Rivera v. Puerto Rico Aqueduct & Sewers Authority

United States Court of Appeals
For the First Circuit

No. 02-1349

MAYRA ROSARIO RIVERA,

Plaintiff, Appellant,

v.

PUERTO RICO AQUEDUCT AND SEWERS AUTHORITY; JOSE IVAN COLON;
BENJAMIN POMALES; PERFECTO OCASIO; JOSE E. NIEVES; PUERTO RICO
SERVICES GROUP CORP.; PROFESSIONAL SERVICES GROUP
OF PUERTO RICO, INC.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Shadur,* Senior District Judge.

Bruce J. McGiverin for appellant.
Pedro J. Manzano-Yates, with whom Fiddler, Gonzalez &
Rodriguez, LLP were on brief for appellee Puerto Rico Aqueduct and
Sewers Authority.
Sylvia Roger-Stefani for appellees Jose Ivan Colon; Benjamin
Pomales; Perfecto Ocasio; Jose E. Nieves; Puerto Rico Services
Group Corp.
Rafael J. Vazquez-Gonzalez for appellee Professional Services
Group of Puerto Rico, Inc.
 June 9, 2003

*Of the Northern District of Illinois, sitting by designation.
 HOWARD, Circuit Judge. Plaintiff-appellant Mayra Rosario

appeals a district court order granting summary judgment to the

Puerto Rico Aqueduct and Sewer Authority ("PRASA"), Professional

Services Group ("PSG"), José Iván Colón, Benjamin Pomales, Perfecto

Ocasio and José Nieves on her employment discrimination claims.

The gravamen of Rosario's complaint was that she was subjected to

a hostile work environment because of her religion in violation of

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42

U.S.C. § 1983, and Puerto Rico law. The district court determined

that Rosario presented neither viable nor timely Title VII and §

1983 claims, and declined to exercise supplemental jurisdiction

over the Commonwealth law claims. We agree and accordingly affirm.

I. Background

We recount the facts in the light most favorable to

Rosario. Preferred Mut. Ins. Co. v. Travelers Cos., 127 F.3d 136,

137 (1st Cir. 1997).

PRASA, a Puerto Rico water utility, hired Rosario in

1979. Her first few years at PRASA were auspicious: she competed

for, and was awarded, several promotions within the budget

department, rising from Budget Technician I to Budget Analyst III.

Early into her tenure at PRASA, Rosario became an adherent of

charismatic Catholicism, a revival movement within the Catholic

church whose members practice an "intense" form of Catholicism. As

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a charismatic Catholic, Rosario's spirituality permeated her life,

including her work.

During her first few years at PRASA, Rosario's workplace

environment was "calm," but her "interior peace" was disturbed when

Lydia Feliciano, and later José Antonio Rivera Bauzó, joined her

department. Rosario believed that her tense relations with

Feliciano and Rivera stemmed from her outwardly religious outlook

and high expectation of others. According to Rosario, her co-

workers discussed religion interminably, criticizing the Catholic

church and, in turn, Rosario for her ardent religiosity.

In this environment, Colón became Rosario's direct

supervisor in 1992. Rosario contended that Colón treated her

unfairly: he failed to assign her work, criticized her performance,

denied her vacation time, did not offer her computer training, and

changed the lock of the door to the office without giving her a new

key. Rosario complained to Colón that her co-workers' conduct

offended her religious beliefs but he failed to pursue the matter.

According to Rosario, Feliciano was one of the main

actors contributing to the hostile work environment in the budget

office. Feliciano persistently offended Rosario's belief system.

She was tenaciously vulgar, using expletives (some of which were

directed at Rosario) regularly. When Rosario complained, Feliciano

nicknamed her "Mother Theresa." Rosario also took fault with

Feliciano's lax work ethic. She recorded in a notebook Feliciano's

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violations of PRASA's regulations. Rosario believed that

Feliciano, uncomfortable with Rosario's discipline and religiosity,

mistreated her.

