United States Court of Appeals For the First Circuit

No. 19-1928

WILLIAM PUIG MARTÍNEZ; MERALYS COLÓN; HERNAN MÉNDEZ NAZARIO; CONJUGAL PARTNERSHIP MÉNDEZ-COLÓN,

Plaintiffs, Appellants,

v.

NOVO NORDISK INC.,

Defendant, Appellee.

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

[Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, Casper, District Judge.

Mónica Vega Quintana, with whom Mónica Vega Quintana Law Office, Rubén T. Nigaglioni, and Nigaglioni Law Office, P.S.C., were on brief, for appellants. Melissa C. Rodriguez, with whom William R. Peterson, Mary Grace Patterson, and Morgan, Lewis & Bockius LLP were on brief, for appellee.

 Of the District of Massachusetts, sitting by designation. March 29, 2021 KAYATTA, Circuit Judge. Plaintiffs William Puig

Martínez and Hernan Méndez Nazario are former employees of Novo

Nordisk Inc. During a global reorganization, Novo Nordisk

terminated plaintiffs from their Puerto Rico-based jobs and did

not select them for post-reorganization positions. Plaintiffs

contend that their termination and non-selection violated Puerto

Rico's statutes prohibiting age discrimination in employment, Act

No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146–51

("Law 100"), and penalizing termination without just cause, Act

No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29, §§ 185a–185m

("Law 80"). The district court disagreed and granted summary

judgment in favor of Novo Nordisk. For the reasons that follow,

we affirm.

I.

We refer to the undisputed material facts set out in the

district court's summary judgment decision. See Martínez v. Novo

Nordisk,

(D.P.R. 2019). Novo Nordisk is a

healthcare company specializing in diabetes care that operates in

several countries.

. In April 2007, Novo Nordisk hired

Puig and Méndez as salespeople (also called Diabetes Care

Specialist IIIs or DCS IIIs) in its Puerto Rico district.

In

September 2016, the Puerto Rico district had a sales staff of

fourteen DCS IIIs, including plaintiffs.

- 3 - To cut costs, Novo Nordisk undertook a global

reorganization that ultimately resulted in the termination of

about one thousand employees during the fall of 2016. See

By

the reorganization's end, Novo Nordisk had (1) eliminated the

Puerto Rico district and all fourteen of its DCS positions; and

(2) created three new DCS positions that would handle all Puerto

Rico sales and report to Novo Nordisk's "South Miami Florida

district."

On October 3, 2016, Novo Nordisk distributed a list of

responses to "Frequently Asked Questions" about the

reorganization. See

The FAQs advised that Novo Nordisk's

workforce would shrink by about one thousand employees worldwide

and that Novo Nordisk planned "to do notifications by the end of

October" to inform employees whether they "ha[d] a job." The FAQs

also stated that "[a]ffected employees" could apply for open

positions at the company and would "receive a list of available

opportunities when notified and instructions on how to apply, if

interested."

On October 24, 2016, Novo Nordisk sent letters informing

Puig, Méndez, and the other salespeople in the Puerto Rico district

that their "department has decided to eliminate [their]

position[s] and, therefore, [their] employment will end effective

November 18, 2016."

. The termination letters stated

- 4 - that Novo Nordisk would pay severance in accordance with Law 80,

if applicable.

.

The letters also noted that "[a]s a result of the

consolidations and restructurings that took place, there are open

positions throughout the organization," and the letters "strongly

encourage[d]" terminated employees, including plaintiffs, "to

apply for any open positions for which [they were] qualified" by

October 27. The open positions included the three Puerto Rico-

based DCS positions that would report to the "South Miami Florida

district."

. According to Novo Nordisk, successful

candidates would have "proven leadership and decision-making

abilit[ies]"; "be [] self-starter[s]"; and "be able to evaluate

options and make decisions on [their] own with minimal

supervision."

(last alteration in original).

Nelson Almérico and John Thrasher conducted the

interviews for the post-reorganization DCS positions covering

Puerto Rico.

After interviewing Puig (age fifty-seven) and

Méndez (age forty-eight) on November 1 and 2, respectively, the

interviewers assigned each one a rating of "Meets Expectations."

at 215–16. Almérico and Thrasher opined that Puig had

significant experience but lacked "a high enough level of probing

and engaging skills" and did not present "as strong a plan as

others."

. And the interviewers noted that Méndez had

"[g]reat collaboration [skills]" and "[a]ppeared coachable," but

- 5 - that he was "[n]ot a strong closer," and that he was not able to

provide examples of how he would adapt to the changing market.

(alterations in original). The three candidates

ultimately selected -- Jose Velázquez Faccio (age forty-three),

Jose Cruzado (age forty-seven), and Carmen Irizarry (age forty-

seven) -- received "Exceeds Expectations" ratings.

