Meléndez-Arroyo v. Cutler-Hammer De P.R. Co.

United States Court of Appeals
For the First Circuit

No. 00-2594
No. 01-1015

IVY MELÉNDEZ-ARROYO,

Plaintiff, Appellant/Cross-Appellee,

v.

CUTLER-HAMMER DE P.R. CO., INC.,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Judith Berkan with whom Mary Jo Mendez and Del Toro &
Santana were on consolidated brief for plaintiff.
Russell A. Del Toro with whom Roberto Santana-Aparicio and
Del Toro & Santana were on consolidated brief for defendant.
 December 5, 2001

BOUDIN, Chief Judge. Ivy Melendez brought suit against

her employer, Cutler-Hammer de Puerto Rico ("Cutler-Hammer"),

under the Age Discrimination in Employment Act ("ADEA"), 29

U.S.C. §§ 621-634 (1994), and under Puerto Rico law. Following

discovery, the district court granted Cutler-Hammer's motion for

summary judgment on the merits, and Melendez now appeals.

Cutler-Hammer cross appeals to contest the district court's

denial of its own summary judgment motion which sought a ruling

that Melendez's suit was time-barred.

Melendez began working for Westinghouse in 1968 and

until 1998 held a succession of accounting-related positions

with the company and its successor in interest, Cutler-Hammer.

In 1984, she became the accounting manager at the Toa Baja plant

in Puerto Rico, a large facility with over 1,000 employees. In

this position, she had broad responsibility for financial record

keeping and analysis. Her direct supervisor, from 1983 to 1989,

and again from 1993 to February 1997, was Larry Cancel, the

controller at the plant.

In January 1994, Eaton Corporation acquired the plant

from Westinghouse and began to operate it as Cutler-Hammer de

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Puerto Rico Company. Eaton then instituted new accounting

programs for its new Puerto Rico plant; the new accounting

system, tied in with Eaton's mainland operations, was in certain

respects more complex than the Westinghouse system. Melendez

continued as accounting manager after the acquisition but, in

her later-filed lawsuit, she claimed that Cancel--from 1995

through 1997--made a number of adverse comments about her age

and those of other employees with whom she worked. In l996,

Melendez complained to the company's personnel department about

Cancel, but the company took no action against him.

On February 14, 1997, Cancel, together with Luis

Pizarro, the plant's human resources manager, met with Melendez

and informed her that she would no longer be the accounting

manager and would be transferred to a new position. According

to Melendez, she understood that she was being demoted but was

not told until May 1997 what her new responsibilities would be.

In May she discovered that her new duties were fairly menial and

involved no supervisory responsibility. However, incident to

the February 1997 transfer, Melendez was given a 3 percent pay

raise.

Almost immediately after the meeting, Melendez suffered

serious depression and went on sick leave, which occupied a

substantial portion of the time until May. She returned to work

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on May 12, 1997, and continued until November 6, 1997, when her

mother was hospitalized with a serious illness. Her mother died

on November 25, 1997. Melendez's depressive symptoms then

became substantially worse. Although she attempted to return to

work in January 1998, she required further treatment and in

August 1998, the Social Security Administration found her

disabled retroactive to November 6, 1997.

On or about March 4, 1998, Melendez filed an age

discrimination charge with the Puerto Rico Department of Labor

and the Equal Employment Opportunity Commission. After

receiving right to sue letters from both agencies, Melendez

brought suit in the district court, claiming that she had

suffered an adverse job action because of age discrimination.

Cutler-Hammer countered by arguing that the lawsuit was time-

barred because the administrative charges were filed 383 days

after the February 14, 1997, meeting despite a statutory

requirement that the charges be filed within 300 days. 29

U.S.C. § 626(d); American Airlines, Inc. v. Cardoza-Rodriguez,

133 F.3d 111, 122 (1st Cir. 1998).

On February 29, 2000, the district court rejected

Cutler-Hammer's motion for summary judgment on limitations

grounds. The court found that factual issues precluding summary

judgment were raised by two arguments offered by Melendez to

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avoid the limitations bar: that her claim did not accrue until

May 1997, when the scope of her new duties became clear and, in

the alternative, that equitable tolling was justified because

her substantial depression warranted a suspension of the statute

of limitations.

