United States Court of Appeals For the First Circuit

No. 20-1356

GIORGIO ZAMPIEROLLO-RHEINFELDT,

Plaintiff, Appellant,

v.

INGERSOLL-RAND DE PUERTO RICO, INC.; TRANE PUERTO RICO, INC.; TRANE PUERTO RICO, LLC,

Defendants, Appellees.

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

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

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

Miguel Simonet-Sierra, with whom Dora L. Monserrate- Peñagarícano, Richard J. Schell, and Monserrate Simonet & Gierbolini, LLC were on brief, for appellant. Mariel Y. Haack, with whom Edwin J. Seda-Fernández and Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C were on brief, for appellees.

May 28, 2021 THOMPSON, Circuit Judge. Trane Puerto Rico, LLC and its

parent company, Ingersoll-Rand de Puerto Rico, Inc. (collectively

"Trane") terminated the employment of Giorgio Zampierollo-

Rheinfeldt ("Zampierollo") after thirty-three years of service.

Zampierollo filed suit against Trane alleging wrongful termination

of his employment under state law, and age discrimination under

federal and state law. After discovery, Trane successfully moved

for summary judgment on all of Zampierollo's claims and to exclude

two documents from the summary judgment record. Zampierollo now

appeals the district court's granting of both motions. We agree

with Zampierollo that the district court erred by excluding the

two documents from the summary judgment record. We also find that

the record contains direct evidence from which a reasonable jury

may conclude that Zampierollo was terminated because of his age.

We therefore reverse the district court's order excluding the two

documents, vacate the district court's entry of summary judgment,

and remand for further proceedings.

I. Background

A. Factual Background

We review a district court's grant of summary judgment

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

nonmovant and resolving all reasonable inferences in that party's

-2- favor. Ocasio-Hernández v. Fortuño-Burset,

(1st

Cir. 2015).

Trane is a heating and air conditioning systems and

services provider that does business around the world. In 1980,

Zampierollo, at the age of twenty-two, began working with Trane as

a Sales Engineer in Trane's Puerto Rico office. Zampierollo

received several promotions over the course of his employment with

Trane. In 2000, Trane promoted him to District General Manager,

the highest-ranking position at the Puerto Rico office. In that

capacity, Zampierollo oversaw the operations of Trane's Puerto

Rico office.

By 2012, William Sekkel was the President of Trane's

Latin America region. That year, Trane divided the region into

four districts -- Brazil, Mexico, Cono Sur, and North Latin America

-- each with its own Vice President, and Guillermo Feria became

Vice President of the North Latin America district, which included

the Puerto Rico office. Zampierollo reported directly to Feria.

At some point in 2012, Sekkel, who was older than

Zampierollo, retired from the company, and María Blasé became the

new President of the Latin America region. In September 2012,

Blasé and Feria visited the Puerto Rico office and met with

Zampierollo to discuss the operations there. Blasé told

Zampierollo about her goal to reduce the company's selling,

-3- general, and administrative ("SG&A") expenses, including those at

the Puerto Rico office.

In 2013, Feria retired from the company. In mid-May of

that year, Enrique Flefel ("Flefel"), who had been the Business

Leader1 of Trane's Chile office, was promoted to Vice President of

the North Latin America region. Hence, Flefel, who was eight years

younger than Zampierollo, became Zampierollo's direct supervisor.

Although the Puerto Rico office was profitable, Flefel

believed that its SG&A expenses were too high, and its sales were

below target. He thus asked Zampierollo to take cost-reducing

measures, such as renegotiating the office's lease agreement,

lowering the cost of employee benefits, and cutting the marketing

budget. Zampierollo successfully implemented some cost-reducing

measures, such as the extension of a tax exemption for the office

lease, which reduced the office's SG&A expenses by $500,000.

According to Flefel, however, the cost reductions obtained were

not enough, and he decided to also implement a reduction in force.

The reduction in force would come together with a "new structure"

for the Puerto Rico office. As part of this reduction in force

and reorganization, Flefel decided to eliminate Zampierollo's

position and create two heads at the same level: a Business Leader,

1 Trane uses the terms "Business Leader" and "Business Director" interchangeably.

-4- who would be dedicated to business and revenue (sales), and an

Operations Leader, focused on fulfillment and operation of the

office. This two-headed structure was similar to the one already

in place at Trane's Chile office before Flefel was promoted to

Vice President of the Latin American region.2 Flefel also decided

to eliminate the position of Operations Manager, one Construction

Project Manager position, and one Administrative Assistant

position. At the time, a fifty-five-year-old occupied the position

of Operations Manager, a fifty-one-year-old held the position of

Construction Project Manager, and a woman in her mid-twenties

occupied the Administrative Assistant position. Blasé and Trane's

Human Resources Leader for the North Latin America region approved

Flefel's reorganization plan. The management of the Puerto Rico

office, including the Puerto Rico District Finance Leader, did not

participate in the decision. Trane projected that the elimination

of the four positions selected for the reduction in force would

bring savings in salary of approximately $525,000 per year.

After reviewing the organizational chart and several

Human Resources documents regarding current employees, Flefel

selected Sergio Sanjenis for the position of Business Leader and

Juan Carlos Teruel for the position of Operations Leader. Sanjenis

2 The parties dispute whether this two-headed structure had been successful at the Chile office.

-5- and Teruel are ten and sixteen years younger than Zampierollo,

respectively. On September 23, 2013, Flefel informed Zampierollo

of his termination, effective as of September 30, 2013.

Zampierollo was fifty-five years old at the time. On September

30, 2013, the remaining three employees impacted by the reduction

in force were terminated. That same day, Flefel informed the

Puerto Rico office employees about the organizational changes.

Zampierollo's duties were distributed between Sanjenis and Teruel,

with Flefel's support. Both Sanjenis and Teruel received a salary

increase upon assuming their new roles. The changes also required

the hiring of additional management personnel: a Logistics Manager

and a Parts Manager. By November 7, 2013, Trane had already

contemplated hiring for these two new positions, and it filled the

positions in March and June 2014.3

B. Procedural History

On May 23, 2014, Zampierollo filed a charge with the

Equal Employment Opportunity Commission ("EEOC") against Trane

3 The parties dispute whether Trane achieved its goal of reducing expenses by implementing the reduction in force. While Trane claims that the Puerto Rico office lowered its SG&A expenses from 2013 to 2014, Zampierollo points to deposition testimony from Puerto Rico District Finance Leader, Brenda Fuentes, stating that salaries and wages increased from 2013 to 2014 due to the raises given to Sanjenis and Teruel and the hiring of the two additional managers. At trial, such evidence would be relevant to the issue of pretext. See Santiago-Ramos v. Centennial P.R. Wireless Corp.,

(1st Cir. 2000).

-6- alleging age-based discrimination in violation of the Age

Discrimination in Employment Act ("ADEA"),

.

Seven months later, the EEOC issued a right-to-sue letter.