Rivera also partook in the persistent provocation of

Rosario. Rosario cites several unrelated incidents to make this

point: Rivera pounded his fist on her desk yelling at her to get

to work on several occasions, made absurd gestures at her, and

constantly directed inappropriate comments towards her. On

Rosario's birthday, for instance, Rivera gave her a card with a pig

wearing a rosary with her birth date emblazoned at the top. Rivera

also directed verbal taunts at Rosario including, "You've got to

abuse women and hit them hard"; "I am going to smack your face

open"; and "You pass your time buying pornographic movies, and

later you're climbing the walls." Rivera would make such comments

to Rosario in the presence of their co-workers.

Rosario believed that Colón and her co-workers wanted her

transferred to another department because of her fervent

Catholicism. Indeed, Colón wrote a memorandum to the subdirector

of finance in 1994 requesting Rosario's transfer to another office.

Rosario points to the fact that Colón had no good grounds for

seeking that transfer.

In September 1995, PSG took over PRASA's administrative

and maintenance responsibilities. Several months later, in May

1996, Colón met with the budget specialists and advised them that

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one budget specialist would be placed within the jurisdiction of

PSG because of the administrative shuffle caused by the PSG

contract. In July 1996, Rosario received a letter notifying her

that, although she would continue in her present position, she was

thereafter under the supervision of PSG personnel. Despite this

personnel change, Rosario remained in the same office with the same

position.

In August 1996, Rosario filed an administrative appeal of

her transfer to PSG on the ground that she had seniority over

employees who were not transferred. Rosario subsequently met with

PRASA's executive director, Benjamin Pomales, and he assured her

that, for all practical purposes, PSG was the same as PRASA.

Pomales also stated that Colón had informed him that Rosario did

not have any work to do in her old position.

Rosario did not believe that her grievances were resolved

following her meeting with Pomales. Eventually, on September 19,

1997, she filed a complaint with the Equal Employment Opportunity

Commission("EEOC") and the Puerto Rico Department of Labor and

Human Resources. Rosario did not make the EEOC complaint part of

the record, and so the scope of the complaint is not evidence. The

EEOC issued a right-to-sue letter on June 5, 1998.

Meanwhile, in March 1998, Rosario received a letter from

José Nieves, PRASA's interim human resources manager, informing her

that she was going to be relocated to another floor. After

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objecting to this transfer to Nieves, Rosario was moved to a

smaller office in the finance area. Along with this physical

transition, Rosario assumed the temporary position of "interim

supervisor" for the reimbursement area. Her immediate supervisor

was Elizabeth Romero. In the initial period following her

transfer, Romero failed to assign Rosario work despite Rosario's

repeated requests for assignments. Although she finally received

work in September 1998, she had neither work nor a computer one

year later. Rosario claims that she has suffered severe depression

and anxiety because of the harassment at PRASA.

On September 2, 1998, Rosario commenced this action pro

se pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e

et seq., and Commonwealth law, asserting claims for discrimination

in the workplace against PRASA. Rosario was still employed by PSG

when she filed this action. Prior to serving the complaint,

Rosario retained counsel and, on December 29, 1998, amended her

complaint to add as defendants PSG, Colón, Pomales, Ocasio and

Nieves, and to add claims under 42 U.S.C. § 1983. Rosario sought

damages, a declaratory judgment and an injunction reinstating her

to her former position with PRASA. Rosario subsequently amended

the complaint again, charging defendants with religious harassment

and discriminatory transfer under Title VII, and an Equal

Protection violation under § 1983. The religious discrimination

theory advanced was that the defendants had engaged in a scheme of

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"spiritual harassment" through mockery, vulgar language, and other

offensive conduct contrary to "normally acknowledged civil

parameters." Such harassment, Rosario contended, caused her

profound mental and moral anguish. She sought damages collectively

exceeding three million dollars to compensate her for her emotional

distress.

