Iris v. Rivera-Flores v. Puerto Rico Telephone CompanyIris v. Rivera-Flores v. Puerto Rico Telephone Company
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Iris Rivera-Flores (“Rivera”) challenges certain district court rulings relating to various commonwealth and federal claims against appellee Puerto Rico Telephone Company (“PRTC”), her former employer, for condoning the harassment she experienced at work on account of her visual handicap, and for terminating her employment. We vacate the district court judgment and remand for retrial.
I
BACKGROUND 1
Rivera began working the night shift for PRTC as a traffic operator in 1984. In January 1986, PRTC acceded to her request for reasonable accommodation of her visual impairment’ — congenital cataracts in both eyes and secondary angle closure glaucoma— by transferring her to a day-shift position as a service representative. During her four-month tenure as a service representative, Rivera’s supervisors and co-workers harassed her by making derogatory remarks about her visual handicap; her supervisors reported her work performance as unsatisfactory; and in April 1986, she was reassigned to her former position as a traffic operator on the night shift.
Rivera’s labor union filed a successful grievance in opposition to her reassignment, and in November 1988, Rivera was reinstated, with back pay, as a sales representative on the day shift. Her supervisors resumed their complaints that Rivera’s visual problems were adversely affecting her job performance; provided her with inadequate on-the-job training; refused to give her a desk or work assignments for several weeks; brushed aside her repeated requests for reasonable accommodation (e.g., a special magnifying glass to facilitate reading, and overtime compensation for catching up on a preexisting three-month work backlog); and attempted to coerce her into accepting an unfavorable job evaluation. Her day-shift supervisors and co-workers resumed their derogatory comments (e.g., calling her “little blind lady,” “mentally retarded,” “mutant,” cross-eyed, and physically repulsive), and hid or defaced her paperwork.
In April 1989, Rivera reported to the State Insurance Fund (“Fund”), and was diagnosed with, and treated for, an emotional and mental condition attributable to the job-related
Thereafter, Rivera filed her final amended complaint, which included two federal claims. First, she alleged that PRTC, an instrumentality of the Commonwealth of Puerto Rico, had violated her procedural due process rights by terminating her employment without a pretermination hearing.
See
U.S. Const, amends. V, XIV. Second, she pleaded a Rehabilitation Act claim, based on her termination and on PRTC’s negligent condonation of the discriminatory harassment she experienced at the hands of its employees.
See
Rivera’s claims under commonwealth law alleged that PRTC (1) violated
PRTC moved for summary judgment, asserting,
inter alia,
that the district court lacked subject matter jurisdiction over the Rehabilitation Act claim because PRTC’s receipt of Federal Emergency Management Agency (“FEMA”) disaster funds could not,
as a matter of law,
qualify it as a “program . . . receiving federal financial assistance.”
On the first day of trial, after Judge Laf-fitte unexpectedly recused himself, the parties agreed to proceed with the jury trial before a magistrate judge. When Rivera rested her case, PRTC moved for judgment as a matter of law on the Rehabilitation Act claim,
see
The magistrate judge summarily denied the request to reopen and dismissed the Rehabilitation Act claim, after correctly noting that a denial of summary judgment normally does not settle material factual disputes upon which the plaintiff bears the ultimate burden of proof. The court then decided to retain supplemental jurisdiction over the three commonwealth claims,
see
Following a bench trial, the court entered judgment on Rivera’s claim for negligent infliction of emotional distress,
see
II
DISCUSSION
A. Federal Rehabilitation Act Claim
Rivera focuses first on the dismissal of her Rehabilitation Act claim because she did not introduce evidence that PRTC was a “program . . . receiving federal financial assistance.” She insists that this question had never been placed in genuine dispute by PRTC, that the pretrial order denying PRTC’s summary judgment motion (Laffitte, J.) had established this “jurisdictional” fact, and that she was caught off guard by the magistrate judge’s decision to treat Judge Laffitte’s pretrial order as non-dispositive. In these circumstances, she suggests, at the very least the court should have allowed her briefly to reopen and introduce the “undisputed” evidence that PRTC received FEMA disaster funds.
