Morón-Barradas v. Department of Education

United States Court of Appeals
For the First Circuit

No. 06-1456

MARY FLOR MORÓN-BARRADAS,

Plaintiff, Appellant,

v.

DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF PUERTO RICO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella and Lynch, Circuit Judges,
and DiClerico, Jr.,* District Judge.

Diana Lynn Pagán-Rosado, with whom Brown & Ubarri was on
brief, for appellant.
Irene S. Soroeta-Kodesh, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, and Mariana
D. Negrón-Vargas, Deputy Solicitor General, were on brief, for
appellee.

May 24, 2007

*
Of the District of New Hampshire, sitting by designation.
 TORRUELLA, Circuit Judge. This appeal arises from the

district court's entry of summary judgment against plaintiff-

appellant Mary Flor Morón-Barradas ("Morón"). Morón charged

defendant-appellant Department of Education for the Commonwealth of

Puerto Rico ("DOE") with discrimination and retaliation under Title

VII based on its failure to hire her for a teaching position and

its failure to issue her a teaching certification for which she

claims she was qualified. After careful consideration, we affirm.

I. Background

A. Marketing Teacher Position

In or around February 1999, the DOE announced an

immediate opening for a marketing teacher at the Juan Suárez

Pelegrina Secondary School in Aguadilla. Although none of the

applicants held a teacher's license, the DOE awarded Morón, the

most qualified applicant, the three-month contract.

In August 1999, the DOE announced the opening of the same

position for the upcoming 1999-2000 school year. Morón applied

again, but the DOE hired another applicant, Milagros Blázquez.

Morón filed a petition for reconsideration with the DOE,

challenging Blázquez's qualifications and arguing that she, Morón,

was the more qualified candidate. The DOE denied her petition in

March of 2000.

On May 25, 2000, Morón filed an appeal of the DOE's

decision with the Public Education System Appeals Board ("JASEP,"

-2-
for its Spanish acronym). JASEP denied the appeal on April 3,

2003, concluding that Morón was not qualified for the position and

that Blázquez was the more qualified applicant. Móron then sought

judicial review before the Puerto Rico Court of Appeals, which

affirmed JASEP's decision.1 Flor v. Departamento de Educación, No.

KLRA 03-00361, 2004 WL 1801975 (P.R. Cir. May 28, 2004). Móron did

not appeal this decision.

B. Certification

Meanwhile, on February 25, 2000, Morón filed an

application with the DOE for a Marketing Education Teaching

Certificate, believing that she had met all the requirements. On

April 5, 2000, she received a letter from the DOE stating that she

had not fulfilled all the requirements to qualify for

certification. Morón then asked the DOE's Certification Division

to review her qualifications. On August 7, 2001, the Certification

Division informed Móron that she lacked five credit hours of

marketing courses to qualify for the certificate. On August 20,

2001, Morón again requested the Certification Division to

reevaluate her qualifications. The Director of the Certification

1
JASEP had concluded that Blázquez was qualified for the position
because she had a "regular teaching certificate." By the time of
Morón's appeal to the Court of Appeals, the DOE admitted that it
had erred in determining that Blázquez had the required
certificate, but the court agreed with the DOE that Blázquez was
nonetheless more qualified than Morón.

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Division responded that the Division would not intervene because

Morón's case was pending before JASEP.

On May 19, 2003, the Certification Division issued a new

evaluation of Morón's certification application,2 determining that

she had met all but the occupational experience requirement for

certification, although one of her required tests had expired since

her initial application. The Division's determination was based on

the fact that it could not verify her occupational experience

because the business in question "did not exist or had shut down."

In addition, the Division noted "discrepancies in years and

schedules of service" in Morón's submitted documents.

C. EEOC Charge

On April 12, 2000, after the DOE denied her application

for reconsideration of the hiring decision and failed to issue her

certification, Morón filed a charge of discrimination with the

Equal Opportunity Employment Commission ("EEOC") against the DOE,

alleging national origin, age, and disability discrimination. She

claimed that she is Venezuelan and that the 1999-2000 marketing

teacher position had been given to a younger, less qualified Puerto

Rican. She also claimed that her rejection occurred only after the

2
JASEP's April 3 order in Morón's appeal of the DOE's hiring
decision directed the DOE's Certifications Division to evaluate
Morón's file and "if it finds that she does meet the requirements
for a regular teaching certificate, that the same be conferred on
her retroactively to the date when she first qualified for the
certificate."

