United States Court of Appeals
                       For the First Circuit


No. 18-1852

                   HECTOR ZABALA-DE JESUS, et al.,

                        Plaintiff, Appellant,

                                 v.

              SANOFI-AVENTIS PUERTO RICO, INC., et al.,

                       Defendants, Appellees.


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

        [Hon. Bruce J. McGiverin, U.S. Magistrate Judge]


                               Before

                      Thompson, Lipez, Barron,
                           Circuit Judges.


     Irma R. Valldejuli, with whom Antonio Moreda-Toledo      and
Moreda & Moreda, P.S.C. were on brief, for appellant.
     Anita    Montaner-Sevillano,   with    whom   Reinaldo    L.
Figueroa-Matos and McConnell Valdés LLC were on brief,        for
appellee.


                            May 13, 2020
          BARRON,   Circuit     Judge.    Hector   Zabala-De    Jesus

("Zabala") appeals from the District Court's 2018 grant of summary

judgment for Sanofi Aventis Puerto Rico, Inc. and Sanofi U.S.

Services, Inc. on Zabala's claim under the Age Discrimination and

Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.1    We affirm.

                                  I.

          We begin by reviewing the developments that led to

Zabala's suit.   In doing so, we set forth only those facts that

the parties do not dispute on appeal, as those facts set the stage

for our consideration of the merits of Zabala's challenge to the

District Court's summary judgment ruling.

          Sanofi Aventis Puerto Rico, which, for the sake of

convenience, we will refer to as "Sanofi Puerto Rico" in what

follows, is the Puerto Rico subsidiary of Sanofi, which is a life

sciences company that manufactures and markets pharmaceutical

products and medical devices.    Sanofi Puerto Rico hired Zabala in

1997, when he was thirty-nine years old, to be a Product Manager

in its San Juan, Puerto Rico, office.     In that role, Zabala was

responsible primarily for the company's cardiovascular products.

          Over time, Zabala moved to other positions within Sanofi

Puerto Rico, which gave him responsibilities over other products.


     1 The complaint references other parties but does not make
specific allegations against them and they are not mentioned in
the briefs or the District Court opinion. Thus, we do not discuss
them further.


                                 - 2 -
For example, in 2000, Zabala became a Marketing Manager, which

brought the company's urology products in his purview.                Then, in

2003, he was promoted to Senior Marketing Manager, from which

position he managed three cardiovascular pharmaceuticals, Plavix,

Avapro, and Avalide, that, collectively, accounted for 70 percent

of Sanofi Puerto Rico's sales.

             In 2012, however, these three products lost their patent

protection,    and   Sanofi     Puerto   Rico   reorganized   its     marketing

department.       Soon thereafter, Zabala was reassigned to be the

Senior Marketing Manager of the Specialty Business Unit.               Waleska

Rodriguez, the unit's director, became his new supervisor.

             Zabala was responsible in this new role for a broad array

of Sanofi Puerto Rico's medical products and devices, including

oncology, renal, hematology, and bio-surgery products.                  Sanofi

Puerto Rico devoted over 18 percent of its 2012 marketing budget

to these products and devices.

             After Sanofi Puerto Rico's major cardiovascular products

lost their patent protection, most of its sales revenue for the

period running from 2012 to 2013 came from its diabetes products.

In   fact,   by   August   of    2013,    Sanofi   Puerto   Rico's     diabetes

production     portfolio   represented       almost   80    percent    of   the

company's total sales revenue.           During this period, moreover, the

Diabetes Business Unit had the largest marketing budget and the




                                    - 3 -
most sales representatives of any unit.               Angela Febles served as

the unit's director during that time.

           In 2013, following the growth in sales revenue from

Sanofi's diabetes products, David Freeman, Sanofi Puerto Rico's

General Manager and Vice President, was tasked with determining

how to consolidate the Specialty and Diabetes Business Units.

Freeman assessed the operations of each of the units, met with the

respective unit supervisors, Rodriguez and Febles, and conducted

a business review of each unit.           The assessment revealed that for

the year 2014, the Specialty Business Unit was expected to have a

marketing budget of $430,000 and sales revenue of $16 million,

while the Diabetes Unit was expected to have a marketing budget of

$5 million and sales revenue of $56 million.

