ACEVEDO-PADILLA v. NOVARTIS EX LAX, INC. (P.R. 9-30-2010)

During the afternoon of June 5, 2006, a Quality Control Analyst informed the Quality Assurance Supervisor that a test on purified water samples revealed that the TOC was above the acceptable limit. Ex-Lax's SUF ¶ 73. As a result, an investigation was initiated; the investigation team was composed of Acevedo; Myriam L. Martínez (QA Compliance Assurance); Jerry Martínez (Production Manager); and Norma León (Quality Assurance Supervisor). Id. at 74. The investigation's findings revealed that personnel from the Maintenance and Engineering Department changed the Continuous Dialization Unit ("CDI") in the equipment that creates the purified water used to manufacture Ex-Lax's products. Id. at 75. The Engineering and Maintenance Department must notify the Production and QC Departments of the intervention with the equipment. Id. at 76.

When the high TOC levels were discovered, the manufactured products had to be discarded. Ex-Lax's SUF ¶ 78. This negligence represented a $39,072.71 loss for Ex-Lax. Id. The investigation team concluded that the Maintenance and Engineering Department personnel failed to notify the Production and Quality Departments of the high TOC levels, and the products were manufactured. Id. at 77. The CDI change, and lack of flushing, caused the TOC levels to elevate to unacceptable levels. Id. The investigation team also concluded that, based on the results of the investigation, the root cause for the high TOC levels was the need of required training for the Maintenance and Engineering Department personnel. Id. at 79. As a general practice, when an intervention is made on the equipment that creates the purified water used to manufacture Ex-Lax's products, the operator must continue to flush the equipment until the TOC levels are stable at acceptable levels. Id. However, this was not done by the Maintenance and Engineering Departments' personnel. Id. The operator started up the system without the flushing. Id. Furthermore, the investigation team concluded that the Quality and Production Departments had to be informed about the change of the CDI. Id. at 80. Acevedo admitted that the personnel that changed the CDI did not have the complete training. Id. at 81. Notwithstanding, Acevedo pointed out that he was on vacation on the date this incident occurred, and that Angel Alsina was in charge of the department at that time. Docket # 57, p. 62, ¶ 75.1.

Ceinos became aware of the TOC incident and its possible causes through the Unplanned Deviation Report. Ex-Lax's SUF ¶ 82.

Fogging Incident in 2006

In the week of June 19, 2006, the Quality Assurance Compliance Area audited the maintenance area. Ex-Lax's SUF ¶ 84. During the evaluation of the pest control documentation, Quality Assurance found that a fogging using BP-100 (pest control technique that uses smoke or vapor) was performed on June 14th, 2006, and that there was no objective evidence to support that the necessary precautions were taken as to avoid potential exposure to the equipment or products in the maintenance area. Id. An investigation immediately ensued; the investigation team was composed of Acevedo; Jerry Martínez (Production Manager); Norma León (QA Supervisor); and Jorge Cabrera (QC Associate Director). Id. at 85.

After the investigation concluded, the team produced the following factual findings. On June 13, 2006, a Production Associate informed Acevedo of the sighting of a dying cockroach next to the west wall of the chocolate manufacturing area. Ex-Lax's SUF ¶ 85(i). The same day, Acevedo informed Ecolab of the cockroach situation. Id. at 85(ii). Ecolab and Acevedo agreed that the inspection visit of the pest control supply would be done the next day, June 14, 2006. Id. at 85(iii). Ecolab was also scheduled to perform the monthly regular service on that day. Id. An Ex-Lax representative (an employee for the janitorial service One Source) received Ecolab's personnel, and after they performed the regular service, they proceeded with the fogging to the knock-out and chocolate manufacturing area. Id. at 85(iv). Following the inspection of the area by Ecolab and an Ex-Lax representative, it was decided to proceed with the fogging to the knock-out and chocolate manufacturing areas. Id. at 85(v). The fogging was done between 11:00 a.m. and 11:30 a.m. with an insecticide called BP-100. Id. at 85(vi). On the day of the fogging, the chocolate manufacturing kettle, batch no. 60404, was being mixed. Id. at 85(vii). After the fogging, the Production Department did not clean the equipment that was used to manufacture the products, that is, before the manufacturing process began. Id.; Docket # 57, p. 72, ¶ 85(vii). Even though there was no clear evidence of exposure to the insecticide during and after the fogging, Ex-Lax's chocolate batch no. 60404 was rejected. Ex-Lax's SUF ¶ 85(vii); Docket # 57, p. 72, ¶ 85(vii). This represented a loss of approximately $91,098.18. Ex-Lax's SUF ¶ 88.

The "Root Causes Evaluation" of the investigation states that the instructions given by the Maintenance Manager to the employee who accompanied Ecolab's personnel were not clear as to the application of the contact insecticide in the chocolate manufacturing area, and the steps to be followed before and after the application. Ex-Lax's SUF ¶ 86. As a result, the Ecolab employee assumed that because the equipment was covered, the area was prepared for the fogging and everybody had been informed about it. Id. Moreover, the investigators concluded that the Pest-Control Procedure was not specific in the communication steps to be followed when a situation of this nature, like the finding of a cockroach or another pest, occurs. Id. at 87. According to the report, the procedure failed to establish what to do before, during, and after a pest control activity takes place. Id. In the conclusion, the investigation team stated that the fogging without the necessary precautions was associated to inadequate written procedure to address any reported incidence of pest in the production areas. Docket # 57, p. 70-71, ¶ 84.2.