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DOE hired her for the previous three-month contract and thereby

learned of her partial disability. Morón later amended her charge

to include retaliation.

Because the DOE never responded to Morón's charge, the

EEOC issued a reasonable cause determination on August 7, 2001, see

29 C.F.R. § 1601.21, offering to initiate a conciliation process

between the parties, see id. § 1601.24. When conciliation failed,

the EEOC issued Morón a "right to sue" letter dated September 4,

2001. See id. § 1601.28.

D. District Court Proceedings

On May 17, 2004, Morón filed an amended complaint in the

United States District Court for the District of Puerto Rico,

claiming national origin discrimination with respect to the DOE's

failure to hire her for the 1999-2000 marketing teacher position

and its subsequent failure to certify her.3 She also included a

retaliation claim, in relation to her EEOC charge.

The DOE filed a motion for summary judgment on

November 5, 2004, and simultaneously filed a motion for an

extension of time to file English translations of its exhibits,

including the Puerto Rico Court of Appeals decision against Morón

(the "Court of Appeals decision"). The DOE filed all the English

3
The history of this case prior to May 17, 2004 is not relevant
to the disposition of this appeal.

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translations by the court-imposed deadline, except for the Court of

Appeals decision.

On November 19, 2004, Morón filed a motion for an

extension of time until December 14 to file her opposition to the

DOE's motion for summary judgment. The district court granted her

until December 8. As of December 30, Morón had not yet filed her

opposition, prompting the DOE to file a motion to adjudicate its

unopposed motion for summary judgment.

On January 10, 2005, Morón requested another extension of

time, until January 14, to file her opposition, citing her

attorney's heavy case load. Morón then filed her opposition on

January 14, thirty-seven days late.

On April 7, 2005, the DOE filed an "emergency" motion to

adjudicate its unopposed motion for summary judgment and a motion

requesting that the district court consider its attached exhibit,

the Puerto Rico Court of Appeals decision, in Spanish. The

district court declined to consider the exhibit in Spanish, and on

April 11 ordered the DOE to provide an English translation by

April 25, which the DOE did. On April 13, Morón filed a motion

requesting that the district court reconsider its April 11 order

and strike the DOE's emergency motion and accompanying motion to

consider the exhibit in Spanish. The district court denied Morón's

motion.

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 On May 3, 2005, the district court granted summary

judgment in favor of the DOE. Morón Barrada v. Dep't of Educ., 368

F. Supp. 2d 137, 140 (D.P.R. 2005). The court refused to consider

Morón's untimely opposition, and accordingly "accept[ed] as true

all material facts set forth by defendant with appropriate record

support." Id. at 142. The court concluded that (1) Morón's claim

that the DOE failed to hire her for the 1999-2000 marketing teacher

position on account of her national origin was barred by res

judicata and collateral estoppel; (2) Morón failed to establish a

prima facie case of national origin discrimination in relation to

the DOE's failure to certify her because she was not qualified for

the certificate; and (3) Morón failed to establish a prima facie

case of retaliation because there was no evidence that the DOE's

refusal to grant her certification was causally connected to her

filing of the EEOC charge.

Morón filed a motion to amend the judgment, and also

requesting relief from judgment, on May 17, 2005. She included two

"new" pieces of evidence: (1) a letter dated April 22, 2005, from

the DOE to Morón's attorney, indicating that the DOE had decided to

accredit Morón's occupational experience, and that she had

therefore fulfilled all the requirements for certification, other

than one expired test,4 and (2) handwritten notes from a DOE

4
Morón admits that she received the letter on April 27, 2005, six
days prior to the entry of summary judgment.

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personnel record obtained on May 10, 2005 by Morón's attorney

through discovery in another case, stating that the DOE needed only

to verify Morón's occupational experience to complete approval of

her certification. Morón argued that the district court should

vacate its determination that she was not qualified to receive the

teaching certificate because the new evidence demonstrated that she

was qualified from the time of her original application, since the

DOE relied on the same evidence that Morón originally submitted.