On or about November 18, 2016, Novo Nordisk sent letters

to plaintiffs confirming their separation from the company. See

. Each letter enclosed a "Confidential Agreement,

Release and Waiver," which, if signed, would entitle plaintiffs to

certain enumerated benefits. But the letters pledged that Novo

Nordisk would pay plaintiffs "severance in accordance with Law 80"

in an amount specified in an attached exhibit regardless of whether

they signed the document.

True to its word, Novo Nordisk

paid $82,137.27 to Puig and $67,845.96 to Méndez. See

.

Plaintiffs filed this action alleging (i) discrimination

in violation of the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 621–634; (ii) unlawful cancellation of benefits in

violation of the Consolidated Omnibus Budget Reconciliation Act

(COBRA), 29 U.S.C. §§ 1161–1169; (iii) age discrimination in

violation of Law 100; (iv) unjust dismissal in violation of

Law 80; and (v) a derivative claim by Méndez's spouse, Meralys

Colón, under Puerto Rico's general tort statute, Article 1802 of

the Puerto Rico Civil Code,

. The

- 6 - district court granted summary judgment in Novo Nordisk's favor on

all of plaintiffs' claims. Plaintiffs appealed.

II.

We review a district court's grant of summary judgment

de novo, viewing the record in the light most favorable to the

nonmovants and drawing all reasonable inferences in their favor.

Rodríguez-Cardi v. MMM Holdings, Inc.,

(1st Cir.

2019). Summary judgment is appropriate where "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a).

Plaintiffs do not contend that the district court

improperly granted summary judgment on their ADEA and COBRA claims,

so we do not review those rulings. Nor do we have reason to

analyze separately Meralys Colón's derivative claim for tort

damages because, as plaintiffs acknowledge, it depends entirely on

the success of her spouse's claims. See Ramos-Santiago v. WHM

Carib, LLC,

, 69 n.2 (1st Cir. 2019). Rather,

plaintiffs train their challenge on the district court's grant of

summary judgment in Novo Nordisk's favor on plaintiffs' Puerto

Rico law claims under Law 100 and Law 80. We address each claim

in turn.

A.

Law 100 provides a cause of action for persons who suffer

employment discrimination due to their age. Ramos-Santiago, 919

- 7 - F.3d at 72. Law 100's protections against age discrimination are

"coterminous" with the ADEA's protections, but call for an

idiosyncratic burden-shifting scheme to analyze discrimination

claims. See Dávila v. Corporación de P.R. para la Difusión

Pública,

(1st Cir. 2007). In the district court

and on appeal, plaintiffs devote considerable effort to

establishing that the burden of proof settled on Novo Nordisk. We

sidestep that issue entirely by assuming without deciding that

Novo Nordisk bore the burden of proving that plaintiffs' discharge

was not the result of age discrimination. The pivotal question

then becomes whether the record would preclude any reasonable jury

from finding that Novo Nordisk failed to carry this burden by

showing that age discrimination was not the reason for plaintiffs'

discharge. See Cardona-Jimenez v. Bancomercio de P.R.,

(1st Cir. 1999) (requiring judgment in favor of employer

who was assumed to bear the burden of proof because no reasonable

jury could have found that plaintiff was dismissed on account of

age). For the following reasons, we agree with Novo Nordisk that

the record is devoid of evidence that would allow a reasonable

jury to find in favor of plaintiffs, no matter who bears the burden

of proof.

As to Méndez, the discrimination claim defeats itself

when stated in concrete terms; i.e., the interviewers selected

forty-seven-year-old candidates for two of the three positions

- 8 - instead of the forty-eight-year-old Méndez because of his age.

This is simply not a scenario that invites even speculation of age

discrimination. See O'Connor v. Consol. Coin Caterers Corp.,

(1996) (explaining that an inference of age bias

"cannot be drawn from the replacement of one worker with another

worker insignificantly younger").

The fifty-seven-year-old Puig, by contrast, can at least

say he was significantly older than the chosen candidates. But

there is no evidence to support his claim that he was not given a

fair shot because of his age.

Puig argues that the interviewers -- Thrasher and

Almérico -- displayed age-based animus by saying that the ideal

candidate would have "energy," be "dynamic," and possess

"stamina." We can certainly imagine a context in which such

comments might suggest age-based bias. Here, though, the comments

were voiced in the context of discussing three positions that would

be responsible for a sales territory previously covered by fourteen

people. So it was accurate and relevant to describe the new

positions as more demanding. Moreover, the interviewers said

nothing to suggest that they thought Puig lacked such attributes.

Rather, they cited the relative weakness of his "plan" and his

lower "level of probing and engaging skills" compared to other

candidates. Martínez, 397 F. Supp. 3d at 216. In a context like

this one, jurors could not find age discrimination based on the

- 9 - challenged remarks. See Woodward v. Emulex Corp.,

(1st Cir. 2013) (applying Massachusetts law and holding that

comment regarding need to re-energize sales team did not create

triable issue as to age-based animus); Torrech-Hernandez v. Gen.