Ceinos became aware of the fogging incident and its causes through the Unplanned Deviation Report. Ex-Lax's SUF ¶ 89. Spare parts room, Machine shop and USP Water Room

In 2006, Ceinos went on two routine walks on two different occasions and visited the plants' facilities. Ex-Lax's SUF ¶ 90. In three of the areas, namely, the spare parts room, the machine shop and the USP water room, Ceinos found what he deemed lack of cleanliness and disorganization.Id. Ceinos believes that the rooms were in unacceptable conditions and in clear violation of the GMP's. Id. The spare parts room was disorganized because, among other things, there was no control over the inventory, which caused a problem in the operations since the parts that were needed to properly maintain the equipment were not present in the room on occasions. Id. at 91.The GMP's strictly apply to these three rooms since the parts present in the spare parts room and in the machine shop are used in the equipment that is used to manufacture Ex-Lax's products.Id. at 92. Also, the purified water that is produced in the USP water room is used to manufacture Ex-Lax's products.Id.

Carlos Marin was the stock room clerk, under Acevedo's supervision. Docket # 57, p. 80, ¶ 90.11. In 2006, new cabinets were installed to organize the cabinets in the stockroom. Id. at p. 79-80, ¶ 90.3, 90.4 90.6-90.8.

Acevedo's 2006 Mid-year Performance Reviews

Ceinos stated in Acevedo's 2006 Mid-year Performance Review "Leadership" category that "[t]he group must be motivated to guarantee execution of activities without mistakes." Ex-Lax's SUF ¶ 95. In said review, regarding the high TOC levels in the purified water and the fogging process, Acevedo specifically stated: "[t]he focus on Quality has been affected by two Unplanned Deviations. Two issues, coating with Purified water with high TOC and fogging in the Choc. Mfg. Room without taking the appropriate measures. Rejection of two lots due to this at a cost of around $90,000.00 dollars." Id. at 96. As to these incidents, Ceinos stated that "[a]s explained by Hernán [Acevedo], both incidents had significant financial implications for the operation." Id. at 98. Ceinos further stated, in the "Customer/Quality Focus" area that "[i]t is expected to improve the organization of housekeeping of areas [sic] under the responsibility of the Engineering department like: Stock Room, Boilers Room, Machine Shop, etc." Id. at 99.

In the "Empowerment-Accountability" area, Acevedo also stated that he was "[r]esponsible for all the matters related to the maintenance and engineering area. I am accountable and accept the calculated risks. I give responsibility to the mechanics and they accept it." Ex-Lax's SUF ¶ 97.

Ex-Lax's Capital Projects

In 2006, a capital appropriation's request was submitted for the reconstruction of a room and the acquisition of additional new equipment. Ex-Lax's SUF ¶ 102. This project was related to Ex-Lax's new product known as "thin strips." Id. However, the project became very costly and was extremely disorganized; it entailed a cost of 4 to 6 million dollars. Id. Acevedo delayed in informing that the project was exceeding the expected costs. Id. Acevedo's 2006 Annual Performance Review

In most of the criteria in the 2006 annual evaluation, Ceinos rated Acevedo as "Partially Met Expectations." Ex-Lax's SUF ¶ 103. Specifically, the Overall Manager Appraisal with regards to Ex-Lax's "Values and Behaviors," Acevedo was rated as "Partially Met Expectations." Id. at 105. The areas in which Acevedo did not meet the expectations during 2006 were the following: "Customer Quality-Focus," "Innovative and Creative," "Leadership" and "Empowerment-Accountability."Id. at 104. Specifically, in the area of "Leadership," Ceinos stated that: "[a] higher level of leadership is needed, specifically for the capital project that involved multiple departments within OTC. As an example is the TS CAR in which the engineering department is not leading the process. An overrun and a delay on the vendor's agreement was detected by the site leader. The plan to mitigate the consequence of the issues was not lead by engineering." Id. at 106. In the "Customer Quality-Focus" area, Acevedo rated himself as "Partially Met Expectations." Id. at 107. Acevedo's self-rating was consistent with

the rating given by Ceinos in said area. Id. As in his 2006 Mid-year Performance Review, Acevedo again stated that "[t]he focus on Quality had been affected by three Unplanned Deviations. Three issues, coating with Purified Water with high TOC, fogging in the Choc. Mfg. Room without taking the appropriate measures and Rodent in Finished Goods Area. Rejection of two lots due to at a cost of around $90,000.00." Id.

Furthermore, Acevedo acknowledged again in his performance review that he was "[r]esponsible for all the matters related to the maintenance and engineering area. I am accountable and accept the calculated risks. I give responsibility to the mechanics and they accept it. Accountable for the delay of informing the over budget of the Thin Film Device." Ex-Lax's SUF ¶ 108. Acevedo also rated himself as "Partially Met Expectations" in the "Empowerment-Accountability" and "Open Communication/Collaboration/Compassion" areas. Id. at 108-109. Acevedo also admitted during his deposition that the fogging and TOC incidents had a negative impact on the quality of Ex-Lax's products and finances. Id. at 110.

