respects.'" Vélez v. Thermo King de P.R., Inc.,

(1st Cir. 2009) (quoting Perkins v. Brigham & Women's

Hosp.,

(1st Cir. 1996)). Though the comparison

cases "need not be perfect replicas," García v. Bristol-Myers

Squibb Co.,

(1st Cir. 2008) (quoting Conward v.

Cambridge Sch. Comm.,

(1st Cir. 1999)), they must

be similar enough that "apples are compared to apples," Cardona

Jiménez v. Bancomercio de P.R.,

(1st Cir. 1999)

(alteration omitted) (quoting Dartmouth Rev. v. Dartmouth Coll.,

(1st Cir. 1989)).

- 9 - No matter how generously one views the trial record, it

is apparent that Oliver and Torres were not similarly situated to

González in several important respects. Although Oliver and

Torres, like González, saw their positions eliminated as a result

of Abbott's reorganization three years earlier in 2010, this at

most shows that they were similarly situated to González in one

respect in 2010. For the next three years, Oliver and Torres

occupied lower positions, performed different duties, and reported

to different supervisors than did González. See García, 535 F.3d

at 32–33 (finding two employees not similarly situated where they

held different positions and had different responsibilities);

Rodríguez-Cuervos v. Wal-Mart Stores, Inc.,

, 20–21

(1st Cir. 1999) (finding two employees not similarly situated where

the employees had different supervisors and worked under different

circumstances). Moreover, there is no evidence in the record

regarding Oliver and Torres's job performance between 2010 and

2013, which would be necessary for González to establish that

Abbott discriminated against her by demoting her without also

demoting Oliver and Torres. See Alvarez-Fonseca v. Pepsi Cola of

P.R. Bottling Co.,

(1st Cir. 1998) (rejecting a

disparate treatment claim where two employees had different

performance records). In sum, if Oliver and Torres were apples in

2013, González was not even a fruit.

- 10 - Without this unsuitable comparator evidence, González is

left with no evidence that in any way suggests that she was demoted

in March 2013 because of age discrimination. At oral argument,

counsel could cite none. In her brief, González tries to rely on

the fact that months later, after she asserted her claim that the

March 2013 demotion was discriminatory, Pérez mentioned the claim

while discussing the selection process for the Senior Product

Manager position. But an employer's awareness that a

discrimination claim has been made hardly provides evidence that

the claim is valid. Otherwise, there would necessarily be evidence

of discrimination in every case of claimed discrimination.1

The district court speculated that perhaps Pérez had

designed the Level 17 job to which González was transferred in the

2010 reorganization to be so difficult that González would fail in

it. But there is no evidence to support this rather remarkable

speculation, and even González did not challenge her transfer to

the new position in 2010. See Brandt v. Fitzpatrick,

(1st Cir. 2020) (explaining that a plaintiff cannot avoid

judgment as a matter of law in an employment discrimination case

based on "rank conjecture," "improbable inferences," and

"unsupported speculation" (first quoting Pina v. Children's Place,

1 By contrast, awareness of a claim is certainly relevant (indeed necessary) to establishing a retaliatory motive for a subsequent adverse employment action. Medina-Rivera v. MVM, Inc.,

(1st Cir. 2013).

- 11 -

(1st Cir. 2014); then quoting Ray v. Ropes &

Gray LLP,

, 116–17 (1st Cir. 2015))).

Nor is there evidence showing that Abbott told any

material lies that might in context have been viewed as attempts

to conceal a discriminatory motive. The district court found that

the jury could have reasonably believed Abbott "had something to

hide," citing only the rather trivial disagreement among Abbott

witnesses about whether González's 2013 demotion should be

characterized as a "demotion" or a "transfer." This evidence does

not support an inference of discrimination. See Zapata-Matos v.

Reckitt & Colman, Inc.,

(1st Cir. 2002) (explaining

that courts must weigh the evidence "case by case," asking "not

whether the explanation was false, but whether discrimination was

the cause" of the adverse employment action).