Thereafter, on March 18, 2015, Zampierollo filed a complaint

against Trane in the U.S. District Court for the District of Puerto

Rico.

In his complaint, Zampierollo asserted claims for:

(1) age discrimination under the ADEA; (2) age discrimination

under Puerto Rico's general antidiscrimination statute, Act No.

100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146–151 ("Law

100"); and (3) unjust discharge under Puerto Rico's Unjust

Discharge Act, Act No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29,

§§ 185a–185m ("Law 80"). After discovery, Trane moved for summary

judgment, seeking the dismissal of all claims. Zampierollo filed

an opposition to Trane's motion for summary judgment accompanied

by several supporting documents. In response, Trane moved to

strike two of those documents on the grounds that they had been

produced to Trane after the discovery cut-off date and that they

had not been properly authenticated.4

4 Although Trane initially moved to strike three documents, Zampierollo voluntarily withdrew one of them. There is no issue on appeal regarding that third document.

-7- On February 21, 2020, the district court issued two

opinions and orders. In the first, the district court granted

Trane's motion to strike the documents submitted by Zampierollo as

Exhibit 5 (the Chile office "Business Overview") and Exhibit 10

(the Puerto Rico office "2013 Financial Summary") of his opposition

to summary judgment. Zampierollo-Rheinfeldt v. Ingersoll-Rand de

P.R., Inc., No. 15-1255-RAM,

, at *7 (D.P.R. Feb.

21, 2020). The district court precluded Zampierollo from using

these documents under Federal Rule of Civil Procedure 37(c)(1)

because Zampierollo had disclosed them to Trane after the discovery

cut-off date and, according to the court, Zampierollo had failed

to show that his belated disclosure of the documents was

substantially justified or harmless.

.

In its second opinion and order, the district court

granted Trane's motion for summary judgment. Zampierollo-

Rheinfeldt v. Ingersoll-Rand de P.R., Inc., No. 15-1255-RAM,

, at *13 (D.P.R. Feb. 21, 2020). Analyzing Zampierollo's

age discrimination claims under the familiar burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green,

(1973), the district court determined that Zampierollo

had failed to establish the fourth prong of a prima facie case of

age discrimination -- i.e., that Trane "either failed to treat age

neutrally or that [it] replaced him with a younger employee."

-8- at *8, *12. The court reasoned that Zampierollo had not been

replaced because his position as District General Manager had been

eliminated and his functions had been redistributed amongst

Sanjenis and Teruel, who had "absorbed [Zampierollo]'s duties in

addition to other duties and responsibilities that were assigned

to them as part of their new roles as Business Director and

Services Operations Leader, respectively." Id. at *8. The court

also determined that Trane's reduction in force was "age-neutral

facially and as applied." Id. at *10. It stated that the fact

that three out of the four employees terminated as part of Trane's

reduction in force were over fifty years old "should not be

interpreted to mean that [Trane] had an ageist and discriminatory

animus." Id. (emphasis omitted). It further determined that

"there was a higher percentage of employees in the protected age

group after the [reduction in force] than before [it]." Id. at

*10.

Assuming arguendo that Zampierollo had successfully

established a prima facie case of age discrimination, the court

then examined whether Trane had articulated a legitimate, non-

discriminatory reason for its decision to terminate Zampierollo.

Id. at *11. The court found that Trane's proffered reason -- that

Zampierollo had been terminated due to a reduction in force

implemented as part of a reorganization of the Puerto Rico office

-9- to reduce expenses -- was non-discriminatory and sufficient to

satisfy the second prong of McDonnell Douglas, thus shifting the

burden back to Zampierollo. Id.

Next, the district court found that the record was devoid

of any evidence from which a reasonable jury could infer that

Trane's articulated reason for terminating Zampierollo's

employment was pretextual, let alone a pretext for age

discrimination. Id. at *11-12. Therefore, the court dismissed

Zampierollo's age discrimination claim under the ADEA. Id. at

*12.

The district court then turned to Zampierollo's local

age discrimination claim. It noted that, although the ADEA and

Law 100 differ "with respect to how the burden-shifting framework

operates," "on the merits, age discrimination claims asserted

under the ADEA and under Law No. 100 are coterminous." Id. at *12

(first quoting Dávila v. Corporación de P.R. para la Difusión

Pública,

(1st. Cir. 2007); and then quoting Reyes

Caballero v. Oriental Bank, No. 16-2952-GAG,

, at

*13 (D.P.R. Nov. 25, 2019)). Accordingly, the district court

concluded that Zampierollo's "Law 100 claim fail[ed] for the same

reason that his ADEA claim failed."

Finally, the court also summarily dismissed

Zampierollo's unjust discharge claim under Law 80, concluding that

-10- Zampierollo's termination had been with "just cause," as that term

is defined in Law 80.

. The court determined that Trane

had "provided evidence that restructuring was necessary for the

solvency of [its] Puerto Rico office."

It reasoned that

because Zampierollo was the only employee in his occupational

classification and he had not been replaced by anyone, Trane did

not have to follow Law 80's preferential treatment rule, which

generally requires an employer undergoing a reorganization or

downsizing to "give preference to those employees within the same

occupational classification who have greater . . . seniority with

the employer."

(citing P.R. Laws Ann. tit. 29, § 185c).

Accordingly, the court granted summary judgment on all of

Zampierollo's claims. Id. Zampierollo filed a timely appeal.

II. Discussion

A. Motion to Strike

As noted, once Zampierollo filed an opposition to

Trane's motion for summary judgment, Trane moved to strike

documents that Zampierollo had submitted in connection with his

opposition, specifically Exhibit 5 (the Chile office "Business

Overview") and Exhibit 10 (the Puerto Rico office "2013 Financial

Summary"). Trane argued that Zampierollo had produced these two

documents after the discovery cut-off date and that the documents

were not properly authenticated.

-11- The district court granted Trane's motion and precluded

Zampierollo from using them. Zampierollo-Rheinfeldt,

, at *7. After analyzing the factors (which we'll review

with you momentarily) outlined in Esposito v. Home Depot U.S.A.,

Inc.,

(1st Cir. 2009), the court concluded that

"[m]ost of [those factors] favor[ed] exclusion of Exhibits 5 and

10" and Zampierollo had failed to show that the belated disclosure

of those exhibits was either justified or harmless. Zampierollo-

Rheinfeldt,

, at *7.

Federal Rule of Civil Procedure 26 requires a party to

disclose all documents that it may use to support its claims or

defenses, and all evidence that it may present at trial, unless

their purpose is "solely for impeachment." Fed. R. Civ.

P. 26(a)(1)(A)(ii), (a)(3)(A). Further, the party must also

"supplement or correct its disclosure or response [to an

interrogatory, request for production, or request for admission]

. . . in a timely manner if the party learns that in some material

respect the disclosure or response is incomplete or incorrect."

Fed. R. Civ. P. 26(e)(1)(A).