Trial court rulings on motions to reopen civil cases to permit additional evidence are reviewed for abuse of discretion. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Hibiscus Assocs., Ltd. v. Board of Trustees of the Policemen and Firemen Retirement Sys., 50 F.3d 908, 917-18 (11th Cir.1995); Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1285 (10th Cir.1994); Bradford Trust Co. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 805 F.2d 49, 52 (2d Cir.1986); Swartz v. New York Cent. R.R. Co., 323 F.2d 713, 714 (7th Cir.1963). While the particular criteria that guide a trial court’s decision to reopen are necessarily flexible and case-specific, it is generally understood that a trial court abuses its discretion if its refusal to reopen works an “injustice” in the particular circumstances. See Gas Ridge, Inc. v. Suburban Agric. Properties, Inc., 150 F.2d 363, 366 (5th Cir.1945). Among the material factors which should be assessed by the trial court are whether: (1) the evidence sought to be introduced is especially important and probative; (2) the moving party’s explanation for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no undue prejudice to the nonmoving party. See, e.g., Joseph, 17 F.3d at 1285; see generally 6A James W. Moore, Moore’s Federal Practice ¶ 59.04[13], at 59-33 (2d ed. 1993).
1. The “New” Evidence
Trial courts as a rule act within then-discretion in refusing to reopen a case where the proffered “new” evidence is insufficiently probative to offset the procedural disruption caused by reopening.
See, e.g., Joseph,
17 F.3d at 1285 (noting that “new” evidence would have been cumulative);
Thomas v. S.S. Santa Mercedes,
572 F.2d 1331, 1336 (9th Cir.1978) (affirming denial of motion to reopen where “new” evidence would have provided little additional probative force). In the instant case, however, there can be no question that the proffered “new” evidence was critical to the Rehabilitation Act claim once it became clear that subject matter jurisdiction was contested; it was the
only
evidence on an essential element of the claim.
See, e.g., Nathanson v. Medical College of Pa.,
926 F.2d 1368, 1380 (3d Cir.1991). Thus,
2. Bona Fide Explanation
Trial courts likewise should consider whether the moving party offered a bona fide explanation for failing to introduce the evidence before it finally rested its case. See, e.g., Bradford Trust Co., 805 F.2d at 52-53 (upholding denial of motion to reopen after trial court repeatedly warned that movant would need to produce evidence on “key issue”); Air et Chaleur, S.A. v. Eliot Janeway, 757 F.2d 489, 495 (2d Cir.1985) (upholding refusal to reopen where trial court forewarned movant that omitted evidence would be essential). Moreover, the courts recognize that it may amount to an abuse of discretion for a trial court to decline to reopen in circumstances where the movant has demonstrated “reasonably genuine surprise.” Id. There are at least four compelling reasons for finding that the “good faith” factor weighed heavily in favor of allowing the motion to reopen in the instant case.
First, the record bears out the contention that Rivera refrained from introducing the undisputed evidence of PRTC’s receipt of FEMA funds, not because she lacked proof but solely because she reasonably understood that the district court’s subject matter jurisdiction had been settled prior to trial. In the statement of uncontested material facts accompanying its summary judgment motion, for example, PRTC admitted receiving a $9,765 check from FEMA, dated January 10, 1986, “while [Rivera] was working as a Service Representative,” as well as other FEMA payments during 1987, 1989 and 1990.
Notwithstanding these undisputed facts, PRTC presented the magistrate judge with two alternative theories for its narrowly focused
legal contention
that the district court lacked subject matter “jurisdiction”: (1) FEMA fund recipients are subject to the special anti-discrimination provisions of
Judge Laffitte had rejected both these legal theories prior to trial:
[PRTC’s] arguments do not carry the day. First, neither party contests the fact that after various hurricanes and heavy rains in Puerto Rico, PRTC applied for Federal financial assistance to receive reimbursement for expenditures paid to repair the damage caused by the disasters. Neither party contests the fact that PRTC either was receiving Federal funding or was awaiting the receipt of funding throughout the period of the alleged discriminatory conduct. The Court finds that in the context of the Rehabilitation Act, an employer “receiving Federal financial assistance” includes a qualified applicant who although approved to receive the funds is awaiting the receipt of them. Consequently, because PRTC was either receiving or expecting to receive Federal financial assistance throughout the period pertinent to plaintiffs claim, the Court finds that PRTC was “receiving Federal financial assistance” and is subject to the Rehabilitation Act for that period of time.
