Zukowski v. St. Lukes Home Care Program

United States Court of Appeals
For the First Circuit

No. 02-1887

MARIA ZUKOWSKI,

Plaintiff, Appellant,

v.

ST. LUKES HOME CARE PROGRAM,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Idalia Marie Diaz-Pedrosa with whom Moreda & Moreda was on
brief for appellant.
Anita Montaner-Sevillano with whom Francisco Chevere and
McConnell Valdes were on brief for appellee.

April 18, 2003
 COFFIN, Senior Circuit Judge. Appellant Maria Zukowski was

discharged by her employer, appellee St. Lukes Home Care Program,

following a verbal exchange with a supervisor about a memo

concerning her history of absenteeism and tardiness. Appellee says

she was fired because the memo incident was the third instance of

disrespectful behavior toward co-workers, and she previously had

been warned that another episode would lead to discharge.

Appellant, however, maintains that she was terminated based on her

age and national origin.

The United States District Court for the District of Puerto

Rico granted summary judgment for appellee, concluding that the

offered evidence of discrimination was insufficient to support

appellant's claims. She sought reconsideration, primarily based on

a prior Commonwealth court finding that she had been wrongfully

terminated; she asserted that the earlier ruling determined that

St. Lukes' justification for her firing was pretextual, and she

accused appellee of misrepresentation "tantamount to fraud" for

failing to fully inform the federal court of the significance of

that decision. The district court refused to disturb its earlier

ruling, and this appeal followed. We affirm.

I. Background

We briefly set out additional details relevant to our

consideration of the appeal. The incident that triggered

appellant's discharge occurred late on Friday, March 13, 1992.

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Appellant and other employees in her department received memoranda

from their supervisor, Eugenia Rivera, about their vacation and

sick time. Appellant stated that she was "traumatized" by the

memo, and it is undisputed that she expressed disagreement with its

contents and complained that it had ruined her weekend. In a memo

on the incident, Rivera reported that appellant had spoken to her

"in an altered and disrespectful manner" in front of other

employees, asserted that she (appellant) would not work overtime

any more, and complained that this was "worse than communism with

Fidel Castro." Rivera's superiors stated that they investigated

the incident and reviewed appellant's disciplinary file before

terminating her on March 17. She was forty-seven years old.

Following her discharge, appellant initially filed a claim

against St. Lukes in the Puerto Rico Court of First Instance (CFI),

Ponce District, alleging unjust dismissal under Puerto Rico "Law

80," P.R. Laws Ann. tit. 29, §§ 185a-185m.1 In finding in

appellant's favor, the CFI judge stated that Rivera was "neither

credible nor trustworthy, when stating that [appellant] reacted in

a very belligerent and disrespectful manner." The court further

observed:

The version about said events provided by [appellant]
seems, to us, to be more credible when she indicated that

1
Law 80 deems as without just cause discharges made "by the
mere whim or fancy of the employer or without any reason related to
the proper and normal operation of the establishment." 29 P.R.
Laws Ann. tit. 29, § 185b.

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 she had asked how she could improve her absences from
vacation, if those were entitlements acknowledged by law,
and the same as to any days she was entitled to under
sick leave. Equally trustworthy was [appellant's]
statements indicating that her only comment at the time
was that, as a result of such notice, her week-end had
gone afoul.

The court, after observing that other employees also made comments

about the memo but were not disciplined, concluded that "[t]he

sanctions imposed in view of the comments made by Complainant to

Mrs. Rivera Collazo, are way out of proportion."

After exhausting the requisite administrative requirements,

appellant in October 1998 filed this action in federal court

alleging violations of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Puerto Rico's

employment discrimination statute, "Law 100," P.R. Laws Ann. tit.

29, § 146. To support her discrimination claims, appellant, who is

of German origin, offered the following evidence: (1) comments by

two co-workers in 1986 and her supervisor, Rivera, in 1990 or 1991,

about the way she pronounced "the 'ss' sound," (2) that Rivera and

others would refer to her as "the German" or "the Polish," (3) a

critical comment "yell[ed]" at her by St. Lukes' executive

director, Luz N. Rodriguez, about gift customs "in your country,"

(4) that on one occasion in 1986 when plaintiff was covering the

switchboard, Rodriguez told plaintiff she was not being understood

when she spoke, (5) that Rivera and another employee would

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sometimes call her "la vieja" (old woman), and (6) on one occasion,

Rivera asked her why she did not resign, get food stamps, and go

take care of her mother.

St. Lukes moved for summary judgment on May 26, 2000, and

appellant replied on September 18 of that year. On May 8, 2002,

represented by new counsel, appellant filed a motion for additional

discovery under Fed. R. Civ. P. 56(f).

Five days later, on May 14, 2002, the district court entered

its summary judgment ruling (which was dated May 10). The court

discounted all of the allegedly discriminatory comments cited by

appellant, noting that some were "far removed from the date of

dismissal in 1992" and that none was "even remotely related to the

decisional process of firing plaintiff." Citing Baralt v.