In this review, Ceinos once again stated the spare-parts room, the machine shop, and the USP water room were in unacceptable conditions . . . disorganized and the lack of cleanliness was evident." Ex-Lax's SUF ¶ 101. During his deposition, Ceinos admitted he had no evidence to show that he notified Plaintiff that the TOC or the fogging incidents could lead to his termination. PAF ¶ 50. When asked specifically what Plaintiff did regarding the TOC, Ceinos alleged that he is responsible for the training of his personnel. Id. at 51. Ceinos claims that the employees of the Engineering Department were not properly trained. Id. at 54. However, the investigations related to the fogging, TOC or rats do not conclude that Ecolab or One Source were negligent in the performance of their duties. Id. at 53.

Acevedo's termination

Ceinos made the decision to terminate Acevedo approximately in October 2006. PAF ¶ 110; Docket # 89, p. 377. Acevedo was terminated from his employment on February 23, 2007. Ex-Lax's SUF ¶ 114. On that same date, Ceinos signed Plaintiff's 2006 evaluation. PAF ¶ 32 123. Acevedo was 56 years old at that time. Id. at 81. His termination was effective immediately. PAF ¶ 121. Pabellon did not recommend nor support Plaintiff's termination, nor did he discuss Acevedo's performance with Ceinos. Id. at 97 98. Moreover, he does not remember whether Acevedo was placed in a progressive disciplinary procedure before his termination. Id. at 101. Pabellon could not explain why Acevedo was not given prior notice about his termination nor why he was not provided with a termination letter. PAF ¶ 121. Pabellon admitted there is no independent documentation that supports Ceinos' comments in the 2006 evaluation regarding the "Values and Behavior" section. Id. at 122.

Acevedo claims that his termination was discriminatory on account of his age because on two occasions, in August and December, 2006, Ceinos allegedly told him that Ex-Lax's plant's problem was that the persons that had been working for the company for a long time were not executing. Ex-Lax's SUF ¶ 116. Notwithstanding, Acevedo never complained to Ex-Lax's Human Resources Department of the alleged comments made by Ceinos. Ex-Lax's SUF ¶ 121.

Ex-Lax operations after Acevedo's termination

Acevedo was replaced by Mariely Rivera, who was born in May 12, 1973, and began working for Ex Lax in February 2007. PAF ¶ 63 82. She was 34 years old when Ceinos hired her. Id. Rivera reported directly to Carlos Ceinos. Id. at 84. Ceinos admitted that Rivera was interviewed before December 2006. Id. at 125. He further admitted that, in 2008, several animals entered the plant, and that no one was disciplined or reprimanded as a result of said incidents. Id. at 42; see also PAF ¶¶ 38, 39.3-39.8, 44-47. Age-based termination

The ADEA makes it unlawful for an employer "to fail or refuse to hire or 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." 29 U.S.C. § 623(a)(1). The Supreme Court recently clarified that plaintiffs must "establish that age was the `but-for' cause of the employer's adverse action." Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009); see also Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 446 (1<sup>st</sup> Cir. 2009). However, in contrast with other types of discrimination cases, "ADEA plaintiffs rarely possess `smoking gun' evidence to prove their employers' discriminatory motivations." Id. (citingArroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008). The First Circuit has held that "ADEA plaintiffs who do not have `smoking gun' evidence may nonetheless prove their cases by using the three stage burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Id. at 447. The McDonnell framework first requires a plaintiff to establish a prima facie case of employment discrimination by showing: "1) he was at least 40 years old at the time he was fired; 2) he was qualified for the position he had held; 3) he was fired, and 4) the employer subsequently filled the position, demonstrating a continuing need for the plaintiff's services." Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

Once the plaintiff sets forth a prima facie case, he is entitled to a presumption of age-based discrimination.Id. Then the burden of proof shifts to the employer, who must "articulate a legitimate, non-discriminatory reason for its decisions." Id. (citing Arroyo-Audifred, 527 F.3d at 219). "If the employer articulates such a reason, `the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.'" Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). Thereafter, the plaintiff bears the burden of proving by a "`preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'"Id. at 447-448 (citing Reeves, 530 U.S. at 143). That is, as previously stated, a plaintiff must show that his age was the "but-for" cause of the employer's adverse action. Id. at 448. In this context, pretext "means more than an unusual act; it means something worse than business error; pretext means deceit used to cover one's tracks." Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 67 (1^st Cir. 2008) (citingRonda-Perez v. Banco Bilbao Vizcaya Argentaria, 404 F.3d 42, 45 (1^st Cir. 2005).

In essence, Acevedo's age based discrimination claims hinge on two comments made by Ceinos. Ex Lax concedes, for purposes of the present motion, that on August and December 2006, Ceinos told Acevedo that Ex-Lax's problem was that the persons that had been working for the company for a long time were not executing. Docket # 89, p. 471. Plaintiff took the remark personally. PAF ¶ 107. However, these two isolated comments alone are not direct evidence of discrimination.

