UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1877
GILBERTO MULERO-RODRIGUEZ,
GLADYS ORTIZ-MARGARYS,
Plaintiffs - Appellants,
v.
PONTE, INC. AND HAYDEE SABINES,
WIDOW OF PONTE,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Kevin G. Little, with whom David Efr n and Law Offices David
Efr n were on brief for appellants.
Jay A. Garc a-Gregory, with whom Juan C. Guzm n-Rodr guez
and Fiddler Gonz lez & Rodr guez were on brief for appellees.
October 28, 1996
TORRUELLA, Chief Judge. Appellants-Plaintiffs Gilberto
TORRUELLA, Chief Judge.
Mulero-Rodr guez ("Mulero") and his spouse, Gladys Ortiz-
Margarys, appeal the district court's grant of summary judgment
to defendants Ponte, Inc. and Hayde Sabines ("Sabines") in this
wrongful termination case for their suit under the Age
Discrimination in Employment Act (the "ADEA"), 29 U.S.C.
626(c), and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e, et seq. The Muleros also presented claims under Puerto
Rico Law 100, 29 L.P.R.A. 185(a), Law 80, 29 L.P.R.A. 146,
and the Puerto Rico Civil Code for breach of contract and
tortious conduct provisions. For the reasons stated herein, we
affirm in part and reverse in part.
BACKGROUND
BACKGROUND
As always, in reviewing the district court's grant of
summary judgment, we present the facts, drawn here from the
district court opinion and order, see Mulero Rodr guez v. Ponte,
Inc., 891 F. Supp. 680, 682-83 (D.P.R. 1995), in the light most
favorable to the nonmovant, see, e.g., Woodman v. Haemonetics
Corp., 51 F.3d 1087, 1089 n.1 (1st Cir. 1995). Appellee Ponte,
Inc. is a corporation whose principal place of business is in
Puerto Rico and is incorporated there. It is owned by members of
two families of Cuban descent, the Pontes and the Sabines.
Appellant Mulero worked for Ponte, Inc. for 29 years, starting as
a driver and eventually attaining the positions of general
manager and director. By January of 1993, he bore substantial
responsibility for the day-to-day operations of Ponte, Inc., and
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received compensation of some $150,000 per year.
Mar a Luisa Ponte ("Ponte"), one of the owners and
officers of Ponte, Inc., began to work at the company in late
1991. She soon moved to restrict Mulero's authority, limiting
his ability to hire and fire employees by requiring her approval
for personnel actions. During the course of 1992, Ponte and
Mulero clashed over a series of issues, relating to Mulero's job
performance, employee bonuses, control over inventory, and
Mulero's interaction with other employees. Mulero's employment
was terminated on January 26, 1993, by Sabines and her son-in-law
Jorge Redondo ("Redondo"), who was not a Ponte, Inc., employee.
Mulero was 47 years old. The appellants sued, alleging
discrimination under the ADEA and Title VII, and the district
court granted summary judgment for Ponte, Inc., and Sabines.
This appeal followed.
DISCUSSION
DISCUSSION
A. Title VII and ADEA Claims
A. Title VII and ADEA Claims
In the summary judgment context, we review the district
court's grant of summary judgment de novo, and "are obliged to
review the record in the light most favorable to the nonmoving
party, and to draw all reasonable inferences in the nonmoving
party's favor." LeBlanc v. Great American Ins. Co., 6 F.3d 836,
841 (1st Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1398
(1994); see, e.g., Woods v. Friction Materials, Inc., 30 F.3d
255, 259 (1st Cir. 1994). "An inference is reasonable only if it
can be drawn from the evidence without resort to speculation."
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Friezev. Boatmen'sBank of Belton,950 F.2d538, 541(8th Cir. 1991).
We will uphold summary judgment where "the pleadings,
depositions, answers to the interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We are not restricted to the scope of the district
court's logic, but can affirm on "any independently sufficient
ground." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st
Cir. 1991), cert. denied, 504 U.S. 985 (1992). Of course,
[n]ot every factual controversy bars a
litigant's access to the Rule 56 anodyne:
[T]he mere existence of some
alleged factual dispute between the
parties will not defeat an
otherwise properly supported motion
for summary judgment; the
requirement is that there be no
genuine issue of material fact.