Failure to properly disclose triggers Rule 37(c)(1):

incomplete or late disclosures may preclude a party from using

"that information . . . to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially

-12- justified or is harmless." Fed. R. Civ. P. 37(c)(1). "[I]n the

absence of harm to a party, a district court may not invoke the

severe exclusionary penalty provided for by Rule 37(c)(1)." Cruz-

Vázquez v. Mennonite Gen. Hosp., Inc.,

, 58 n.1 (1st

Cir. 2010). Furthermore, even when there is harm to a party,

"[p]reclusion is not strictly required." Lawes v. CSA Architects

& Eng'rs LLP,

(1st Cir. 2020). Instead, "[w]hen

noncompliance occurs, the ordering court should consider the

totality of events and then choose from the broad universe of

available sanctions in an effort to fit the punishment to the

severity and circumstances of the violation."

(quoting Young

v. Gordon,

(1st Cir. 2003)); see also Esposito,

("[D]istrict courts have broad discretion in meting

out [discovery] sanctions" and "may choose a less severe sanction."

(first alteration in original) (citations omitted)).

When reviewing a district court's decision precluding

evidence as a sanction, we consider an array of factors, including:

the history of the litigation; the proponent's need for the

precluded evidence; the justification (or lack of one) for the

late disclosure; the opponent-party's ability to overcome the

adverse effects of the late disclosure (surprise and prejudice);

and the late disclosure's impact on the district court's docket.

Esposito,

(citing Macaulay v. Anas,

, 51

-13- (1st Cir. 2003)). Because "district courts are generally in a

better position to determine the propriety of a particular

sanction," we review the district court's choice for abuse of

discretion.

An "[a]buse of discretion 'occurs when a material

factor deserving significant weight is ignored, when an improper

factor is relied upon, or when all proper and no improper factors

are assessed, but the court makes a serious mistake in weighing

them.'" Lawes,

(quoting Fashion House, Inc. v.

K mart Corp.,

(1st Cir. 1989)).

On appeal, Zampierollo primarily argues that he did not

have to disclose the documents constituting Exhibits 5 and 10

because they fell within the exception for materials that are

presented solely for impeachment purposes. According to

Zampierollo, the documents at issue show that, contrary to Flefel's

contentions, the Chile office was "far from successful" and that

the Puerto Rico office had been profitable while under

Zampierollo's direction. Thus, he says, it made no sense to

replicate the Chile office's two-headed structure in Puerto Rico.

Zampierollo posits that, because he had no duty to disclose

impeachment evidence, the preclusion sanction was unwarranted.

See Klonoski v. Mahlab,

(1st Cir. 1998)

(noting that evidence that is presented "solely for impeachment

purposes" is not subject to discovery under Rule 26(a)). Because

-14- Zampierollo did not make this argument below, it is forfeited, and

our review would be for plain error only. See Hoolahan v. IBC

Advanced Alloys Corp.,

(1st Cir. 2020)

("Arguments 'debuted on appeal' are deemed 'forfeited' and

therefore engender plain error review." (quoting Nat'l Fed'n of

the Blind v. Container Store, Inc.,

(1st Cir.

2018))); Dávila,

& n.2 (explaining that an argument

not raised below is "forfeited" and reviewed for plain error).

We, however, bypass the issue because Zampierollo's fallback

argument provides alternative grounds for reversal. We thus turn

to Zampierollo's alternative argument.

"Rule 37(c)(1) contains a narrow escape hatch that

allows the court to admit belatedly proffered . . . evidence if

the proponent's failure to reveal it was either substantially

justified or harmless." Lohnes v. Level 3 Commc'ns, Inc.,

(1st Cir. 2001). Here, the district court's discussion

of Zampierollo's justification and the alleged prejudice to Trane

in its consideration of the Esposito factors reflects that the

court found that neither branch of the exception applied.

Zampierollo contests that finding.

Regarding Zampierollo's justification for his late

disclosure of the documents, the court rejected his contention

that the documents "only became relevant once [Trane] allegedly

-15- referenced Chile's organizational structure for the first time in

[its] Motion for Summary Judgment." Zampierollo-Rheinfeldt,

, at *4. The court noted that Chile's organizational

structure was not mentioned for the first time in Trane's motion

for summary judgment, but rather in Flefel's deposition, which

took place before the discovery cut-off date.

The court also

noted that Zampierollo's assertion that he had "access" to the

documents at issue because of his role with Trane and that he had

found them after "conduct[ing] a search" showed that he could have

obtained and produced the documents before discovery closed.

. In addition, the court found that the fact that Trane

might have also had access to the documents did not justify

Zampierollo's failure to timely disclose them to Trane because he

had an independent duty to disclose the documents he would use as

evidence.

. Faced with this rational explanation, we

discern no abuse of discretion in the court's finding that

Zampierollo's failure to disclose the documents to Trane was not

substantially justified.

We therefore turn to the remaining out in the escape

hatch: "whether the late disclosure, though not justified, was

nonetheless harmless." Gagnon v. Teledyne Princeton, Inc.,

(1st Cir. 2006). Adopting the contentions put

forward by Trane, the district court found that Trane would be

-16- prejudiced by Zampierollo's late disclosure of the documents

because Trane "had already submitted a summary judgment motion

premised on evidence provided by both parties before the discovery

cut off" and, if the documents constituting Exhibits 5 and 10 were

admitted, "discovery might have to be re-opened, years after it

already closed on November 30, 2015." Zampierollo-Rheinfeldt,

, at *6. Zampierollo challenges this finding. He

argues that, contrary to the district court's conclusion,

preclusion was not justified because Trane suffered no prejudice

by the late disclosure, and that Trane's discovery argument is a

"red herring" because the "documents [were] generated by and

through their operations and procedures." He posits that an

"inability to defend [one]self is the crux of any prejudice

analysis" and Trane was able to defend itself. He notes that,

even before the district court ruled on Trane's motion to exclude

the documents at issue, Trane was able to file a lengthy reply to

his opposition to summary judgment, in which Trane addressed the

facts proposed by Zampierollo and supported by the documents at

issue, and "pointed to the economic data that allegedly supported

[its] decision to restructure [its Puerto Rico] operations." We

agree with Zampierollo that the late disclosure of the two exhibits

was harmless.