On July 15, 2005, Morón filed a supplemental motion for

reconsideration, including additional "new" evidence in support of

her claims: a May 2, 2005 JASEP order directing the DOE to submit

the results of its evaluation of Morón's qualifications for

certification, and the DOE's responding motion in compliance with

the order, reiterating the content of its April 22, 2005 letter to

Morón.

The DOE filed a motion for an extension of time to file

an opposition to Morón's supplemental motion for reconsideration on

July 29, 2005, citing its attorney's "overwhelming workload."

Without an answer from the district court, the DOE filed the

opposition on August 23, at least twenty-one days late.5 Morón

filed a motion to strike the opposition, which the district court

denied.

5
Morón states that the opposition was due on August 2, whereas
the DOE implies that it was due on July 29.

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 Finally, on January 19, 2006, the district court denied

Morón's motion to alter the judgment and supplemental motion for

reconsideration.

II. Discussion

Morón challenges the district court's entry of summary

judgment in favor of the DOE on all her claims and the court's

denial of her motions for reconsideration and relief from judgment.

Morón also disputes the district court's refusal to consider her

untimely opposition to the DOE's motion for summary judgment, while

at the same time accepting three of the DOE's late filings: (1) its

emergency motion to adjudicate its summary judgment motion; (2) the

certified English translation of the Court of Appeals opinion in

Flor, 2004 WL 1801975, affirming JASEP's conclusion that Morón was

not qualified and that Blázquez was better qualified for the

marketing teacher position; and (3) its second response in

opposition to Morón's motions for reconsideration.

A. Untimely Filings

Morón does not dispute that the district court has the

discretionary authority to consider a motion for summary judgment

unopposed when the non-moving party does not timely file an

opposition. See Pérez-Cordero v. Wal-Mart P.R., 440 F.3d 531, 533-

34 (1st Cir. 2006). Rather, she argues, inter alia, that it was

unfair for the district court to refuse to consider her untimely

opposition while at the same time accepting the DOE's late filings.

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Id. at 534 ("Normally, we will not disturb a district court's

decision to consider a summary judgment motion unopposed because a

party has missed the deadline for filing an opposition[,] . . .

[but w]e have granted relief when the appealing litigant was

reasonably surprised by the deadline or the action of the court, or

the events leading to the contested decision were unfair.").

However, even considering Morón's opposition, and consequently not

taking as true the DOE's statement of facts, there is no evidence

to support Morón's claims of discrimination or retaliation, as

discussed in detail below. Thus, we need not reach Morón's

argument that the district court abused its discretion in refusing

to consider her untimely opposition.

With the unfairness issue set aside because Morón's

opposition does not help her case, Morón offers no other argument

that the district court abused its discretion in accepting the

DOE's allegedly late filings. See Fed. R. Civ. P. 6(b); McIntosh

v. Antonino, 71 F.3d 29, 38 (1st Cir. 1995) ("The administration of

filing deadlines is a matter of case management that comes within

the district court's discretion.").

B. Summary Judgment

Morón argues that contrary to the district court's

conclusions, (1) her claim of discrimination in the DOE's hiring

decision is not barred by res judicata or collateral estoppel, (2)

she was qualified for both the marketing teacher position and the

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teaching certificate, and (3) the temporal proximity of her EEOC

charge and the DOE's failure to issue her certification indicates

that the two events are causally connected for purposes of her

retaliation claim.

We review a grant of summary judgment de novo, viewing

the record in the light most favorable to the non-moving party.

DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005). We will

affirm summary judgment if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c).

For purposes of our review, we will look to the full

summary judgment record, as if the district court had considered

Morón's untimely opposition, because it does not change our

conclusion that the DOE is entitled to summary judgment on all

claims.

1. Discrimination in Hiring Decision

To establish a prima facie case of discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., Morón must show that (1) she is a member of a protected

class, (2) she applied and was qualified for the marketing teacher

position, and the DOE (3) rejected her and (4) hired someone with

similar or lesser qualifications. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Sinai v. New Eng. Tel. & Tel. Co.,

3 F.3d 471, 474 (1st Cir. 1993). The DOE argues that Morón is

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collaterally estopped from relitigating whether she was qualified

for the position or whether the DOE hired a similarly or less

qualified applicant, because the Puerto Rico Court of Appeals

affirmed the administrative agency's findings against her on these

issues. See Flor, 2004 WL 1801975. We agree.