Rivera-Flores, 840 F.Supp. at 5 (emphasis added).
Normally, of course, the mere denial of a defendant’s summary judgment motion does not relieve a claimant of the burden of introducing evidence at trial on every element essential to her claim, even though the factual predicate was not in genuine dispute at summary judgment. However, Civil Rule 56(d) establishes a procedural mechanism whereby a district court can ensure a more enduring effect for its summary judgment ruling, and, with the acquiescence of the parties, narrow the factual issues for trial:
If on motion under this rule judgment is not entered upon the whole case or for all relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
The December 1993 order entered by Judge Laffitte fits well within the spirit, if not the letter, of
On the contrary, the language of the rule contemplates merely that the court,
inter alia,
“interrogat[e] counsel [to] ascertain what material facts . . . are actually and in good faith controverted.... ”
Id.
Second, in our view Rivera’s reliance on the pretrial order seems justified in these circumstances since the fact not in substantial “good faith” controversy did not pertain exclusively to the merits of her claim. Unlike the three other elements of
Third, the record indicates that PRTC may have engendered further confusion concerning the intended import of Judge Laffitte’s pretrial order. In the pretrial order, PRTC represented that Rivera’s prima facie case
3. Undue Prejudice
The third factor meriting consideration by the trial court was the degree to which an order allowing Rivera to reopen would prejudice PRTC.
See, e.g., Joseph,
17 F.3d at 1285. First, we note that the motion to reopen was filed immediately after Rivera rested
her
case, upon learning that PRTC did not share her understanding of Judge Laffitte’s pretrial order.
Cf. id.
at 1284 (upholding denial of motion to reopen, and noting logistical unfairness to defendant in allowing plaintiff to present new evidence
after defendant
had rested its case). Presumably, the documentary evidence demonstrating PRTC’s receipt of FEMA funds, including a cancelled check attached as an exhibit to PRTC’s own
In the final analysis, therefore, all three central factors weighed overwhelmingly in favor of reopening, whereas the summary ruling below afforded no apposite rationale for declining to reopen. For these reasons, we conclude that the refusal to reopen, resulting in dismissal of the Rehabilitation Act claim, constituted an abuse of discretion.
B. Discharge of Jury
Following dismissal of the Rehabilitation Act claim, the district court discharged the jury, over Rivera’s timely objection, and assumed the role of factfinder, on the mistaken theory that Rivera had no right to jury trial on her commonwealth claims. Puerto Rico litigants do have a right to jury trial on their commonwealth claims in federal district court where the court decides, as it did here, to exercise its supplemental jurisdiction.
See
Although in the normal course we would proceed no further, the district court eventually dismissed several other claims on legal grounds presently challenged on appeal. The aborted jury trial in this case lasted several weeks, and a retrial necessarily would entail a further expenditure of considerable judicial resources. In the interests of judicial economy, therefore, we briefly discuss the dispositive legal issues likely to recur on remand. 6
C. Due Process Claim
The district court dismissed a federal claim alleging that PRTC violated Rivera’s due process rights by failing to accord her a pretermination hearing.
See
U.S. Const, amends. V, XIV;
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that state may not discharge public employee, who has prop
The Puerto Rico workers’ compensation statute includes what the district court described as a “caducity” provision: employers need hold a disabled worker’s position open for only twelve months, after which they are not obligated to reinstate the worker. See P.R.Laws. Ann. tit. 11, § 7. The district court ruled that Rivera no longer had a “property right” in her position as service representative because more than twelve months had elapsed between the time her job-related disability began (April 1989) and the time she sought to resume her position in December 1991. We think its ruling is based on an erroneous construction of commonwealth law.
