Cordero-Soto v. Island Finance, Inc.

United States Court of Appeals
For the First Circuit

No. 04-2582

JUAN CORDERO-SOTO,

Plaintiff, Appellant,

v.

ISLAND FINANCE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

John Ward-Llambias for appellant.
Francisco M. Ramírez-Rivera, with whom Amelia Fortuño-Ruiz and
Martinez, Odell & Calabria were on brief, for appellee.

August 12, 2005
 LIPEZ, Circuit Judge. Plaintiff-appellant Juan Cordero-

Soto appeals the grant of summary judgment dismissing his claims

against Defendant-appellee Island Finance, Inc. under the Age

Discrimination in Employment Act, 29 U.S.C §§ 621-634 ("ADEA"). We

affirm.

I.

Cordero was forty-nine and on sick leave when he was

terminated on October 27, 2000 from his position as a Branch

Manager of Island Finance, a loan company for which he had worked

in differing capacities for more than 25 years. On May 15, 2002,

Cordero filed suit in federal court, alleging that Island Finance

had terminated his employment because of his age in violation of

the ADEA. Cordero also brought claims under 42 U.S.C. § 1983 and

Puerto Rico law.

On January 26, 2004, Island Finance moved for summary

judgment on Cordero's ADEA claims, as well as dismissal of his

claims under § 1983 and Puerto Rico law. In its motion for summary

judgment, Island Finance argued that Cordero was ineligible for

back pay, front pay, or reinstatement for any ADEA violation as a

matter of law because the Social Security Administration had

designated him disabled as of September 15, 2000, the date he went

on sick leave, and because Cordero continued to receive Social

Security Disability Insurance ("SSDI") benefits. Island Finance

also argued that Cordero could not recover liquidated damages,

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which are available only for willful violations of the ADEA. 29

U.S.C. § 626(b); see Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 125 (1985) (explaining that statutory provision "which

makes the award of liquidated damages mandatory" under the Fair

Labor Standards Act "is significantly qualified" in its application

to the ADEA "by a proviso that a prevailing plaintiff is entitled

to double damages 'only in cases of willful violations.'" (quoting

29 U.S.C. § 626(b))).

The district court issued an opinion and order on

September 30, 2004 granting Island Finance's motion for summary

judgment on Cordero's ADEA claims, granting its motion to dismiss

Cordero's § 1983 claims, and declining to exercise supplemental

jurisdiction over Cordero's claims under Puerto Rico law. See

Cordero Soto v. Island Fin., Inc., 338 F. Supp. 2d 299 (D.P.R.

2004). The court first explained that, as a result of Cordero's

"repeated lack of compliance with the deadlines to oppose both

motions, this Court denied plaintiff's final request for an

extension of time. Therefore, both motions are unopposed." Id. at

300. However, the court later "ordered the parties to file

supplemental briefs on the issue of Island Finance's reasons for

terminating Cordero, and Cordero did file an opposition to Island

Finance's brief," including seventeen attached exhibits. Id. at

301. "Of those exhibits, seven (7) were submitted in the Spanish

language without a certified English translation." Id. Because

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Cordero "did not ask for leave to file said exhibits in Spanish

while he obtained the necessary translations" or "subsequently

present any translations," the court excluded the Spanish-language

exhibits from consideration. Id.

Turning to the merits of Island Finance's motion for

summary judgment, the court concluded that because "Cordero

continues to receive benefits for a disability that prevents him

from being gainfully employed, and has not submitted evidence that

he would be able to go back to work," he was ineligible as a matter

of law for back pay, front pay, or reinstatement for any ADEA

violation. Id. at 302. The court also concluded that Cordero

could not recover liquidated damages for a willful ADEA violation.

Id. Cordero filed a timely notice of appeal from the court's grant

of summary judgment on his ADEA claim, challenging (1) the court's

denial of Cordero's motion for an extension of time and its

exclusion of the Spanish-language exhibits, and (2) its decision on

the merits.1

II.

A. Scope of the Summary Judgment Record

Under the local rules of the United States District Court

for the District of Puerto Rico, "[u]nless within ten (10) days

1
Cordero does not appeal the dismissal of his § 1983 claims
pursuant to Fed. R. Civ. P. 12(b)(6) or the dismissal without
prejudice of his claims under Puerto Rico law. See Cordero-Soto,
338 F. Supp. 2d at 302-03.

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after the service of a motion the opposing party files written

objection thereto, incorporating a memorandum of law, the opposing

party shall be deemed to have waived objection." D.P.R. R. 7(b)

(renumbered as Rule 7.1(b), effective April 5, 2004). However,

Federal Rule of Civil Procedure 6(b) confers discretion on a court

to grant an extension of time after the expiration of a filing

deadline for "excusable neglect." "In the absence of a manifest

abuse of discretion, . . . we will not interfere with a district

court's reasoned refusal to grant incremental enlargements of

time." Mendez v. Banco Popular de P.R., 900 F.2d 4, 7 (1st Cir.