Medina-Mu oz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)). The nonmovant bears the burden of setting
forth "specific facts showing that there is a genuine issue for
trial." Fed. R. Civ. P. 56(e). An issue is genuine if it "must
be decided at trial because the evidence, viewed in the light
most flattering to the nonmovant, would permit a rational
factfinder to resolve the issue in favor of either party."
Medina-Mu oz, 896 F.2d at 8 (citation omitted).
In the absence of direct evidence of discrimination, we
apply the familiar burden-shifting framework of McDonnell
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Douglass Corp. v. Green, 411 U.S. 792 (1973), to ADEA and Title
VII claims. See Ayala-Gerena v. Bristol Myers-Squibb Co., No.
95-1867, slip op. at 17 (1st Cir. Sept. 5, 1996) (noting that
"direct evidence does not include stray remarks in the
workplace"); see, e.g., Pages-Cahue v. Iberia L neas A reas de
Espa a, 82 F.2d 533, 536-37 (1st Cir. 1996); Woods, 30 F.3d at
259. First, the plaintiffs must establish a prima facie case
that Mulero (1) was within a protected class; (2) met Ponte,
Inc.'s legitimate performance expectations; (3) was adversely
affected; and (4) was replaced by another with similar skills and
qualifications. See Smith v. Stratus Computer, Inc., 40 F.3d 11,
15 (1st Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1958
(1995); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.
1993). Once they do so, the burden shifts to Ponte, Inc., to
produce a valid and nondiscriminatory reason for the dismissal.
In the final stage, the burden shifts back to the plaintiffs to
show that Ponte, Inc.'s stated reason for Mulero's dismissal was
false and but a pretext for discrimination. See, e.g., Woods, 30
F.3d at 260; Medina-Mu oz, 896 F.2d at 8. In this summary
judgment context, plaintiffs, as the nonmovants, must show
evidence sufficient for a factfinder to reasonably conclude that
Ponte, Inc.'s decision to terminate was driven by a
discriminatory animus. See LeBlanc, 6 F.3d at 843. "Thus, a
district court's grant of summary judgment to an employer will be
upheld if the record is devoid of adequate direct or
circumstantial evidence of the employer's discriminatory intent."
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Pages-Cahue, 82 F.3d at 537.
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1. The Prima Facie Case
1. The Prima Facie Case
The parties agree that only the second element of the
prima facie case, i.e., that Mulero met Ponte, Inc.'s legitimate
job expectations, is in dispute. Finding little support in the
depositions cited, and noting that the record did not include
affirmative evidence of satisfactory performance, such as
evaluations or appraisals, the district court nonetheless assumed
that the plaintiffs satisfied the second element, on the basis of
Mulero's long history at Ponte, Inc. We take the district
court's reasoning a step further and find that plaintiffs did,
indeed, fulfill the second element.
Mulero was at Ponte, Inc., for almost thirty years.
During that time, he rose from being a driver to holding the
posts of general manager and director, with the attendant
promotions and pay raises. We have previously found that such
evidence supports an inference that an employee's job performance
was adequate to meet an employer's needs, even when the evidence
did not extend all the way to the time of the discharge. See
Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st
Cir. 1994); see also Woodman, 51 F.2d at 1092; Stratus Computer,
40 F.3d at 15 n.4; Woods, 30 F.2d at 261. We do so again here,
and so find that plaintiffs established their prima facie case.
2. Ponte, Inc.'s Reason for Dismissal
2. Ponte, Inc.'s Reason for Dismissal
The parties do not contest that defendants have
articulated a non-discriminatory reason for Mulero's discharge,
namely, that he "made poor hiring decisions; argued repeatedly
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with, threatened and vandalized the automobile belonging to, the
company's accountant, Luis Caceiro [("Caceiro")]; inadequately
controlled inventory; permitted his children inappropriate access
to the company's resources; and misallocated bonus payments."
Mulero Rodr guez, 891 F. Supp. at 685. We therefore turn to the
final step of the McDonnell Douglass framework.
