Ramos-Santiago v. WHM Carib, LLC

United States Court of Appeals
For the First Circuit

No. 17-1507

VÍCTOR RAMOS-SANTIAGO, ET AL.,

Plaintiffs, Appellants,

v.

WHM CARIB, LLC, ET AL.,

Defendants, Appellees,

JEFF WILLENBERG, ET AL.,

Defendants.

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

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Lipez, and Barron,
Circuit Judges.

Miguel A. Suro Carrasco, with whom Jorge Miguel Suro Ballester
and Suro & Suro were on brief, for appellants.
Shiara L. Diloné Fernández, with whom Carl Schuster, Andrés
C. Gorbea Del Valle, and Schuster Aguiló LLC were on brief, for
appellees.

March 22, 2019
 LIPEZ, Circuit Judge. Appellants Víctor Ramos-Santiago

("Ramos-Santiago"), his daughter Maryam Ramos-Meléndez and four

minor grandchildren (hereinafter referred to collectively as

"Ramos-Santiago"), filed this suit under Puerto Rico law, premised

on diversity jurisdiction, against Ramos-Santiago's former

employer and its insurance carrier.1 In the complaint, Ramos-

Santiago alleges unjust dismissal and age discrimination in

employment, and his family asserts derivative tort claims arising

from the alleged age discrimination.2

The district court granted summary judgment for

Defendants3 on Ramos-Santiago's discrimination claim and the

family's derivative tort claims, denied summary judgment on the

unjust dismissal claim, and denied Ramos-Santiago's cross-motion

for summary judgment. Ramos-Santiago then filed a motion for

1
Defendants-Appellees are the operator of Rio Mar resort,
WHM Carib, LLC ("Wyndham Rio Mar"); WHM's insurance carrier,
Continental Insurance Company of New Jersey; and individuals Danny
Williams and Kelli Joseph (collectively, "Wyndham").
2 The tort claims are "wholly derivative [of Ramos-Santiago's

discrimination claim] and, thus, [their] viability is contingent
upon the viability of the underlying employment discrimination
claim." Costa-Urena v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009)
(quotation omitted); accord Marcano-Rivera v. Pueblo Int'l, Inc.,
232 F.3d 245, 258, n.7 (1st Cir. 2000) (citing Santini–Rivera v.
Serv. Air, Inc., 137 P.R. Dec. 1 (1994)). The parties do not
dispute the derivative nature of these claims.
3 Not all the defendants named in the complaint are parties

to the appeal (i.e. Jeff Willenberg and the Conjugal Partnership
Willenberg-Doe, named in the complaint, are not parties to the
appeal).

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reconsideration, which the district court denied. The parties

subsequently settled the unjust dismissal claim.

On appeal, Ramos-Santiago challenges the partial entry

of summary judgment in favor of Defendants, the denial of his

motion for summary judgment, and the denial of his motion for

reconsideration. After careful consideration, we affirm.

I.

We must address a preliminary jurisdictional issue.

Ramos-Santiago filed his notice of appeal after the district

court's entry of partial summary judgment but prior to its entry

of final judgment. Ramos-Santiago's notice of appeal was therefore

premature, and Wyndham has questioned our jurisdiction to

entertain this appeal.

A. The History of the Proceedings

On March 14, 2017, the district court issued an opinion

and order granting partial summary judgment to Wyndham.

Ramos-Santiago filed a motion for reconsideration, which the

district court denied on March 23, 2017. On April 7, 2017, the

court, noting the likelihood of settlement of the unjust dismissal

claim, entered an order, labeled "judgment," closing the case for

"administrative purposes," and stating that the case would be

reopened for a final judgment after the parties settled the

remaining claim.

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 On April 28, 2017, Ramos-Santiago advised the court that

the parties had settled the unjust dismissal claim. He also

informed the court of his intent to appeal the court's disposition

of his other claims:

Due to the Judgment [entered April 7] and
in an abundance of caution, the
plaintiffs will file a Notice of Appeal
today, subject to Federal Rule of
Appellate Procedure 4(a)(2).

That same day, Ramos-Santiago filed a notice of appeal. A week

after the notice was filed, on May 3, 2017, the district court

entered a final judgment dismissing all claims with prejudice.

