Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1997
JOVITA MENÉNDEZ; LEANDRO MENÉNDEZ; and
CONJUGAL PARTNERSHIP MENÉNDEZ-MENÉNDEZ,
Plaintiffs, Appellants,
v.
SCOTIABANK OF PUERTO RICO, INC.; THE BANK OF NOVA SCOTIA,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
____________________
Enrique A. Báez-Godínez and Law Office of Enrique A. Báez-
Godínez on brief for appellants.
Luis F. Antonetti-Zequeira, Javier G. Vázquez-Segarra and
Goldman Antonetti & Córdova, P.S.C. on brief for appellees.
June 14, 2005
Per Curiam. In June 2001, Jovita Menendez, an account
manager at Scotiabank of Puerto Rico, applied for a posted job as
senior account manager. On June 22, the job went instead to
Francisco Vazquez, whose rank (branch manager) was higher than that
of Menendez and just below senior account manager. Vazquez was a
male aged 35; Menendez was then 54 years old.
On the same day as the decision to promote Vazquez,
Menendez wrote to the head of Scotiabank, claiming that age and
gender discrimination had deprived her of the post. In October
2001, Menendez left Scotiabank on sick leave and then applied for
disability. On July 12, 2002, Menendez filed an age and gender
discrimination charge with the EEOC, which issued her a "right-to-
sue" letter that same day.
Menendez brought suit in federal court on October 1,
2002, against Scotiabank and its parent company (collectively
“Scotiabank”), alleging violations of Title VII and the ADEA, as
well as Puerto Rico's anti-discrimination law. 42 U.S.C. §§ 2000e
to 2000e-17 (2000); 29 U.S.C. §§ 621-634 (2000); 29 P.R. Laws Ann.
§§ 146-155 (2001). The centerpiece of the complaint was the
failure to promote, but the complaint also alleged various
grievances from earlier years (inadequate supplies, a failure at an
early point to raise her job classification, her increased work
load).
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In addition to defending the choice to promote Vazquez
rather than Menendez, Scotiabank sought summary judgment on statute
of limitations grounds. It asserted that the filing for the
federal claims had to be made within 300 days of the violation and
for the local claims within 365 days; Menendez had in fact waited
385 days.1 Menendez replied that the violations were systemic and
serial and that, as to those claims, genuine issues of material
fact precluded summary judgment.
On May 27, 2004, the district court granted summary
judgment for Scotiabank in a detailed 21-page decision. After an
unsuccessful Rule 59 motion for reconsideration, Fed. R. Civ. P.
59(e), Menendez brought this appeal, arguing in substance that four
discriminatory acts occurring after June 2001 precluded summary
judgment. Our review of the grant of summary judgment is de novo.
Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005).
First, Menendez says that Nestor Vale, one of Menendez'
supervisors, began after June 2001 to address Menendez as “Doña
Jovita.” “Doña,” says Menendez, is a term used to denote respect
for “elderly individuals” and was used by Vale in a “cynical and
contemptuous” manner. It is almost impossible to find any evidence
1
See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d); see also
National Railroad Passenger Co. v. Morgan, 536 U.S. 101, 110-14
(2002) (under Title VII, "discrete discriminatory acts are not
actionable if time-barred, even when they are related to acts
alleged in timely filed charges"); American Airlines, Inc. v.
Cardoza-Rodriguez, 133 F.3d 111, 122 (1st Cir. 1998) (ADEA); id. at
124-25 (Puerto Rico's "Law 100").
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supplied by Menendez as to when these statements were made or in
what context but, in any event, they are not enough to rescue her
claim.
Menendez does not say that these remarks were themselves
violations of any anti-discrimination laws, and they were not
identified in her complaint. Whether or not they are evidence of
motive bearing on the failure to promote does not matter: Menendez’
own letter to Scotiabank’s CEO shows that she was on immediate
notice of the alleged discriminatory motive. Nor do such remarks
turn a specific employment action occurring at an earlier time into
a serial or systemic violation.
Second, Menendez says that when she went on sick leave
and applied for disability, her work was taken over for the time
being--Puerto Rico law protected for 12 months Menendez’ right to
return to her position--by another employee, Liza Nieves. Nieves,
says Menendez, was a younger woman with a higher job classification
and salary. Menendez nowhere in her brief explains just why she
thinks this helps her case.
Possibly Menendez infers that Nieves’ temporary handling
of the work shows that all along Menendez’ job should have enjoyed
the higher rank and salary. But the brief does not say this and
the inference is pretty lame as applied to a temporary assumption
of duties; during strikes, for example, management employees often
take over lower-level jobs. Even a stronger inference would at
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best be evidence as to the prior failure-to-promote charge--and so
of no help on the limitations issue.
Third, Menendez claims that, unlike other employees, she
was given inadequate office equipment and work space. The district
court found that any deprivations occurred in 1999 or 2000, well
before the failure to promote. Menendez points to no specific
event occurring after the later date. Nor does she explain how
these events bolster her claim of a pattern of either age or gender
discrimination, given the lack of any indication that other women
or older employees suffered in the same way.
Fourth, Menendez says that she was denied her “VIP bonus”
for the fiscal year ending on October 31, 2001. Menendez says that
it was ordinary practice to pro-rate the bonus for employees on
medical leave. The company says that Menendez was not entitled to
a bonus, because she was not an active employee at year’s end and
had not gotten an evaluation for the year. The written bonus
policy, submitted by Scotiabank, does list both requirements and
says nothing about pro-rating bonuses.
In any event, if intended by Menendez to suggest a
discriminatory motive for the failure to promote, this bonus
incident does not extend the statute for the known failure to
promote. And, if intended as a separate actionable act of
discrimination, Menendez points to no substantial evidence that the
decision as to the bonus was based upon age or gender; nor did she
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include the incident as a discriminatory act in either her EEOC
claim or her court complaint.
Affirmed.
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