-17- The fact that a motion for summary judgment has already

been filed does not necessarily mean that a late disclosure cannot

be harmless. Instead, given our totality-of-circumstances

approach to our sanctions review, we necessarily determine whether

a late disclosure is harmless on a case-by-case basis. González-

Rivera v. Centro Médico del Turabo, Inc.,

(1st

Cir. 2019). Here, the documents at issue were the Chile office

"Business Overview" from 2010, 2011, and 2012 (Exhibit 5) and the

Puerto Rico office "2013 Financial Summary" (Exhibit 10). In its

motion for summary judgment, Trane's articulated non-

discriminatory reason for terminating Zampierollo was that he had

been selected for a reduction in force implemented as part of a

reorganization of the Puerto Rico office. Trane further explained

that this reorganization followed the two-headed business model

that had been used in its Chile office under Flefel's direction

and which had proven to be successful. At oral argument, Trane

clarified that, despite having used this two-headed model in some

of its offices located in other countries, its motion for summary

judgment focused on Chile because Flefel had previously served as

the Business Director (one of the two heads) of the Chile office

and he was "extremely familiar with this model and he deemed it

appropriate" for the Puerto Rico office. In light of the record

before us, and considering that the belated documents were from

-18- the Chile office, from a period in which Flefel was directing that

office, that it was Flefel who decided to replicate that business

model in Puerto Rico, that Trane had access to Flefel for

assistance in replying to Zampierollo's opposition to Trane's

motion for summary judgment, that, in fact, Trane filed a thorough

reply in which it addressed Zampierollo's claim of pretext, and

that Trane has not explained why it would require additional

discovery given that any other documents relevant to the argument

for which Zampierollo has invoked Exhibit 5 are presumably within

its control, we are hard-pressed to understand exactly how Trane

was prejudiced by the belated disclosure of the documents in

Exhibit 5.

Regarding Exhibit 10, Trane does not dispute

Zampierollo's contention that it is "substantially the same" as a

document submitted by Trane with its motion for summary judgment.

The district court accepted this representation from Zampierollo

but determined that it cut against him because it showed that

Zampierollo did not need to rely on the document, i.e., he could

rely on Trane's document to make his point. Zampierollo-

Rheinfeldt,

, at *4. If, as everyone seems to agree,

Zampierollo's Exhibit 10 is substantially the same as a document

that Trane itself submitted with its motion for summary judgment,

then we fail to see how Trane could have been prejudiced by

-19- Zampierollo's late disclosure of a document which Trane had already

factored into its own case strategy. Just because Zampierollo

used the document to support a different argument does not

demonstrate prejudice.

Because, in the absence of harm to Trane, the district

court should not have applied the "severe exclusionary penalty

provided for by Rule 37(c)(1)," Cruz-Vázquez,

n.1,

we reverse the district court's preclusion of the documents

constituting Exhibits 5 and 10 to Zampierollo's opposition to

summary judgment.5 Since the district court did not address, and

the parties did not brief, Trane's alternative argument that the

documents constituting Exhibits 5 and 10 also warranted exclusion

from the summary judgment record because they allegedly were not

properly authenticated, we express no opinion on the matter. See

Joseph v. Lincare,

, 155 & n.4 (1st Cir. 2021).6

B. Summary Judgment

We next turn to the district court's grant of Trane's

motion for summary judgment. Summary judgment may be granted only

Zampierollo also challenges the district court's 5

weighing of some of the other Esposito factors against him. In light of our ruling, however, we find it unnecessary to address these additional arguments.

We pause to note that even without Exhibits 5 and 10, 6

Zampierollo put forth enough evidence to avoid the summary judgment axe as we'll discuss next.

-20- when "there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Ameen v.

Amphenol Printed Circuits, Inc.,

(1st Cir. 2015)

(quoting Barclays Bank PLC v. Poynter,

(1st Cir.

2013)); Fed. R. Civ. P. 56(a). A genuine dispute is "one that

must be decided at trial because the evidence, viewed in the light

most flattering to the nonmovant, would permit a rational

factfinder to resolve the issue in favor of either party." Medina-

Munoz v. R.J. Reynolds Tobacco Co.,

(1st Cir. 1990)

(citations omitted). "Facts are material when they have the

'potential to affect the outcome of the suit under the applicable

law.'" Cherkaoui v. City of Quincy,

(1st Cir.

2017) (quoting Sánchez v. Alvarado,

(1st Cir.

1996)).

1. ADEA Claim

The ADEA makes it unlawful for an employer to "discharge

any individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's age."

(a)(1). In a wrongful discharge case under the ADEA, the

plaintiff bears the burden of proving by a preponderance of the

evidence that his age was the "determinative factor in his

discharge, that is, that he would not have been fired but for his

-21- age." Freeman v. Package Mach. Co.,

, 1335 (1st Cir.

1988); see also Gross v. FBL Fin. Servs., Inc.,

, 177-

78 (2009).

A plaintiff may use either direct or circumstantial

evidence to prove his ADEA claim. See Gross,

;

Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co.,

(1st Cir. 1998). If the plaintiff "provides direct evidence of

discrimination, the issue may be put to a finder of fact without

further ado." Alvarez-Fonseca,

. If the plaintiff,

however, does not provide direct evidence of discrimination, we

apply the familiar burden-shifting framework outlined in McDonnell

Douglas Corp.,

, which has been adopted for ADEA

cases, Woodman v. Haemonetics Corp.,

(1st Cir.

1995). Under the McDonnell Douglas framework, a plaintiff who was

terminated as part of a reduction in force has the initial burden

of establishing a prima facie case by showing that: (i) he was at

least forty years old at the time of his termination; (ii) he was

meeting the employer's legitimate performance expectations;

(iii) he was terminated from his employment; and (iv) "the employer

did not treat age neutrally or that younger persons were retained

in the same position."7 LeBlanc v. Great Am. Ins. Co.,

,

7 If the plaintiff's termination was not part of a reduction in force, the plaintiff must demonstrate under the fourth prong that he "was replaced by a person with roughly equivalent

-22- 842 (1st Cir. 1993) (quoting Hebert v. Mohawk Rubber Co.,

(1st Cir. 1989)). "This burden is not onerous."

Caraballo-Caraballo v. Corr. Admin.,

(1st Cir.

2018).

If the plaintiff establishes his prima facie case, "the

burden of production -- but not the burden of persuasion -- shifts

to [the employer], who must articulate a legitimate, non-

discriminatory reason" for its action. Theidon v. Harvard Univ.,

(1st Cir. 2020) (quoting Johnson v. Univ. of

P.R.,

, 53–54 (1st Cir. 2013)); see also McDonnell

Douglas Corp.,

. If the employer articulates such

a reason, the burden shifts back to the plaintiff, who must then

show, by a preponderance of the evidence, that the employer's

proffered reason for the adverse employment action was pretextual,

and "that age was the 'but-for' cause of the employer's adverse

action." Vélez v. Thermo King de P.R.,

(1st

Cir. 2009) (quoting Gross,

).

Zampierollo makes three primary arguments regarding his

ADEA claim. First, Zampierollo argues that despite having put

forth direct evidence of age discrimination, which was enough in

job qualifications." LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993). However, "if the job loss was part of a reduction in force, the plaintiff need not show replacement by someone with equivalent job qualifications."

-23- itself to survive summary judgment, the district court failed to

consider it as direct evidence and, instead, analyzed such evidence

"within the confines of the McDonnell-Douglas framework." Second,

Zampierollo posits that, even assuming arguendo that the record

does not contain direct evidence of age discrimination, the

district court nevertheless erred in determining that he failed to

establish a prima facie case of age discrimination under the ADEA.