There is evidence that González and Pérez had a difficult

professional relationship from the get-go, leading González to

file an unsubstantiated harassment claim against Pérez back in

2011. The district court, too, found Pérez to be "haughty" while

on the stand at trial. But that stands far removed from proving

discrimination. If anything, it suggests that the two simply did

not get along.

González falls back on a claim of waiver, asserting that

Abbott failed to preserve its challenge to the sufficiency of the

evidence on the age discrimination claim concerning the March 2013

- 12 - demotion. Abbott moved for judgment as a matter of law pursuant

to Rule 50(a) at the close of the evidence, arguing that there was

"no direct evidence of discrimination" and not "a scintilla of

evidence" that the elimination of González's position was

"associated" with any "lies." But in staking out that position,

Abbott did not specifically mention and refute the comparator

evidence that González relied on in attempting to prove age

discrimination. Therefore, reasons González, Abbott waived the

right to make any arguments concerning that evidence.

We disagree. A party certainly must move for judgment

as a matter of law under Rule 50(a) at the close of the evidence

in order to preserve fully the ability to press a renewed motion

for judgment as a matter of law under Rule 50(b) after the verdict.

See Osorio v. One World Techs., Inc.,

(1st Cir.

2011). Here, Abbott indisputably filed a timely motion under Rule

50(a) at the close of the evidence and specifically asserted that

there was no evidence to support the age discrimination claim.

Our caselaw does not as a general matter require more specificity.

See

("[Rule 50(a)] does not require technical precision

in stating the grounds of the motion." (alteration in original)

(quoting Lynch v. City of Boston,

, 13 n.9 (1st Cir.

1999))). Otherwise, Rule 50(a) motions -- often made while the

jury awaits argument and instructions -- would necessarily turn

into lengthy analyses of every possible piece of evidence in the

- 13 - other party's possible favor. In this very case, the district

court told counsel to "make it very short because I know what the

evidence is. So just make it short." When Abbott later filed its

Rule 50(b) motion, which specifically pointed out the

insufficiency of González's comparator evidence, the district

court expressed no surprise and found no waiver. Finally, the

record suggests that no more precision was necessary to avoid

prejudice to González. There is, in short, no reason to find that

Abbott lost the opportunity to explain on appeal why it was correct

in timely asserting that there was no evidence of age

discrimination in the March 2013 demotion.

Finding no waiver and no evidence that González was

demoted in March 2013 because of her age, we conclude that the

evidence at trial was not sufficient to support a verdict against

Abbott for age discrimination under the ADEA. And while González

correctly points out that Law 100 shifts the burden of proof to

the employer on the issue of discrimination if the challenged

employment action is unjust, see Alvarez-Fonseca,

,

she has not put forth any evidence of unjustness in her demotion.

Even if she had, Abbott established a total absence of evidence

that its actions were motivated by González's age.2 See Baralt v.

2 Because the jury could not reasonably have found that Abbott demoted González because of her age, we need not decide whether Kim Pérez (González's supervisor) could have been held personally liable for age discrimination under Law 100.

- 14 - Nationwide Mut. Ins. Co.,

, 17–21 (1st Cir. 2001)

(rejecting the plaintiffs' Law 100 claim because the record was

"bereft of indicia of discriminatory intent").

B.

We turn next to González's retaliation claims under the

ADEA and Law 115. Both statutes prohibit an employer from taking

adverse employment action against an employee because of her

protected activity. See Rivera-Rivera v. Medina & Medina, Inc.,

(1st Cir. 2018). The district court held that

the evidence at trial was sufficient for the jury to find Abbott

liable for retaliating against González on three separate

occasions. We address each in turn.

1.

At trial, González argued that Abbott retaliated against

her in violation of Law 115 by threatening her with termination

after she reported to the SIF. Recall that after González was

informed of her demotion in March 2013, she reported to the SIF

and went on medical leave. Approximately one to two weeks later,

she received a letter from Abbott stating that if she did not cut

her medical leave short and return to work, Abbott would terminate

her employment. Presumably based on that threat of termination,

the jury found that Abbott retaliated against González for

reporting to the SIF, which is undisputedly protected activity for

purposes of Law 115. The district court upheld this aspect of the

- 15 - jury's verdict, finding that Abbott had waived any objection in

its Rule 50(a) motion.