Under 28 U.S.C. § 1738, federal courts must give the same

effect to a state or territory judgment as the issuing jurisdiction

would. See Cruz v. Melecio, 204 F.3d 14, 18 (1st Cir. 2000). The

rules of preclusion apply equally to judicially reviewed

administrative agency decisions, such as Flor. Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 466 (1982). Under Puerto Rico law,

res judicata applies when there is "the most perfect identity

between the things, causes, and persons of the litigants, and their

capacity as such." P.R. Laws Ann. tit. 31, § 3343. Puerto Rico

courts have interpreted the statute to permit issue preclusion, or

collateral estoppel, as well, even when identity of causes is

lacking. Texaco P.R., Inc. v. Medina, 834 F.2d 242, 245-46 (1st

Cir. 1987) (citing A & P Gen. Contractors, Inc. v. Asociación Caná,

Inc., 10 P.R. Offic. Trans. 984, 996 (1981)).

In order for collateral estoppel to apply here, Morón and

the DOE must have actually litigated the facts in question, and

those facts must have been essential to a valid and final judgment

in a prior action. See Felix Davis v. Vieques Air Link, 892 F.2d

1122, 1124-25 (1st Cir. 1990) (citing, inter alia, Pereira v.

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Hernández, 83 P.R. 156, 161 n.7 (1961), and A & P Gen. Contractors,

10 P.R. Offic. Trans. 984). In Flor, 2004 WL 1801975, the Puerto

Rico Court of Appeals agreed with JASEP's conclusion that Morón was

not qualified for the teaching position, and that the teacher

chosen to fill the position was more qualified than Morón. Both

parties fully and fairly litigated the issues in that case,6 the

facts of Morón's and Blázquez's qualifications were essential to

the judgment that the DOE properly hired Blázquez rather than

Morón, and Flor is final and unappealable. Therefore, we are bound

by the Puerto Rico court's factual determinations.

Morón responds that her case is analogous to Thomas v.

Contoocook Valley Sch. Dist., 150 F.3d 31 (1st Cir. 1998), and that

therefore, as in that case, we should not apply the standard

presumption of preclusion. In Thomas, a school board had made two

findings regarding the school's nonrenewal of the plaintiff

teacher: (1) that the teacher was terminated due to her poor

performance and (2) that her disability had no bearing on the

school's decision. Id. at 35. The reviewing state agency upheld

the finding of poor performance as not arbitrary or capricious, but

also found that there was insufficient evidence on which to decide

whether there was any disability discrimination. Id. at 36-37.

6
Morón does not argue that she did not have a full and fair
opportunity to litigate the factual issues of her and Blázquez's
qualifications, and we see no evidence in the record to the
contrary.

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The agency then referred the discrimination issue to a state human

rights commission. Id. The agency's bifurcated decision was

summarily affirmed, without explanation, by the New Hampshire

Supreme Court. Id. at 37.

Based on Thomas's particularly "unusual" circumstances,

we denied preclusive effect to the administrative agency's

conclusion, affirmed by the New Hampshire Supreme Court, that the

teacher's termination was due to her poor performance. Id. at 39-

40. First, we determined that under New Hampshire law, the non-

renewal proceedings before the school board did not preclude

separate review of a discrimination claim before the human rights

commission. Id. at 41-42. Such law does not exist in Puerto Rico.

Second, we concluded in Thomas that the precise issue

before the state administrative agency -- "that there was

'sufficient evidence' in support of the School Board's proffered

reason for the nonrenewal decision" -- was not identical to the

issue before the court, that is, "whether the defendant's decision

was in fact motivated by discrimination on the basis of [the

teacher's] disability." Id. at 42. Here, unlike the teacher in

Thomas, Morón has not pointed to any evidence of discrimination

that might sustain her case under a mixed-motive analysis. See

Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1st Cir.

2003) ("[I]n mixed-motive cases, plaintiffs must present enough

evidence to permit a finding that there was differential treatment

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in an employment action and that the adverse employment decision

was caused at least in part by a forbidden type of bias.").