Third, Zampierollo contends that the district court improperly

concluded that the summary judgment record is devoid of evidence

from which a reasonable jury could find that Trane's articulated

reasons for dismissing him were pretextual and that Trane's actions

derived from ageist discriminatory animus. We address

Zampierollo's arguments in turn.

Zampierollo points us to evidence which he claims

qualifies as direct evidence of Trane's ageist discriminatory

animus, but which the district court failed to consider as such.

This evidence consists of Zampierollo's deposition testimony to

the effect that at the time of his termination, Flefel told him

that Zampierollo's employment was being terminated because Trane:

wanted to "rejuvenate the region," was seeking the "rejuvenation

of the team," was "rejuvenating the management," and was

-24- "rejuvenating the management team,"8 in addition to wanting to

reduce its costs.

"Direct evidence is evidence which, in and of itself,

shows a discriminatory animus." Jackson v. Harvard Univ.,

(1st Cir. 1990). It "consists of statements by a

decisionmaker that directly reflect the alleged animus and bear

squarely on the contested employment decision." Febres v.

Challenger Caribbean Corp.,

(1st Cir. 2000); see

also Ayala-Gerena v. Bristol Myers-Squibb Co.,

(1st

Cir. 1996) (stating that the remarks or comments must be linked to

the adverse employment decision); France v. Johnson,

(9th Cir. 2015) ("Direct evidence, which standing alone can

defeat summary judgment, must be evidence directly tied to the

adverse employment decision."). "[S]tray remarks in the

workplace, particularly those made by nondecision-makers or

statements made by decisionmakers unrelated to the decisional

process itself" do not qualify as direct evidence. Ayala-Gerena,

; see also Patten v. Wal-Mart Stores E., Inc.,

(1st Cir. 2002) (noting that "mere background noise"

and "stray remarks" do not qualify as direct evidence). Although

"'direct evidence is relatively rare,' . . . that burden is not

8 For simplicity, where appropriate, we refer to these variants as Flefel's "rejuvenation" statement.

-25- insurmountable." Patten,

(quoting Fernandes v.

Costa Bros. Masonry, Inc.,

(1st Cir. 1999)).

Viewing the evidence put forth by Zampierollo in the

light most favorable to him, as we must at this stage, we conclude

that it qualifies as direct evidence of age discrimination. It is

uncontested that Flefel was the key managerial employee who decided

to terminate Zampierollo, a fifty-five-year-old employee who had

no performance issues. According to the evidence Zampierollo

relies on, upon being informed of his termination, Zampierollo

specifically asked Flefel why he was being terminated, to which

Flefel allegedly responded that Trane was terminating him because

it wanted to "rejuvenate" the team/management/region and lower

costs. A reasonable jury could construe this evidence as an

admission by the decision-making employer that it decided to

terminate Zampierollo's employment because of his age inasmuch as

it wanted a younger workforce. This Circuit, as well as others,

has held that similar evidence qualifies as direct evidence. See,

e.g., Hodgens v. Gen. Dynamics Corp.,

(1st Cir.

1998) (citing with approval a Seventh Circuit opinion holding that

a "[c]omment by [a] supervisor that the plaintiff's 'accounts could

use some younger blood' constituted sufficient direct evidence of

discriminatory intent" (quoting EEOC v. G-K-G, Inc.,

,

746 (7th Cir. 1994))); see also Ezell v. Potter,

,

-26- 1051 (7th Cir. 2005) (finding that employer's statement to a new

hire that they intended "to get rid of older carriers and replace

them with younger, faster carriers" constituted direct evidence of

discriminatory intent).

Trane, however, submits that Zampierollo's deposition

testimony about Flefel's "rejuvenation" statement does not qualify

as direct evidence of age discrimination for several reasons. None

of those reasons passes muster. First, Trane argues that

Zampierollo's deposition testimony does not constitute direct

evidence because Zampierollo allegedly could not remember at his

deposition "what Mr. Flefel said or what words he used" when

explaining to Zampierollo why Trane was terminating his

employment. Trane further argues that because Zampierollo "isn't

even sure [if the statement] was ever made," Flefel's alleged

"rejuvenation" statement "should be disregarded."

Trane's argument is premised on a misconstruction of the

record. During his deposition, Trane's counsel repeatedly asked

Zampierollo about the reasons provided by Flefel for Trane's

decision to terminate Zampierollo's employment. Faced with these

questions, Zampierollo consistently testified that Flefel told him

"basically [that they] were going to rejuvenate the region, and

the costs were too high and . . . had to be lowered." Trane's

counsel, in an apparent attempt to steer Zampierollo away from the

-27- "rejuvenation" statement, stated, "So, if I understand you

correctly, the stated reason for your termination was reduction in

costs?" Refusing to take the bait, Zampierollo responded,

"[r]eduction in costs and rejuvenation of the team, of the region."

A little later in the deposition, Trane's counsel stated, "I'm

asking you about a specific conversation in connection with your

termination. And, the question was whether, during that

conversation with Mr. Enrique Flefel, you discussed anything else,

aside from what you just testified?" Zampierollo again responded,

"[n]o, it was basically or emphatically '[t]his is a reduction in

cost, and we're rejuvenating the management.'" Finally,

Zampierollo concluded that "[he] was taken out because of [his]

age." This statement prompted Trane's counsel to ask him, "and

you reached that conclusion on your own?," to which Zampierollo

responded, "I reached that conclusion when I hear the bells, like

we're rejuvenating the management team and all that, so I get it.

And, when I look at everything that happened, who was fired with

me . . . ."

This testimony does not support Trane's allegations that

Zampierollo did not remember what Flefel told him regarding Trane's

motivations for terminating him or that Zampierollo was not "even

sure" whether Flefel had informed him that his termination was due

to Trane's desire to rejuvenate the team/management/region. To

-28- the contrary, Zampierollo's testimony was consistent throughout

his deposition and he was adamant that Flefel had mentioned that

Trane's desire to rejuvenate its workforce was the reason behind

its decision to terminate Zampierollo. We note that at his

deposition, after Zampierollo quoted Flefel as having said that

"we're rejuvenating the management," Trane's counsel asked

Zampierollo, "did Mr. Enrique Flefel specifically say the word[s]

'rejuvenating' the workforce?," to which Zampierollo responded

that he did not remember "[t]he specific words" used by Flefel.

This exchange occurred shortly after Zampierollo had cited Flefel

as having said that Trane was "going to rejuvenate the region,"

and was doing a "rejuvenation of the team," and after quoting him

as saying that Trane was "rejuvenating the management." Despite

not remembering whether Flefel's exact words were "rejuvenate the

region," "rejuvenation of the team," "rejuvenating the workforce,"

or "rejuvenating the management," his testimony was unequivocal

that Flefel's statement as to the reason that he was terminated

included the use of the word "rejuvenate" and so the only possible

uncertainty he acknowledged as to what he recalled Flefel to have

said concerned whether the statement was referring to the "region,"

"team," "workforce," or "management." See Ocasio-Hernández, 777

F.3d at 4 (stating that on summary judgment we construe the record

in the light most favorable to the nonmovant and resolve all

-29- reasonable inferences in that party's favor). Furthermore, "a

witness's lack of memory normally generates simply a credibility

issue for the factfinder." United States v. Rojas-Tapia,

(1st Cir. 2006); Febres,

n.3 (stating that

direct evidence "does not require that the plaintiff produce

evidence that the court finds persuasive" and "credibility

determinations in respect to direct evidence are for a properly

instructed jury, not for the judge"); see also Anderson v. Liberty

Lobby, Inc.,

(1986) (noting that, in deciding a

motion for summary judgment, "[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge," and

"[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor" (citing

Adickes v. S.H. Kress & Co.,

(1970))).