On appeal, Abbott suggests that the SIF claim could not

support a finding of retaliation under Law 115 because a threat of

termination is not an adverse employment action. But it provides

no support for this proposition, and it does not attempt to explain

why the contrary authorities cited by the district court are

inapplicable. And insofar as Abbott argues that its letter

threatening to terminate González's employment was authorized by

Puerto Rico law and thus could not constitute unlawful retaliation

under Law 115, it does not adequately develop that argument on

appeal. Nor does it develop any argument as to why the district

court's Rule 50(a) waiver ruling was wrong. Rather, it simply

states that it "strongly disagree[s]" with the district court's

logic. We therefore deem Abbott's contentions regarding

González's SIF claim waived for lack of sufficient argumentation,

see United States v. Zannino,

(1st Cir. 1990), and

affirm the district court's decision to the extent that it upholds

the jury's verdict on that claim under Law 115.

- 16 - 2.

González's second theory of retaliation arises out of

Abbott's refusal to promote her to the Senior Product Manager

position in December 2013, following her complaint of age

discrimination against Pérez in October 2013. The district court

held that the jury could have believed that the selection process

for this position was intentionally stacked against González and

that her non-promotion was therefore retaliatory.

In a retaliatory failure-to-promote case, a plaintiff

must ordinarily show, among other things, that "she applied for a

particular position . . . for which she was qualified." Velez v.

Janssen Ortho, LLC,

(1st Cir. 2006). No

reasonable jury could find that González has met this threshold

burden. The undisputed evidence in the record shows that González

refused to participate in the mock-presentation component of the

application process. As such, she voluntarily forfeited her

eligibility for promotion to the Senior Product Manager position.

Cf. Zabala-De Jesus v. Sanofi-Aventis P.R., Inc.,

,

430–31 (1st Cir. 2020) (holding that an employer did not

discriminate against the plaintiff by failing to hire him for a

position for which he did not apply); Love v. Alamance Cnty. Bd.

of Educ.,

(4th Cir. 1985) (rejecting a claim

of discriminatory non-promotion where the employee withdrew her

application).

- 17 - Of course, if an employer makes it clear that completing

the application process is futile on account of a potential

applicant's recent complaint of age discrimination, then the law

may require only that the plaintiff show that she would have

otherwise applied for and obtained the job. Cf. Int'l Bhd. of

Teamsters v. United States,

(1977) ("If an

employer should announce his policy of discrimination by a sign

reading 'Whites Only' . . . , his victims would not be limited to

the few who ignored the sign and subjected themselves to personal

rebuffs."). We might also imagine an extreme case in which an

employer unlawfully made it impossible or dangerous for a person

to complete the application process.

This is not such a case. González only argues that the

sales presentation was not a usual part of Abbott's hiring process.

That is beside the point. It was plainly job-related, and it was

required equally of all the finalists who were selected to

interview for the position. Perhaps she would have done well.

Perhaps not. We do not know only because she did not try. As a

general rule, it is not for the plaintiff to predict the employer's

hiring decision and then claim to be the victim of that predicted

decision. See Brown v. Coach Stores, Inc.,

(2d

Cir. 1998) ("It would be unthinkable to routinely permit non-

applicant plaintiffs in individual suits to recover . . . based on

what amounts to mere speculation that they would have been rejected

- 18 - for discriminatory reasons had they applied." (quoting 1 Lex

K. Larson, Employment Discrimination § 8.02[2], at 8-30-8–31 (2d

ed. 1997))); see also Hoffman-García v. Metrohealth, Inc.,

(1st Cir. 2019) (describing the plaintiff's failure

to apply for the position at issue as a "fatal defect").