The Puerto Rico Supreme Court has delineated the applicable standards. See, e.g., Carron Lamoutte v. Compania de Turismo del Estado Libre Asociado de Puerto Rico, 92 J.T.S. 27, at 9603 (1992). A public employee who once acquires a cognizable “property right” in her employment position, and who suffers a work-related injury or accident and reports to the Fund for treatment, has an absolute right to reinstatement to her position once she is discharged from the Fund (i.e., from medical treatment), provided she seeks reinstatement within twelve months of her injury or accident. Id. at 9607. 7 If the employee remains under treatment for more than twelve months, however, the employer acquires the right to dismiss her on the ground that she is no longer physically or mentally capable of performing her former work. Id. at 9608. Thus, it is merely the employee’s absolute right not to be terminated on account of her disability, rather than her property interest in her employment position, which lapses under the one-year workers’ compensation “caducity” provision.
Once the Commonwealth confers a “property interest” in employment, it cannot take the position away without abiding by the dictates of procedural due process.
Id.
at 9608-09. Twelve months after an employee’s accident or injury an employer wishing to discharge a disabled employee must notify her of its intention not to keep her position open for reinstatement. Thus, in
Carrón Lamoutte, id.,
where the plaintiff-employee had exceeded the twelve-month, post-injury grace period, the employer was still obligated to provide advance notice of dismissal and an informal pretermination hearing, at which she would be given the opportunity to establish,
inter alia,
that (i) she had not been under post-injury treatment for more than twelve months;
8
or (ii) she was no longer
D. Commonwealth Constitutional Claim
Rivera also challenges the dismissal of her claim for damages under
The problem with Rivera’s contention is fundamental: at no point prior to this appeal has she alleged that PRTC violated Section 1. In her amended complaint she stated that the court had jurisdiction over “all claims arising out of violations to Section 8, Article II of the Constitution of the Commonwealth of Puerto Rico.” (Emphasis added.) In the pretrial order, Rivera did not alter this designation, even when PRTC specifically characterized it as a Section 8 claim. Thus, it is clear that the district court simply dismissed the Section 8 claim for lack of proof, making no mention of any Section 1 claim. 10 Finally, on appeal Rivera does not appear to contest that she failed, as a matter of law, to prove her Section 8 claim since her co-worker’s insults, based primarily on her physical handicap, were not probative of damage to her reputation or honor. 11
E. Handicap Discrimination Claim
Finally, Rivera challenges the dismissal of her commonwealth claim based on handicap discrimination under Law 53 (codified at
In 1959, the Puerto Rico Legislature enacted Law 100 (codified at
In Puerto Rico, statutes generally are presumed to have prospective effect only, unless the statute expressly or by inescapable inference demonstrates a contrary legislative intent.
See
P.R.Laws. Ann. tit. 31, § 3 (no retroactive application of statutes absent
Rivera argues instead that we should follow the analogous reasoning of courts which have held that the 1987 Civil Rights Restoration Act is retroactive. See, e.g., Lussier v. Dugger, 904 F.2d 661, 665-65 (11th Cir.1990); Ayers v. Allain, 893 F.2d 732, 754-56 (5th Cir.), withdrawn and vacated on other grounds, 914 F.2d 676 (1990). These cases are inapposite, however, because that statute expressly provided that the amendments were intended to overturn intervening United States Supreme Court decisions, so as to comport with Congress’s original intent. Law 53 does not suggest in any way that the Legislature intended in 1959 that victims of handicap discrimination were protected by Law 100, nor that it intended in 1985 that such victims would have a private cause of action for damages under Law 44. Thus, Law 53 is inapposite to the explicit “clarification” in the 1987 Restoration Act.
Finally, Rivera contends that even if Law 53 is not retroactive, handicap discrimination claimants still had a vehicle for recovering compensatory damages before August 1992. While Law 44, enacted in 1985, did not make handicap discrimination an injury redressa-ble in a private action for damages, the statute clearly designated this type of discriminatory conduct a “culpable act,” and a “culpable act” resulting in injury can serve as the predicate for a suit for damages under
The district court judgment is vacated and the case is remanded for further proceedings consistent with this opinion.
Notes
. The district court decision directing judgment as a matter of law is reviewed de novo. Favorito v. Pannell, 21 F.3d 716, 719 (1st Cir.1994). The evidence, and all reasonable inferences therefrom, are viewed in the light most favorable to the party opposing judgment. Id.