After the defendants unsuccessfully moved to dismiss,

PSG, and subsequently PRASA and its officers, sought summary

judgment on the grounds that Rosario had not made out a prima facie

claim under Title VII, and that some of the conduct in question was

time-barred. PRASA also challenged Rosario's § 1983 claim on the

ground that Rosario had failed to establish that the discrimination

was pursuant to its custom or policy. City of Canton, Ohio v.

Harris, 489 U.S. 378, 389 (1989).

In two memoranda and orders, the district court granted

the defendants' motions and ordered Rosario to show cause why her

§ 1983 claim against PSG should not be disposed of on the same

ground as her claim against PRASA (based on her failure to

establish that a PSG custom or policy violated her constitutional

rights). The crux of the court's rulings was that there was no

credible allegation that the charged conduct was motivated by

religious discrimination. The court stated that the outcome of the

case might be different if Rosario had brought a sex-based

discrimination claim as "Rivera's comments would be strong evidence

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to support such a claim." The court concluded that Rosario's claim

based on the July 1996 transfer was time-barred because Rosario,

aware of this adverse employment action, had a duty to contest it

within the statutorily prescribed period.

Rosario subsequently moved for reconsideration of the

court's order. She also sought to introduce a claim for sex-based

discrimination. The district court denied the motion and, upon

receipt of Rosario's response to the show cause order, awarded

summary judgment to PSG on Rosario's § 1983 claim. The court

further dismissed without prejudice Rosario's Commonwealth law

claims. This appeal followed.

II. Discussion

Rosario argues that there is sufficient record evidence

to support a claim of religious discrimination under Title VII and

§ 1983. See Sabree v. United Bhd. of Carpenters and Joiners Local

No. 33, 921 F.2d 396, 399 (1st Cir. 1990)("[O]ur review will be

most searching in cases, such as this, that turn upon the issue of

motive or intent."). The thrust of her argument, as we understand

it, is that she raised a genuine issue of material fact that she

was subject to constant harassment in her workplace if not because

of religion then because of her values and upright lifestyle (which

she maintains is a product of her religion). Such a proffer,

according to Rosario, lays the necessary foundation for her

religious discrimination claims under either statute.

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 Rosario also argues that her claims arising from her July

1996 and March 1998 transfers are not barred on statute of

limitations and exhaustion grounds because they were part of a

continuing violation. See O'Rourke v. City of Providence, 235 F.3d

713, 730 (1st Cir. 2001) (describing the continuing violation

doctrine as an "equitable exception that allows an employee to seek

damages for otherwise time-barred allegations if they are deemed

part of an ongoing series of discriminatory acts..."). Finally,

Rosario challenges the district court's refusal to entertain new

evidence and her sexual harassment claim after the entry of partial

summary judgment. We first address whether Rosario's claims based

on her two transfers are procedurally barred under Title VII, and

then turn to the substance of her remaining arguments.

A. The Discriminatory Transfer Claims Under Title VII

Under Title VII, a plaintiff in a deferral jurisdiction

such as Puerto Rico must file a charge with the EEOC within 300

days after "the alleged unlawful employment practice occurred." 42

U.S.C. § 2000e-5(e)(1)(2000). Rosario filed her charge with the

EEOC on September 19, 1997, more than 300 days after the July 1996

transfer. Rosario argues that her Title VII claim based on this

transfer is nonetheless timely under the "continuing violation

doctrine," which would allow her to recover for the July 1996

transfer notwithstanding the limitations period if the transfer is

sufficiently related to acts alleged in a timely charge.