In September 2000, Cutler-Hammer filed a second summary

judgment motion, this one directed to the merits. On November

21, 2000, the district judge granted summary judgment in favor

of Cutler-Hammer, dismissing the federal claim on the merits and

the Puerto Rico law claim without prejudice. In a nutshell, the

district judge found that Melendez had failed to counter

Cancel's deposition testimony that she had not met the company's

job expectations; alternatively, the district court said that

Melendez had failed to show that she was constructively

discharged by Cutler-Hammer. Melendez has appealed from this

decision, and Cutler-Hammer has filed a cross-appeal on the

limitations issue.

1. The pertinent provision of ADEA is comparatively

straightforward: it is unlawful for an employer to refuse to

hire, or to discharge or to "otherwise discriminate" against any

individual with respect to "compensation, terms, conditions, or

privileges of employment, because of such individual's age." 29

U.S.C. § 623(a)(1). Protection is limited to those 40 years old

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or older, id. at § 631(a); Melendez was 56 years old as of

February 1997. An applicant or employee who is aggrieved by an

adverse job action taken against him or her because of age can

bring a civil action under ADEA and can seek legal or equitable

relief. Id. at § 626(c)(1).

To prevail on her federal claim of discriminatory

treatment, Melendez had to show that she suffered an adverse job

action, that this was motivated by age, and that she suffered

injury as a result of it. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 141 (2000). If she proved this, her

employer could still avoid liability by showing that it also had

legitimate grounds for its action that would have led to the

same result (a so-called dual motive case). Febres v.

Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000). By

contrast, under Title VII such a showing would merely limit the

relief available to the plaintiff. 42 U.S.C. § 2000e-

5(g)(2)(B).

We start with the issue of motivation. Quite commonly

in discrimination cases--especially in hiring--the potential

plaintiff knows only that he was not hired and has no specific

evidence as to why this occurred. Possibly in response to this

dilemma, the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), adopted what it called a prima facie case

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approach by which an employer charged with racial discrimination

in hiring could be made to explain its purported reason for its

refusal to hire the plaintiff.

In substance, the Court said that the potential

employee need at the outset show only that he or she met these

conditions: that he or she was a racial minority, applied for

and was qualified for the position, was rejected and that the

position remained open. If so, the "burden of production"

shifted to the employer to offer an explanation or suffer a

presumption of discrimination. But, if the employer then

offered a non-discriminatory explanation, the presumption

disappeared, and the potential employee was required to show the

employer's explanation was mere pretext for discrimination.

McDonnell Douglas, 411 U.S. at 805.

This McDonnell Douglas approach has been adapted to

other situations besides refusals to hire and to other civil

rights statutes including the ADEA, but it is largely beside the

point in this case. That is so because Cutler has from the

outset offered an explanation for its action: it said that

Melendez was not capable of performing as accounting manager

under the new and more demanding accounting regime imposed by

Eaton. Indeed, it asserted that this judgment was made not only

by Cancel but also by a mainland executive of Eaton named Don

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Gardner, who offered an affidavit so claiming and describing the

basis for his judgment. See Cumpiano v. Banco Santander Puerto

Rico, 902 F.2d 148, 155 (1st Cir. 1990).

The question, then, at the summary judgment stage is

whether Melendez has pointed to enough admissible evidence to

create a factual issue for trial on the issue of motivation--

that is to permit a reasonable jury to conclude that the

decision to demote her was taken or prompted by someone based on

age-based stereotyping or hostility. Her evidence in this case

is two-fold: first, evidence that Cancel entertained (and

expressed) age-biased views and that he played a direct role in

her demotion; and second, evidence casting reasonable doubt on

the company's claim that she was demoted for incompetence.

By affidavit and deposition evidence, Melendez created

a jury issue on the question whether Cancel held such views.

She, or others, quoted him as saying, among other things, that

the ages of his accounting employees added up to more than a

thousand years; that his employees were as old as Methuseleh;

that they were "old women," "a bunch of incapacitated people"

and "useless old women" and that "what I have here is Social

Security." Melendez also said that Cancel told her that she was

an old hag, an old lady and that "her age didn't allow her to

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think." Compare Thomas v. Sears, Roebuck & Co., 144 F.3d 31, 34

(1st Cir. 1998).