3. Pretext for Discrimination
3. Pretext for Discrimination
In their effort to demonstrate that Ponte, Inc.'s
stated reason for Mulero's dismissal was a pretext for
discrimination, the plaintiffs weave a tale of discriminatory
comments, pretextual business decisions, and favoritism. Finding
little substance in the story, the district court held that the
plaintiffs did not meet their burden of demonstrating pretext and
unlawful animus, in either the ADEA or the Title VII claim. We
now weigh the evidence for each in turn, "focus[ing] on the
ultimate question, [and] scrapping the burden-shifting framework
in favor of considering the evidence as a whole." Mesnick, 950
F.2d at 827. Like the district court, we find that much of the
Muleros' evidence merely "reflects the existence of differences
of opinion between Mulero and others at the company with respect
to a wide variety of issues affecting the company." Mulero
Rodr guez, 891 F. Supp. at 686. However, because we find more
content in the plaintiffs' case than did the district court, our
review of the record leads us to conclude that, taking all
inferences in their favor, the Muleros have offered sufficient
evidence to fulfill the third McDonnell Douglass requirement and
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survive summary judgment. Accordingly, we reverse the district
court's grant of summary judgment on their Title VII and ADEA
claims.
a. The National Origin Discrimination Claim
a. The National Origin Discrimination Claim
The plaintiffs contend that Mulero was discriminated
against because he is Puerto Rican, and the owners of Ponte,
Inc., were Cuban and preferred to have a Cuban employee. As
noted above, at this stage of our analysis, the Muleros "must
introduce sufficient evidence to support two findings: (1) that
the employer's articulated reason for laying off the plaintiff is
a pretext, and (2) that the true reason is discriminatory." Udo
v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995). The Muleros rely upon
one set of evidence to establish both findings. See Woodman, 51
F.3d at 1092 (noting that a plaintiff may rely on the same
evidence for both findings); see also Udo, 54 F.3d at 13.
We turn first to the question of pretext. The
defendants spell out a series of reasons for Mulero's dismissal,
listed above. In weighing whether the Muleros have presented
enough evidence for a reasonable factfinder to deem the cited
reasons pretextual, we remember that the issue is not whether
Ponte, Inc.'s reasons to fire Mulero were real, but merely
whether the decisionmakers -- Sabines and Ponte -- believed them
to be real. See Woodman, 51 F.3d at 1093. As the district court
noted, the defendants support their reasons with substantial
deposition testimony and sworn statements. The Muleros counter
with evidence challenging the veracity of many of the underlying
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reasons, but with little evidence that Sabines and Ponte did not
actually believe them. Nonetheless, our review of the record
leads us to conclude that the Muleros have indeed produced
evidence sufficient for a reasonable factfinder to find Ponte,
Inc.'s cited reasons pretextual.
First, defendants present evidence that complaints made
by Ponte, Inc., salesmen over a shortage of inventory acted as
the "catalyst" for the decision to terminate Mulero. They argue
that Ponte and Sabines met with the complaining salesmen in late
1992, because the salesmen were concerned about a shortage in the
inventory and its impact on their clients and commissions.
Mulero still had the responsibility for buying the inventory.
Defendants present deposition testimony of Sabines and Ponte
about the meeting, as well as sworn statements by two of the
salesmen. Defendants further attest that they brought up the
complaints with Mulero, and that the complaints "were the straws
that broke the camel's back." Appellants' Brief at 12.
However, the Muleros have offered evidence that the
complaints were false. Mulero's deposition testimony states that
in fact a shortage of inventory was a regular occurrence at the
end of every calendar year, because the company ceased purchasing
between December 1 and January 15 so that inventory could be
taken. Although he testified that in 1992 he discussed with
Sabines that he was behind in taking the inventory, he also
testified that it was in fact finished in time and that he had no
recollection of Sabines or Ponte -- or the salesmen --
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complaining about a shortage of inventory. The Muleros also
point out that, although they requested them, Ponte, Inc., has
produced no business records in any way reflecting a shortage or
lost sales or income based thereon. In sum, giving credence to
Mulero's testimony, a rational factfinder could find that there
was in fact no shortage of inventory beyond the standard end-of-
year freeze on purchases. This casts doubt on whether Ponte and
Sabines actually believed the complaints, and whether they could
have served as the catalyst for Mulero's dismissal. The
conclusion is not an inevitable one, but as the issues centering
on the salesmen's complaints involve real issues of fact, it
should be left to the factfinders.