           Following this assessment, Freeman wrote a proposal,

entitled   "Sanofi    Puerto      Rico    Organizational        Assessment      and

Recommendation,"     which   he   presented      in    November   2013     to   his

supervisor, Dennis Urbaniak, and Adriana Bury, a human resources

officer    specifically      responsible      for      Sanofi     Puerto     Rico.

Freeman's proposal recommended consolidating and combining the

Specialty Business Unit and Diabetes Business Unit into one new

unit.   Accordingly, Freeman recommended that the responsibilities

of the Specialty Business Unit Director and Diabetes Business Unit

Director   be   consolidated       into    one    position      and   that      the




                                    - 4 -
responsibilities of each unit's Senior Marketing Manager position

be consolidated into one position as well.

           This proposed consolidation, if effected, would have

meant that Sanofi Puerto Rico would have needed to retain only

either Febles or Rodriguez to fill the consolidated Director

position, and only either Zabala or Brenda Bonet, who had joined

Sanofi in 2007 as the Marketing Manager for Sanofi Puerto Rico's

Diabetes Business Unit, to fill the consolidated Senior Marketing

Manager position.   When Freeman presented his proposal to Urbaniak

and Bury, he included his recommendation that Sanofi Puerto Rico

retain Bonet as the Marketing Manager of the new unit and Febles

as the unit's Director, thereby bypassing Zabala for the post and

leaving him without a job in the company.             Finally, Freeman

proposed the creation of two new positions, a Business Intelligence

Manager   who   would   be   focused   on   market-trend   analysis   and

recommendations, and a Product Manager, who would be focused on

diabetes products.2

           In November of 2013, Bury asked to meet with Freeman to

talk about his proposal to consolidate the positions.         Bury told

Freeman that the plan to reduce the workforce and eliminate


     2 The Product Manager role was meant to serve as a support
for the newly consolidated Senior Marketing Position. Febles and
Bonet had recommended that Freeman create the Product Manager
position in order to support the launch of new diabetes products.




                                  - 5 -
positions would need to be cleared by Sanofi Puerto Rico and Sanofi

U.S. Services' internal legal team.

              With respect to staffing, Bury and Freeman agreed that

the main criteria for the two new, consolidated roles would be

diabetes-market expertise and past performance in recent years.

Bury then explained that she supported Freeman's recommendation of

Febles for the new, consolidated Director role based on both

Febles's superior qualifications according to the agreed-upon

criteria and her seniority. Bury explained that Febles's seniority

would ensure that her selection would reduce legal risks under

Puerto Rico severance law.      But, Bury told Freeman she would not

sign on to his recommendation to select Bonet rather than Zabala

for the new Business Unit Marketing Manager position until she had

personally reviewed Bonet and Zabala's qualifications, and, in

particular, their work experience and performance ratings.

              To facilitate this review, Freeman asked Febles to write

up a comparison of Zabala's and Bonet's backgrounds and experience.

The resulting comparison, though very detailed, was favorable only

to Bonet, and it was occasionally incorrect and underinclusive in

discussing Zabala.     Febles's comparison included a note that Bonet

was a woman over forty years old.         It did not include Zabala's

gender   or    age.    Febles   told   Freeman   that   she   was   missing

information on Zabala, but Freeman told her that Human Resources

could fill in the rest.      Freeman then added some more information


                                  - 6 -
about both Zabala and Bonet, including that Bonet had "[e]xtensive

Diabetes expertise," that Zabala was an "[e]xperienced marketing

manager with 17 years working for Sanofi," and that Zabala was a

male over fifty years old.

             In the comparison, Freeman also noted the candidates'

performance ratings over time.      Throughout their tenure at Sanofi

Puerto Rico, Bonet and Zabala had been evaluated during Sanofi

Puerto Rico's biannual employee performance evaluations, which

included overall score summaries based on a one-to-nine scale,

with nine being the highest score an employee could receive.

             In   2010,   Zabala   received   an     overall   performance

evaluation of seven, which was lowered to a five in 2011, and to

a one in 2012.     In 2013, Zabala's overall evaluation score in his

mid-year review before he was fired was a four.

             Bonet's recent scores trended in the opposite direction.

In 2010, Bonet received an overall performance rating of a four,

which went up to an eight in 2011 and 2012.           And, in 2013, Bonet

earned a five in her mid-year review.