Second, Trane argues that Zampierollo's deposition

testimony about Flefel's "rejuvenation" statement does not

constitute direct evidence of age discrimination because

Zampierollo allegedly admitted to being "speculating as to the

motives for his termination." This argument is also based on a

misreading of the record.

At Zampierollo's deposition, when Trane's counsel tried

to limit his testimony about Flefel's stated reasons for his

-30- termination to "reduction in costs," Zampierollo clarified that

Flefel's stated reasons were "[r]eduction in costs and

rejuvenation of the team, of the region." Zampierollo then

expanded on his response by adding,

We needed change. We needed change probably of . . . I'm one of the old guards there. I was part of all what came from William Sekkel, from Guillermo Feria, from everyone else, and this is, if you want to call it . . . I don't know. I'm speculating there.

(alterations in original). When read in context, it is clear that

Zampierollo's statement that he was speculating was related to his

explanation regarding the need for change and not to Flefel's

stated reasons for his termination. Zampierollo consistently

testified throughout his deposition that Flefel had "emphatically"

informed him that he was being terminated from his employment

because of Trane's desire to rejuvenate its

team/management/region.

Trane next posits that Zampierollo's testimony about

Flefel's "rejuvenation" statement does not qualify as direct

evidence because Zampierollo did not mention any ageist comments

in his complaint or move to amend his complaint "even after his

deposition was taken," and because he allegedly waited until after

Trane had moved for summary judgment to come up with a new legal

theory. Here, we are reviewing the district court's resolution of

a motion for summary judgment, not of a motion to dismiss, where

-31- our review would be limited to the well-pleaded facts alleged in

the complaint. See Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011). Our review of the district court's

resolution of a motion for summary judgment entails consideration

of the evidence in the summary judgment record, which includes

deposition testimony pointed to by the parties. See Calero-Cerezo

v. U.S. Dep't of Just.,

(1st Cir. 2004) (noting

that "[s]ummary judgment is appropriate when 'the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to a material fact and that the moving party is entitled

to a judgment as a matter of law'" (quoting Fed. R. Civ. P. 56(c))).

Accordingly, we are not constrained to the facts specifically

alleged in the complaint -- facts which generally must give the

defendant only "fair notice" of what the plaintiff's claim is and

the grounds upon which it rests. See Ocasio-Hernández,

. After the complaint is filed, discovery then allows the

parties to learn of the scope of the evidence supporting the

opposing party's contentions. Here, Zampierollo's complaint gave

Trane fair notice of his age discrimination claims and the grounds

upon which those claims rested. He specifically alleged in his

complaint that Trane terminated his employment because of his age,

and replaced him with two younger employees as "part of [its]

-32- strategy to eliminate senior employe[es] and substitute them with

younger employees." During discovery, Trane then had the

opportunity to inquire about the scope of the evidence supporting

Zampierollo's contentions. The evidence obtained during discovery

could become part of the summary judgment record even if this

evidence was not specifically referenced in the complaint.

Furthermore, Trane's argument that we should disregard

the evidence about Flefel's "rejuvenation" statement because

Zampierollo allegedly waited "until he was faced with a well-

reasoned motion for summary judgment" to come up with a new legal

theory is preposterous. Zampierollo's legal theory has remained

consistent throughout the litigation. Zampierollo testified about

Flefel's "rejuvenation" statement at his deposition, well before

Trane filed its motion for summary judgment. In fact, many of the

facts included in Trane's motion were supported by the transcript

of Zampierollo's deposition. Zampierollo then opposed summary

judgment citing his deposition testimony. Contrary to Trane's

contentions, this simply is not a case in which the plaintiff

waited until a properly supported motion for summary judgment had

been filed to come up with a sham affidavit, new evidence of

discrimination not previously disclosed during discovery, or a new

theory.

-33- Trane also argues that Zampierollo's deposition

testimony about Flefel's "rejuvenation" statement does not

constitute direct evidence of age discrimination because Flefel's

statement was "inherently ambiguous" and subject to two different

interpretations -- one discriminatory and the other benign -- and

Zampierollo had "failed to put forth any evidence that could put

the alleged comment in further context."

Statements that are "inherently ambiguous" do not

qualify as direct evidence. Patten,

(quoting

Fernandes,

); Lehman v. Prudential Ins. Co. of Am.,

, 329 (1st Cir. 1996) ("Isolated, ambiguous remarks are

insufficient, by themselves, to prove discriminatory intent."). A

statement is inherently ambiguous if, viewed in context, it is

subject to be interpreted in a benign, non-discriminatory way.

See Patten,

. The fact that a jury would not be

compelled to find a statement was direct evidence of discrimination

does not make it inherently ambiguous so long as a jury could

conclude it was. An "inherently ambiguous" statement is not

susceptible of being reasonably found to be direct evidence

precisely because its inherently ambiguous nature would make such

a characterization of it merely speculative.

In support of its contention that Flefel's

"rejuvenation" statement is inherently ambiguous, Trane cites the

-34- Cambridge Dictionary's alternate definition of "rejuvenation."

Although the Cambridge Dictionary first defines "rejuvenation" as

"to make someone look or feel young and energetic again," Trane

notes that it also defines "rejuvenation" as "to make an

organization or system more effective by introducing new methods,

ideas, or people." Rejuvenation, Cambridge Dictionary,

https://dictionary.cambridge.org/dictionary/english/rejuvenate

(last visited on May 27, 2021). According to Trane, this alternate

definition is "wholly benign and unrelated to age," which makes

the word inherently ambiguous. Trane, however, fails to

acknowledge that even the usage example given for this alternate

definition of "rejuvenation" is age-based: "He has decided to

rejuvenate the team by bringing in a lot of new, young players."

(emphasis added). Other dictionaries likewise associate

"rejuvenation" with age. See Rejuvenate, Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/rejuvenate

(last visited May 27, 2021) (defining "rejuvenate" as "to make

young or youthful again" and explaining that "rejuvenate" stems

from the Latin "juvenis," meaning "young"); Rejuvenation,

Dictionary.com, https://www.dictionary.com/browse/rejuvenation

(last visited May 27, 2021) (defining "rejuvenation" as "the act

of making someone young again or restoring them to youthful vigor"

or "the act of making something new and fresh, or restoring it to

-35- a former better state"). Furthermore, the context in which the

statement is made informs our decision on whether the statement is

inherently ambiguous or not. See Patten,

;

Domínguez-Cruz v. Suttle Caribe, Inc.,

(1st Cir.