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 The "continuing violation doctrine" does not preserve

Rosario's claim. The Supreme Court has recently elaborated on the

meaning of the term "continuing violation," holding that a discrete

discriminatory act transpires only at the time it takes place, even

if it was related to acts that were timely filed. National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2073

(2002). "Each discrete discriminatory act starts a new clock for

filing charges alleging that act. The charge, therefore, must be

filed within the 180- or 300-day time period after the discrete

discriminatory act occurred." Morgan, 122 S.Ct. at 2072. The

Court made plain that "[d]iscrete acts such as termination, failure

to promote, denial of transfer or refusal to hire... constitute[]

a separate actionable unlawful employment practice." Id. at 2073

(emphasis added). The July 1996 transfer is therefore a time-

barred discrete act. See id.; see also Miller v. N.H. Dep't of

Corr., 296 F.3d 18, 22 (1st Cir. 2002).

The March 1998 transfer is also a discrete act

constituting "a separate and actionable unlawful employment

practice." Morgan, 122 S.Ct. at 2073. Yet Morgan does not address

whether a previously filed EEOC complaint must be amended to

encompass subsequent discrete acts in order to render such acts

susceptible to judicial review. We have held that a judicial

complaint can encompass discrete acts of retaliation "reasonably

related and grow[ing] out of the discrimination complained of to

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the agency..." Clockedile v. N.H. Dep't of Corr., 245 F.3d 1, 6

(1st Cir. 2001). But in Clockedile we declined to decide whether

a judicial complaint also may encompass non-retaliatory but related

discrete acts which took place after the discrimination described

in the charge if the plaintiff failed to amend her charge or to

file a new one detailing the new acts. Id.

We do not need to decide that question here. The

defendants articulated a non-discriminatory reason for the transfer

-- the facilitation of the transition to PSG supervision -- and

Rosario has not presented any evidence from which a reasonable fact

finder could conclude that this explanation is a pretext masking

religious discrimination. See, e.g., McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973). Thus, even if we assume

arguendo that Rosario was not required to first present the agency

with her allegation that the 1998 transfer was discriminatory,

Rosario's discrimination claim under Title VII fails insofar as it

is based on the 1998 transfer.

B. Title VII and Hostile Work Environment Claims

Rosario next challenges the district court's award of

summary judgment on her hostile work environment claim. The court

concluded that religious discrimination was not behind the

offending conduct because the vast majority of incidents did not

contain any religious overtones and that animus could not be

inferred from the record. Rosario responds that the question of

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whether her overt religious practice was the source of the hostile

environment she experienced is a jury issue. This argument fails.

To make out a viable workplace harassment claim based on

religion, the plaintiff must establish that: (1) she is a member

of a protected class; (2) she was subject to uninvited

harassment;(3) the offending conduct was because of her religion;

(4) the harassment was severe and pervasive; (5) the offending

conduct was both objectively and subjectively offensive and (where

employer liability is sought); (6) there was a basis for such

liability.1 O'Rourke, 235 F.3d at 728 (emphasis added); I.B.

Lindemann & P. Grossman, Employment Discrimination Law 755-56 (3d

ed. 1996). Here, there is no dispute that Rosario was a member of

a protected class. The defendants also admit that Rosario was

subject to uninvited "rude and unprofessional" conduct which we

assume was severe and pervasive. We thus turn to whether there is

a genuine issue of material fact as to whether the alleged hostile

work environment was because of religion. On that score,

regardless of the evidentiary course the plaintiff charts, she must

show that alleged discriminatory conduct was not "merely tinged"

1
In support of her claim, Rosario recounted a miscellany of
incidents of discrimination during the preceding decade. Such
alleged discriminatory acts may be considered as background
evidence even if they fall outside the filing period so long as one
act supporting the claim occurs within the filing period. Morgan,
122 S.Ct. at 2072. Given the litany of harassing acts alleged, we
assume arguendo that Rosario satisfies this test.