             Along with the performance ratings, Freeman sent the

rest of the updated comparison to Bury.            Bury then reviewed the

two candidates and agreed with Freeman that the new, consolidated

position should go to Bonet and that Zabala should be let go.          At

the time, Zabala was fifty-five years old and Bonet was forty-four

years old.


                                   - 7 -
          After being let go from Sanofi, Zabala brought an age

discrimination claim against Sanofi Puerto Rico and Sanofi U.S.

Services in the United States District Court for the District of

Puerto Rico under the ADEA, 29 U.S.C. § 621, and a claim for age

discrimination under Puerto Rico law pursuant to P.R. Law No. 100

of June 30, 1959, P.R. Laws Ann. Tit. 29, § 146, and Article 1802

of the P.R. Civil Code, P.R. Laws Ann. Tit. 31, § 5141.           The

District Court granted the defendants' motion to dismiss the Puerto

Rico law claims on March 13, 2017.      The defendants then moved for

summary judgment on the ADEA claim, which the District Court

granted on July 30, 2018, and from which grant Zabala now appeals.

                                  II.

          Our review of the grant of summary judgment to the

defendants is de novo.   See Conjugal P'ship Acevedo-Príncipe v.

United States, 

, 54 (1st Cir. 2014).     Summary judgment

is appropriate if the record, viewed in the light most favorable

to the nonmoving party -- here, Zabala -- "discloses 'no genuine

issue of material fact' and [thus] demonstrates that 'the moving

party is entitled to a judgment as a matter of law.'"         Iverson

v. City of Boston, 

, 98 (1st Cir. 2006) (quoting Federal

Rule of Civil Procedure 56(c)).

          In considering a motion for summary judgment, "we must

disregard improbable or overly attenuated inferences, unsupported

conclusions, and rank speculation."      Abbott v. Bragdon, 107 F.3d


                              - 8 -
934, 938 (1st Cir. 1997), vacated on other grounds, 

(1998).   "We may affirm a grant of summary judgment 'on any ground

revealed by the record.'"    Robinson v. Town of Marshfield, 

, 24 (1st Cir. 2020) (quoting Santangelo v. N.Y. Life Ins.

Co., 

, 68 (1st Cir. 2015)).

                               III.

           The ADEA makes it "unlawful for an employer . . . to

discharge any individual or otherwise discriminate against any

individual . . . because of such individual's age."      29 U.S.C.

§ 623(a)(1).   The ADEA's prohibition is "limited to individuals

who are at least 40 years of age."

           The employee who brings the ADEA claim bears the burden

of proving that the age discrimination that the statute bars was

the but-for cause of his termination.     Gross v. FBL Fin. Servs.,

Inc., 

, 176 (2009). To determine whether an ADEA claim

may survive summary judgment when there is no direct evidence of

such age discrimination, we apply a burden-shifting framework akin

to the one that the United States Supreme Court set forth in

McDonnell Douglas Corp. v. Green, 

(1973), to determine

whether a claim of race discrimination in employment under Title

VII of the Civil Rights Act of 1964 may survive summary judgment.

See 

(applying the McDonnell-Douglas

framework to review a grant of summary judgment for the defendant

on an ADEA claim).


                               - 9 -
             The focus at the first step of the inquiry under this

burden-shifting framework is on whether the plaintiff has put forth

evidence from which a juror reasonably could find that a prima

facie case of age discrimination has been established.                   To pass

this first step of the inquiry, the plaintiff-employee must provide

evidence from which a juror reasonably could find that:                 (1) he is

at least forty years old; (2) his "work was sufficient to meet the

employer's      legitimate     expectations";       (3)   his   "employer      took

adverse action against [him]"; and (4) "either younger persons

were retained in the same position upon [his] termination or the

employer did not treat age neutrally in taking the adverse action."

Del Valle-Santana v. Servicios Legales de P.R., Inc., 

, 129–30 (1st Cir. 2015).