Second, according to Ponte's testimony, the salesmen
also complained that when they asked for merchandise Mulero would
tell them to go ask Sabines or Ponte. The defendants argue that
they found this attitude to be problematic, as Mulero still had
buying and selling authority. Mulero testified, however, that if
he ever said that, it was because he was no longer in charge of
the salesmen. Clearly, an issue of fact exists as to whether the
salesmen's complaints on this point are a real reason for
Mulero's dismissal, as it is unresolved what the scope of his
responsibility was.
Finally, Ponte attests that she started working at the
company because of complaints about Mulero's conduct made to her
mother, Sabines. Mulero, however, testified that Ponte told him
she was starting work at Ponte, Inc., "in order to relieve [him]
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of some work." Mulero Deposition, at 102. At the same time,
although he said they were not needed, she hired labor lawyers.
While this is hardly condemning evidence, the reasonable
factfinder could see Ponte's dissimulation regarding her motives
for becoming active in the company and her contemporaneous hiring
of attorneys as further reason to disbelieve the defendants'
proffered reasons for firing Mulero. Cf. Sinai, 3 F.3d at 474
(noting that fact that employer "advanced different reasons for
refusing to hire appellant at different times could have led the
jury simply to disbelieve" the employer).
Having determined that the Muleros have marshalled
enough evidence regarding pretext to defeat summary judgment on
that point, we turn to the question of whether they can show that
the real reason was national origin discrimination. The key
evidence in the plaintiffs' argument that Mulero was
discriminated against because he is Puerto Rican is his testimony
that Luis Caceiro repeatedly commented to Mulero that Mulero was
the only Puerto Rican running a Cuban company. Acknowledging
that "[h]ad the comment . . . been attributable to the
defendants, it might have sufficed to satisfy the low threshold
required to escape dismissal at this stage," Mulero-Rodr guez,
891 F. Supp. at 685, the district court dismissed the evidence of
Caceiro's comment and granted the defendants summary judgment.
The court found that Mulero had not offered sufficient evidence
to show that Caceiro was in any way a decision-maker -- or
influenced the decision-makers -- regarding Mulero's dismissal.
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See Medina-Mu oz, 896 F.2d at 10 ("The biases of one who neither
makes nor influences the challenged personnel decision are not
probative in an employment discrimination case."); see also
Woods, 30 F.3d at 258. The district court also noted that,
although not determinative, it "need not ignore" the absence of
any evidence that defendants were aware of his Puerto Rican birth
and heritage during his lengthy career at Ponte, Inc.
Review of the record in the light most favorable to the
Muleros, however, leads us to conclude that a reasonable
factfinder could in fact reasonably infer that Caceiro was in a
position to influence Ponte, Inc.'s decision-making. Ponte took
away Mulero's authority over the salesmen, giving the
responsibility to Caceiro. She also shifted Mulero's inventory
duties to Caceiro, proposing to computerize the inventory system.
When she changed the bonus system, Caceiro's bonus was increased.
According to Mulero, Ponte trusted Caceiro's word over Mulero's.
Finally, as the district court noted, Ponte "learned from Caceiro
about Caceiro's conflicts with Mulero." Mulero Rodr guez, 891 F.
Supp. at 685. Given the favor with which Caceiro was treated and
the responsibilities given him, on this record Caceiro may
reasonably be thought to have been in a position to influence
Ponte's decision-making. While this is not the inevitable
conclusion, it is a reasonable one. Accordingly, a reasonable
jury could infer that, based on Caceiro's comments that Mulero
was the only Puerto Rican running a Cuban company, national
origin animus played a role in the decision to terminate Mulero's
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employment, and so the district court erred in granting summary
judgment on the Muleros' Title VII claim.1
b. The Age Discrimination Claim
b. The Age Discrimination Claim
The district court found the record insufficient to
demonstrate genuine issues of material fact regarding whether
Mulero's discharge was due to age-based animus. It focused on a
comment Ponte made to Mulero in April of 1992, some eight months
before his discharge, that he was "too old to handle" the
salespeople, and so was to be relieved of his supervisory duties
over the sales force. The court found that this statement was
followed by no additional evidence of age-related bias, and that,
standing alone, it was too remote in time for a sufficient nexus
to exist between it and the decision to terminate Mulero. We
review the record de novo. As we have already found that the
Muleros have produced enough evidence to support a finding of
pretext, we turn directly to the question of whether they can
show that the real reason was age discrimination.
