Mulero Rodriguez v. Ponte, Inc.

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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