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.
-2-
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.
-3-
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
-4-
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.
-5-
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.
-6-
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).
-7-
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.
-8-
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.
-9-