. The physicians treating Rivera noted wide fluctuations in the intraocular pressure in her right (“good“) eye. In April 1990, she underwent surgery on her right eye, which resulted in a permanent, partial loss of visual acuity. Rivera attributed the increase in intraocular pressure to job-related stress.
. The lone case cited by PRTC for its
view
—Audi
Vision, Inc. v. RCA Mfg. Co.,
136 F.2d 621, 625 (2d Cir.1943)—is inapposite. There the court reviewed a partial summary judgment entered on various claims, but counterclaims remained for trial. The appeal was dismissed as interlocutory because the partial summary judgment was not “final.”
See
. Rehabilitation Act claims have been dismissed for lack of subject matter jurisdiction prior to trial. See, e.g., Foss v. City of Chicago, 640 F.Supp. 1088, 1090 (N.D.Ill.1986) (finding that defendant was not a “program . . . receiving Federal financial assistance”), aff‘d, 817 F.2d 34 (7th Cir.1987). But cf. Careau Group v. United Farm Workers, 940 F.2d 1291, 1293 (9th Cir.1991) (noting that, “where jurisdiction is so intertwined with the merits that its resolution depends on a resolution of the merits, ‘the trial court should employ the standard applicable to a motion for summary judgment’ “) (citation omitted).
. In her jury instruction requests, Rivera likewise listed three Rehabilitation Act claim elements, omitting mention of the “jurisdictional element.”
. Of course, our vacation of the district court judgment moots Rivera‘s appellate challenges to the district court‘s findings.
. PRTC urges affirmance on an alternate ground not presented to the district court; viz., Rivera‘s “property right” in her position, unlike that of PRTC‘s managerial employees, was not defined by the commonwealth statute, Personnel Act, P.R.Laws. Ann. tit. 3, §§ 1301 et seq. (defining “merit principle” positions), but only under the collective bargaining agreement between PRTC and her union. Mercado Vega v. Martinez, 692 F.Supp. 36 (D.P.R.1988). PRTC therefore suggests that the “due process” cases cited by Rivera are inapposite. We do not agree.
State statutory law is not the sole source of “property” interests in employment. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (property interests are created “from an independent source such as state law“) (emphasis added). For procedural due process purposes, it is well settled that an employee’s “property right” in her job may be established by contract. Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972) (noting that ” ‘property’ interests subject to procedural due process protection are not limited by a few rigid, technical forms [but] [r]ather, ‘property’ denotes a broad range of interests that are secured ‘by existing rules or understandings,’ ” including express or implied contracts) (citations omitted). Even the case cited by PRTC so recognized. See Mercado Vega, 692 F.Supp. at 42 (noting that either the Personnel Act or a collective bargaining agreement may give rise to a “property interest” which would entitle plaintiff to “some kind of hearing” consistent with the dictates of procedural due process).
. The other case relied on by the district court in dismissing the due process claim is not to the contrary. In Torres Gonzalez v. Star Kist Caribe, Inc., 94 J.T.S. 5 (1994), the court simply held that the 12-month term during which an employee retains an absolute right to reinstatement is not tolled by those temporary discharges from medical treatment which simply allow the employee to return to work for a brief period of time. The Gonzalez decision did not involve the procedural due process argument settled earlier in Carrón Lamoutte.
.The rights safeguarded by these provisions of the commonwealth constitution operate, ex pro-prio vigore, to make violators amenable to tort-damage awards. See Arroyo v. Rattan Specialties, 17 O.T.S. 43, 72 (1986).
. Nor did Rivera file a motion for reconsideration alerting the court to her Section 1 claim.
. We express no opinion on whether Rivera should be allowed on remand to amend her pleadings to permit a Section 1 claim to be tried to the jury.
See
. Law 53 establishes an effective date of August 30, 1992, a provision which would seem superfluous were Law 53 intended to have retroactive effect to then-pending actions.
. We note a proviso which must be addressed on remand. It is not entirely clear that the application of Law 53 to Rivera‘s complaint would be fully retroactive in effect. Law 53 expressly provided that it would take effect on August 30, 1992. PRTC’s last alleged act of discrimination against Rivera occurred on December 14, 1992, when it sent its final letter of termination to Rivera. Thus, if the date of Rivera’s formal termination were fixed on that date, damages attributable to the termination might be actionable under Law 44.