Plaintiff-appellant Felix Landrau-Rome-ro (“Landrau”) appeals from the district court’s entry of summary judgment in favor of Landrau’s employer, defendant-ap-pellee Banco Popular. We affirm in part and vacate in part, and remand for further proceedings not inconsistent with this opinion.
I. BACKGROUND
We set forth the relevant facts in the light most favorable to the appellant.
See New York State Dairy Foods, Inc. v. Northeast Dairy Compact Comm’n,
On April 1, 1993, Landrau’s supervisor, Carmen Sandin, retired from her position as supervisor of the mortgage insurance services. Several Banco Popular employees applied for the vacant position, including Landrau. In April, 1993, a white man, Jaime Bou, was selected and became Lan-drau’s supervisor.
Bou subjected Landrau’s work to closer scrutiny than that of the other employees in the unit, and closely monitored Lan-drau’s whereabouts. This monitoring included forcing Landrau to leave a note on his desk every time he went on break, to the bathroom, or to get a drink of water. At one point after June 30, 1994, Bou verbally admonished Landrau for taking a break without providing notification of his whereabouts (“the break incident”). When Landrau brought co-workers to explain to Bou that Landrau had in fact informed them of his whereabouts, Bou “said nothing.”
Bou criticized and “yelled” at Landrau more frequently than other employees, sometimes in front of Landrau’s coworkers. Moreover, after Landrau suffered an injury at work and returned from disability leave on December 29, 1993, Bou assigned him physically strenuous tasks in disregard of an accommodation ordered by the State Insurance Fund. This disregard of Landrau’s disability continued through June or July, 1994.
In March or April, 1994, Landrau received a written reprimand for misidentifying the date on certain paperwork, which caused duplicate payments to be made. On June 30, 1994, Bou gave Landrau another reprimand for continuing to repeat these mistakes. Landrau’s performance evaluations, which had been excellent under his previous supervisors, declined. Landrau contends that the errors were due to the bank’s failure to provide him with adequate computer training, which his coworkers received.
Landrau alleges other harassment, including Bou’s attempt to “frame” him in June, 1994, by using Landrau’s computer to commit errors for which Landrau was blamed. Bou and other supervisors made jokes and comments about his race, including remarking upon his “kinky hair.” One of the supervisors also complained in writing about Landrau’s meeting with other Banco Popular employees to discuss filing a race discrimination complaint.
In an attempt to remove himself from these circumstances, Landrau submitted applications for other positions within Ban-co Popular, but was not hired. 1 Landrau complained to Banco Popular about the *610 alleged harassment and racial discrimination. In a letter dated March 7, 1994, Landrau stated that he had been unfairly-subjected to reprimands after Bou replaced Sandin, and that “work became hell.” On June 14, 1994, Landrau wrote a letter to general manager Felipe Franco alleging that Bou was mistreating him due to race discrimination; on August 26 of that year, Landrau wrote another letter to Franco complaining that he had been turned down for Sandin’s position and that his performance evaluations had fallen since Bou became his supervisor.
Banco Popular investigated the allegations, and, in a report dated November 3, 1994, concluded that Landau’s problems were not caused by discrimination. Lan-drau’s job duties, pay, and physical working environment did not change while Bou was his supervisor.
On February 15, 1995, Landrau submitted a letter of resignation stating that he was leaving Banco Popular because he had another job opportunity. On February 28, 1995, the day that resignation was to be effective, he submitted another letter, this time stating that the true reason for his resignation was discrimination.
Landrau filed charges of discrimination with the Anti-Discrimination Unit of Puer-to Rico’s Labor Department and the Equal Employment Opportunity Commission (EEOC) on or about March 9, 1995. 2 The EEOC issued him a “right-to-sue” letter on January 16, 1996. On April 16, 1996, Landrau filed employment discrimination claims against Banco Popular in the District Court for the District of Puerto Rico pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and Puerto Rico’s anti-discrimination statute, Law 100, P.R. Laws Ann. 29, § 146 et seq. 3 He appears to have alleged three adverse employment actions on the basis of his race and color: (1) that Banco Popular failed to promote him to Sandin’s position; (2) that he was subjected to harassment after Bou became his supervisor; and (3) that the harassment became so intolerable that it resulted in his constructive termination.