There is no question that statements like Ponte's, when
made by a decision-maker, can be evidence of age discrimination.
See, e.g., Mesnick, 950 F.2d at 824; Olivera v. Nestl Puerto
Rico, 922 F.2d 43, 49 (1st Cir. 1990). Granted, Ponte made the
1 We note that the district court's recognition that Mulero had
been promoted over a 29-year period in which defendants
undoubtedly knew of his Puerto Rican origin is not conclusive.
As the district court found, only in late 1991 did Ponte, an
acknowledged decision maker, begin to work at the company. A
jury could infer from this and the policy changes she instituted
that Ponte was a "new broom" and wanted to "sweep clean"
according to her own prejudices, which had heretofore been
ignored.
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comment in relation to Mulero's ability to handle the salesmen,
but "an employer's willingness to consider impermissible factors
such as . . . age . . . while engaging in one set of presumably
neutral employment decisions . . . might tend to support an
inference that such impermissible considerations may have entered
into another area of ostensibly neutral employment decisions --
here, an employee's termination." Conway v. Electro Switch
Corp., 825 F.2d 593, 597-98 (1st Cir. 1987).
However, we agree with the district court that,
standing alone, it is too remote in time to be linked with the
decision to terminate Mulero. See Birkbeck v. Marvel Lighting
Co., 30 F.3d 507, 512 (4th Cir. 1994) (finding that
discriminatory comment made over two years prior to discharge was
not evidence of age discrimination); Phelps v. Yale Security,
Inc., 986 F.2d 1020, 1026 (6th Cir.) (holding that statements
made almost a year before layoff were too far removed to have
influenced decision), cert. denied, 510 U.S. 861 (1993); see also
Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.
1994) (listing timing of remarks as factor in whether they
evidenced discrimination); Frieze v. Boatmen's Bank of Belton,
950 F.2d 538, 541 (8th Cir. 1991). Indeed, "[t]he fact that
[Ponte] made such a statement on only one occasion further
supports this conclusion." Birkbeck, 30 F.3d at 512.
If, however, the Muleros have offered evidence to
establish the needed nexus between Ponte's statement and the
decision to fire Mulero, the statement may become pivotal.
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Unlike the district court, we find such a nexus in the record.
Specifically, at the time she made the "too old" comment and
altered Mulero's supervisory duties, Ponte instituted other
changes, including the method by which bonuses were apportioned.
In the past, bonuses had been awarded in April on a seniority
basis; she switched to a merit-based system. Ponte testified
that she changed the system for two reasons. First, she wanted
to provide an incentive to new employees. Second, she felt that
the old employees gave all their loyalty to Mulero, and that they
knew that no matter what they did, they would still get a good
bonus. Thus the change was designed to change their work habits
and "attitude problems." Ponte Deposition, at 61. Under the new
system, Mulero's bonus was decreased -- Ponte testified that she
did not believe Mulero deserved the bonus he had previously been
receiving -- while those of several newer employees, including
the younger Caceiro, were increased.
The policy change regarding the bonus system can be
viewed in several ways. First, the change in the system was a
business decision -- which we will not normally second-guess.
See LeBlanc, 6 F.3d at 845. That does not mean we must ignore
its existence, however. Cf. Sinai, 3 F.3d at 474 (finding that
the multiple reasons employer advanced for its failure to hire
appellant, including policy against hiring spouses of current
employees, meant that jury could easily have found the reasons
were pretextual). Second, although the change reduced Mulero's
bonus, it did not change his base salary. At the same time, the
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bonus was part of Mulero's expected compensation. Finally, the
old bonus system was based on seniority, not age -- but in
Mulero's case, seniority could serve as a proxy for his age. In
sum, the evidence regarding the bonus system is anything but
conclusive: it can be viewed as a reasonable measure in the face
of a perceived problem, or as a method used to strip away part of
Mulero's compensation and hurt those employees loyal to him --
those who had been there the longest. Thus it is prime fodder
for a jury.
It also serves Mulero's purpose here. Ponte's "too
old" comment is strong evidence. The Muleros have found the
needed nexus between it and Mulero's dismissal in the bonus
change, as in this context we find the combination of Ponte's
"too old" comment with the change in the bonus system disfavoring
long-term -- and therefore often older -- employees troubling.