2000). And, contrary to Trane's contention, Flefel's

"rejuvenation" statement was neither isolated nor ambiguous, when

viewed in context. The statement was not a stray remark made in

isolation and unrelated to the decision-making process. According

to Zampierollo, the statement was made in the context of a

conversation he had with his direct supervisor and key

decisionmaker regarding his termination, as a direct response to

Zampierollo's inquiry as to why Trane was terminating his

employment. Accordingly, a reasonable jury could conclude that

the use of the word "rejuvenation" or "rejuvenate" in this context

unambiguously suggests an age-based animus. See, e.g., G-K-G,

Inc., 39 F.3d at 746.9

9 Trane cited Patten,

, in support of its proposition that an inherently ambiguous statement cannot constitute direct evidence of discrimination. Although Trane made no developed argument as to why our holding in Patten should be controlling, we clarify that Patten is clearly distinguishable. In that case, the plaintiff, who had a disability known to her employer since before it hired her, had an absenteeism problem which had become quite serious. Patten,

. After having missed six days of work, leaving early one day without justification, and calling in sick on another day, all within a span of twenty-two days, it became evident to her employer that the plaintiff could not comply with its attendance policy.

. Her supervisor thus called her in and stated, "[w]e understand

-36- Trane further argues that, even if Zampierollo's

deposition testimony about Flefel's "rejuvenation" statement is

that you have health problems. We understand that you are disabled, but we don't want you working in this store."

The plaintiff filed a disability-based discrimination claim against her employer, and the case proceeded to trial.

At trial, "[a]ll of [the plaintiff's] allegations were denied by management personnel," who testified that she was fired for "gross misconduct of the attendance policy."

The jury concluded that although the plaintiff was disabled, "her disability was not the determining factor in [her employer's] decision to discharge her."

It therefore ruled in the employer's favor.

On appeal, in the context of reviewing a jury instruction, we held that the statement allegedly made by the supervisor did not qualify as direct evidence because the statement was "subject to the interpretation that management fully understood that [the plaintiff] had a disability but could not further abide [her] gross and repeated absenteeism."

. We clarified that "[a] decisionmaker's mentioning of a disability in the context of an adverse employment action cannot, without more, constitute direct evidence of discrimination."

.

Zampierollo argues that Patten is inapposite because that case concerns an appeal of "a jury's verdict concluding that [the plaintiff] was not discriminatorily discharged," whereas "[h]ere, Zampierollo has not even been given an opportunity to have a jury hear and weigh the 'rejuvenation' comment and determine whether it is discriminatory or not." We agree with Zampierollo that both cases were appealed at different stages and that the issues presented in each appeal are different. The key distinction, however, is that unlike in Patten, where the supervisor merely referenced a protected ground in the context of an adverse employment action, here, Flefel did not merely reference Zampierollo's age in the context of his termination. Instead, Flefel made his age-related statement in direct response to Zampierollo's specific question as to why Trane was terminating his employment. That is, Flefel specifically told Zampierollo that the reason why Trane was terminating him was because it wanted to rejuvenate its team/management/region. Accordingly, in light of the context in which it was made, Flefel's statement was not inherently ambiguous and it constitutes direct evidence of discrimination. Hence, Patten is inapposite.

-37- unambiguous and could constitute direct evidence, it would still

be unreasonable for a jury to conclude that it is sufficient direct

evidence that Zampierollo was terminated because of his age when

one considers the effect that the restructuring of the business

had in Trane's workforce. Specifically, Trane stresses that, as

the district court found, there was a higher percentage of

employees within the protected age group after the reorganization

than before it.

The evidence in the record, however, does not support

Trane's contention or the district court's finding that "there was

a higher percentage of employees in the protected age group after

the [reduction in force] than before the same." Zampierollo-

Rheinfeldt,

, at *10. In fact, the record supports

the opposite conclusion. It is uncontested that, effective

September 30, 2013, Trane terminated Zampierollo and three other

employees, and these four employees were the only ones terminated

as part of Trane's reduction in force. Three out of these four

terminated employees were over the age of forty. It is also

undisputed that as of October 1, 2013, forty-five of Trane's

ninety-five Puerto Rico employees (or 47.3% of its workforce) were

forty years of age or older. Thus, a simple mathematical analysis

leads us to conclude that on September 30, 2013, when Trane

terminated Zampierollo and three other employees, its workforce

-38- was composed of ninety-nine employees, forty-eight (or 48.4%) of

which were in the protected age group. In consequence, contrary

to Trane's contention, the percentage of its employees within the

protected age group decreased after the reduction in force.10

10 We note that, at his deposition, defense counsel asked Zampierollo to estimate the number of Trane employees within the protected age group before the reduction in force. Zampierollo was not sure of this figure, but estimated that, before the reduction in force, Trane's workforce was composed of approximately one hundred employees of which "[p]robably a third" were over forty. This figure was underestimated. Then, to support its contention that more employees were within the protected age group after the reduction in force than before the same, Trane conveniently used Zampierollo's pre-reduction in force underestimated figure as a comparator, instead of using the real pre-reduction in force figure. By so doing, Trane conveniently reached a result that, although favorable to its argument, distorts the truth.

Our analysis does not factor in the effect of Trane's hiring of a Parts Manager and a Logistics Manager in 2014. According to Trane, the restructuring -- which was planned in or about August 2013 and became effective on October 1, 2013 -- affected only four employees (Zampierollo and the other three employees terminated on September 30, 2013). Furthermore, Trane admitted that the decision to hire these two additional managers occurred "[a]fter the restructuring [had] t[aken] place." Defs. SUMF in Supp. of Mot. for Summ. J. at 11 ¶¶ 83-84, Zampierollo- Rheinfeldt, No. 15-1255-RAM (D.P.R. Jan. 8, 2016), ECF No. 20. Moreover, Trane itself used the data from its workforce as of October 1, 2013, to make its point that the number of employees in the protected age group allegedly increased after the restructuring. Defs. Mot. for Summ. J. at 45-46, Zampierollo- Rheinfeldt, No. 15-1255-RAM (D.P.R. Jan. 8, 2016), ECF No. 19. In light of these facts, and because we construe the facts in the light most favorable to the nonmovant, we assess the age-neutrality of the restructuring by looking to the demographic makeup on October 1, 2013, the date Trane itself used in making its age- neutrality argument.

-39- Finally, Trane makes much out of the fact that a big

chunk of its Puerto Rico office's expenses consisted of salaries

and benefits and that it had a legitimate interest in reducing

such expenses, which it sought to do through a reduction in force.

Whatever legitimate business reasons Trane might have had to reduce

its workforce, it is not enough, in light of the direct evidence

put forth by Zampierollo, to take the issue away from a jury. The

ADEA does not prevent an employer from reducing its expenses

through the implementation of reductions in force. "But an

employer may not use its [reduction in

force]/reorganization/improved-efficiency rationale as a pretext

to mask actual discrimination . . . ." Hodgens,

.