Cancel denied making some of the comments attributed

to him, and, as to others, he says that he was joking or simply

repeating statements made by other employees. However, he

admits making some of the remarks and Melendez was not the only

witness who reported them. Her credibility is also supported by

the fact that she complained to the personnel department about

Cancel's attitude in 1996, well before any job action was taken

against her. Besides, which remarks he made and whether these

were jokes or his actual views are credibility issues for a

jury.

Cutler-Hammer acknowledges that Cancel played an

operative role in the February 14 reassignment. Indeed, he was

Melendez's direct superior and after several years in this role

quite familiar with her work. He participated in the February

14 meeting and, while Pizarro too was present, Pizarro was not

a specialist in accounting and did not claim to have made the

decision. Don Gardner's affidavit (as to which more below) said

that he instructed Cancel that Melendez had to improve or be

replaced--not that he ordered her demotion.

This brings us to the company's explanations for the

February 14 action. Thus far, we have only evidence that Cancel

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held age-biased views and that he played a role in Melendez's

demotion; he did not admit to being motivated by her age or even

refer to it in the meeting and, instead, claimed to have been

prompted by concerns about the quality of her work. But, if

Melendez's own proffers were accepted by the jury, the

explanations offered by the company could be deemed pretexts and

turned against it. Reeves, 530 U.S. at 143.

Notably, the company says that while Melendez may have

performed well in earlier years, new demands were placed on her

after the transfer of control and she did not live up to them.

But there appears to be almost no contemporaneous criticism of

her work in writing prior to the demotion, whether as formal

assessments or informal complaints or concerns about her

performance. Almost all the criticisms appear as new

assessments or, at best, claims made now as to what someone

thought or heard at the time of the alleged mistake or omission

by Melendez but never troubled to record.

Further, even now the company's newly detailed

criticisms of Melendez--putting aside useless generalizations

("poor communications with the management")--are open to

dispute. For example, Jason Hume, a mainland accounting manager

with Cutler-Hammer, testified that he had dealt with Melendez

for about a year ending in September 1995, and that her

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explanations for variances between the income statement and the

budget or forecast were incomplete, contradictory and not

timely. But Hume admitted that he never told Cancel directly

about these problems, and Melendez points out that the alleged

problems occurred nearly two years before her demotion, and Hume

pointed to no documentation for his criticism.

Cancel also claimed that Melendez never mastered a

specialized Eaton purchasing and inventory system which

admittedly did not operate properly at the Puerto Rico plant

when it was introduced in 1996. However, Melendez pointed to

testimony of Nayda Rosa, a cost accountant, who attributed the

problems to the engineering department and stock room and said

that Melendez was never mentioned as the cause of the problem

and actually helped solve it. Pizzaro blamed Melendez for

failing to master the new payroll accounting program as well,

but Cancel admitted that he could not attribute problems with

that program to Melendez.

The most comprehensive attack on Melendez's performance

came from Don Gardner in an affidavit, saying that a number of

persons in the organization complained about problems with

Melendez's performance, leading to his own suggestion that she

be either improved or removed. Two other affiants also

criticized her work. However, the court ruled that Cutler-

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Hammer had failed to provide the names of these witnesses in a

timely manner and ordered their testimony excluded from the then

anticipated trial for failure to meet the discovery deadline.

Cutler-Hammer says that these affidavits from Gardner

and others were still competent for consideration at the summary

judgment stage, but we fail to see why. The question on summary

judgment is whether, based on the evidence available for

presentation at trial, there is a factual issue for the jury.