The First Circuit has held that "`stray workplace remarks' . . . normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus."Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1^st Cir. 2002); see also Williams v. Raytheon Co., 220 F.3d 16, 18 (1^st Cir. 2000) (rejecting age and gender claims where supervisor told colleagues that the company was run by "old, white men," that she intended to change the corporate culture, and would favor the hiring of women and younger people); Shorette v. Rite Aid of Maine, 155 F.3d 8, 13 (1^st Cir. 1998) (asking the plaintiff "how old he was and when he planned to retire" was "a textbook example of an isolated remark which demonstrates nothing"); Pearson v. City of Manhattan, 33 F. Supp. 2d 1306, 1315 (D. Kan. 1999) (holding that phrase "old ways" is not evidence of ADEA age-based animus, as such terms "apply more to a person's state of mind than to a person's age"); Martin v. Ryder Distribution Res., Inc., 811 F. Supp. 658, 664 (S.D. Fla. 1992) (observing that simple references to the plaintiff-employees — as "good old boys" and "old-fashioned" are insufficient evidence of age-based animus under ADEA). Thus more likely, these types of isolated comments would be considered stray remarks.

However, Ceinos' comments do not seem to be motivated by Acevedo's age, even if he admittedly "took it personally." Even more, "it is far from clear that the alleged remarks bespeak any age-based animus at all." El Dia, Inc., 304 F.3d at 69. Courts have held that "a statement that plausibly can be interpreted two different ways — one discriminatory and the other benign — does not directly reflect illegal animus." Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 583 (1^st Cir. 1999);see also Speen v. Crown Clothing Corp., 102 F.3d 625, 636 (1^st Cir. 1996) (holding that "`[a]mbiguous remarks, tending to suggest animus based on age, are insufficient, standing alone, to prove an employer's discriminatory intent.'") In analyzing Ceinos' comments, this Court notes that Ceinos did not even allude to Acevedo's or any

employees' age when he made the comments. More so considering that the fact that an employee has worked at Ex-Lax for a long time does not imply that said employees are within the protected age group, i.e. over the age of 40. Therefore, Plaintiffs' alleged direct evidence of age discrimination is insufficient.

Since Plaintiffs lack direct evidence of discrimination, theMcDonnell burden-shifting analysis applies. On this point, Ex Lax concedes that Acevedo falls within the protected group, that he suffered an adverse employment action when he was discharged, and that he was replaced by someone younger with similar qualifications. Docket # 29-3, p. 8. However, Ex Lax contends that Acevedo fails to satisfy the second prong of the prima facie case test insofar as he did not meet the company's legitimate work expectations. Id. According to Ex-Lax, Acevedo's termination was a legitimate business decision unrelated to his age. Specifically, Ex-Lax contends that Ceinos' decision to terminate Acevedo was based on the Unplanned Deviation Reports regarding the 2004 and 2006 incidents in the maintenance and engineering area, and due to Acevedo's failure to comply with the established quality control standards. In opposition, Acevedo negates responsibility over the incidents which occurred at the plant, and which allegedly led to his termination. He further avers that Ex-Lax's proffered reason for his dismissal is pretextual.

Courts have pointed out that at the summary judgment phase, "courts should not unduly complicate matters . . . by applying legal rules which were devised to govern the basic allocation of burdens and order of proof." Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-431 (1^st Cir. 2000) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1^st Cir. 1991)). "Instead, the focus should be on the ultimate issue: whether, viewing the `aggregate package of proof offered by the plaintiff and taking all inferences in the plaintiff's favor, the plaintiff has raised a genuine issue of fact as to whether the termination of the plaintiff's employment was motivated by age discrimination." Id. at 431.

As in Morales-Figueroa v. Banco Bilbao Vizcaya Argentaria, 550 F. Supp. 2d 220, 226-227 (D.P.R. 2007), in his opposition, Acevedo attacks Ex-Lax's decision to terminate him, and tries to convince this Court that he is not accountable for the incidents that allegedly led to his dismissal; he does not contest than the incidents occurred. In this case, we find that Plaintiffs have shown that there is controversy as to whether Acevedo met Ex-Lax's legitimate work expectations. Specifically, Acevedo's responsibility, and Ex-Lax's losses, for the following incidents is unclear: the record shows that one of the possible causes for the microbial incident of 2004 was that one of the operators who participated in the inspection process was sick, see Docket # 57, p. 22, ¶ 30.2; the quality of the products as a result of the packaging process deviation was not negatively affected,see id., p. 32, ¶ 38.3; Acevedo was on vacation when the TOC parameter incident took place in 2006,see id., p. 62. ¶ 75.1; and the investigation report for the 2006 fogging incident concluded that the Pest Control Procedure (written procedure) failed to establish how to proceed when a pest control activity takes place, see id., p. 70-71, ¶ 84.2 Ex-Lax's SUF ¶ 87. Pursuant to Rodriguez's testimony, if an employee succeeds a PIP, the factors that motivated the PIP cannot be used in support of discharging the employee. PAF ¶ 117 118. Although Acevedo successfully complied with the 2005 PIP, and received a "Fully Met Expectations" rating in 2005 as a result thereof, his termination is in part based on his 2004 Performance Evaluation. See Ex-Lax's SUF ¶ 71. Accordingly, for purposes of the present motion, this Court finds that Plaintiffs have established a prima facie case under the ADEA.