Subsequently, on May 11, 2017, the court issued a new, lengthy

memorandum and order, again denying Ramos-Santiago's motion for

reconsideration and modifying and superseding the court's previous

order. See Ramos-Santiago v. WHM Carib, LLC, No. CV 14-1087 (SEC),

2017 WL 2062857, at *7 (D.P.R. May 11, 2017) (stating additional

reasons for the failure of Ramos-Santiago's "pretext" argument).

Ramos-Santiago did not appeal from either the final judgment or

the superseding order.

B. Rule 4(a)(2) and Ramos-Santiago's Appeal

As a general rule, appeals may only be taken from "final

decisions of the district courts." 28 U.S.C. § 1291. In this

case, Ramos-Santiago's notice of appeal, which was filed after the

district court granted partial summary judgment to the Defendants

and closed the case for "administrative purposes" but before it

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entered a final judgment, see Lehman v. Revolution Portfolio LLC,

166 F.3d 389, 392 (1st Cir. 1999) (endorsing view that an

administrative closing is not a "final adjudication"), was

premature. See 28 U.S.C. § 1291. However, Federal Rule of

Appellate Procedure 4(a)(2) ("Rule 4(a)(2)") creates an exception

to the general rule for premature notices that "relate forward" to

the district court's entry of final judgment. Clausen v. Sea-3,

Inc., 21 F.3d 1181, 1185 (1st Cir. 1994); see Fed. R. App. P.

4(a)(2). Rule 4(a)(2) provides that a notice of appeal filed

"after the court announces a decision or order -- but before the

entry of the judgment or order -- is treated as filed on the date

of and after the entry." Fed. R. App. P. 4(a)(2). A decision or

order for purposes of the Rule is one that "ends the litigation on

the merits and leaves nothing more for the court to do but execute

the judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 867 (1994) (quoting Catlin v. United States, 324 U.S.

229 233 (1945)).

We have recognized Rule 4(a)(2)'s applicability to "a

premature notice of appeal of a decision disposing of some but not

all claims," such as a grant of partial summary judgment, if "the

decision would have been appealable if immediately followed by

certification pursuant to [Federal] Rule [of Civil Procedure]

54(b)." Barrett ex rel. Estate of Barrett v. United States, 462

F.3d 28, 34 (1st Cir. 2006) (citations ommited); accord Clausen,

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21 F.3d at 1186.4 This inquiry is a "hypothetical one" -- would

the district court's decision "have been appealable immediately by

virtue of Rule 54(b)[?]" Barrett, 462 F.3d at 35 (internal

quotations omitted). For purposes of this inquiry, it is

inconsequential whether Rule 54(b) certification was actually

sought. See id.

Applying these principles to this case, we find that

Rule 4(a)(2) applies. The district court's March 14, 2017 opinion

and order granting partial summary judgment in favor of Wyndham

ended the litigation of Ramos-Santiago's discrimination claim and

derivative tort claims on the merits on that date, leaving nothing

for the court to do as to those claims but execute judgment. If

Ramos-Santiago had sought certification of final judgment on those

claims pursuant to Rule 54(b), his motion could have been granted.

See Fed. R. Civ. P. 54(b). His notice of appeal, filed on April

28, 2017, therefore "related forward" to the district court's entry

of final judgment on May 3, 2017, such that we treat the notice of

appeal as if it was filed after that entry of judgment. We

accordingly have jurisdiction and proceed to the merits of the

appeal.

4 Federal Rule of Civil Procedure 54(b) provides that "[w]hen
an action presents more than one claim for relief [such as the
discrimination and unjust dismissal claims in this case] . . . the
court may direct entry of a final judgment as to one or more, but
fewer than all, claims . . . if the court expressly determines
that there is no just reason for delay." Fed. R. Civ. P. 54(b).

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 II.

Summary judgment is proper when "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a); Conjugal

P'ship Acevedo-Príncipe v. United States, 768 F.3d 51, 54 (1st

Cir. 2014). In an appeal from a district court's grant of summary

judgment, our review is de novo, and we view the facts in the light

most favorable to the non-moving party -- in this case Ramos-

Santiago. Del Valle-Santana v. Servicios Legales de P.R., Inc.,

804 F.3d 127, 129 (1st Cir. 2015). Although the basic facts, set

forth below, are undisputed, Ramos-Santiago argues that the

district court failed to view those facts in the light most

favorable to him.