Where, as here, the court has excluded Gardner and the others as

trial witnesses, it makes no sense to take account of such

testimony in considering whether the jury would be forced to

conclude that Melendez has been demoted for cause--the only

basis for granting summary judgment against her. Cf. 10A Wright

& Miller, Federal Practice and Procedure § 2722 (1998)

In granting summary judgment, the district court may

have been misled by Cutler's argument that--to invoke the

McDonnell Douglas presumption--Melendez had to show that she was

"qualified" for the accounting manager position under the new

Eaton regime and that she failed to counter the criticisms

offered by Cutler. But, whatever the threshold showing of

qualifications needed to invoke the presumption, Melendez's

evidence--of Cancel's views, of her own prior record and of the

flaws in the company's explanation for its actions--itself

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creates a factual issue for trial. See Loeb v. Textron, Inc.,

600 F.2d 1003, 1018 (1st Cir. 1979).

Cutler argues in this court that evidence of Cancel's

views did not constitute "direct" evidence of discrimination and

was therefore inadequate. Of course, it was "direct" evidence

in the sense that it comprised statements attributed to Cancel

himself that directly reflected his apparent views; but it was

arguably not "direct" in the specialized sense that this court

has used the phrase in discrimination cases, e.g., "statements

by a decisionmaker that directly reflect the alleged animus and

bear squarely on the contested employment decision." Febres,

214 F.3d at 60.

However, Cutler misunderstands the limited role of

classifying evidence as direct or not for this purpose.

Evidence meeting this high standard may be required, based on

what appears to be the "swing" decision of Justice O'Connor in

Price Waterhouse v. Hopkins, 400 U.S. 228, 277-78 (1989), in

order to entitle a plaintiff to a so-called mixed motive

instruction--that is, an instruction that the employer, where

shown to have acted in part out of an illicit motive, bears the

burden of persuasion to show that it would have made the same

decision anyway based on legitimate motives.

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 At this stage, we are not concerned with whether either

side might be entitled to a Price Waterhouse instruction.

Rather, the question is whether the evidence, taken as a whole,

creates a factual issue as to whether the demotion was motivated

by age. Price Waterhouse is decidedly not a rule that direct

evidence, as specially defined above, is necessary to defeat

summary judgment for the employer; that task can be

accomplished, even without resort to McDonnell Douglas, by any

combination of evidence strong enough to permit the jury to

infer discrimination. Int'l Bhd. of Teamsters v. United States,

431 U.S. 324, 358 (1977); Loeb, 600 F.2d at 1018.

This brings us to Cutler-Hammer's alternative ground

for its summary judgment motion which the district court also

accepted. This is that Melendez was not constructively

discharged but given a raise and reassigned to new duties.

"Constructive discharge" is a label for treatment so hostile or

degrading that no reasonable employee would tolerate continuing

in the position. Serrano-Cruz v. DFI Puerto Rico, Inc., 109

F.3d 23, 26 (1st Cir. 1997). Often used in cases of racial or

sexual harassment, this doctrine provides a basis for computing

damages not based merely on the temporary suffering but on the

deprivation of employment. Id. at 28.

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 Any demotion is painful, but it would be difficult to

describe Melendez's circumstances as equivalent to continuing

sexual or racial harassment. However, neither the ADEA nor

comparable statutes are limited to hiring and discharge

decisions: any significant adverse job action based on age

creates the basis for a claim. Welsh v. Derwinski, 14 F.3d 85,

86 (1st Cir. 1994). Not every minor advantage or status symbol

is protected by the statute--"adverse action" is a rule of

reason concept--but here a jury could reasonably decide that

Melendez had suffered an adverse employment action.

Specifically, she was taken from a position of

substantial responsibility supervising a number of employees,

given no tasks whatever in the first instance and rather sketchy

menial ones after several months. Her new duties included

assisting the accounts payable clerk and manually comparing two

sets of lists for discrepancies. She supervised no one and was

isolated from other personnel. Cancel himself acknowledged that

the transfer was, despite a small pay increase, a demotion.

2. Although we conclude that summary judgment on the

merits was unjustified, Cutler-Hammer says that the district

court should have granted the initial motion for summary

judgment, determining that Melendez's administrative filings

were out of time. The district judge denied this motion, saying

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that there were issues of fact as to the accrual date and as to

plaintiff's mental condition following her demotion. Cutler-

Hammer seeks to cross-appeal to challenge this denial of summary

judgment.

Cutler-Hammer cannot "appeal" from a judgment in which

it entirely prevailed (the judgment dismissing Melendez's ADEA

claim on the merits), and it is not entitled to seek review of

an interlocutory denial of summary judgment (the earlier refusal

to grant its time-bar motion). 1 However, it can defend the

judgment it obtained--dismissal of the ADEA claim with

prejudice--on any ground available to it, Olsen v. Correiro, 189

F.3d 52, 58 (1st Cir. 1999), and it would be wasteful for us to

remand for a trial if the evidence showed the claim to be

clearly barred.