Elec. Co.,

(1st Cir. 2008) ("It is well-established

that 'energy,' as well as similarly defined terms, does not

necessarily connote youth or other age-related characteristics.").

Puig next argues that his interview on November 1, 2016,

was a pretext for discrimination because the company had already

decided whom to hire. To support this claim, Puig points primarily

to an attachment to the letter sent to him on November 18, 2016.

It states:

The attached Exhibit B-1 lists the positions and ages of all active U.S. employees in the decisional unit who on or around October 24, 2016 (i) were selected for termination and are eligible for separation pay and benefits as a result of the decisions made with respect to this decisional unit; (ii) were not selected for termination and are not eligible for separation pay and benefits as a result of the decisions made with respect to this decisional unit; and (iii) who were selected for termination, but were offered and accepted another position with the company.

Puig would have us read the foregoing so that the phrase

"who on or around October 24, 2016," carries over to each of the

three following numbered clauses, particularly clause (iii), and

thus suggests that the new positions were filled "on or around

October 24." But clause (iii), unlike clauses (i) and (ii), has

- 10 - its own "who," without the date qualifier. So, the language, while

certainly ungrammatical, tilts against Puig's proffered reading.

Even if we treated the "who" in clause (iii) as surplusage,

evidence in the record indicates that "on or around October 24,

2016," would not carry over to every part of clause (iii). Rather,

clause (iii) is sensibly read as a past-tense description of the

course of events predicted in the FAQs; i.e., on October 24, 2016,

employees were notified about whether they "ha[d] a job," affected

employees "receive[d] a list of available opportunities when

notified," and Novo Nordisk later chose applicants to fill the

available positions. Moreover, any arguable ambiguity created by

the sentence's awkward syntax is belied by language elsewhere in

the attachment that lists employees who "accepted new position[s]

in the Company as of November 15, 2016."

Puig also argues that other interviewees made statements

indicating that some interviewees knew before the interview

process ended whether they would be selected and that plaintiffs

"believed" some knew the results before the process ended. But

statements by nonparties about what other nonparties said or

thought cannot suffice to create a genuine dispute of material

fact (at least absent a showing that the statements can "be

presented in a form that would be admissible in evidence," Fed. R.

Civ. P. 56(c)(2)). See Soto-Padró v. Pub. Bldgs. Auth.,

(1st Cir. 2012) (citing Dávila,

) (noting that

- 11 - deponent's testimony about comparator employee's statements was

inadmissible hearsay); Garside v. Osco Drug, Inc.,

(1st Cir. 1990) ("Hearsay evidence, inadmissible at trial, cannot

be considered on a motion for summary judgment."). Nor do

plaintiffs' own beliefs and impressions suffice. See Pina v.

Children's Place,

(1st Cir. 2014) (explaining

that a party opposing summary judgment "cannot rely 'merely upon

conclusory allegations, improbable inferences, and unsupported

speculation'" (quoting Dennis v. Osram Sylvania, Inc.,

, 855–56 (1st Cir. 2008))).

Finally, Puig criticizes the interviewers' evaluation

criteria. In his view, Novo Nordisk did not adequately consider

experience, past performance (including sales and disciplinary

records), prior training, or advanced degree possession (a

preference expressed in the job posting). Puig would have been

chosen for the job, he argues, had Novo Nordisk used a better

rubric or given more weight to these factors. These complaints

amount to little more than second-guessing Novo Nordisk's facially

valid evaluation criteria and conclusions, and such arguments do

not provide any basis to conclude that age -- not interview

performance -- motivated Puig's non-selection. See Mesnick v.

Gen. Elec. Co.,

(1st Cir. 1991) ("Courts may not

sit as super personnel departments, assessing the merits -- or

- 12 - even the rationality -- of employers' nondiscriminatory business

decisions.").

In sum, we affirm the grant of summary judgment on

plaintiffs' Law 100 claims because there is no evidence from which

a reasonable jury could reject Novo Nordisk's showing that it did

not discriminate against plaintiffs based on their age.1

B.

We turn next to plaintiffs' Law 80 claims.2 Law 80

requires an employer who terminates an employee without just cause

to pay severance (known as a "mesada") to the dismissed employee.

See Otero-Burgos v. Inter Am. Univ.,

(1st Cir. 2009).