González also suggests that her failure to complete the

application process for the Senior Product Manager position is not

dispositive because Abbott had already retaliated against her by

requiring her to apply in the first place, given that other Abbott

employees were offered promotions without having to compete with

external candidates. However, the undisputed evidence in the

record shows that Abbott began soliciting external candidates for

the Senior Product Manager position in August 2013, well before

González engaged in protected activity by filing her age

discrimination complaint against Pérez in October 2013. So

Abbott's failure to offer González the Senior Product Manager

position outright could not have been a retaliatory response to

her October 2013 complaint of age discrimination.3 See Morón-

Barradas v. Dep't of Educ.,

(1st Cir. 2007) ("It

3 Having determined that González's failure to complete the application process for the Senior Product Manager position in December 2013 bars her corresponding retaliation claim, we need not consider her other arguments for why the jury could have found retaliation.

- 19 - is impossible for [an employer] to have retaliated against [an

employee] before she engaged in protected activity.").

3.

Finally, the district court held that the jury could

have reasonably found Abbott liable for retaliating against

González in violation of the ADEA and Law 115 by giving her a

"partially achieved" performance evaluation for 2013 and then

denying her two promotions in early 2014. On appeal, Abbott argues

that the record lacked sufficient evidence for a reasonable jury

to find that either the 2013 performance evaluation or the 2014

non-promotions were motivated by retaliatory animus rather than

legitimate business judgments.

a.

González's claim that her worse performance evaluation

for 2013 was retaliatory rested primarily on chronology: She

testified that she received a favorable rating from Pérez at her

mid-year evaluation in September 2013, then filed her claim of age

discrimination against Pérez in October 2013, and then received

the less favorable end-of-year review from Pérez in February 2014.

So, she reasons, the "drop" from mid-year to end-of-year must have

been a retaliatory response to her October claim.

Chronology alone can sometimes support an inference of

improper motive, but only where the circumstances make such an

inference reasonable. See Colburn v. Parker Hannifin/Nichols

- 20 - Portland Div.,

, 337–38 (1st Cir. 2005). The immediate

problem with González's reasoning is that she had also filed an

internal complaint against Pérez in 2011, before the 2013 mid-year

review. Yet, says González, that was a good and fair review. So

we question the reasonableness of any inference that the lesser

end-of-year review was necessarily the result of González's

October 2013 claim against Pérez, and ask whether something else

accounts for the lower review.

The record answers that question in the affirmative. It

contains undisputed evidence that González's performance worsened

after her mid-year evaluation had been completed. According to

the mid-year evaluation, she missed only three deadlines in the

first eight months of 2013 -- one on January 15, one on July 15,

and one on August 1. The end-of-year evaluation indicates that

González missed at least three more deadlines over just the next

four months -- including one on September 30, one in mid-October,

and one on November 5 -- and failed altogether to complete one of

the late projects that had been discussed at her mid-year

evaluation. These facts are not disputed by González, and they

buttress the unreasonableness of any inference of retaliation

arising from the chronology she relies on. See

at 336–38

(finding that the timing of the plaintiff's termination raised no

inference of retaliation because, during the period between his

protected conduct and his termination, his employer determined

- 21 - that he had lied about his reasons for being absent from work on

two occasions); Mesnick v. Gen. Elec. Co.,

(1st

Cir. 1991) (similar).

The district court nevertheless suggested that the jury

reasonably could have disbelieved Abbott's missed-deadlines

argument because Abbott had deemed González a finalist for

promotion to the Senior Product Manager position in December 2013,

just days before the end of the yearlong period on which her 2013

performance evaluation was based. In the district court's view,

this evidence implied that González's performance was sufficiently

competent in 2013 to qualify her for promotion and therefore

suggested that her negative evaluation must have been motivated by

retaliatory animus rather than her poor performance. But

undisputed trial testimony indicates that González was included in

the pool of finalists for that position based on her positive

performance evaluation for 2012, which was her most recent

performance evaluation at the time, rather than on her performance

in 2013. In short, there was no inconsistency between González's

partial success in seeking a promotion based on her 2012

performance and her subsequent receipt of a negative rating for

her 2013 performance.4

4 Moreover, that partial success of being selected as one of the three finalists out of more than one hundred applicants came after González filed her charge of age discrimination. This only

- 22 - The district court also identified other actions that it

viewed as incompatible with Abbott's contention that González's

poorer evaluation was justified by her poorer performance.