Melendez's first and most familiar answer to the

limitations claim is that the cause of action did not accrue,

and the 300 days did not begin to run, until Melendez became

aware of the full impact of the demotion. Melendez says this

occurred on May 12, 1997, when she learned of the very limited

new duties which she had been assigned. If the period did not

1Manchester Knitted Fashion, Inc. v. Amalgamated Cotton
Garment and Allied Indust. Fund, 967 F.2d 688, 690 (1st Cir.
1992); Balcom v. Lynn Ladder & Scaffolding Co., 806 F.2d 1127
(1st Cir. 1986).

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begin to run until May 12, 1997, then the filing of her

administrative claim on March 4, 1998, would be within (although

barely within) the 300-day period.

Under federal law the accrual of an employment

discrimination claim "commences when a plaintiff knows, or has

reason to know, of the discriminatory act." Morris v. Gov't

Dev. Bank of Puerto Rico, 27 F.3d 746, 759 (1st Cir. 1994). A

plaintiff could learn of a change in position without

appreciating until a later date that it was a serious adverse

action. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.

1994). However, Melendez was told on February 14 that she was

being replaced as accounting manager, a position she had held

for a decade, and understood that this was a demotion; and she

was given few details as to her new position which she contends

itself was a signal that this was a make-work job. She herself

says that the impact of this news was so substantial that it

triggered an initial depression and caused her to take a long

leave of absence.

It is thus very hard to see how Melendez could have

been in doubt on February 14 that a serious adverse job action

had been taken against her. As for its cause, she claims that

Cancel's views were well known to her before the demotion, and

that she had already complained of them to the company. In our

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view, a jury could not reasonably conclude that the cause of

action accrued after February 14. Muniz-Cabrero is quite

distinguishable, the employee in that case having merely been

told of a reorganization and a new reporting chain. 23 F.3d at

608-09.

The more difficult issue involves Melendez's

alternative claim that the statute of limitations should be

tolled on account of her asserted mental disability during a

pertinent period. The limitations period invoked by Cutler-

Hammer here is the period for filing an administrative claim

which (as already indicated), began to run on February 14, 1997,

and, absent tolling, expired on December 11, 1997. Melendez did

not file her claim until March 4, 1998. Her argument is that

from November 1997 onward she was so severely depressed that the

filing period should be deemed tolled.

The 300-day period is effectively a short statute of

limitations established by federal law and whether it is tolled

or suspended is also a federal issue. The case law generally

allows courts to suspend such statutes for equitable reasons.

While the usual reasons involve concealment or

misrepresentations by defendants, Kale v. Combined Ins. Co. of

Am., 861 F.2d 746, 751-52 (1st Cir. 1988), there are two cases

in this circuit that recognize that mental disability may be a

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basis for tolling in extreme cases, Nunnally v. MacCausland, 996

F.2d 1, 5-6 (1st Cir. 1993); Lopez v. Citibank, 808 F.2d 905,

906-08 (1st Cir. 1987).

Both cases, Lopez and Nunally, said that equitable

tolling was available in principle but only if the plaintiff

showed that the mental disability was so severe that the

plaintiff was "[un]able to engage in rational thought and

deliberate decision making sufficient to pursue [her] claim

alone or through counsel." 996 F.2d at 5. Lopez rejected the

claim because the plaintiff had been represented by counsel, 808

F.2d at 907; Nunnally thought a hearing required where the

plaintiff showed that she was "nearly a street person" with a

probable diagnosis of paranoid schizophrenia, 996 F.2d at 6.

It is clear that merely to establish a diagnosis such

as severe depression is not enough, Lopez, 808 F.2d at 907; but

Melendez's evidence went considerably further. In addition to

contemporaneous and later expert diagnoses, she offered

affidavit or deposition evidence from herself and her sister

that from some period in November onward, her state was so

impaired that she had to live with her sister and that for some

of the time she was unable to manage even such basic functions

as getting dressed and brushing her teeth.