Rather, Morón must proceed under the burden-shifting framework,7

which requires her to establish that she was qualified for the

marketing teacher position and that Blázquez was not more qualified

than she was. These precise questions, however, have already been

expressly determined by both an administrative agency and a

reviewing court, and neither these determinations nor those of the

EEOC raised any questions of discriminatory intent.8 See Thomas,

150 F.3d at 42 ("The finding of 'sufficient cause' must be viewed

in conjunction with the fact that the State Board explicitly chose

not to decide whether the School Board . . . impermissibly

discriminated against Thomas based upon her voice disability.").

In sum, there is simply no reason to depart from the

standard rules of issue preclusion in this case. Because Morón

cannot come before us now and argue that she was qualified, or that

Blázquez was less qualified, for the DOE position, Morón cannot

establish a prima facie case of discrimination. Thus, the DOE is

7
In any event, Morón has not requested that her case be reviewed
under a mixed-motive theory. See Hillstrom, 354 F.3d at 31 ("It is
doubtful that Hillstrom has preserved [the mixed-motive] issue, as
he never suggested to the district court that he was presenting
[such a] case.").
8
The EEOC's determinations were based solely on the DOE's failure
to respond.

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entitled to judgment as a matter of law on Morón's discrimination

claim.9

2. Discrimination in Certification Decision

When, as here, direct evidence is lacking to support a

discrimination claim, the plaintiff must rely on establishing a

prima facie case through the familiar steps of the burden-shifting

framework. See McDonnell Douglas, 411 U.S. at 802-05. On appeal,

however, we have often put aside the prima facie case to focus

instead on "whether there is evidence that, notwithstanding the

. . . stated reasons for the [decision], the real reason, at least

in part, was . . . discrimination." Fontánez-Núñez v. Janssen

Ortho LLC, 447 F.3d 50, 56 (1st Cir. 2006) (internal quotation

marks omitted). "[T]he task of proving discrimination remains the

plaintiff's at all times." Dichner v. Liberty Travel, 141 F.3d 24,

30 (1st Cir. 1998).

The DOE maintains that Morón was denied certification

because she was not qualified. Whether or not Morón was actually

qualified for certification at the time in question, the record,

augmented with Morón's submissions in support of her opposition to

summary judgment, in no way suggests that the DOE's decision was

9
The DOE also argued, and the district court alternatively
concluded, that Morón's claim was foreclosed on res judicata
principles. Because we hold that her claim is collaterally
estopped, we need not reach the claim preclusion issue.

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discriminatory.10 Even if the DOE mistakenly denied Morón's

application for certification, there is no evidence that the

decision was made because she is Venezuelan. Therefore, in the

absence of evidence of discrimination, summary judgment was

properly granted on Morón's claim of discrimination in the denial

of her application for certification.

3. Retaliation

To establish a prima facie case of retaliation under

Title VII, see 42 U.S.C. § 2000e-3(a), Morón was required to show

that "(1) [she] engaged in protected conduct under Title VII; (2)

[she] suffered an adverse employment action; and (3) the adverse

action is causally connected to the protected activity."

Hernández-Torres v. Intercont'l Trading, Inc., 158 F.3d 43, 47 (1st

Cir. 1998). In her opposition to summary judgment, Morón did not

specify the causal nexus of her retaliation claim. Nevertheless,

the district court concluded that sufficient time passed between

Morón's filing of the EEOC charge on April 12, 2000, and the DOE's

rejection of her application for certification on August 7, 2001,

to defeat an inference of causal connection based on temporal

10
To raise an inference of intentional discrimination based on a
defendant's proffered reason for a challenged action, a plaintiff
must provide "a substantial showing that respondent's explanation
was false." Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir.
2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 144 (2000)). Morón has not met that standard here. See
Reeves, 530 U.S. at 144-45 (describing evidentiary basis for
inference).

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proximity. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

25 (1st Cir. 2004) ("Three and four month periods have been held

insufficient to establish a causal connection based on temporal

proximity.").

On appeal, Morón argues that the district court

miscalculated the temporal proximity of the two events. First, she

points to the fact that the DOE first rejected her application for

certification on April 5, 2000, a week before she filed the EEOC

charge. It is impossible for the DOE to have retaliated against

Morón before she engaged in protected activity. Next, Morón lists

a number of instances between April 12, 2000, and November 27, 2000

when she continued to allege discrimination before the EEOC. None

of these events suggest that the DOE took any action against her

during this time, which might serve as a basis for a retaliation

claim. Even so, more than eight months elapsed between the last

date in this series of events and the DOE's next action on

August 7, 2001, which is still insufficient to establish temporal

proximity. See id.