Specifically, the district court noted that Abbott had not placed

González on a "performance improvement plan" or formally

identified "developmental actions" for her to take in 2014. But

it is undisputed that Abbott only instituted performance

improvement plans for employees who had received two consecutive

negative performance evaluations, not for employees like González

who had received only one. And while several witnesses at trial

offered different reasons for Abbott's failure to identify

developmental actions for González, documentary evidence admitted

at trial indisputably indicates that Abbott did not list

developmental actions for every employee, or even for every

employee whose performance needed improvement.

Finally, the district court suggested that the jury

nevertheless could have found Abbott liable for retaliation based

on her 2013 performance evaluation because the jury reasonably

could have regarded González's poorer performance as the result of

"sabotage[]" by Pérez, based on González's testimony that Pérez

had excluded her from meetings and deprived her of information

essential to the performance of her duties. But González's actual

reinforces our conclusion that Abbott did not retaliate against her.

- 23 - testimony indicates only that she complained about being deprived

of information with respect to a single meeting on October 30,

2013, regarding a single project, which does not explain the

multiple missed deadlines listed in her end-of-year evaluation.

And there is no evidence in the record that González was excluded

from meetings -- only that she felt "sidelined" during the

October 30 meeting just mentioned.

In sum, it is apparent from the record that González

repeatedly missed deadlines throughout 2013, and that her job

performance worsened after she received critical feedback

regarding her late work. The evidence cited by the district court

and González, viewed collectively, does not suggest otherwise.

More generally, it matters not whether González or Abbott is

correct in characterizing the quality of her performance. Rather,

the question is whether Abbott falsely claimed that it regarded

her performance as poorer and, if so, whether the jury could

reasonably infer that the real reason for the poorer performance

rating was retaliation. Brandt,

. Given that

González's performance indisputably worsened to some extent

between the September review and the end-of-year review, no

reasonable jury could infer that Abbott's less favorable

characterization of that performance, by itself, implied a

retaliatory motive. See Carreras v. Sajo, García & Partners,

(1st Cir. 2010) (rejecting an employee's retaliation

- 24 - claim because "[t]he evidence was consistent on the essential

point, i.e., that [his] work was untimely and therefore

unsatisfactory").

b.

We quickly dispose of González's remaining retaliation

claim, which arises out of Abbott's refusal to promote her to

either Regional Sales Manager or Senior District Manager in early

2014. It is undisputed that, during the relevant time period,

Abbott ordinarily did not promote employees who had received a

"partially achieved" rating for the preceding year. Witnesses at

trial, including González herself, consistently testified that

this was the reason González was not promoted in 2014. It is true

that the trial record contains discrepancies regarding whether

this general rule was a "policy" or a mere "practice" at Abbott;

whether González was "considered" for the promotions she sought

before she was ultimately rejected; and whether Abbott relied on

alleged performance shortcomings from 2011 and 2012 as well as

from 2013 when deciding not to promote her. But such debates about

tangential characterizations are, as a matter of law, insufficient

to prove retaliation. See Carreras,

.

III.

For the foregoing reasons, we affirm the judgment of the

district court in part, reverse in part, and remand for a new trial

on the sole issue of damages resulting from Abbott's April 2013

- 25 - letter threatening to terminate González's employment after she

reported to the SIF, which the jury found to be unlawful

retaliation.5 We award no costs.

5 Having concluded that González's other claims of discrimination and retaliation lack adequate support in the record, we deny as moot Abbott's alternative request for a new trial on those claims. And, having concluded that a new trial as to damages is appropriate, we need not consider Abbott's alternative request for further remittitur.

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