Accordingly, an employer who has a "compelling reason wholly

unrelated to the [age] of any of its employees to reduce the size

of its work force" may still be liable under the ADEA if it "use[s]

the occasion as a convenient opportunity to get rid of its [older]

workers."

at 167 (quoting Matthews v. Commonwealth Edison

Co.,

(7th Cir. 1997)).

In sum, the record contains direct evidence to support

Zampierollo's theory that Trane selected him for termination

because of his age, due to Trane's desire to rejuvenate its

team/management/region. In light of this direct evidence, the

district court should have denied Trane's motion for summary

-40- judgment and allowed the case to proceed to trial, see Alvarez-

Fonseca,

, instead of analyzing Zampierollo's ADEA

claim under the McDonnell Douglas framework, see Smith v. F.W.

Morse & Co.,

(1st Cir. 1996) (stating that the

McDonnell Douglas framework is inapposite when a plaintiff

produces direct evidence of discrimination).11 Accordingly, we

vacate the district court's grant of summary judgment on the ADEA

claim.12

11 In ruling that the direct evidence put forth by Zampierollo was enough to defeat summary judgment and proceed to trial, we do not mean to limit the evidence that Zampierollo may present at trial or the route that he may follow to prove his case. At trial, Zampierollo may use his direct evidence to prove Trane's motive and may "reinforce that evidence with proof that [Trane's] ostensible reasons for firing him were unworthy of belief." See G-K-G, Inc., 39 F.3d at 747. He may also elect to ask the jury to infer discrimination by using "an adaptation of McDonnell Douglas to the trial setting." Id. (noting that "a plaintiff who has withstood the defendant's motion for summary judgment, yet has not been able to obtain summary judgment for himself and must therefore go to trial, can ask the jury to infer discrimination from the defendant's failure to present a credible explanation for why it fired the plaintiff despite his satisfying the defendant's legitimate expectations, and replaced him with a member of a nonprotected group"). None of this is to say that Trane acted in a discriminatory manner. Our task at this point is not to decide whether Zampierollo was terminated because of his age. Rather, we rule only that he has direct evidence to warrant a trial. 12 Our conclusion makes it unnecessary to address Zampierollo's arguments regarding the district court's application of the McDonnell Douglas burden-shifting framework.

-41- 2. Law 100 Claim

Puerto Rico Law 100, like the ADEA, provides a cause of

action for persons who suffer discrimination in their employment

because of their age. See Ramos-Santiago v. WHM Carib, LLC,

(1st Cir. 2019). "Law 100's protections against age

discrimination are 'coterminous' with the ADEA's protections,"

Puig v. Novo Nordisk Inc.,

(1st Cir. 2021),

although the "plaintiff's burden is lighter" under Law 100, Vélez,

n.7.13

Here, the district court based its dismissal of

Zampierollo's Law 100 claim on the dismissal of the ADEA claim.

In light of our ruling that Zampierollo's ADEA claim must be

reinstated, we must vacate the summary judgment ruling on the Law

100 claim as well.

3. Law 80 Claim14

Law 80, Puerto Rico's Unjust Discharge Act, protects

employees hired without a fixed term from being terminated without

13 Under Law 100, "absent just cause for dismissal, the plaintiff's prima facie case creates a rebuttable presumption of discrimination which shifts to the defendant not only the burden of producing the evidence, but also of persuading the trier." Vélez,

n.7 (quoting Menzel v. W. Auto Supply Co.,

(1st Cir. 1988)). "To defeat that presumption, 'the employer must prove, by a preponderance of the evidence, that the challenged action was not motivated by a discriminatory age animus.'"

(quoting Alvarez–Fonseca, 152 F.3d at 27–28). 14 We refer to the version of Law 80 in force prior to

-42- just cause. P.R. Laws Ann. tit 29, § 185a. If the employer

terminates the employee without just cause, it must pay him a

severance or "mesada," which is calculated pursuant to a formula

that takes into account the employee's salary and years of service

with the employer. Id. The statute's definition of just cause

includes "three [reasons] 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))15. Pursuant to section 185c, however, "[a]n employer

citing a restructuring or downsizing reason as just cause 'must

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).

15 The statute provides that the following reasons "shall be understood as just cause":

. . .

(d) Full, temporary, or partial closing of the operations of the establishment. . . .

(e) Technological or reorganization changes as well as changes of style, design, or the nature of the product made or handled by the establishment, and changes in the services rendered to the public.

(f) Downsizing made necessary by a reduction in the foreseen or prevailing volume of production, sales, or profits at the time of the discharge or for the purpose of increasing the establishment's competitiveness or productivity.

P.R. Laws Ann. tit. 29, § 185b(d)-(f).

-43- give preference to those employees with greater seniority over

those with less seniority within the same occupational

classification.'" Puig,

(quoting Carrasquillo-

Ortiz,

); P.R. Laws Ann. tit. 29, § 185c.16 If the

employer fails to follow this preferential retention mandate, the

employee's dismissal will generally be without just cause.

See P.R. Laws Ann. tit. 29, § 185c.

Once the plaintiff alleges unjustified dismissal and

proves by a preponderance of the evidence that he was discharged,

it is presumed that the dismissal was unjustified. Alvarez-

Fonseca,

. The burden of proof then shifts to the

16 Specifically, section 185c establishes that:

In any case where employees are discharged for the reasons indicated in subsections (d), (e) and (f) of § 185b of this title, it shall be the duty of the employer to retain those employees of greater seniority on the job with preference, provided there are positions vacant or filled by employees of less seniority in the job within their occupational classification which may be held by them . . . . However, at the time of the discharge . . . , if there is a reasonably clear or evident difference in favor of the capacity, productivity, performance, competence, efficiency or conduct record of the compared employees, the employer may make a selection based on such criteria.

P.R. Laws Ann. tit. 29, § 185c.

-44- employer to prove by a preponderance of the evidence that the

discharge was justified. Id. at 27-28.

The Puerto Rico Supreme Court has clarified that,

although not all unjustified terminations are necessarily

discriminatory, all discriminatory terminations are unjustified.

Díaz v. Wyndham Hotel Corp.,

(2001)

(certified translation). Hence, a finding of age discrimination

in this case would necessarily make Zampierollo's termination

unjustified under Law 80. See

Because, as discussed above,

there are genuine issues of material facts that must be resolved

at trial regarding whether Trane terminated Zampierollo because of

his age, the district court erred in granting summary judgment for

Trane on Zampierollo's Law 80 claim. We, thus, vacate the entry

of summary judgment on the Law 80 claim.

III. Conclusion

We reverse the exclusion of the two documents from the

summary judgment record, vacate the district court's entry of

summary judgment in Trane's favor, and remand for further

proceedings consistent with this opinion. Costs are awarded to

the appellant.

-45-