FACTS Lydia Gonzalez, 5 8 (plaintiff), worked as a reporter at El Nuevo Dia, a Puerto Rico newspaper. Her supervisor, Maria Luisa Ferre, often said that Ms. Gonzalez’s demeanor and couture were “[o]ut of style” and “colorless,” and her coiffure was “like Phyllis Diller.” Ms. Ferre also said that Ms. Gonzalez was old- fashioned (viz., “manias de vieja,” or “old person’s ways”) and that she should have retired and gone to live with her grandchildren in Florida long ago. Ms. Ferre also taunted Ms. Gonzalez by saying that she would not live long enough to see her grandson play major league baseball. Ms. Gonzalez asked Ms. Ferre if she could be assigned to cover fashion shows, but Ms. Ferre balked at the idea. Ms. Gonzalez then asked, “You want me to look like a Vogue model?” Ms. Ferre simply stared at her and then assigned younger reporters to the fashion shows, telling Ms. Gonzalez, “Dona Lydia, I don’t know what I’m going to do with you.” Jorge Mercado, the director of the human resources department at the newspaper, frequently stated that Ms. Gonzalez had “manias de vieja.” Mr. Mercado would often accost Ms. Gonzalez when he visited the department in which Gonzalez worked by calling her “Mom,” and making comments such as, “Are you still here?” or “I thought you had been discharged or terminated a long time ago.” Following a serious work-related injury in April 1997, Ms. Gonzalez took medical leave while receiving treatment and rehabilitative therapy. During Ms. Gonzalez’s medical leave, Ms. Ferre contacted the El Dia human resources department regarding retirement packages that might be offered to Gonzalez. During one discussion during her leave, Ms. Ferre asked Ms. Gonzalez whether she would like to retire,adding, “Look, you are already 63 years old and your health is not good.” Ms. Gonzaleaz offered to return to work immediately, but Ms. Ferre rejected her offer and advised Gonzalez to take a vacation and return to work on July 1. Ms. Gonzalez had no remaining paid vacation time, and was in difficult financial straits. Ms. Ferre arranged for a $ 6 ,0 0 0 advance on salary for Ms. Gonzalez, what Ms. Ferre believed was part of a voluntary retirement package the two had agreed to. Four days later, Ms. Gonzalez was presented with a resignation, release, and compensation agreement. Ms. Gonzalez refused to retire and returned to work three days later, when she signed a note agreeing to repay the $ 6 ,0 0 0 . Ms. Gonzalez then took work from a competing newspaper in order to meet her repayment obligations on the note. Working for a competing newspaper was a violation of the conflict-of-interest clause in her contract. She was then terminated and filed suit for violations of the ADEA. The district court granted summary judgment to El Dia. JUDICAL OPINION CYR, Senior Circuit Judge Under the ADEA, an employer may not “discharge … or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] age.” El Dia acknowledges that Gonzalez established a prima facie case under the ADEA. [T]he burden of proof [then] shifts to the defendant employer to articulate a legitimate, nondiscriminatory basis for its adverse employment action. The plaintiff employee may meet her burden of proof by showing that the employer’s proffered reason for the challenged employment action was pretextual. El Dia met its burden by identifying a nondiscriminatory basis for the Gonzalez discharge: i.e., her acceptance of employment as a reporter for a competing newspaper, in direct violation of the conflict-ofinterest provision in the employee collective bargaining agreement (CBA)…. the burden then shifted back to Gonzalez to prove that the nondiscriminatory basis assertedly relied upon by El Dia was merely a pretext, and that age animus was the real reason for her termination. “[Federal courts] do ‘not sit as a superpersonnel department that reexamines an entity’s business decisions.’ ‘No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, [the ADEA does] not interfere.’” Accordingly, in order to establish that an age-based animus nonetheless constituted a motivating factor in the decision to terminate her employment, Gonzalez relies upon varieties of evidence. THE AGEIST REMARKS “[S]tray workplace remarks,” as well as statements made either by nondecision makers or by decision makers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus. Secondly, it is far from clear that the alleged remarks bespeak any age-based animus at all. Some statements, such as those made by Mr. Mercado, merely displayed a measure of surprise that Gonzalez was still employed at El Dia, without either asserting or implying that she was too old to be working. Moreover, Mr. Mercado’s alleged use of the salutation “Mom”—though no doubt insensitive, perhaps even rude—hardly constituted a self-sufficient foundation for an ADEA claim, especially since these particular attributions—motherhood and advanced age—plainly are not synonymous. [T]he Spanish phrase “manias de vieja” (“old ways”) did not unambiguously connote that Gonzalez was old, let alone too old, but rather that she acted in ways which did not appear in keeping with a person her age. [S]uch terms “apply more to a person’s state of mind than to a person’s age.” THE FASHION SHOW COVERAGE Given her acknowledged penchant for old-fashioned clothing and hairstyles, it seems much more plausible to attribute El Dia’s decision to the fact that Gonzalez was insufficiently attuned to current fashions; and, therefore, that her representation of El Dia at fashion shows could very well reflect adversely upon its business image in such circles. THE REMARKS MADE BY MS. FERRE [IN THE LEAVE DISCUSSION] On June 12, Ms. Ferre adverted to Gonzalez’ age while the two were discussing Gonzalez’ vacation plans and the retirement offer which had been made to her. Of course the mere tender of a retirement proposal does not evince the requisite discriminatory animus. Moreover, even viewed in the light most favorable to Gonzalez, Ms. Ferre’s statement plainly conveyed the rational concern that retirement might prove the more prudent course, especially since Gonzalez hadfinancial difficulties. Gonzalez ignores the fact that, arguably at least, she engaged in a series of infractions. She defaulted on a promissory note which she had insisted that Mr. Mercado draw up, and thereafter deliberately went to work for a competing newspaper in direct contravention of the CBA. Thus, no rational jury reasonably could conclude that El Dia lacked “just cause” to terminate Gonzalez. Affirmed.

CASE QUESTIONS Chap 21 Business 10 Edition

1. Describe how the burden of proof works in discrimination suits.

2. What workplace rules would you put in place to avoid these types of lawsuits?

3. Explain how the human resources manager and the supervisor could have handled the issues with Ms. Gonzalez in a way that would have avoided the litigation.