1990). No such abuse occurred here.

The court granted Cordero's first request for an

extension of time until February 25, 2004. On March 4, 2004,

Cordero requested an additional extension of time until March 8,

2004.2 By March 18, 2004, when Cordero still had not filed an

opposition, the court issued an order declaring his motion of March

4, 2004 moot and Island Finance's motion for summary judgment

unopposed. On March 30, 2004, Cordero filed a third motion for an

extension of time until April 20, 2004, attaching a hospital

discharge record and explaining that his counsel had been

hospitalized from March 5 through March 10, 2004 with a "pulmonary

2
Cordero's motion cited "technical difficulties with the
implementation of the [court's] electronic filing system," problems
saving a computer file, and schedule conflicts that had prevented
the filing an opposition on or before February 25, 2004.

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infection and other conditions," after which counsel was instructed

to rest for 20 days.

Island Finance filed an opposition to Cordero's motion

the next day, arguing, inter alia, that Cordero's counsel had been

well enough to take a deposition on March 18, 2004, and therefore

could have filed his third motion for an extension before March 30,

2004. The court denied Cordero's motion on April 2, 2004, stating:

"This Court notes that plaintiff has repeatedly failed to comply

with this Court's deadlines, and failed to notify this court in a

timely manner of any circumstances that could support an extension

of time."

While we do not fault counsel for choosing to risk his

own health on his client's behalf by taking a deposition, the court

could reasonably have expected him to make the small additional

effort of contemporaneously filing a motion for an extension of the

deadline for responding to the pending motions. Under these

circumstances, the court did not abuse its discretion in denying

Cordero's third motion for an extension of time to file an

opposition. As a consequence, the court properly treated Island

Finance's motion as unopposed and its statement of facts admitted.

See Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir. 2003)

("This court has held repeatedly that the district court in Puerto

Rico is justified in holding one party's submitted uncontested

facts to be admitted when the other party fails to file oppositions

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in compliance with local rules."); D.P.R. R. 56(e) ("Facts

contained in a supporting or opposing statement of material facts,

if supported by record citations as required by this rule, shall be

deemed admitted unless properly controverted.") (proposed rule

effective September 29, 2003, adopted as final rule effective April

5, 2004).

Nor did the court abuse its discretion by excluding from

consideration Cordero's Spanish-language exhibits. "It is well

settled that federal litigation in Puerto Rico [must] be conducted

in English." González-De Blasini v. Family Dep't, 377 F.3d 81, 88

(1st Cir. 2004) (internal quotation marks and citation omitted); see

Pena-Crespo v. Puerto Rico, 408 F.3d 10, 14 (1st Cir. 2005) (not an

abuse of discretion for the district court to exclude plaintiff's

expert testimony where the plaintiff failed to provide an English

translation of expert's report and resume, and made no attempt to

remedy the omission before the court); see also 48 U.S.C. § 864;

D.P.R. R. 10(b) ("All documents not in the English language which

are presented to or filed in this Court, whether as evidence or

otherwise, shall be accompanied at the time of presentation or

filing by an English translation thereof, unless the Court shall

otherwise order.") (approved as final rule effective April 5,

2004).

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B. Merits

"Even where the record is circumscribed because summary

judgment was unopposed, a district court may grant summary judgment

against the nonresponding party only 'if appropriate.'" Torres-

Rosado, 335 F.3d at 9 (quoting Fed. R. Civ. P. 56(e)).

Accordingly, "before granting an unopposed summary judgment motion,

[t]he court must inquire whether the moving party has met its

burden to demonstrate undisputed facts entitling it to summary

judgment as a matter of law." Lopez v. Corporación Azucarera de

P.R., 938 F.2d 1510, 1516 (1st Cir. 1991) (internal quotation marks

omitted, alteration in original).

We review the grant of summary judgment de novo, based on

the record as it stood before the district court. Torres-Rosado,

335 F.3d at 9, 5.3 We view the record in the light most favorable

to Cordero, the non-moving party. Estades-Negroni v. Assocs. Corp.

of N. Am., 377 F.3d 58, 62 (1st Cir. 2004). Pursuant to Fed. R.

Civ. P. 56(c), summary judgment is warranted "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

3
We therefore do not consider the affidavit of Hector Cardona,
Cordero's supervisor, which Cordero did not file with the court
until he moved to alter or amend judgment pursuant to Fed. R. Civ.
P. 59(e) on October 11, 2004. Because Cordero did not amend his
notice of appeal, which was filed while his Rule 59(e) motion was
pending, the court's subsequent decision denying the Rule 59(e)
motion is not properly before us. See Rio Grande Cmty. Health
Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005) (limiting
jurisdiction to order in notice of appeal where "[n]o new notice of
appeal was filed after [later] orders were entered, as required by
Fed. R. App. P. 4(a)(4)(B)(ii)").