             If the plaintiff succeeds in getting past this first

step of the inquiry, then, at the second step, the defendant must

proffer    "a     legitimate,      nondiscriminatory        reason     for"     the

employee's termination.         Mesnick v. Gen. Elec. Co., 

,

823 (1st Cir. 1991).          If the defendant puts forth such a reason,

then, at the third step of the inquiry, the burden of production

shifts    "back    to   the    plaintiff,     who    must   then     show,    by   a

preponderance of the evidence, that the employer’s articulated

reason for the adverse employment action is pretextual and that

the true reason for the adverse action is discriminatory," for,

otherwise, the defendant is entitled to summary judgment.                    Gómez–


                                     - 10 -
González v. Rural Opportunities, Inc., 

, 662 (1st Cir.

2010) (quoting Lockridge v. Univ. of Me. Sys., 

, 470

(1st Cir. 2010)).

            Notably,     "[t]o    satisfy       this    burden      with    respect    to

pretext, the plaintiff must 'elucidate specific facts which would

enable a jury to find that the reason given' by the defendant for

the adverse employment action 'is not only a sham, but a sham

intended    to   cover     up     the     employer's       real      motive:          age

discrimination.'"         

    (quoting      Soto-

Feliciano v. Villa Cofresí Hotels, Inc., 

, 25 (1st Cir.

2015)).     Thus, at this third step, the plaintiff must point to

evidence that creates a genuine issue of disputed material fact as

to whether the proffered reason was a pretext for an age-based

motive.    See

with Zabala that he satisfied his burden to

make out a prima facie case, and we have no doubt that Sanofi put

forward a legitimate, nondiscriminatory reason for its decision to

terminate    Zabala's     employment       by    hiring    Bonet      for    the   new,

consolidated post:        namely, that there was a business-related

reason to create that single consolidated position and that Bonet's

past   experience      with      diabetes       products      and     strong    recent

performance reviews made her more qualified to fill that new post

than Zabala.     See Dávila v. Corporación de P.R. para la Difusión

Pública, 

, 16 (1st Cir. 2007) ("The employer's burden is


                                        - 11 -
not a burden of persuasion; the employer need do no more than

articulate a reason which, on its face, would justify a conclusion

that the plaintiff was let go for a nondiscriminatory motive.").

Nor does Zabala dispute that such a reason, if not a pretext for

discrimination, would qualify as a legitimate, nondiscriminatory

one.   Thus, our focus is on whether Zabala has put forth evidence

that suffices to create a genuine issue of disputed material fact

as to whether the employer's proffered reason for selecting Bonet

over him for the new, consolidated position was a pretext for age

discrimination.     See

("For a[n] . . . 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.").

           Zabala's chief contention as to pretext is that the

evidence supportably showed that Freeman and Bury had already

decided to choose Bonet when they settled on the selection criteria

of   experience   specific   to   the   diabetes   market   and   superior

performance evaluations for the past few years and that, in

consequence, a juror could reasonably conclude that Freeman and

Bury chose the criteria to make sure that Bonet would be selected.

Zabala points in this regard to "the chronological order of

events," and, specifically, to the fact that Bury undertook the




                                  - 12 -
comparison between Bonet and Zabala only after Freeman had already

recommended the selection of Bonet.

           But, the record is "uncontested" that Freeman's original

reason for proposing Bonet over Zabala was that "he preferred her

'because of her expertise in diabetes and proven record and

capabilities in the diabetes market.'"         Zabala puts forth no

evidence, moreover, to show that Freeman chose those criteria in

forming his original preference for Bonet to cover up the fact

that he preferred her because she was younger than Zabala.      Nor do

we see how, in the absence of any such evidence, there would be

any basis for a juror to conclude from the nature of those criteria

that they were sham criteria rather than legitimate job-related

criteria   that   Freeman   reasonably    thought   pertinent   to     a

candidate's ability to do the job.    After all, diabetes experience

was   obviously   a   potentially   relevant   criterion,   given    the

importance of diabetes products to Sanofi's revenues, and superior

recent performance reviews obviously may bear on a candidate's

relative qualification for a position.

           There also is nothing in the record on which a juror

reasonably could rely to find that Freeman did not believe that

Bonet did in fact have more experience than Zabala with diabetes

products and better recent performance reviews.      We note in this

regard that nothing in the record indicates that Bonet's upward

trajectory in her evaluation scores from 2010 to 2012, and Zabala's


                                - 13 -
corresponding downward trajectory, resulted from ratings that were

given to them in anticipation that Sanofi Puerto Rico was going to

consolidate, such that a juror would have any basis for finding

that the reviews themselves had been rigged in Bonet's favor to

advantage her in the event of a consolidation.