On August 11, 1997, Banco Popular moved for summary judgment on the grounds that (1) Landrau could not adduce sufficient evidence to support his constructive discharge claim; and (2) Landrau’s failure-to-promote claim was time-barred because he did not file a charge of discrimination within the 300-day time limit set forth in Title VII. Landrau opposed the summary judgment motion, contending that his working conditions amounted to actionable harassment and constructive discharge, and that Banco Popular’s failure to promote him was discriminatory. Lan-drau did not, however, explicitly counter defendants’ time bar argument or address the state law claims.
In support of his opposition to Banco Popular’s summary judgment motion, Landrau submitted, inter alia, affidavits by Sandin and another former supervisor that discussed a general climate of racial discrimination at Banco Popular. Specifically, Sandin stated in her affidavit that she “always had the impression that black candidates like Mr. Landrau were not welcome [sic] by the top management of Ban-co Popular for trainee positions in management nor for supervisory positions.” The other former Banco Popular supervisor, Angel Rivera Colon, stated:
I had my reservations that [Landrau] would not be selected just for been [sic] black, considering that a white applicant, Mr. Jaime Bou, had already applied for the position. In fact, during my 29 years of experience in Banco Popular it *611 was an unwritten law that somehow was conveyed to us officials, that if there was a white applicant and a black applicant for the same position, the white applicant would get the position, and that was accepted as an implied rule, although nobody dared to publicly talk about it or openly admitting [sic] it. Also it was well known to me that blacks were not welcomed for management positions, although nobody told me so explicitly.
The district court allowed Banco Popular’s motion for summary judgment on February 23, 1999.
See Romero v. Banco Popular de Puerto Rico,
On March 9, 1999, Landrau filed a motion to set aside the opinion and order and for reconsideration pursuant to Fed. R.Civ.P. 59(e). For the first time, Landrau asserted that the time period for filing his charge of discrimination should be tolled due to operation of the discovery rule and the “continuing violation” doctrine. The district court denied the motion on March 29, 1999. Landrau appeals.
II. DISCUSSION
This Court reviews orders for summary judgment de novo, construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party’s favor.
See Houlton Citizens’ Coalition v. Town of Houlton,
A. Failure to promote
The district court correctly determined that Landrau’s failure to promote claim was time-barred. 42 U.S.C. § 2000e-5(e) provides that a charge shall be filed with the EEOC “within one hundred and eighty days after the alleged unlawful employment practice occurred,” or within 300 days after the unlawful practice if “the^person aggrieved has initially instituted proceedings with [an authorized] State or local agency.” The longer period is available only in so-called “deferral” jurisdictions, including Puerto Rico.
See Bonilla v. Muebles J.J. Alvarez, Inc.,
Assuming that the longer period applied, Landrau had 300 days after the alleged adverse employment action to file his charge with the EEOC. For purposes of his failure to promote claim, the clock began to run no'later than April, 1993, when Bou filled the position Landrau had sought, necessarily notifying Landrau that Bou had been selected instead of him. Landrau did not file his charge of discrimination until March 9, 1995, nearly two *612 years later. He thus failed to comply with the 300-day limitation period. “This omission, if unexcused, bars the courthouse door, as courts long have recognized that Title VII’s charge-filing requirement is a prerequisite to the commencement of suit.” Id. at 278.
Landrau contends on appeal that the doctrines of notice and “continuing violation” equitably tolled the limitation period. He argues that he was unaware that defendant’s actions were motivated by racial discrimination until July 14, 1994, and that all of the adverse actions were part of a continuous pattern of harassment and discrimination. Hence, he contends, his failure to timely file his charge of discrimination was excused.