Notwithstanding, for an employee "to withstand summary judgment in an age discrimination case, there must be some significantly probative evidence from which the factfinder can infer that the employer discharged the employee because of his age."Morales-Figueroa, 550 F. Supp. 2d at 226-227. Even finding that Plaintiffs established a prima facie case, that is, that he met his employer's legitimate work expectations, and considering "instead, whether there is evidence that, notwithstanding the employer's stated reasons for the termination, the real reason, at least in part, was age . . . discrimination,'" we find that there is no evidence from which to conclude that Ex-Lax's proffered reason for Acevedo's termination was not in fact the real reason. Fontanez-Nunez v. Janssen Ortho LLC, 447 F.3d 50, 56 (1^st Cir. 2006) (citing Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1^st Cir. 2003)).

To show pretext, Plaintiffs set forth various arguments. First, Plaintiffs argue that Acevedo's evaluations were satisfactory, and that he received performance bonuses and salary increases. They further point to Ex-Lax's non-compliance with its disciplinary policy prior to Acevedo's dismissal, and its alleged discriminatory hiring practices. Specifically, Plaintiffs submit statistical information to show that Ex-Lax incurred in a pattern of age based discrimination when hiring and firing employees. Plaintiffs also point to Ceinos' alleged age-based recruitment plan. Lastly, they contend that despite lackluster performance, including the entrance of animals in the plant, Rivera was never disciplined nor received poor performance reviews for the incidents occurred in 2008.

At the pretext stage, "the question to be resolved is whether the defendant's explanation of its conduct, together with any other evidence, could reasonably be seen by a jury not only to be false but to suggest an age-driven animus." Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 78 (1^st Cir. 2005). Although Acevedo argues that Defendant's articulated reasons for his termination are a pretext and that he was terminated because of his age, "when assessing a claim of pretext in an employment discrimination case, a court's focus is necessarily on the motivations and perceptions of the decisionmaker," Davila v. Corporacion De P.R. Para La Difusion Publica, 498 F.3d 9, 17 (1^st Cir. 2007), that is, whether the employer believes its stated reason to be credible." Mesnick v. General Electric Co., 950 F.2d 816, 824 (1^st Cir. 1991) (citingGray v. New England Tel. and Tel. Co., 792 F.2d 251, 256 (1^st Cir. 1986)); see also Kouvchinov, 537 F.3d at 67. Thus, "the issue is not whether [the employer's] reasons . . . were real, but merely whether the decisionmakers . . . believed them to be real." Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996);see also Morales-Figueroa v. Banco Bilbao Vizcaya Argentaria, 550 F. Supp. 2d 220, 226-227 (D.P.R. 2007) (citing Ronda Perez v. BBVA, 404 F.3d 42, 45 (1^st Cir. 2005) (pointing out that in an age discrimination suit, "[t]he question is not whether plaintiff's or his fellow employees' version is the true one, but whether . . . his superiors believed what [they] had been told by those [they] interviewed."). Therefore, an "employee's perception of himself . . . is not relevant. [Rather,] [i]t is the perception of the decision maker which is relevant."Torrech-Hernandez v. GE, 519 F.3d 41, 49 (1^st Cir. 2008).

Courts have held that "[t]his holds true even when the decisionmaker is relying on information that may later prove to be inaccurate. In other words, it is not enough for a plaintiff to show that the decisionmaker acted on an incorrect perception. Instead, the plaintiff must show that the decisionmaker did not believe in the accuracy of the reason given for the adverse employment action." Kouvchinov, 537 F.3d at 67. This is due to the fact that "anti-discrimination laws do not insure against inaccuracy or flawed business judgment on the employer's part; rather, they are designed to protect against, and to prevent, actions spurred by some discriminatory animus." Id. (citingRonda-Perez, 404 F.3d at 47).

The First Circuit has noted that "courts in employment discrimination cases may not act as `super personnel departments,' substituting judicial judgments for the business judgments of employers." Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 221 (1^st Cir. 2008); see also Davila, 498 F.3d at 17; Petitti v. New England Tel. Tel. Co., 909 F.2d 28, 31 (1^st Cir. 1990). Specifically, "as long as the [employer] believed that the [employee's] performance was not up to snuff — and the [employee] has presented no evidence suggesting that management thought otherwise — it is not [the courts'] province to second-guess a decision to fire him as a poor performer. That is true regardless of whether, to an objective observer, the decision would seem wise or foolish, correct or incorrect, sound or arbitrary." Davila, 498 F.3d at 17.

Therefore, the plaintiff needs to "show more than his employer miscalculated in deciding that he had outlived his corporate usefulness: good-faith errors in an employer's business judgment are not the stuff of ADEA transgressions." Morales-Figueroa, 550 F. Supp. 2d at 226 (citing Freeman v. Package Machinery Co., 865 F.2d 1331, 1341 (1^st Cir. 1988)). As to the evidence needed on this front, the Supreme Court has held that proof that the employer's explanation is "unworthy of credence" is one form of "circumstantial evidence that is probative of intentional discrimination." Reeves, 530 U.S. at 147; see also Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 12 (1^st Cir. 2007). However, when the plaintiff fails to show that his employer's findings were inaccurate, unbelievable, idiosyncratic, or misleading, there is no basis to conclude that its legitimate business decisions were motivated by age animus. Id. (citing Gray v. New England Tel. and Tel. Co., 792 F.2d 251, 256 (1^st Cir. 1986).