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with remarks abhorrent to her religion but actually was, in either

character or substance, discrimination because of religion. Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

In arguing that she presented sufficient proof of such

causation, Rosario points to her co-workers' repeated allusions to

religion and their persistent taunting and portrayal of her as

self-righteous. She further contends that the supervisors and, by

extension, the employers involved (i.e., Colón, Pomales, Nieves,

Ocasio, PSG and PRASA) are liable because they were well aware of

her predicament but failed to prevent the discrimination and

harassment when it was within their power to do so. Although the

record is not clear as to whether and to what extent each employer

knew about the several incidents of which Rosario complains, we

shall assume that Rosario's employers were aware that her co-

workers had engaged in inappropriate conduct and mistreated her.

We turn now to the specifics.

Rosario first points out that her co-workers were

critical of her faith and spirituality. She states that she was

given the nickname "Mother Theresa" by Feliciano, who was a co-

worker with less seniority (and not her supervisor). The record

makes clear, however, that the nickname was a response to Rosario's

scolding of Feliciano for her constant vulgarity. Rosario did not

appreciate Feliciano's profanity and she regularly let Feliciano

know it. But the evidence simply does not permit an inference that

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the tense relations between the two was caused by religious

discrimination on the part of Feliciano.

Rosario next complains about a bawdy Christmas carol

mentioning her name and sung to her by Rivera (again a co-worker

with less seniority). Rosario asserts that the lyrics of the song

are offensive to her, given her deep religious convictions. We do

not doubt this is so. But the question is not whether a religious

person could find the song offensive; it is whether religious

animus prompted Rivera to sing it to her. And as with the "Mother

Theresa" remark, the record does not permit an affirmative response

to this question. The song was characteristic of the office's

vulgar and unprofessional environment -- an environment to which

all were subjected. But there is a conceptual gap between an

environment that is offensive to a person of strong religious

sensibilities and an environment that is offensive because of

hostility to the religion guiding those sensibilities. Rosario has

not provided us with evidence or argument sufficient to bridge that

gap.2

2
Of course, conduct need not be explicitly religious to
constitute harassment because of religion. Where there is evidence
of overtly discriminatory conduct, a court may also consider acts
that, on their face, do not support a claim for discriminatory
workplace harassment. O'Rourke, 235 F.3d at 729. In context, we
have held that subversion, exclusion, and denial of support can be
factors supporting a hostile work environment claim. Id. at 730.
Our inquiry focuses on whether the offending conduct was
discriminatory in form or function.
Rosario cites a patchwork of incidents spanning the latter
part of her career at PRASA to buttress her Title VII claim. The

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 Finally, Rosario complains of a birthday card given to

her by Rivera that depicted a pig wearing a rosary next to her birth

date.3 We certainly appreciate why Rosario was upset by the

connection made between her and the pig. Rivera relished being

provocative and successfully egged Rosario on. This is Rosario's

strongest evidence of religion-based discrimination, but it is also

evidence equally susceptible of a non-discriminatory intent. As she

testified, people in her office took it as a joke, and she remained

tranquil and viewed it as making fun of her. While a jury could

resolve the issue of intent in her favor, this single incident is

insufficient to support the edifice of her harassment claims and

insufficient by itself to be actionable. There is also no testimony

core of her argument is that her co-workers pointedly attempted to
offend her by swearing and making sacrilegious comments in her
presence. Feliciano, in particular, swore constantly and otherwise
engaged in lewd and discourteous conduct notwithstanding Rosario's
complaints. Rivera, for his part, targeted Rosario with offensive
taunts and aggressive conduct ostensibly meant to intimidate her.
He stated on more than one occasion that "you had to smack women";
he also accused her of "running around with men," attending gay
parades and clogging her toilet. The offending conduct, according
to Rosario, was not limited to her co-workers. Her supervisor,
Colón, not only failed to quell these outbursts, but he also gave
her no work, denied her vacation requests, and requested her
transfer to another office. But Rosario must demonstrate a
trialworthy issue as to whether this conduct was because of her
religion, and she has not done so.
3
The defendants state that the rosary had nothing to do with
religion but rather was derivative of "Rosario." For the purposes
of summary judgment, we will assume arguendo that the rosary had
religious connotations.