Thus we think there is a material issue as to whether Ponte,
Inc.'s real reason for firing Mulero was rooted in discriminatory
animus. Cf. Conway, 825 F.2d at 598 (holding that statement
made eight months before employee was dismissed and one made at
least ten months before were not too remote from the dismissal
and, thus, properly admitted at trial as evidence of a
discriminatory atmosphere where he who made the first statement
may have participated in the decision to fire her and the other
refused to block her termination).
Of course, the full presentation of
evidence on both sides might alter this
judgment and show that the plaintiffs
fell just short and would be subject to a
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directed verdict. But at the summary
judgment stage, with the obligation to
draw all reasonable inferences in favor
of the party opposing summary judgment,
we think that this case could not be
dismissed against [the] defendants.
Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir. 1995).
Accordingly, and with a nod to the premise that "determinations
of motive and intent, particularly in discrimination cases, are
questions better suited for the jury," Petitti v. New England
Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990), we reverse the
district court's grant of summary judgment on the Muleros' ADEA
claim.
A final note. Without pointing to a specific example,
the Muleros argue that the district court misapplied the summary
judgment standard by founding its grant of summary judgment upon
its acceptance of the defendants' testimonial evidence as
"substantial," see Mulero Rodr guez, 891 F. Supp. at 685, and its
rejection of contrasting testimony. See LeBlanc, 6 F.3d at 836
(noting that, in summary judgment, reviewing court must view
record and draw all reasonable inferences in nonmovant's favor).
We disagree. First, the district court's comment was made
regarding the defendants' rebuttal in the second step of the
McDonnell Douglass framework, and was merely describing the
strength with which the defendants supported their asserted
reasons. See Mulero Rodr guez, 891 F. Supp. at 685 ("Defendants,
now tossed the ball, run quite a distance with it."). Second,
although we reverse the court below, we find no misapplication of
the summary judgment standard in this difficult case. Indeed, we
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remind appellants that "the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." See
Anderson, 477 U.S. at 247-48.
In making their allegation, the Muleros contend that
the district court should not have credited Sabines' and Ponte's
testimony because of their invocation of the privilege against
self-incrimination. The defendants retort that this issue was
not raised below, and so, as this is not an exceptional case
requiring a deviation from the norm, the Muleros are precluded
from raising it here. See Villafa e-Neriz v. FDIC, 75 F.3d 727,
734 (1st Cir. 1996). Even if the argument were raised below,
however, the defendants' invocation of the privilege is largely
irrelevant here. The Muleros' argument goes to credibility, and
it is well established that the nonmovants are entitled to all
reasonable inferences in a summary judgment case, whether or not
the moving party invoked their privilege. At the same time, the
Muleros misapprehend the nature of the case law they cite: "the
Fifth Amendment does not forbid adverse inferences against
parties in civil actions when they refuse to testify," Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976), see FDIC v. Elio, 39 F.3d
1239, 1248 (1st Cir. 1994), but nor does it mandate such
inferences, especially as regards topics unrelated to the issues
they refused to testify about. Cf. Serafino v. Hasbro, Inc., 82
F.3d 515, 518 (1st Cir. 1996) (noting that "assertion of the
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privilege may sometimes disadvantage a party" (emphasis added)).
Indeed, to hold otherwise would seem to go against the premise
that the Fifth Amendment "'guarantees . . . the right of a person
to remain silent . . . and to suffer no penalty . . . for such
silence.'" Id. at 517 (quoting Spevack v. Klein, 385 U.S. 511,
514 (1967) (emphasis added)). Therefore, we do not find that the
district court misapplied Baxter v. Palmigiano.
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B. Discovery
B. Discovery
The Muleros next contend that the district court abused
its discretion in refusing the parties' joint motion to extend
discovery.2 See Ayala-Gerena, Slip Op. at 5 (noting that we
review district court's pre-trial discovery order for abuse of
discretion). They argue that protracted discovery disputes,
interruptions in the discovery process, and an early cutoff date3
made the requested four-month extension essential. The result,
they continue, was a prejudicial impact on their ability to
contest the testimonial evidence presented in the summary
judgment motion.
