Megwinoff v. Banco Bilbao Vizcaya

United States Court of Appeals
For the First Circuit

No. 00-1483

OLGA ANDREU MEGWINOFF,

Plaintiff, Appellant,

v.

BANCO BILBAO VIZCAYA,

Defendant, Appellee.

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

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

Before

Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.

Jane A. Becker-Whitaker for appellant.
Pedro J. Manzano-Yates, with whom Rebecca Paez-Rodriguez and
Fiddler Gonzalez & Rodriguez, LLP, were on brief for appellee.

December 1, 2000
 LYNCH, Circuit Judge. Olga Andreu Megwinoff worked for Banco

Bilbao Vizcaya from 1992 to 1997. It is undisputed that there was an

incident of sexual harassment in her early years there. Her present

lawsuit alleges that since then she was discriminated against as an

older female employee and that as her health deteriorated BBV failed to

make reasonable accommodations. Her health continued to deteriorate

and she contracted cancer. She left on sick leave on September 24,

1996 and never returned to work. Puerto Rican law requires that

employers under such circumstances hold open positions for a year. See

11 L.P.R.A. § 203(q)(1). BBV terminated her employment shortly after

the year ended, on November 19, 1997, saying it did so because the year

had expired.

The difficulty for Andreu is that she did not file a charge

of discrimination until December 5, 1997, some 14 months after she last

worked at BBV. The district court, on BBV's motion for summary

judgment, agreed with the employer that her ADEA, ADA, and Title VII

claims were not timely filed and dismissed the action. Our review of

the grant of summary judgment is de novo. See Thomas v. Eastman Kodak

Co., 183 F.3d 38, 47 (1st Cir. 1999), cert. denied, -- U.S. --, 120 S.

Ct. 1174 (2000).

Andreu attempts to save her case from dismissal for

untimeliness by arguing that the equitable exception to the limitations

period called the continuing violation doctrine applies. This court

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has recognized two branches of the continuing violation doctrine:

serial violations and systemic violations. Pilgrim v. Trustees of

Tufts College, 118 F.3d 864, 869 (1st Cir. 1997). Serial violations

are described as "compris[ing] a number of discriminatory acts

emanating from the same discriminatory animus, each of which

constitutes a separate wrong actionable under Title VII." Id.

(internal quotation marks omitted). The series must contain a

discriminatory act occurring within the limitations period for the

plaintiff to reach back to include those otherwise untimely acts in her

claim. See Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998).

In contrast, a systemic violation "requires no identifiable

act of discrimination in the limitations period and refers to general

practices or policies, such as hiring, promotion, training, and

compensation." Id. If the "policy or practice itself continues into

the limitations period," a plaintiff will be "deemed to have filed a

timely complaint" under the systemic continuing violation theory.

Pilgrim, 118 F.3d at 869. Andreu uses the serial violation doctrine

for her gender and disability discrimination claims. She relies on the

systemic violation doctrine for her age discrimination claim.

The only violation within the limitations period alleged to

support Andreu's claim under the serial violation doctrine was the

termination of Andreu's employment after a year of being out on sick

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leave. BBV has articulated a legitimate, non-discriminatory rationale

for the termination -- the year required by Puerto Rican law was up.

(Andreu made no request to extend the sick leave as an accommodation.).

The only evidence plaintiff offers that the termination of

employment was discriminatory is a statement made by BBV's General

Counsel to plaintiff's brother. The statement, which was made on or

about May 7, 1997, was: "if your sister comes in in the morning,

tomorrow morning through the door of this bank, she has a job with us."

This means, plaintiff says, that she had an open promise by the General

Counsel that she could come back whenever she was ready. From the fact

that he did not keep his promise, the jury could infer that the reason

given for the termination of her employment was a pretext. Further, a

jury could infer from this same breach of promise that the real reason

was gender and disability based discrimination. Reeves v. Sanderson

Plumbing Products, Inc., -- U.S. --, 120 S. Ct. 2097, 2109 (2000) ("[A]

plaintiff's prima facie case, combined with sufficient evidence to find

that the employer's asserted justification is false, may permit the

trier of fact to conclude that the employer unlawfully

discriminated."). And from this, Andreu concludes, she has alleged an

act of discrimination within the limitations period.

The argument stretches inferences well beyond reasonable

bounds. What BBV's General Counsel said, during the one year period,

was that if Andreu came back tomorrow she could have her job back.

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That is what Puerto Rican law required. It is not reasonable to infer

it was a promise to hold the door open beyond the year. Nor is it

reasonable to infer discriminatory intent from Andreu's claim that the

promise was not kept. Because no act of discrimination was alleged

within the limitations period, the argument based on the serial

violation branch of the continuing violation doctrine fails.