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by Rosario that she brought this incident to the attention of

management.

The summary judgment record shows that the budget office

at PRASA was an unprofessional environment. The workers frequently

swore, engaged in horseplay, and were derelict in their work duties.

And, as Rosario points out, she was different. Rosario attributes

that difference to her religious beliefs.4 There is no evidence

about whether there were other deeply religious people in the office

and how they were treated. Rosario's beliefs apparently motivated

her to act in certain ways. Rosario was not averse to proselytizing

and opining that her way was the right way. She would often chide

her co-workers for their obscene language and poor work habits, and

frequently documented their infractions of PRASA regulations.

Unsurprisingly, this course of conduct provoked them and they

responded in ways apparently meant to offend her. Such antics,

while deplorable, do not amount to a violation of Title VII. Cf.

Wilson v. U.S. West Communications, 58 F.3d 1337, 1342 (8th Cir.

1995) (noting that "Title VII does not require an employer to allow

an employee to impose his religious views on others."). A

constellation of factors led to the friction between Rosario and her

4
We note that neither the Constitution nor Title VII
prohibits honest disagreement about religion in the workplace.
Lindemann & Grossman, supra at 248 (noting that commentators and
Congress criticized the EEOC's proposed harassment guidelines on
religion because they could be interpreted as proscribing employees
from discussing religion in the workplace).

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co-workers, but no reasonable fact finder could conclude on the

basis of the incidents we have described or the general atmosphere

in the office that one of these factors was an antipathy towards

Rosario's underlying religious convictions.5

C. Section 1983

Rosario next challenges the district court's dismissal of

her § 1983 claim. Relying on the two discriminatory transfer and

the hostile work environment claims she used in support of her Title

VII claim, Rosario posits that PSG and PRASA are liable

notwithstanding the fact that, in a § 1983 action, liability does

not attach pursuant to a respondeat superior theory.6 According to

Rosario, both entities are liable here because they engaged in a

policy and pattern of discrimination by failing to prevent the

hostile work environment and by promoting it (e.g., by transferring

her to another office with an interim position without any duties).

5
Because this ground is dispositive of Rosario's Title VII
claim, we need not address the remaining factors constituting a
workplace harassment claim. See supra at 13. Similarly, we do not
have to reach the district court's alternative holding that there
is no individual liability under Title VII. See Serapion v.
Martinez, 119 F.3d 982, 992 (1st Cir. 1997)(declining to "enter
th[e] thicket" of determining whether individual liability exists
under Title VII).
6
The parties do not dispute that both PSG and PRASA fall
within the definition of municipality under Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 690-695 (1978)
(negating respondeat superior liability of municipalities under §
1983 for violations of federal civil rights).

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Rosario further contends, without any meaningful elaboration, that

the "deliberate indifference" of the various supervisors at PRASA

(Colón, Nieves, Pomales and Ocasio) to her plight gives rise to an

actionable equal protection violation. These arguments fail.

We agree with the district court that any claims against

PSG and PRASA must fail because there is no evidence of any policy

or custom that could warrant municipal liability. This holding

applies with equal force to her claims for injunctive and

declaratory relief as "the Supreme Court, in imposing the

precondition of an unconstitutional official municipal policy, was

directly addressing monetary, declaratory, or injunctive relief."

Dirrane v. Brookline Police Dep't, 315 F.3d 65, 71 (1st Cir. 2002)

(citing Monell, 436 U.S. at 690)(internal quotation marks

omitted)(emphasis in original).