However, the Muleros did not seek reconsideration of
the district court's denial of the parties' stipulation for the
extension of the discovery period. Nor did the appellants
mention the need for further discovery in their part of the
Proposed Pretrial Order; indeed, they cited the fact that
"discovery [had] long since closed" in arguing that the
defendants' summary judgment motion was untimely and contravened
2 The Muleros do not seem to address their argument to either of
the Magistrate Judge's two orders regarding discovery deadlines.
Nonetheless, we note that, although they filed a motion seeking
clarification of one aspect of the second magistrate's order
(which was denied), they did not in fact file an objection to
either order regarding the discovery deadline, and so any
argument regarding the Magistrate Judge's order has been waived.
See Fed. R. Civ. P. 72(a) (party must object to magistrate
judge's order within ten days); Pagano v. Frank, 983 F.2d 343,
345-46 (1st Cir. 1993).
3 The discovery cutoff date was set for September 12, 1994,
seven months after the defendants answered the complaint on
February 11, 1994.
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Local Rule 312. Plaintiffs' Proposed Pretrial Order, at 23.
Further, the Muleros' Opposition to Defendants' Motion for
Summary Judgment and their Surreply in Further Opposition to
Motion for Summary Judgment are both silent as to the district
court denial of additional time for discovery, as well as to any
need for additional discovery. Finally, the Muleros did not file
a Rule 56(f) motion requesting additional discovery in order to
oppose the Motion for Summary Judgment. In these circumstances,
the Muleros have well and fully waived their right to argue this
issue on appeal. See Correa v. Hospital San Francisco, 69 F.3d
1184, 1195 (1st Cir. 1995) (noting that failure to raise an issue
in the final pretrial order generally constitutes waiver), cert.
denied, U.S. , 116 S. Ct. 1423 (1996); Beaulieu v. IRS, 865
F.2d 1351, 1352 (1st Cir. 1989) ("[I]t is a party's first
obligation to seek any relief that might fairly have been thought
available in the district court before seeking it on appeal.").
C. The Supplemental Claims
C. The Supplemental Claims
Finally, the Muleros argue that the district court
erred in entering a judgment on the merits on the Muleros'
supplemental Puerto Rico law claims. They argue that the summary
judgment motion focused solely on the Title VII and ADEA claims,
such that the Puerto Rico law claims were not even the subject of
the motion. Accordingly, they posit, when it dismissed the
Muleros' federal law claims, the district court should have
dismissed the supplemental Puerto Rico law claims without
prejudice to their being refiled in a court of competent
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jurisdiction.
The defendants contest that the issue has not been
properly raised before this court, as the Muleros failed to
designate the dismissal of the supplemental claims as an issue on
appeal, and so the appeal should be deemed waived. See Fed. R.
App. P. 10(b)(3). Specifically, the Muleros' first stated issue
was that the court below erred in granting the motion for summary
judgment and dismissing the action "as there existed genuine
issues of material fact requiring trial." Appellants' Brief, at
1. The second stated issue regarded the discovery continuance.
We agree with the defendants that the issues as presented do not
encompass the question whether the Puerto Rico law claims should
have been dismissed.
Moreover, even if the Muleros' statement of issues
encompassed the question now raised, it would still have been
deemed waived. The defendants' Motion for Summary Judgment
specifically requests summary judgment as regards both the
federal and state law claims, as did their Reply to the
plaintiffs' Opposition, such that the district court did have the
Puerto Rico law claims in front of it. The Muleros' Opposition
and Surreply, however, remained silent as to the Puerto Rico law
claims: they argued neither that the Puerto Rico law claims
should be dismissed without prejudice, as they do now, nor that
the court should exercise its supplemental jurisdiction over
these claims. Nor did they file a motion for reconsideration.
In these circumstances, we find that the Muleros have indeed
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waived this argument. See McCoy v. Massachusetts Institute of
Technology, 950 F.2d 13, 22 (1st Cir. 1991), cert. denied, 504
U.S. 910 (1992).
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CONCLUSION
CONCLUSION
For the reasons presented above, the district court's
denial of the joint motion to extend discovery is affirmed. The
affirmed
opinion of the district court granting summary judgment is
reversed as to the Title VII and ADEA claims, and affirmed as to
reversed affirmed
the pendent Puerto Rico Law claims. We remand this case to the
district court for proceedings consistent with this decision.
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