Landrau failed to make this argument, however, in his opposition to Banco Popular’s motion for summary judgment.
5
Therefore, he has waived it.
See Bullington v. United Air Lines, Inc.,
To be sure, Landrau asserted a tolling argument in his motion for reconsideration pursuant to Fed.R.Civ.P. 59(e). It is well-settled, however, that new legal arguments or evidence may not be presented via Rule 59(e); rather, motions under that rule must either clearly establish a manifest error of law or present newly discovered evidence.
See Federal Deposit Ins. Corp. v. World Univ., Inc.,
In any event, Landrau’s tolling argument lacks merit. No continuing violation can be found where the plaintiff was aware of the alleged discrimination outside of the time for filing a charge:
Even where a plaintiff alleges a violation within the appropriate statute of limitations period, the continuing violation claim will fail if the plaintiff was or should have been aware that he was being unlawfully discriminated against while the earlier acts, now untimely, were taking place.
Provencher v. CVS Pharmacy, Div. of Melville Corp.,
As Landrau’s failure to promote claim was time-barred, we need go no further with respect to that claim.
B. Constructive discharge
Landrau contends that the district court erred in concluding that there was insufficient evidence to support his claim of constructive discharge under Title VII. In an employment discrimination case alleging termination, the plaintiff first must establish a prima facie case, i.e., that he (1) was within a protected class; (2) met the employer’s legitimate performance expectations; (3) was actually or constructively discharged; and (4) was replaced by an
*613
other with similar skills and qualifications.
See St. Mary’s Honor Ctr. v. Hicks,
Alleging constructive discharge presents a “special wrinkle” that amounts to an additional prima facie element.
Sanchez v. Puerto Rico Oil Co.,
Here, the district court concluded that Landrau did not adduce sufficient evidence to support a constructive discharge claim, noting that the alleged events did not occur close in time to Landrau’s termination. We think that Landrau’s resignation came too late after the offensive conduct to be labeled a constructive discharge.
See Smith v. Bath Iron Works Corp.,
Here, Landrau has not adduced evidence of any incidents of mistreatment within a reasonable time of his resignation in February, 1995. The specific events to which he has affixed dates — i.e., the written reprimands, Bou’s attempt to frame him, Bou’s failure to accommodate his disability — occurred no later than June or July, 1994, at least seven months before Landrau’s resignation. Landrau has therefore failed to provide sufficient evidence of constructive discharge, and,' accordingly, failed to make out a prima case of discriminatory termination.
6
See Vega,
C. Race-based harassment
In his amended complaint and trial court brief, as well as in his appellate brief, Landrau asserted a claim of race-based harassment that is separable from the failure to promote and constructive termination claims.
7
See Lattimore,
[Wjhether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically' threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes'with an employee’s work performance.
Harris v. Forklift Systems, Inc.,
*614 Unlike the failure to promote claim, Landrau’s harassment claim is not time-barred. As discussed supra, he described specific episodes of mistreatment as well as ongoing harassment occurring within the 300-day limitations period set forth in 42 U.S.C. § 2000e-5(e).
The district court stated that Landrau had not provided “enough evidence to support a finding of continuous harassment, unreasonably tight supervision, or imposition of a hostile working environment.” In so concluding, it referenced only the two written reprimands Landrau received after Bou became his supervisor and the break incident (in which Landrau brought co-workers to Bou to explain that he had given proper notice when he took a meal break). The court apparently did not take into account other specific aspects of the mistreatment Landrau alleged in his deposition and affidavit — including, inter alia, the verbal criticisms, the monitoring of his whereabouts, the reference to “kinky hair,” Bou’s purported attempt to “frame” him, Bou’s failure to accommodate Landrau’s physical injury, and the complaint about his meeting with other black employees to discuss a discrimination claim— that were not imposed on white employees.