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 Cutler points out that in mid January 1998, Melendez

was interviewed by the state insurance fund to whom Cutler

referred her when she sought to return to work. The

interviewer's notes indicated that Melendez behaved in a

"logical, coherent, relevant manner" and stated the facts

"calmly, chronologically"; the narrative was apparently

compelling enough for the interviewer to suggest that Melendez

consult a lawyer, which she did not do until early February

after her doctor arranged such an appointment for her.

Nevertheless, we agree with the district judge that

Melendez raised a factual dispute about her capacity that could

not be resolved solely on the papers. It is less clear whether

even if Melendez was effectively disabled for part of the

period, this was so for a period long enough to avoid the

statute. This may depend not only on how long she was so

disabled (if she was) but also on what rule is applied if she

was disabled but only for a period that is less than the full

delay in filing--here, 83 days over the 300 days allowed.

For example, it might be thought that once she put her

case in the hands of her lawyer, her disability effectively

ended. Lopez, 808 F.2d at 907. The lawyer, in turn, might

argue that he or she was entitled to a reasonable time to

investigate, although that might not be long, given that

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Melendez knew her version of events and the filing requirement

is almost ministerial. None of these issues has been discussed

by the parties, and we express no views upon them.

This brings us to Cutler-Hammer's alternative claim

that even if summary judgment was properly denied it, the

factual dispute as to Melendez's disability should be resolved

on the basis of an evidentiary hearing and the equitable tolling

issue determined by the judge prior to trial. Cf. Rivera-Gomez

v. de Castro, 900 F.2d 1, 2-3 (1st Cir. 1990). If equitable

tolling is not established, no trial on the merits would be

necessary; and given the high bar set by Lopez and Nunally, this

is a distinctly possible outcome.

Where questions of fact are presented, statute of

limitations defenses are ordinarily submitted to the jury,

Fowler v. Land Mgmt. Group, Inc., 978 F.2d 158, 162 (4th Cir.

1992), but here the statute has unquestionably run unless

equitable relief is afforded by the court. Further, typical

statute of limitations questions--when the injury occurred, when

the reasonable plaintiff would have learned of it, whether there

was concealment by the defendant--are archetypal factual issues

fit for jury resolution and, in addition, are ordinarily closely

intertwined with merits issues of "what happened here."

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 The mental disability issue presented in the present

case is of quite a different character. It relates not to

Melendez's treatment as an employee and Cutler-Hammer's

motivation but primarily to a plaintiff's later reaction to her

mother's illness, to her behavior in the winter of 1997, and to

medical testimony pertaining to her behavior during that period.

Cf. Ott v. Midland Ross Corp., 600 F.2d 24, 31 (6th Cir. 1979).

There are some possible connections to merits issues, but they

are relatively slender.

A further consideration is that resolution of the

equitable tolling issue rests only in part on medical facts; the

judgment also turns on an understanding of what is involved in

getting access to a lawyer and conveying to the lawyer

information necessary to support a claim. These are matters

calling for assessments that a judge may be far better able to

make than a jury. They resemble in some measure the question,

left to the judge, whether a criminal defendant is capable of

assisting in his own defense. 18 U.S.C § 4244; United States v.

Collins, 525 F.2d 213, 214 (1st Cir. 1975).

Under the precedents, the question whether equitable

tolling is for the judge or jury is far from clear, and cases

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can be found on both sides. 2 Our own precedent leans in the

direction of resolution by the judge, Rivera-Gomez, 900 F.2d at

2; Earnhardt v. Puerto Rico, 691 F.2d 69, 73 (1st Cir. 1982),

and that course seems to us the wiser and more efficient outcome

in this case. Accordingly, we think on remand the judge should

hold whatever hearing may be called for and decide the ultimate

question whether equitable tolling is appropriate.

The judgment of the district court is vacated and the

matter remanded to the district court for further proceedings

consistent with this opinion.

2 Compare Ott, 600 F.2d at 31, and Vasconcellos v. EG & G,
Inc., 131 F.R.D. 371, 372-73 (D. Mass. 1990), with Smith-Haynie
v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998), and
Rivera-Gomez, 900 F.2d at 2-3.

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