Nationwide Mut. Ins. Co., 251 F.3d 10, 17 (lst Cir. 2001), the

court stated that the alleged comments "are best characterized as

the kind of 'stray remarks that [can be] suggestive but [are] often

found [to be] insufficient to prove discrimination in the absence

of more meaningful evidence.'" The court thus found that the

evidence in the record failed to support an inference of unlawful

discrimination based on either age or national origin, and it

entered summary judgment in favor of St. Lukes.2 On May 15, the

2
The court dismissed with prejudice the Title VII and ADEA
claims and dismissed the supplemental claim under Puerto Rico law
without prejudice.

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court denied appellant's Rule 56(f) motion without addressing the

merits, noting that the case had been dismissed.

Appellant moved for reconsideration under Fed. R. Civ. P.

59(e), arguing that the CFI ruling on her Law 80 claim established

that St. Lukes' justification for the discharge – her supposedly

disrespectful conduct on March 13 and her prior discipline history

– was a pretext, and that she therefore was entitled to move

forward with her discrimination claims or have judgment entered in

her favor. She claimed that St. Lukes induced the federal court to

overlook the findings in the Commonwealth judgment and that the

company's misrepresentations about that earlier ruling were

"tantamount to fraud." She further requested that the court

consider the arguments previously made in her motion under Rule

56(f) for additional discovery.

The district court denied the motion for reconsideration, but

responded explicitly only on the Rule 56(f) issue, stating that

appellant's motion was untimely because it was filed two years

after St. Lukes moved for summary judgment. Appellant then brought

this appeal, in which she argues that the court erred in failing to

address and credit her contention that the CFI decision precluded

summary judgment for her employer. She contends that St. Lukes'

misrepresentations led the court to its erroneous grant of summary

judgment and that that decision should therefore be vacated.

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 II. Discussion

In essence, appellant's claim on appeal is that the district

court should have granted her motion for reconsideration because

the CFI judgment substantiates the validity of her discrimination

claims against St. Lukes, and it was St. Lukes' dissembling –

bordering on fraud – that kept the full impact of that ruling from

the district court before its summary judgment decision.3

We have multiple difficulties with this view of the case.

First, St. Lukes by no means concealed the CFI judgment from the

district court; indeed, St. Lukes argued in its motion for summary

judgment that res judicata, based on the Commonwealth ruling, was

a bar to appellant's federal action. St. Lukes also referenced the

CFI action, including the case number, in the Statement of

Uncontested Facts it submitted with its motion for summary

judgment. Second, appellant obviously was aware of the

Commonwealth court findings and had every opportunity to argue that

they foreclosed summary judgment, but did not do so.

Moreover, the CFI ruling does not substantively undercut the

district court's summary judgment decision. The Commonwealth

court, crediting appellant's version of the March 13 incident,

3
Under Fed. R. Civ. P. 59(e), a court may alter or amend a
judgment based on a "'manifest error of law or fact'" or newly
discovered evidence. Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (lst
Cir. 1997) (citation omitted). We note that the rule "does not
allow a party to introduce new evidence or advance arguments that
could and should have been presented to the district court prior to
the judgment." Id. (citation omitted).

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found that termination was excessive discipline for the nature of

her conduct and that her dismissal was therefore unjust. The

court's ruling accepts, however, that some kind of confrontation

between appellant and Rivera occurred; and the court did not

attribute the termination to any other motivation, such as age or

national origin discrimination. Appellant's suggestion that the

decision establishes pretext is, therefore, without foundation.

At best, the Commonwealth decision allowed appellant to argue

in federal court that, based on the CFI findings, some explanation

other than her "disrespectful" behavior must have motivated the

termination. Under both Title VII and the ADEA, however, she had

the burden of proving that it resulted from unlawful discrimination

rather than, for example, "an insensitive overreaction to a series

of minor transgressions." Baralt, 251 F.3d at 18. To defeat

summary judgment, therefore, appellant needed to produce competent

evidence of either age or national origin discrimination.

The district court concluded in its summary judgment decision

that the evidence she offered – the various comments noted above –

was inadequate to permit a jury to rule in her favor. Appellant

does not argue in her brief that the district court erred in

reaching that conclusion; she limits her focus to the CFI ruling

and its implications. We have said enough on why that challenge

fails to taint the grant of summary judgment.

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 Indeed, appellant's notice of appeal seeks review of only the

district court's denial of her motion for reconsideration, not its

substantive summary judgment ruling, and our review is accordingly

limited to the court's refusal to reopen the case. See Aybar v.

Crispin-Reyes, 118 F.3d 10, 13-15 (lst Cir. 1997).4 We may disturb

that judgment only for an abuse of discretion or error of fact or

law. Id. at 13, 15; see also Perez v. Volvo Car Corp., 247 F.3d

303, 318-19 (lst Cir. 2001). As our discussion makes clear,

neither occurred here.

Affirmed.

4
Although this limitation is flexible when it "can be fairly
inferred from the notice" that appellant intended to appeal more
than just the specified order, Aybar, 118 F.3d at 15 n.5 (citation
omitted), appellant in this case consistently has focused on the
motion to reconsider, and we find no basis to extend the appeal
beyond review of that ruling.

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