An employer seeking to discharge an employee must comply with

certain requirements to avoid this penalty. Law 80 "provides six

examples of just cause, including three that relate to company

restructuring or downsizing." Carrasquillo-Ortiz v. Am. Airlines,

Inc.,

(1st Cir. 2016) (citing P.R. Laws Ann.

tit. 29, § 185b(d), (e), (f)). An employer citing a restructuring

or downsizing reason as just cause "must give preference to those

employees with greater seniority over those with less seniority

1 Even if Méndez's Law 100 claim had made it out of the gate, it would fail for the same reasons that Puig's claim fails. 2 We refer to the version of Law 80 in force prior to its amendment in 2017. See P.R. Laws Ann. tit. 29, §§ 185a–185n (added on Jan. 26, 2017, No. 4); López-Santos v. Metro. Sec. Servs.,

, 11 n.3 (1st Cir. 2020).

- 13 - within the same occupational classification."

(citing P.R.

Laws Ann. tit. 29, § 185c). Subject to exceptions, an employer

who "terminates a more senior employee and retains a less senior

employee within the same occupational classification . . . must

pay the terminated employee a mesada." Id. (citing P.R. Laws Ann.

tit. 29, § 185c). So, to terminate an employee without paying a

mesada, an employer must comply with section 185b and, if

applicable, section 185c.

Section 185a of Law 80 provides the formula for

calculating the mesada. An employee terminated without just cause

after working for an employer for more than five years but fewer

than fifteen is entitled to the sum of

(a) . . . the salary corresponding to three (3) months if discharged after five years (5) . . . of service . . . [; and] (b) An additional progressive compensation equal . . . to two (2) weeks for each year of service, if discharged after five (5) years and up to fifteen (15) years of service . . . .

P.R. Laws Ann. tit 29, § 185a. Because severance is the exclusive

remedy for a Law 80 violation, "an employer willing to pay the

price is free to discharge whomever he or she pleases." Rodriguez

v. E. Air Lines, Inc.,

(1st Cir. 1987); Soto v.

State Indus. Prods., Inc.,

(1st Cir. 2011).

The district court bypassed an analysis of whether Novo

Nordisk satisfied sections 185b and 185c, focusing instead on

- 14 - whether plaintiffs had already received all compensation due under

section 185a. The district court concluded that neither plaintiff

presented evidence to show that Novo Nordisk had not already

satisfied any Law 80 obligation. Martínez, 397 F. Supp. 3d at

223.

A review of plaintiffs' arguments on appeal and the

summary judgment record leads us to the same conclusion.3

Plaintiffs give no cogent explanation as to why Novo Nordisk's

payments fell short. Even on appeal, plaintiffs simply assert in

conclusory fashion that proper compensation for Puig "would have

amounted to a larger payment and not the payment of $82,127.37

made by Novo Nordisk." Plaintiffs' brief does identify the amount

Méndez seeks -- $85,880.85, rather than $67,845.96 -- but fails to

explain why this sum is correct. Although plaintiffs' brief

describes benefits that Méndez received in addition to cash

compensation, such as employer-sponsored health coverage and

employer-provided 401(k) matching contributions, the brief

provides no authority to show that these benefits are part of his

section 185a "salary." Plaintiffs' brief also refers to a

Christmas bonus that Méndez received and paid vacation days that

Méndez did not use, but the brief does not point to any record

3This review included the portions of the record referred to in the letter that plaintiffs filed with the court pursuant to Federal Rule of Appellate Procedure 28(j).

- 15 - evidence regarding his bonus or unused vacation. Plaintiffs have

thus waived any appeal concerning their Law 80 claims. See United

States v. Zannino,

(1st Cir. 1990).

Finally, the denial of Novo Nordisk's motion to dismiss

plaintiffs' Law 80 claims did not preclude Novo Nordisk from

obtaining summary judgment here. This case is one of many

illustrating that a plaintiff who puts forward plausible

allegations at the motion to dismiss stage may later fail to

present evidence showing the existence of a triable issue of fact

at summary judgment. Simply put, motions under Rules 12(b)(6)

and 56 present a plaintiff with different hurdles, the latter of

which looms larger than the former. See Ellis v. Fid. Mgmt. Tr.

Co.,

(1st Cir. 2018) (noting that reasonable

inferences at the pleading stage may become unreasonable in light

of summary judgment record); Aldridge v. A.T. Cross Corp.,

(1st Cir. 2002) (reversing dismissal of claims but

cautioning that "[n]othing in this opinion, of course, predicts

any outcome if a postdiscovery summary judgment motion is filed");

see also Ríos-Campbell v. U.S. Dep't of Com.,

, 24–25

- 16 - (1st Cir. 2019) (contrasting Rule 12(b)(6)'s plausibility standard

with the Rule 56 standard).4

III.

For the foregoing reasons, we affirm the district

court's grant of summary judgment in Novo Nordisk's favor.

4 Because Puig's Law 100 and Law 80 claims fail on the merits, we do not address Novo Nordisk's alternative argument that judicial estoppel precludes Puig from pursuing them.

- 17 -