Filed: May 17, 2004
Latest Update: Feb. 22, 2020
Summary: and Lipez, Circuit Judge.Erick Morales for appellant. Union Ins.fact that Centennial cashiered Lugo, not him.argument was not made in the district court.the lower court cannot be broached for the first time on appeal.F.3d 62, 74 (1st Cir.than that the employer made an unwise personnel decision .
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2344
FRANCIS BERMUDEZ-VAZQUEZ,
Plaintiff, Appellant,
v.
CENTENNIAL OF PUERTO RICO WIRELESS CORP.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Erick Morales for appellant.
José Fco. Benitez-Mier, with whom Eileen M. García-Wirshing
and O'Neill & Borges were on brief, for appellee.
May 17, 2004
Per Curiam. In this employment discrimination case the
plaintiff, a black man who formerly worked as a sales
representative and team leader for the defendant (a provider of
broad-band and wireless communications services), charges a failure
to promote him based on his race in violation of, inter alia, 42
U.S.C. §§ 1981, 2000e(2)(a)(1), and various provisions of Puerto
Rico law. After pretrial discovery had run its course, the
defendant moved for summary judgment. See Fed. R. Civ. P. 56. The
district court rejected the plaintiff's vigorous opposition, wrote
a well-reasoned opinion, and granted the motion. Bermudez-Vazquez
v. Centennial de P.R., 278 F. Supp. 2d 174, 185 (D.P.R. 2003). The
plaintiff now appeals.
Our case law teaches "that when a trial court accurately
sizes up a case, applies the law faultlessly to the discerned
facts, decides the matter, and articulates a convincing rationale
for the decision, there is no need for a reviewing court to wax
longiloquent." Vargas-Ruiz v. Golden Arch Dev., Inc., ___ F.3d
___, ___ (1st Cir. 2004) [No. 03-2225, slip op. at 2]. Time and
time again, we have followed this admonition in appropriate cases.
See, e.g., Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 383 (1st
Cir. 2000); Lawton v. State Mut. Life Assur. Co.,
101 F.3d 218, 220
(1st Cir. 1996); Ayala v. Union de Tronquistas, Local 901,
74 F.3d
344, 345 (1st Cir. 1996); Holders Capital Corp. v. Cal. Union Ins.
Co. (In re San Juan Dupont Plaza Hotel Fire Litig.),
989 F.2d 36,
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38 (1st Cir. 1993). The case at hand fits neatly within these
doctrinal confines. Hence, we affirm the judgment below for
substantially the reasons elucidated in the district court's
thoughtful rescript.
We add only a brief comment relative to the appellant's
most bruited argument on appeal. He complains with particular
vehemence that Centennial passed him over for promotion to a
management position left vacant by the firing of his former
supervisor, Wilfredo Lugo. In justifying the decision to choose
someone else for the post, Centennial explains that Lugo and the
appellant had an acrimonious relationship in which the appellant
acquitted himself poorly. From Centennial's point of view, this
militated against promoting the appellant to fill the vacancy not
only because it demonstrated a lack of fitness for senior
management responsibility, but also because it would have sent an
infelicitous signal to other employees.
The appellant decries this explanation as a sham,
pointing to his generally favorable performance reviews and the
fact that Centennial cashiered Lugo, not him. If Centennial were
genuinely dissatisfied with his conduct and concerned about
exacerbating a division within the sales force, the appellant
suggests, the logical response would have been to discharge him.
On this view, his retention undermines Centennial's facially
nondiscriminatory reason for refusing to promote him to fill Lugo's
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shoes. Consequently, he has met his third-stage burden of
producing sufficient evidence that his employer's stated rationale
was pretextual with respect to this promotion decision. See Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The appellant's thesis is unavailing. For one thing, the
argument was not made in the district court. It is, therefore,
reviewable here only for plain error. See, e.g., Teamsters Union
v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal.").
There is nothing sufficiently compelling about this case to warrant
retreat from so prudential a rule.
In all events, the differential treatment of Lugo and the
appellant in no way signifies that Centennial's explanation is a
sham. The appellant conveniently overlooks that Centennial's
decision to terminate Lugo was, according to the record, a product
of other, unrelated misbehavior. Moreover, Lugo outranked the
appellant, and Centennial's policy of holding higher-echelon
managers to a more exacting level of culpability is entirely
rational. Even if one might debate the wisdom of such a policy,
the appellant has adduced no evidence to call its existence into
question.
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Having rebuffed this challenge, we are left with a
classic dispute over competing qualifications. When an employer
promotes one person over another based on its assessment of their
comparative qualifications, the question is not which applicant was
better qualified, but, rather, whether the employer's avowed reason
for the decision was pretextual. Rathbun v. AutoZone, Inc., 361
F.3d 62, 74 (1st Cir. 2004). "Qualifications are notoriously hard
to judge and, in a disparate treatment case, more must be shown
than that the employer made an unwise personnel decision . . . ."
Id.; see also Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 825 (1st
Cir. 1991) ("Courts may not sit as super personnel departments,
assessing the merits — or even the rationality — of employers'
nondiscriminatory business decisions.").
In this case, the employer offered a plausible account of
its deliberations: it studied the appellant's qualifications in
light of the Lugo debacle and decided that sufficient doubt existed
about his management capabilities that it should bestow the
position on another (less controversial) applicant. There has been
no showing that this decision, right or wrong, was either
pretextual or undertaken in bad faith.
We need go no further. Having perused the record with
care, we, like the district court, find no significantly probative
evidence sufficient to create a trialworthy dispute as to pretext
(and, thus, as to the ultimate issue of discrimination). The
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defendant was, as the district court ruled, entitled to judgment as
a matter of law.
Affirmed.
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