There is, to be sure, some tension between Landrau’s affidavit in support of his opposition to summary judgment and his deposition. In his affidavit he states that he was subjected to ongoing criticism and harassment, including Bou’s “almost daily” verbal reprimands, weekly -“yelling,” and heightened monitoring of his work and whereabouts. But when asked earlier to describe specific “admonishments” in his deposition, Landrau enumerated only the two written reprimands and the break incident. The comprehensiveness of this response, however, is rendered somewhat ambiguous by the fact that when asked whether he had received any “verbal admonishments,” he mentioned “[t]he persecutions that I have always had,” then went on to discuss the break incident. He later stated in his deposition that he did not “recall” other “admonishments” at that time. While fodder for impeachment, Landrau’s statements do not involve the sort of direct contradiction that we have held fails to create a “genuine” factual dispute for summary judgment purposes.
See, e.g., Borowiec v. Local No. 1570,
Looking at the totality of the circumstances, we find the evidence in Landrau’s affidavit and deposition, while close to the line, to be sufficient to withstand summary judgment.
8
We must, of course, consider the evidence and all reasonable inferences therefrom in the light most favorable to Landrau.
See Buenrostro v. Collazo,
D. State law claim
On appeal, Landrau asserts that his discrimination claim under Puerto Rico Law 100 should survive summary judgment. 9 The district court did not analyze or even mention his Law 100 claim, but simply dismissed Landrau’s complaint in its entirety. It seems likely that the district court, having decided that Landrau’s Title VII claims should be dismissed, declined to retain jurisdiction over the state law claim. This disposition cannot stand in light of our reversal of the ruling on the Title VII harassment claim. We therefore vacate the district court’s dismissal of Landrau’s harassment claim under Law 100, and remand it for further consideration not inconsistent with this opinion. 10
Banco Popular contends that Lan-drau has waived his Law 100 claim because he failed to argue it below in his opposition to summary judgment. In its brief in support of summary judgment, however, Banco Popular focused exclusively on Landrau’s Title VII claims and did not address the Law 100 claim in any manner. 11 Landrau could fairly have understood that Banco Popular was moving for summary judgment only on the Title VII claims, and that he was not required to address the merits of the Law 100 claim.
Affirmed in part and reversed in part, and remanded for further proceedings not inconsistent with this opinion. Each party to bear his or its own costs.
ORDER OF COURT
May 24, 2000
In his petition for rehearing, Landrau asserts error in the disposition of his failure to promote and constructive discharge claims pursuant to Law 100, P.R. Laws Ann. 29, § 146 et seq. We disagree and deny the petition.
Landrau contends that his failure to promote claim is not time-barred under state law because Law 100 contains no administrative filing requirement. Hence, he argues, his complaint in federal district court was timely filed as to that -count. Law 100, however, has a statute of limitations of one year.
See Iglesias v. Mutual Life Ins. Co.,
Landrau argues that defendant waived its time-bar defense as to the state
*616
claim by not raising the defense in its motion for summary judgment. However, in its answer to Landrau’s amended conr-plaint, defendant stated as an affirmative defense that “the complaint is untimely and time-barred.” Later, in its motion for summary judgment, Banco Popular asserted that Landrau’s “claims” for failure to promote were time-barred. It is true that defendant did not specifically deal with Puerto Rico’s statute of limitations as distinct from the federal limitations scheme; both parties appeared to concentrate on the latter, as did the district court. Had Landrau wished to argue that the state statute did not constitute a bar, and that the federal statute was inapplicable, however, he was free to do so. Given that the question of a time bar was put squarely in issue, we see no reason at the present juncture for this court not to analyze timeliness under whichever statute of limitations applies. We are permitted to affirm a district court’s grant of summary judgment on any ground supported by the record.