In 1987, Ramos-Santiago began working at the Rio Mar

resort ("Rio Mar") in Río Grande, Puerto Rico. In 2004, he became

the resort's golf tournament coordinator. In 2007, Rio Mar was

acquired by defendant-appellee WHM Carib, LLC ("Wyndham Rio Mar"),

and Ramos-Santiago became its employee. At this time, Ramos-

Santiago also had a second job, known to Wyndham Rio Mar, as a

tournament coordinator for the Professional Golfers' Association

("PGA"). In that capacity, Ramos-Santiago coordinated golf

tournaments throughout Puerto Rico, earning a coordination fee for

each tournament. The fee was typically paid by the host of the

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tournament, such as the country club at which the tournament was

being held.

In 2012, pursuant to his affiliation with the PGA,

Ramos-Santiago coordinated a golf tournament for the College of

Engineers and Land Surveyors of Puerto Rico ("CELS"). The

tournament was held at another resort, Palmas del Mar. Ramos-

Santiago was paid three hundred dollars for his services as PGA

coordinator by a check issued by the Palmas del Mar Athletic Club.

A year later, in 2013, CELS held its annual convention

at Rio Mar. The convention included a wide array of activities,

including a golf tournament. Ramos-Santiago again coordinated the

tournament, this time in his capacity as golf tournament

coordinator for Wyndham Rio Mar. CELS provided a $3,000 prize

purse to be distributed to professional golfers participating in

the tournament. Ramos-Santiago, citing delays in distribution of

the prize money after the tournament at Palmas del Mar, asked CELS

to make the $3,000 prize check payable to him so that he could

efficiently distribute the money to the athletes.

On the day before the tournament, a representative of

CELS brought the $3,000 check in Ramos-Santiago's name to the Rio

Mar and gave the check to another employee of the hotel. That

employee notified Wyndham Rio Mar's comptroller, Hector Aponte, of

the check received in Ramos-Santiago's name. Aponte made a

photocopy of the check before returning it to the other employee,

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who then gave the check to Ramos-Santiago. Ramos-Santiago then

cashed the check, paid $2,700 to the tournament winners, and

retained three hundred dollars as a personal coordination fee.

Ramos-Santiago did not inform anyone at CELS or Wyndham Rio Mar

that he would be keeping $300 of the prize money for himself.

The next day, Aponte; Jeff Willenberg, Ramos-Santiago's

supervisor and the resort's director; and Johanna Vargas, the human

resources manager for the resort, met to discuss the check. Called

to the meeting, Ramos-Santiago explained that he had arranged for

the $3,000 check to be made in his name to avoid delays in

distribution of the prize money and that he had paid himself $300

because that was the amount that he had been paid by CELS in 2012.

Following this meeting, Willenberg contacted CELS and learned that

Ramos-Santiago had arranged with CELS that he would distribute the

prize money following the tournament but had never discussed

deducting a personal fee. As a result of this conversation, Ramos-

Santiago was suspended pending the conclusion of an investigation

into the incident.

At the conclusion of the investigation, Willenberg, who

believed Ramos-Santiago had acted with innocent intentions,

recommended that Ramos-Santiago be issued a written warning and

that his suspension remain in place. Vargas disagreed and

recommended that Ramos-Santiago be terminated, as did Kelli

Joseph, Wyndham's Regional Human Resources Director, who viewed

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Ramos-Santiago's actions as "gross misconduct." Ultimately, Danny

Williams, Rio Mar's General Director, made the decision to

terminate Ramos-Santiago. On August 15, 2013, Ramos-Santiago was

terminated from his position. He was sixty years old and had no

prior disciplinary record.

III.

Ramos-Santiago's discrimination claim is based on the

Puerto Rico Anti-Discrimination Act ("Law 100"),5 which provides,

inter alia, a cause of action for persons who suffer employment

discrimination due to their age. P.R. Laws Ann. tit. 29, § 146;

Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17,

27 (1st Cir. 1998). Law 100, while similar to federal employment

law in various respects, has a distinctive burden shifting scheme.

See Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir.

2001); see also Alvarez-Fonseca, 152 F.3d at 27 n.8 (comparing the

5 Among other changes, the Puerto Rico Labor Transformation
and Flexibility Act, Law No. 4 of February 26, 2017 ("Labor Reform
Act"), eliminated Law 100's presumption that all unjust dismissals
are discriminatory. See Labor Reform Act, 2017 P.R. Laws 66
(amending Article 3 of Law 100). The district court applied pre-
enactment law to the parties' summary judgment motions, reasoning
that whether the amendment had retroactive effect was unclear but
that, because the pre-enactment law benefited Ramos-Santiago,
"dismissal under [the new] standard, of course, would also be
warranted." Ramos-Santiago v. WHM Carib, LLC, Civ. No. 14-
1087(SEC), 2017 WL 1025784, at *4 (D.P.R. Mar. 14, 2017). On
appeal, neither party has objected to the district court's
application of pre-enactment law. For the purposes of this
decision, we assume without deciding that pre-enactment law
applies to Law 100 actions pending before the enactment of the
Labor Reform Act.

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different schemes). Under Law 100, once a plaintiff makes out a

prima facie case of discrimination, "the employee enjoys a

presumption that he or she has been the victim of discrimination;

and . . . the burden of production and persuasion then shifts to

the employer to rebut this presumption." Garcia-Garcia v. Costco

Wholesale Corp., 878 F.3d 411, 423 (1st Cir. 2017); accord Baralt,

251 F.3d at 16. An employer may rebut the presumption of

discrimination by presenting evidence demonstrating that "the

existence of discrimination [as a factor in the dismissal] was

less probable than its nonexistence." Baralt, 251 F.3d at 18

(citation omitted). If an employer meets this burden, the burden

of persuasion returns to the plaintiff who must show that a

reasonable jury could conclude, by a preponderance of the evidence,

that "the defendant . . . violated Law 100 because the dismissal

was motivated by discriminatory animus instead of or in addition

to [any] legitimate reasons for dismissal." Alvarez-Fonseca, 152

F.3d at 28.6

6
This burden-shifting framework differs from the McDonnell
Douglas framework that applies to claims under the Age
Discrimination in Employment Act ("ADEA"), the federal law
equivalent of Law 100 for the issue of age discrimination. Under
the McDonnell Douglas framework, once the plaintiff establishes a
prima facie case, the defendant then must produce a
nondiscriminatory reason for its actions. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This burden is
one of production, not of persuasion. Id. Thus, unlike under the
Law 100 framework, the burden of persuasion never shifts to the
defendant-employer under McDonnell Douglas. Id. at 142-43. In

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 Here, the district court assumed, for the purposes of

summary judgment, that Ramos-Santiago met his initial burden of

stating a prima facie case of age discrimination. See Ramos-

Santiago v. WHM Carib, LLC, Civ. No. 14-1087(SEC), 2017 WL 1025784,

at *7 (D.P.R. Mar. 14, 2017). The court then asked whether Wyndham

had overcome the presumption of age discrimination by establishing

that a reasonable jury could find, by a preponderance of the

evidence, that Ramos-Santiago's discharge was not motivated, in

whole or in part, by discriminatory animus. Id. The court found

that Wyndham had easily carried this burden "by pointing to the

undisputed facts that triggered Ramos-Santiago's termination."

Id. Finally, the court concluded that Ramos-Santiago had failed

to satisfy his ultimate burden of showing that a reasonable jury

could conclude, by a preponderance of the evidence, that age-

related discriminatory animus played a role in Ramos-Santiago's

dismissal, and granted summary judgment in favor of Wyndham. Id.

On appeal, Ramos-Santiago contends he has presented

sufficient evidence to establish that he is entitled to judgment

in his favor as a matter of law or, in the alternative, that he

has raised sufficient disputed issues of material fact that the

either case, however, if the defendant fulfills its burden, the
plaintiff has the ultimate burden of persuasion. Id. at 143.

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existence of discriminatory age animus is a question that should

be put to a jury. Responding to these claims, we summarily reject

Ramos-Santiago's claim that he was entitled to summary judgment on

his age discrimination claim and turn to the remaining issue --

whether the district court properly entered summary judgment for

Wyndham on their motion.