In contrast to serial violations, this court has said that

the systemic violation doctrine need not involve an identifiable,

discrete act of discrimination occurring within the limitation period,

see Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st

Cir. 1989), although it has a similar requirement: the systemic pattern

or practice must continue into the charge period, see Lawton v. State

Mut. Life Assurance Co. of Am., 101 F.3d 218, 222 (1st Cir. 1996). "A

systemic violation has its roots in a discriminatory policy or

practice; so long as the policy or practice itself continues into the

limitation period, a challenger may be deemed to have filed a timely

complaint." Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990).

Plaintiff relies on five or six incidents which she says

establish a pattern of age discrimination that can be said to be

systemic. We outline them briefly and conclude this is not the stuff

of which systemic violations are made.

First, there is a phantom document, which has never been

found but was said by one deponent to have existed. Deponent Colon, a

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BBV officer, testified that at some unspecified time BBV's General

Counsel wrote a memorandum about ways in which BBV was not in

compliance with various anti-discrimination laws. The supposed author

of the memorandum was deposed but never said he had prepared such a

memorandum. Colon also gave her opinion that BBV was looking for "new

blood," and gave as an example an older worker who was replaced by a

younger worker, although Andreu provides no evidence about the

circumstances surrounding that substitution that would demonstrate it

was motivated by a discriminatory policy. Another employee spoke of the

need to "rejuvenate" the staff in a Spanish bank with which BBV had

merged, words Andreu interprets as evidence of a policy by BBV of

lowering the age of its workforce. Next, in response to a hypothetical

question, an official in BBV's Spanish parent bank expressed a

preference, albeit indirectly, for employing younger women. Andreu

charges that BBV had a policy of refusing to train workers over forty

years old for management positions and refers to a list of employees

sent to training, all of whom were under forty, although Andreu herself

was never denied training. BBV's in house counsel, Rodriguez, gave his

opinion that Andreu's transfer in 1994 was based on age considerations,

although he was not involved in that employment decision and admitted

that it did not reflect an overall BBV policy of workforce age

reduction. Finally, the Human Resources Manager, Perez, referred to

Andreu's respiratory ailments as similar to Perez's own "ailments of

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age," a phrase which Andreu interprets as the "whinings of an old

woman."

Andreu's attempt to recast her unsuccessful serial violation

claim into a systemic violation claim fails. By definition, a series

of discrete discriminatory acts motivated by a discriminatory animus

cannot be a systemic violation. Otherwise, the distinction between

systemic and serial violations could not be maintained. Systemic

violations are said to arise from discriminatory policies (or what is

a de facto policy in the form of a consistent, recurring practice).

Systemic violations have been recognized rarely, usually in instances

of a discriminatory promotion, hiring, training, or compensation system

where direct evidence, statistics, or other evidence demonstrate the

discriminatory effects of that policy. See, e.g., Johnson v. General

Electric Co., 840 F.2d 132, 136-37 & n. 5 (1st Cir. 1988) (recognizing

that an alleged unfair review process leading to denial of promotion

would be sufficient to show ongoing policy under continuing violation

doctrine); Clark v. Olinkraft, Inc., 556 F.2d 1219, 1221-22 (5th Cir.

1977) (challenge to entire promotion and pay system as discriminatory

constituted continuing unlawful employment practice).

Thus, Andreu's assertion that BBV had a general policy of

reducing the age of its workforce combined with a list of alleged

discriminatory acts as evidence of that discriminatory employment

policy is not sufficient to sustain a systemic continuing violation

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claim. See Mack, 871 F.2d at 184 ("[G]eneral references to some vague,

undefined policy of discrimination are not . . . sufficient to make out

a . . . showing that a discernible discriminatory policy was in

effect.") Moreover, much of Andreu's "direct evidence" of a

discriminatory policy consists of allegations unsupported by citations

to the record.1 Absent "any probative evidence of an overarching policy

or practice of discrimination," the district court's grant of summary

judgment was appropriate. Jensen, 912 F.2d at 523.

Affirmed. Costs to BBV.

1 There is a great amount of furor in the briefs about the
discovery process, the difficulty of submitting supporting summary
judgment briefs on the due dates with citations to depositions not yet
transcribed, later filings with belated record cites and the like. We
are convinced that the district court did review plaintiff's
supplemental filings and so put aside the procedural wrangling. We
note that plaintiff's kitchen sink approach to the requirement of
providing citations to the record made the task of the district court
and this court much more difficult and that such an approach could lead
to a justifiable refusal by the court to entertain such filings. See
Stepanischen v. Merchants Despatch Transp. Corp., 772 F.2d 922, 931
(1st Cir. 1983) (party's failure to make specific references to record,
when asked to do so by the court, may be grounds for judgment against
that party).

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