Performance evaluations

In the present case, upon reviewing the attached relevant performance reviews, and the uncontested facts, this Court notes that Acevedo agreed with some of Ceinos' annotations regarding his performance. In the 2004 performance evaluation, Ceinos and Acevedo agreed he was fully accountable for the situations concerning Pest Control, compressed air, Micro OOS and packaging equipment, which negatively impacted the performance of the site. Ex-Lax's SUF ¶ 63. They also agreed that there were problems in the communication between the departments. Id. Acevedo also recognized that sometimes results were not as acceptable as they should be, i.e, the installation of new potable water piping, Brush box, Qualification of Gas-X with Maalox tablets change parts, that sometimes he did not spend the required time with each of his employees, and that he always felt responsible as to what his department did, good or bad.Id. at 64. Moreover, in his 2006 performance review, Acevedo stated that he was accountable for the delay in informing the over budget of the Thin Film device, and that he was responsible for all the matters related to the maintenance and engineering area. Id. at 108. Therefore,

Acevedo cannot now argue that Ceinos' opinions regarding his performance were inaccurate or unbelievable. Especially considering that Acevedo participated in some of the investigations, that he signed the performance reviews and has not shown that he objected to the same to the HR Department or to Ceinos.

Additionally, Ceinos' comments and ratings in Acevedo's performance reviews were based on the investigation results for each incident. That is, Ceinos believed the information provided in the Unplanned Deviation Reports and investigation reports was an accurate depiction of the incidents occurred, and Acevedo has not shown otherwise. Lastly, this Court notes that Ceinos rated Acevedo in 2005 as "Fully Met Expectations," which evinces a lack of animus towards Acevedo, insofar as he was accorded positive review by Ceinos despite previous performance issues.

In essence, Plaintiffs ask us to excuse Acevedo's performance by replacing Ceinos' business judgment with his own absent proof that his employer's findings were inaccurate or misleading, which is an untenable position in light of the applicable case law.Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 12 (1^st Cir. 2007) (citing Webber v. Int'l Paper Co., 417 F.3d 229, 238 (1^st Cir. 2005) (holding that "an employee's opinion of the efficacy of an employment decision, standing alone, cannot supplant the employer's business judgment.").

Ex-Lax's hiring practices, disciplinary procedure and Rivera's performance

In their attempt to show pretext, Plaintiffs further submit statistical information regarding Ex-Lax's hiring practices. Specifically, pursuant to the uncontested facts, after Ceinos was hired in 2003, a total of 17 employees were fired; 15 of those employees were over 40 years old. PAF ¶ 9. Moreover, Rodriguez, Ex-Lax's HR Manager of Ex Lax from 1997 to 2005, was 48 years old when she was terminated, and replaced by Pabellón, Ex-Lax's current HR Director; he was 39 years old when hired by Ex Lax.Id. at 65, 66, 67 68. Javier Garcia was replaced by Alexander Rochat, who was born in May 13, 1970. Id. at 69 70. Rochat was Ex-Lax's Site Leader from August 2006; at that time he was 34 years old. Id. at 71. Plaintiffs further submit Ex-Lax's answers to interrogatories # 4 and 16 to support their argument that Ex-Lax engaged in a pattern of age discrimination.

This Court notes that a "company's overall employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer when dismissing a particular individual." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1^st Cir. 1993) (citing Gadson v. Concord Hosp., 966 F.2d 32, 35 (1^st Cir. 1992)). Although statistical evidence is sometimes relevant to show pretext, the First Circuit has cautioned that such evidence may vary greatly in its probative value. Bloomfield v. Bernardi Automall Trust, 170 F. Supp. 2d 36, 45 (D. Mass. 2001) (citing Blizard v. Frechette, 601 F.2d 1217, 1223 (1^st Cir. 1979)). More to the point, "one potential flaw in the statistical evidence may arise when the ages of employees are given without any information about the age of the applicant pool. Specifically, `the fact that recently hired [employees] are younger than [the plaintiff] is not necessarily evidence of discriminatory intent, but may simply reflect a younger available work force'" Id. (citing LeBlanc, 6 F.3d at 848); see also Rodriguez v. Smithkline Beecham, 224 F.3d 1, 7-8 (1^st Cir. 2000). Accordingly, "[w]ithout an indication of a connection between the statistics," the practices of the employer, and the employee's case, statistics alone are likely to be inadequate to show that the employer's decision to discharge the employee was impermissibly based on age." Id. (citingGadson, 966 F.2d at 35). Insofar as statistics alone are not likely to be probative of whether the employer's decision to terminate plaintiff was based impermissibly on plaintiff's

age, if unsupported by other probative evidence of age discrimination, they are insufficient to show a discriminatory animus.