See Morais v. Central Beverage Corp. Union Employees’ Supplemental Retirement Plan,
Landrau also maintains that his state-law constructive discharge claim should stand because his resignation was not unreasonably late following his mistreatment. He contends that the panel opinion neglected to take into account several events set forth in the record that occurred between July and November, 1994. Landrau relies, inter alia, on evidence of his having received adverse job evaluations; his employer’s refusal to provide copies of certain records that Landrau requested; criticism because his computer was used to process mortgages with errors; his written job description’s inclusion of physical tasks despite Landrau’s inability to lift heavy objects; and a meeting in which the bank stated its conclusion that there had been no discrimination against Landrau.
Landrau’s argument is flawed for two reasons. First, as stated in our opinion, Landrau did not affirmatively identify specific, dated incidents of mistreatment after July in response to defendant’s untimeliness argument (which was made below with regard to the Title VII claim). Moreover, none of the alleged events he now names indicate mistreatment or harassment so severe as to compel resignation. They do not amount to “working conditions ... so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”
See Aviles-Martinez v. Monroig,
Finally, Landrau argued that Puerto Rico law, unlike Title VII, does not require that constructive discharge claims be filed in any particular proximity to the unreasonable working conditions. Again, this distinction was not argued earlier, although Landrau discussed the Law 100 claim at some length in his appellate brief. It is well-settled that arguments not raised in an appellant’s initial brief are waived.
See Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico,
The petition for rehearing is denied.
Notes
. As to at least two of those positions, Lan-drau admitted that he was not hired because he lacked the necessary experience and training. He does not contend that he was denied any of these positions due to racial discrimination.
. March 9, 1995, is the date on the Department of Labor discrimination charge form contained in the record, although Landrau's complaint and the district court's opinion state that the charge was filed on February 28, 1995. This discrepancy is not material.
. The complaint originally alleged age discrimination as well as race discrimination; the age claim was later dropped.
. The district court appeared to confuse or conflate the different adverse employment actions in applying the burden-shifting analysis. For example, it stated that Landrau established a prima facie case of racial discrimination because Bou was hired instead of him, but pointed to Landrau's failure to adduce evidence of harassment or constructive discharge in concluding that Landrau did not rebut Banco Popular's explanation that Bou was the more qualified applicant. Because the alleged adverse employment actions are factually distinct, we analyze them separately on appeal.
See Lattimore v. Polaroid Corp.,
. Although Landrau's opposition to the motion for summary judgment made passing mention of ''continuous” harassment, he did not explicitly assert a tolling argument in his accompanying brief. To the extent that he discussed a "pattern” of treatment, it was in the context of harassment and constructive discharge, not tolling of the limitations period for his discrimination charge. Nor does Lan-drau argue on appeal that he had timely raised this argument below.
. Although the district court correctly determined that no rational juror could have believed that Landrau was constructively discharged, it nonetheless held that he passed the prima facie hurdle because he was qualified for Sandin's position. As to Landrau's termination claim, this was a non sequitur. See note 4, supra.
. Although Landrau sometimes characterizes the harassment as "retaliatory” in his briefs, he makes no effort to address the established framework for a Title VII retaliation claim,
see, e.g., Simas,
. Also contained in the summary judgment record below is an excerpt from the deposition of Landrau's psychiatrist, who stated (based on his sessions with Landrau) that Landrau was called a “good Negro” by Banco Popular personnel. This evidence is inadmissible hearsay, however, and thus cannot be taken into account for purposes of the sum-maiy judgment calculus. See
Vazquez v. Lopez-Rosario,
. As with Landrau's Title VII claim, the state law claim appears to encompass discriminatory failure to promote, harassment and constructive discharge.
. For the reasons we have set forth regarding the similar federal claims, we affirm the dismissal of Landrau’s state-law failure to promote and constructive discharge claims. In all events, we note that Landrau does not argue, on appeal that the timeliness of these claims should be analyzed differently under Law 100 than under Title VII.
.This failure, therefore, is distinguishable from Landrau's failure to oppose Banco Popular’s statute of limitations argument. See section A, supra.