Based on the record before us, we can find no evidence of

a causal connection between Morón's filing of the EEOC charge and

the DOE's failure to certify her as a marketing teacher. We

therefore affirm the district court's entry of summary judgment in

favor of the DOE on Morón's retaliation claim.

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C. Motions for Reconsideration and Relief from Judgment

Finally, Morón challenges the district court's denial of

her motion to alter or amend the judgment and for relief from

judgment, and her supplemental motion for reconsideration, in light

of new evidence that she has been qualified for the teaching

certificate since the time of her application.11 See Fed. R. Civ.

P. 60(b)(2). "[Because] we defer broadly to the district court's

informed discretion in granting or denying relief from judgment,

. . . we review its ruling solely for abuse of that discretion."

Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002).

With her Rule 60(b) motions, Morón offered three new

pieces of evidence in support of her claim that she was qualified

for the teaching certificate from the time that she first filed her

application with the DOE. The district court refused to entertain

the first piece of evidence -- a letter dated April 22, 2005, in

which the DOE allegedly informed Morón that she had been qualified

for the certificate all along -- because, inter alia, Morón had

received the letter prior to summary judgment. The district court

did not specifically address Morón's other "new" evidence: (a)

handwritten notes from a DOE file, allegedly stating that the DOE

needed only to verify her occupational experience to complete

approval of her certification, obtained on May 10, 2005, and (b) a

11
Morón also appeals the ruling on the ground that the district
court should have accepted her opposition to summary judgment. As
we concluded above, we need not reach this question.

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July 15, 2005 JASEP order directing the DOE to submit its

evaluation of Morón's qualifications for certifiction, and the

DOE's motion in compliance with the order reiterating the content

of the April 22, 2005 letter.

We find no abuse of discretion in the district court's

denial of Morón's Rule 60(b)(2) motions. The court should only

grant such relief from summary judgment when "(1) [new] evidence

has been discovered since the trial; (2) the evidence could not by

due diligence have been discovered earlier by the movant; (3) the

evidence is not merely cumulative or impeaching; and (4) the

evidence is of such a nature that it would probably change the

result were a new trial to be granted." U.S. Steel v. M. DeMatteo

Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002) (footnote omitted)

(citing Mitchell v. United States, 141 F.3d 8, 18 (1st Cir. 1998)).

Morón received the April 22, 2005 letter prior to summary judgment,

and offered no reason why she did not bring the evidence to the

attention of the court earlier. Thus, the district court properly

refused to consider that evidence. See González-Piña v. Rodríguez,

407 F.3d 425, 433 (1st Cir. 2005) ("'[A] party who seeks relief

from a judgment based on newly discovered evidence must, at the

very least, offer a convincing explanation as to why he could not

have proffered the crucial evidence at an earlier stage of the

proceedings.'" (quoting Karak, 288 F.3d at 19-20)).

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 The same logic applies to the rest of Morón's "new"

evidence, which at best is merely cumulative of the April 22, 2005

letter. Morón suggests that the handwritten notes show that she

was qualified for the certificate from the time of her application,

which is also what the letter said.12 Similarly, the DOE's response

to the JASEP order reiterates the contents of the letter. Because

Morón was in possession of this information prior to summary

judgment but was not diligent in bringing it to the court's

attention, the court did not abuse its discretion by failing to

consider the evidence in deciding Morón's Rule 60(b) motions. See

id.

III. Conclusion

For the reasons stated above, we affirm the entry of

summary judgment in favor of the DOE.

Affirmed.

12
We should clarify that the import of the notes is unclear. The
notes appear to state that Morón's occupational experience "must be
approved in order to obt[ain]" the Certificate. We interpret this
statement to simply reiterate the content of the DOE's May 19, 2003
evaluation of Morón's file -- that she still lacked the
occupational experience requirement. In that case, the evidence
should not be considered because it is merely cumulative. However,
for purposes of our analysis above, we will accept Morón's
interpretation of the notes.

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