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together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." "Once the moving party avers

the absence of genuine issues of material fact, the nonmovant must

show, through materials of evidentiary quality, that such a dispute

exists." Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (1st Cir.

2004).

In order to prevail on a claim of pretextual age

discrimination, an ADEA claimant who lacks direct evidence, as

Cordero does, must first make out a prima facie case triggering a

rebuttable presumption of age discrimination by

adduc[ing] evidence that (1) [he] was at least
forty years of age; (2) [his] job performance
met the employer's legitimate expectations;
(3) the employer subjected [him] to an adverse
employment action (e.g., an actual or
constructive discharge); and (4) the employer
had a continuing need for the services
provided by the position from which the
claimant was discharged.

Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 n.5 (1st Cir. 2002).

Upon a sufficient showing, the burden of production shifts to the

employer "to articulate a legitimate, nondiscriminatory basis for

its adverse employment action." Id. at 69. Once an employer has

made a successful proffer, the claimant must then establish that

the employer's given reason "was pretextual" and that the record

evidence would permit a reasonable jury to infer that the real

reason was "discriminatory animus" based on his age. Id.

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 Applying this three-step test within the framework of a

motion for summary judgment, we conclude that Island Finance was

entitled to summary judgment, although we affirm on grounds that

differ from those given by the district court. See Estades-

Negroni, 377 F.3d at 62 ("We may affirm the district court's

decision on any grounds supported by the record."). Assuming

Cordero has established a prima facie case of age discrimination,

the evidence supports the inference that Island Finance had a

legitimate, non-discriminatory reason for terminating Cordero's

employment: the branch office for which Cordero was responsible

performed worse than at least 40 other branches, based on at least

three objective financial indicators.

According to the affidavit of Sylvia Chaluissant

Sepulveda, Vice-President, Human Resources Director of Island

Finance Puerto Rico, Inc., Island Finance made the decision "to

replace those Branch Managers whose branches[,] [based on] the

Branches Comparison Report corresponding to August 2000, were not

performing as expected and whose performance ranked 41 or above in

three or more . . . areas." Upon analysis of financial data for

each branch, according to Chaluissant's affidavit, Island Finance

determined that "Mr. Juan Cordero was one of the Branch Managers

whose Branch's performance ranked 41 or above in three areas and

was not performing as expected. The categories in which Mr.

Cordero's Branch was ranked 41 or above were Activity (41), Gain

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(50) and Delinquency (43)." The affidavit explains that "Activity

measures the number of loans made by the Branch"; "Gain measures

the growth or reduction of their outstanding receivables, the

dollars outstanding"; and "Delinquency measures the payments past

due on the Branch." The attached "Island Finance Puerto Rico

Branches Comparison Report as of August, 2000" corroborates

Chaluissant's statements. Chaluissant's affidavit concludes: "The

reasons for Plaintiff's discharge were entirely based on the lack

of performance of the Branch he managed." Finally, the deposition

testimony of Mr. Oriol Segarra, President of Island Finance, who

signed Cordero's termination letter, also indicates that the

decision of which Branch Managers to replace was based on an

evaluation of the performance of each manager's branch.4

In the face of this evidence, Cordero argues that Island

Finance's apparently legitimate reason for terminating him is in

fact pretextual, and that its true reason was his age. As support

for the inference of pretext, Cordero points to his own affidavit,

in which he states that "[i]n my case, as well as [those of] other

managers and senior managers, I was transferred to another branch

with lower production shortly before my termination. Likewise,

4
Cordero does not contest Island Finance's data analysis,
except to argue that a Branch Manager's performance should be based
on more than the financial performance of his branch. Even
assuming this to be true, "[c]ourts may not sit as super personnel
departments, assessing the merits -- or even the rationality -- of
employers' nondiscriminatory business decisions." Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991).

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other managers were transferred to better ranked branches so they

would appear as achievers in a short period of time." In addition

to being unsigned and undated, Cordero's affidavit provides no

basis for his personal knowledge of the facts supporting his

statements, as is required for consideration in opposition to a

motion for summary judgment. Fed. R. Civ. P. 56(e) (affidavits

"shall be made on personal knowledge . . . [and] show affirmatively

that the affiant is competent to testify to the matters stated

therein"). Furthermore, "[a] properly supported motion for summary

judgment cannot be defeated by relying upon improbable inferences,

conclusory allegations, or rank speculation" of the sort contained

in Cordero's affidavit. Rathbun, 361 F.3d at 66.

In the absence of any "evidence from which a reasonable

jury could infer, without the most tenuous insinuation," that

Island Finance's legitimate, non-discriminatory reason for

terminating Cordero "was actually a pretext for age

discrimination," Mesnick, 950 F.2d at 826, Island Finance is

entitled to summary judgment.5 The district court's grant of

summary judgment dismissing Cordero's ADEA claims is affirmed.

So ordered.

5
We therefore do not address the effect of Cordero's
successful claim for SSDI benefits on his entitlement to specific
remedies under the ADEA.

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