Here, we assume, as the district court did, that

Ramos-Santiago has made out a prima facie case of age

discrimination. We also agree with the district court that Wyndham

overcame the presumption of age discrimination by demonstrating

that no reasonable jury could conclude that the existence of age

discrimination, as a factor in Wyndham's decision to terminate

Ramos-Santiago, was more probable than its nonexistence. See

Baralt, 251 F.3d at 18.

Wyndham stated that the reason for the dismissal of

Ramos-Santiago was "that Ramos-Santiago took $300 without

authorization." The undisputed facts presented by the parties

align with Wyndham's stated rationale. Ramos-Santiago arranged

that the CELS prize check be written in his name without approval

from Wyndham, cashed the check, and then appropriated three hundred

dollars without first discussing a personal fee with Wyndham or

CELS. Wyndham began its investigation of Ramos-Santiago only after

the resort's comptroller, Aponte, learned of the prize check in

Ramos-Santiago's name. Ramos-Santiago was suspended when the

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resort's director, Willenberg, learned that Ramos-Santiago had

taken three hundred dollars of the CELS tournament prize money for

himself without authorization. Three of the four persons involved

in the decision to dismiss Ramos-Santiago -- Vargas, the HR manager

for the resort, Joseph, Wyndham's regional HR director, and

Williams, Wyndham's General Director -- recommended dismissal,

each citing disciplinary issues. No reasonable jury could

conclude, based on these undisputed facts, that Wyndham has not

met its burden of production and persuasion that discipline was

the reason for Ramos-Santiago's termination from employment and

age discrimination was not a factor in that decision.

With Wyndham having satisfied its burden, Ramos-Santiago

had to present enough evidence for a reasonable factfinder to

conclude that his "dismissal was motivated by discriminatory

animus instead of or in addition to [Wyndham's stated] reasons for

dismissal." See Alvarez-Fonseca, 152 F.3d at 28. In an attempt

to meet this ultimate burden, Ramos-Santiago argues that the

investigation initiated by Aponte and Willenberg became a pretext

for age discrimination by the "real discriminators" -- "Williams,

Joseph [although Joseph did not know Ramos-Santiago's age], and

probably Vargas" -- who each determined that Ramos-Santiago should

be dismissed. Ramos-Santiago, however, sets forth no evidence

that Williams, Joseph, or Vargas (or any other person) considered

his age or harbored any age-related animus against him. Indeed,

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Ramos-Santiago concedes that he does not recall Vargas, Joseph,

Williams, or anyone else at Rio Mar making discriminatory comments

about his age -- or even making any comments about age at all.

Ramos-Santiago also attempts to show discriminatory

motive by arguing he was treated more unfavorably than a younger

employee, Willenberg, for a similar disciplinary issue.7 Although

differential treatment may yield an inference of discriminatory

animus, see Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 451

(1st Cir. 2009), here, Wyndham's more lenient treatment of

Willenberg cannot be the basis for an inference of age

discrimination because Willenberg was not "similarly situated [to

Ramos-Santiago] in material respects." Perkins v. Brigham &

Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996); see Velez, 585

F.3d at 450 (applying "similarly situated" standard in Law 100

case). Willenberg accepted $150 of CELS prize money because he

participated in the CELS golf tournament as an athlete, having

taken a day off from work to do so. Although it is true that

Aponte advised Willenberg not to accept a fee for appearing in the

tournament, Aponte also testified that he "was not against

[Willenberg] collecting his prize money."

7
In his brief before the district court, Ramos-Santiago
claimed another younger employee was also treated differently from
him despite having a disciplinary record. On appeal, he does not
mention this other younger employee. Thus, we deemed waived any
argument based on this alleged fact. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).

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 Moreover, Willenberg's above-the-table acceptance of

award money, even if not permitted, is still dissimilar to the

conduct of Ramos-Santiago, who deducted an unauthorized personal

fee from the CELS prize purse after arranging that CELS's check be

written to himself. Ramos-Santiago's appropriation of a personal

fee is different in kind from Willenberg's acceptance of prize

money because it was undisclosed and because it decreased the funds

available to the tournament participants.