This district has held that "the fact that recently hired employees are younger than [the plaintiff] is not necessarily evidence of discriminatory intent, but may simply reflect a younger available work force." Tirado Arce v. Aramark Corp., 239 F. Supp.2d 153, 163 (D.P.R. 2003). As in Tirado-Arce, Acevedo failed to provide information regarding the pool of applicants or the composition of the relevant labor market. This alone leads us to finds that the statistics provided by Plaintiffs fail to create a triable issue of fact as to whether Acevedo was laid off for discriminatory reasons. Even so, upon reviewing the record, this Court notes that out of 171 employees hired, two were born in 1951, the year Acevedo was born; four employees were 50 or older, and 43 employees were over 40 years old. Thus the statistical information provided by Plaintiff fails to show a clear pattern of age discrimination in Ex-Lax's hiring practices. Furthermore, it should be noted that Acevedo was 45 years old when he was hired by Ex-Lax, that is, within the protected group. This in itself lends support to Ex-Lax's position.

Additionally, this Court notes that, as to the 2008 rodent incidents, Ceinos explains that they are not attributable to Rivera insofar as a major construction took place during that period of time which made it impossible to eliminate the entrance of animals in the plant. Even so, Rivera's lackluster performance is not conclusive evidence that Ex-Lax's proffered reason for terminating Acevedo is pretextual. Especially considering that Acevedo's performance deficiencies began in 2004 and he was granted opportunities to correct the same. Even more, he was terminated in 2007, that is, three years since the alleged deficiencies were first commented upon by Ceinos.

Lastly, it should be noted that Ex-Lax's alleged non-compliance with the disciplinary process is irrelevant for purposes of an ADEA claim. Notwithstanding, the record shows that exempt employees were not usually disciplined through the standard disciplinary forms, and instead the areas to be improved are identified via memos or the mid-year and annual performance reviews. See Docket # 89, pp. 465, 467-468. As such, the evidence suggests that Ex-Lax adequately complied with its disciplinary process in Acevedo's case.

Recruitment Plan

While arguing pretext, Plaintiffs also contend that when he was hired as Site Leader in 2003, Ceinos asked Rodriguez to prepare a recruitment plan to evaluate how the employees close to retirement age would be replaced. PAF ¶ 102. He also sought to know whether said employees would retire or stay at Ex-Lax.Id. The employees approached had to be 55 years old, and have 5 years of service or more at Ex-Lax. Id. at 105. According to Rodriguez, the purpose was to substitute these persons and initiate a recruitment process. Id. at 103. Ceinos testified that the recruitment plan was based upon the fact that there were a substantial amount of employees in key positions near the retirement age, which could lead to numerous simultaneous vacancies for an extended period of time. See Docket # 89, p. 469. Ceinos believed this could negatively impact Ex-Lax's operations. Id.

On this point, the First Circuit has held that "company officials are permitted to gather information relevant to personnel planning without raising the specter of age discrimination." Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 101 (1^st Cir. 2002) (citing Cox v. Dubuque Bank Trust Co., 163 F.3d 492, 497 (8^th Cir. 1998) (holding that "[m]any courts have recognized that an employer may make reasonable inquiries into the retirement plans of its employees."); Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7^th Cir. 1992) (finding that "a company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct.") Even "an offer of early retirement is not, on its own, evidence of discriminatory animus." Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1^st Cir. 2001); see also Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 27 (1^st Cir. 1998); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1^st Cir. 1993). Even so, Rodriguez clarified that there was no recruitment plan in place to transfer those employees that refused to retire. Instead, a sole employee was approached by her supervisor, not Ceinos, and informed that if she did not retire, she would be transferred. Pursuant to Rodriguez's testimony, this was an isolated incident. Therefore, Plaintiffs did not show a clear generalized pattern or plan on Ex-Lax's behalf of pressuring employees to retire. Moreover, Ex-Lax's proffered reasons for evaluating which employees are close to retirement age is reasonable insofar as the company must ensure that all key positions are filled when employees retire.

Lastly, it should be noted that even "[d]iscrediting defendant's proffered reasons does not automatically entail a finding of age discrimination." Machin v. Leo Burnett, Inc., 376 F. Supp. 2d 188, 200-201 (D.P.R. 2005). Therefore, even a plaintiff's showing of pretext does not necessarily defeat a defendant's summary judgment motion. Such finding requires "sufficient evidence in the record for a reasonable factfinder to infer that plaintiff's termination was due to his age." Id.

After reviewing the record, this Court finds that Acevedo has not presented any evidence to demonstrate that age discrimination was the real reason for the termination — or even a motivating influence in the decision. Fontanez-Nunez, 447 F.3d at 56 (citingReeves, 530 U.S. at 141). Ceinos' alleged age-based comments are far from indicative of age-based animus. Moreover, given Ex-Lax's proffered reasons for Acevedo's termination, even assuming that the above-mentioned stray remarks made by Ceinos — which we already held are unrelated to Acevedo's age — were in fact age related, they do not allow us to infer that Ex-Lax's real motivation was his age.

As such, even if Acevedo received performance bonuses and salary increases, this does not alone show age-based animus. There is not a single reference to Acevedo's age at any time by any witness or in any document. The only evidence submitted by Plaintiffs are Ceinos' comments regarding employees who have been working at the plant for a long time which have been discarded as age motivated. As a result, even if Plaintiffs discredited Ex-Lax's proffered reasons for Acevedo's dismissal, there is no proof that his termination was because of his age.