Rosario's claim against the individual officers also

fails. When a plaintiff attempts to use § 1983 as a parallel remedy

to a Title VII claim, the prima facie elements to establish

liability are the same under both statutes.7 Lipsett v. Univ. of

Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988); Morris v. Oldham

7
A plaintiff may assert a concomitant employment
discrimination Title VII and § 1983 claim. Alexander v. Gardner-
Denver Co., 415 U.S. 36, 48-49 (1974) ("The clear inference is that
Title VII was designed to supplement rather than supplant, existing
laws and institutions relating to employment discrimination.")
Harassment of an employee because of her faith, whatever guise it
assumes, may constitute religious discrimination under the Equal
Protection Clause of the Fourteenth Amendment.

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County Fiscal Court, 201 F.3d 784, 794 (6th Cir. 2000); Jemmott v.

Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (noting that courts commonly

apply Title VII law when analyzing § 1983 equal protection claims).

In either case, "the plaintiff must prove that the defendant[s]

acted with discriminatory intent." Richardson v. Leeds Police

Dep't, 71 F.3d 801, 805 (11th Cir. 1995). The inadequacy of

Rosario's Title VII claim establishes the inadequacy of her § 1983

claim.

D. Motion for Reconsideration

In her motion for reconsideration, Rosario attempted to

introduce new evidence and raise an additional claim of sex-based

discrimination. The district court rejected Rosario's requests,

citing her failure to introduce certain audio recordings and raise

the sex-discrimination claim until after the entry of summary

judgment. Rosario contends that district court erred in so holding.

We disagree.

We review a district court's denial of a motion under

Fed. R. Civ. P. 59(e) for abuse of discretion. Once a motion for

summary judgment has been allowed, "the district court has

substantial discretion in deciding whether to reopen the proceedings

in order to allow the unsuccessful party to introduce new material

or argue a new theory." Mackin v. City of Boston, 969 F.2d 1273,

1279 (1st Cir. 1992).

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 There was no error in the court's decision here to

disregard the audio recordings Rosario first introduced in

connection with her motion for reconsideration. Rosario suggests

that she was not at fault for her evidentiary tardiness: she did

not present the audio recordings during the summary judgment stage

(or earlier) because she needed to obtain better copies and

transcripts and the court refused to grant her more time to do so.

In effect, Rosario admits that the evidence she offered for the

first time in her motion for reconsideration was neither new nor

unavailable at the summary judgment stage. As a result, the

district court was not obliged to consider it after the entry of

summary judgment. E.g., Aybar v. Crispin-Reyes, 118 F.3d 10, 16

(1st Cir. 1997) (it is not an abuse of discretion for a district

court to deny a motion for reconsideration where the supporting

evidence was "neither new nor unavailable at the time the district

court entered judgment...").

Rosario next argues that, as the district court itself

acknowledged in its opinions, the record might have supported a

claim of sex-based discrimination even if not raised in the

complaint. The thrust of her argument, as we understand it, is that

pleadings should be construed "to do substantial justice." Fed. R.

Civ. P. 8(f). Rosario concedes that she failed to explicitly plead

a gender-based discrimination claim. She posits, however, that her

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allegation of a hostile work environment embraced the full spectrum

of discriminatory conduct, including discrimination based on sex.

We see no reason to disturb the district court's

judgment. Plaintiffs should not resort to Rule 59(e) motions to

"raise arguments which could, and should, have been made before

judgment issued." FDIC v. World Univ., 978 F.2d 10, 16 (1st Cir.

1992) (quoting Harley-Davidson Motor Co., Inc. v. Bank of New

England, 897 F.2d 611, 616 (1st Cir. 1990)). Rosario endeavored to

make out a new legal argument in her motion for reconsideration

without any explanation as to why she had not done so earlier.

Under these circumstances, it would not promote "substantial

justice" to allow Rosario to raise a new legal claim. Landrau-

Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir.

2000) (explaining that a Rule 59(e) motion is inappropriate absent

a showing of a manifest error of law or newly discovered evidence).

III. Conclusion

Rosario has failed to produce sufficient evidence to

withstand a motion for summary judgment on her employment

discrimination claims. We therefore affirm the district court.

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