          Thus, we see no basis for concluding that a juror could

reasonably find from the chronology to which Zabala attributes

such significance that his employer's proffered reason for acting

as it did in choosing Bonet over Zabala was a cover for a preference

to hire her because she was younger.       Hence, that ground for

concluding that he can meet his burden with respect to showing

pretext at the third step of the burden-shifting inquiry is not a

viable one.

          Zabala does briefly assert that the fact that Febles and

Freeman listed the respective ages of Bonet and Zabala in the

comparison sent to Bury is itself evidence from which a jury could

find that the selection of Bonet was based on age discrimination,

rather than the nondiscriminatory-qualification-based reason that

was   proffered.     But,   "[i]solated,   ambiguous   remarks   are

insufficient, by themselves, to prove discriminatory intent,"

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

, 329 (1st Cir.

1996); see also Paul v. Murphy, 

, 54 (1st Cir. 2020)

(finding that a supervisor's remark to an employee that "[y]ou are

64 no 65," does not alone provide a basis "from which a reasonable


                              - 14 -
juror could find that she was discriminated against based on her

age"); Alberti v. Univ. of P.R., 

, 479 (D.P.R.

2011), aff'd sub nom. Alberti v. Carlo-Izquierdo, 

(1st Cir. 2013) ("Reference to protected status without reflecting

bias is not evidence of discrimination.").    And, here, the record

shows that the references to the age of the two candidates in the

write-ups that were given to Bury were of just that kind.

          In Febles's original email to Freeman, she included the

fact that Bonet was a woman over forty years old but did not

reference Zabala's gender or age.      Before Freeman forwarded the

information to Bury, he then added that Zabala was a male over

fifty years old.   In her deposition, Febles explained that she

included the information on Bonet because she thought that it was

relevant that Bonet was a member of two protected classes, but she

did not include anything on Zabala because she did not know his

age.   There is thus no basis for finding on this record that,

because the age of both candidates was set forth by the person who

was providing information about the candidates to the ultimate

decision maker, that decision maker's selection was based on the

fact that one was younger than the other.

          Zabala next takes issue with the fact that he was never

offered the position of Business Intelligence Manager.   But, it is

uncontested that Zabala did not apply for the position even though

Sanofi emailed all of its employees, including Zabala, and informed


                              - 15 -
them of the opening of the position in November of 2013 and

provided them an opportunity to apply for it.               Zabala does not

explain how his former employer's failure to offer him specifically

a job that he did not apply for when he had the opportunity to do

so indicates that the defendants' reason for choosing Bonet was

pretextual, let alone based on age discrimination.                  See Pages-

Cahue v. Iberia Lineas Aereas de España, 

, 539 (1st

Cir. 1996) (noting that "employers face no . . . obligation" to

offer "transfers or relocations" when reducing their labor force).

              Finally, Zabala asserts that age discrimination was a

common practice at Sanofi Puerto Rico. To support that contention,

he relies in part on evidence of two instances in which Sanofi

Puerto Rico chose to employ or to continue to employ the younger

of two individuals.         In one of those instances, though, the age

differential was just one year.           And, in any event, he points to

no evidence that those decisions were made based on age, as he

fails to show that the individual who was not selected in either

instance was similarly situated to the one who was.            In addition,

Zabala points to the fact that 77 percent of new hires after 2013

were younger than fifty years old.           But, he does not identify any

evidence to show that less than 77 percent of Sanofi Puerto Rico's

job applicants after 2013 were younger than fifty years old and

thus   that    the   ages   of   Sanofi   Puerto   Rico's   hires    were   not

proportional to the overall applicant pool.            Accordingly, Zabala


                                    - 16 -
fails to put forth evidence from which a juror reasonably could

find any discriminatory pattern in Sanofi's employment practices.

See Bennett v. Saint-Gobian Corp., 

, 30 (1st Cir. 2007)

(noting   that   a   plaintiff   "cannot   rely   exclusively   on   bald

assertions, unsupported conclusions, or optimistic surmises").

                                   IV.

           For these reasons, we affirm the District Court's grant

of summary judgment.




                                 - 17 -