The First Circuit has noted that "federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions motivated by listed prejudices such as race, age and gender . . . Discrimination is a form of unfairness; but not all unfairness is discrimination."Sabinson v. Trs. of Dartmouth College, 542 F.3d 1, 4 (1^st Cir. 2008) (citations omitted). The "`ADEA does not stop a company from discharging an employee for any reason (fair or unfair) or for no reason, so long as the decision to fire does not stem from the person's age.'" Hidalgo v. Overseas Condado Ins. Agencies, 120 F.3d 328, 337 (1^st Cir. 1997) (citing Mesnick, 950 F.2d at 825). Thus while Acevedo may be entitled to other remedies due to his dismissal, the ADEA is inapplicable to the case at bar.

In light of the foregoing, this Court finds that Plaintiffs have failed to establish that a genuine issue of material fact exists as to pretext. Accordingly, Ex-Lax's request for summary judgment as to Plaintiffs' age discrimination claim is GRANTED. Harassment

Courts have recognized claims for harassment other than sexual harassment, to wit, verbal abuse (racial epithets), pranks and other forms of hazing. DeNovellis v. Shalala, 124 F.3d 298, 310 (1^st Cir. 1997). However, not all offensive conduct is actionable as harassment, since trivial offenses do not suffice. Id. (citingMeritor Say. Bank v. Vinson, 477 U.S. 57, 67 (1986). For example, in order to establish a Title VII claim for sexual harassment under a hostile environment theory, the conduct must be "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive [or hostile] working environment.'" Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In this analysis, "courts look to the gravity as well as the frequency of the offensive conduct." Id. at 311.

More specifically, to succeed in a hostile workplace environment claim under the ADEA, Acevedo must show: (1) that he is a member of a protected class; (2) that he was subjected to unwelcome harassment; (3) that the harassment was based on his membership of the protected class; (4) that the harassment was so severe or pervasive that it altered the conditions of his employment and created an abusive work environment; (5) that the objectionable conduct was objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established. Torres-Negron v. Merck Co., 488 F.3d 34, 39 (1^st Cir. 2007) (citing O'Rourke v. City of Providence, 235 F.3d 713, 728 (1^st Cir. 2001)). A plaintiff must establish that he "suffered an adverse job action, that this was motivated by age, and that he suffered injury as a result of it."Collazo v. Nicholson, 535 F.3d 41, 44 (1^st Cir. 2008) (citing Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 33 (1^st Cir. 2001).

The First Circuit has explained that "an employer's liability for a hostile work environment claim depends on the harasser's employment status relative to the victim's." Merck, 488 F.3d at 40. Therefore, Ex Lax is vicariously liable if Acevedo's supervisor at Ex Lax created a hostile work environment, whereas if a co-worker created the hostile work environment, Ex Lax will be held liable only if it was negligent either in discovering or remedying the harassment. Id.

Pursuant to his deposition testimony, Acevedo's harassment claim is based on the following: (i) Ceinos held Acevedo responsible for the maintenance and engineering incidents that occurred in the plant; (ii) in 2006, Ceinos allegedly raised his voice when talking to Acevedo in relation to some disagreements regarding the plant's cleanliness; specifically, Acevedo stated that Ex-Lax's facilities were clean and organized, while Ceinos stated that they were dirty and disorganized; (iii) Ceinos allegedly stopped talking to Acevedo; (iv) Ceinos allegedly started to take the lead in a project which had been previously led by Acevedo and excluded him from the project; (v) on one occasion, Ceinos allegedly became angry with Acevedo because he allegedly informed Ceinos' supervisor of a disagreement he had with Ceinos as to how to work with an "over budget," and (vi) Ceinos stopped inviting Plaintiff to the work meetings regarding big projects and he was excluded from the objectives. Ex-Lax's SUF ¶ 122; PAF ¶ 109, 111-113.

As previously stated, the ADEA is not applicable in the present case because Acevedo has not shown age-based animus. As such, his age-based harassment claims fail as well. Notwithstanding, this Court finds that the incidents Acevedo provides in support of his harassment claims are insufficient to withstand summary judgment. Specifically, the conduct Acevedo sets forth is not sufficiently severe and offensive to create a hostile work environment. This is evidenced by the fact that Acevedo never informed the HR Department about Ceinos' alleged harassment, despite knowing the mechanisms available within Ex-Lax. Moreover, according to Acevedo, he was unaware that the maintenance and engineering incidents that occurred at the plant were attributed to him. Insofar as the gist of his opposition to Ex-Lax's motion is that he was never advised that said incidents could lead to his dismissal, Acevedo is now barred from claiming that he was harassed by the same conduct he claims was never effectively brought to his attention. As such, Plaintiffs' harassment claims are DISMISSED with prejudice. Supplemental law claims

Having dismissed Plaintiffs' federal law claims against Ex-Lax, Plaintiffs' state law claims are also dismissed.See Newman v. Burgin, 930 F.2d 955, 963 (1^st Cir. 1991) (holding that "[t]he power of a federal court to hear and to determine state-law claims in non-diversity cases depends upon the presence of at least one `substantial' federal claim in the lawsuit.").

In light of the foregoing, Defendant's motion for summary judgment is GRANTED. Accordingly, Plaintiffs' federal claims are DISMISSED with prejudice, and their state law claims are DISMISSED without prejudice.