Ramos-Santiago additionally points to the absorption of

his former job duties8 by younger employees, which he suggests is

evidence that Wyndham's stated reason for his dismissal was

pretextual because it shows that Wyndham had a continuing need for

his job services. Cf. Soto-Feliciano v. Villa Cofresi Hotels,

Inc., 779 F.3d 19, 24 (1st Cir. 2015) (continuing need for job

services may be demonstrated by evidence that the former employee's

job functions were absorbed by other employees). It is undisputed

that the job duties previously assigned to Ramos-Santiago were

distributed to three younger employees -- the golf operations

manager of the resort (early 40s), the resort director Willenberg

(45-47), and the Pro Shop manager (30s) -- after Ramos-Santiago's

8 These job duties included working with and meeting with the
athletes, preparing food and beverages for meetings with clients,
finalizing a list of tournament competitors, organizing athletic
equipment, coordinating parking, and setting up for golf
tournaments.

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termination. It is unclear from the record whether the employees

that replaced Ramos-Santiago continued to carry on their other

duties while performing some of Ramos-Santiago's former duties or

whether they were reassigned to perform his former role

exclusively. See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 846

(1st Cir. 1993) ("A discharged employee is not replaced when

another employee is assigned to perform the plaintiff's duties in

addition to other duties.") (quotations omitted). Given their

roles at the resort (the resort director among them), the former

seems more likely.

Regardless, Ramos-Santiago's suggestion that this

redistribution of duties supports an inference of pretext is

misplaced. Wyndham has never argued that Ramos-Santiago's

dismissal was the result of a lay-off or that his functions had

become unnecessary. Indeed, Wyndham has asserted consistently

that Ramos-Santiago was fired because of misconduct. It is

therefore unsurprising that his functions were redistributed after

his dismissal, and evidence of a continuing need for Ramos-

Santiago's job services is of limited relevance. Cf. id. at 842

(explaining the varying considerations in age discrimination

context, "depending upon whether or not the plaintiff was dismissed

as part of a reduction in force.").

Finally, Ramos-Santiago relies on the circumstances of

his dismissal. He points out that Willenberg, believing Ramos-

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Santiago had acted in good faith, recommended against Ramos-

Santiago's termination, and only Vargas and Joseph recommended in

favor of his dismissal. Even assuming Willenberg's view was

accurate -- Ramos-Santiago acted in good faith -- this fact is

probative only of the unjustness of Ramos-Santiago's dismissal --

not age discrimination. See Baralt, 251 F.3d at 19. ("Plaintiffs'

efforts to counter [Defendant's] evidence of a genuine

investigation with proof that they did little or nothing wrong

shores up their claim for unjust dismissal, but . . . is not on

its own probative of age discrimination.").

He further argues that he did not violate his contract

and that his termination was therefore unjustified. In the

alternative, he argues that, even if he did violate his contract,

his violation was not sufficiently grave to justify a first-offense

dismissal under Puerto Rican law. Furthermore, he argues, Wyndham

conceded knowledge that Ramos-Santiago worked for the PGA at the

same time that he worked for Wyndham. However, these points as

well go to whether Ramos-Santiago's dismissal was unjustified.

Ramos-Santiago's evidence of unjust dismissal, without further

direct or circumstantial evidence of age discrimination, is not

sufficiently probative to permit a reasonable jury to find that

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age discrimination motivated Wyndham's dismissal of Ramos-Santiago

instead of or in addition to the stated disciplinary rationale.9

IV.

For the reasons set forth above, we affirm the district

court's entry of partial summary judgment in favor of Appellees,

as well as its denial of Appellants' motions for summary judgment

and reconsideration.

Affirmed.

9 Ramos-Santiago makes no argument on appeal in support of
his motion for reconsideration other than to reiterate that the
district court erroneously applied summary judgment law. There is
some question as to the source of Ramos-Santiago's appeal -- the
district court's initial denial of the motion or the superseding
order issued after the notice of appeal. Regardless of which order
is under our review, our review is for abuse of discretion. Palmer
v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). Having
concluded that summary judgment was properly entered, we find that
the district court did not abuse its discretion in denying Ramos-
Santiago's motion for reconsideration.

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