United States Court of Appeals
For the First Circuit
No. 03-1637
SARA DE LA VEGA,
Plaintiff, Appellant,
v.
THE SAN JUAN STAR, INC., a/k/a The San Juan Star
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Selya, and Lipez, Circuit Judges.
Anibal Lugo Miranda for appellant.
Roberto O. Maldonado Nieves for appellee.
August 3, 2004
LIPEZ, Circuit Judge. Appellant Sara de la Vega filed an
age discrimination claim against her employer, The San Juan Star
(the Star), pursuant to the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621-634, and Puerto Rico's anti-discrimination
law, P.R. Laws Ann. tit. 29, § 146-151, also known as "Law 100."
After discovery was completed, the Star filed a motion for summary
judgment. De la Vega failed to respond within the time allowed
under the local rules. On that basis alone, the district court
entered summary judgment for the Star. Although de la Vega twice
requested reconsideration of the judgment, the district court
denied each motion.
We hold that the district court erred when it entered
summary judgment as a sanction. Nevertheless, on the basis of our
own analysis of the summary judgment record, we affirm the grant of
summary judgment to the Star because de la Vega failed to establish
a prima facie case of age discrimination.
I.
We glean the following facts from the summary judgment
record. We recount additional facts in the course of our
discussion where appropriate.
The Star is a newspaper with circulation throughout
Puerto Rico. In May of 1994, the Star hired Sara de la Vega as its
Personnel Director. She was 54 years old at the time of her
hiring. In 1996, de la Vega was promoted to the position of
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Executive Assistant to the President. In this new position, her
duties included oversight of the personnel department,
administration of vacation and sick leave policies, administration
of the health plan, compliance with the collective bargaining
agreement, negotiation with union representatives, and any
additional responsibilities allocated to her by the President of
the Star, Gerardo Angulo. During the period from 1994 to 1998, de
la Vega's compensation package gradually increased from
approximately $40,000 per year to $100,000 per year.
In 1997, the Star hired Salvador Hasbun as a Marketing
Director. On April 28, 1998, the Star promoted Hasbun to the newly
created position of General Manager, which required him to oversee
the production and sales departments of the Star. Prior to
creating this position, Angulo had been overseeing those
departments in addition to his duties as President and CEO. Hasbun
was 41 years old at the time of this promotion.
In her complaint, de la Vega claimed that her duties were
effectively transferred to Hasbun after his promotion, and that she
was "stripped of essentially all authority and/or decision making
power." She alleged that Hasbun was "less qualified" to perform
these duties and that he was entrusted with them because he was a
"much younger person." She further claimed, without citing any
specific instance, that members of the Star staff attempted to "get
rid" of her by submitting her to "humiliating and discriminatory
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treatment." Despite these claims, de la Vega retained the title of
Executive Assistant to the President and received the same pay and
benefits package that she had received prior to Hasbun's promotion.
On September 2, 2000, de la Vega submitted a letter of
resignation to Angulo. The letter did not state a reason for her
departure, and it made no reference to perceived discrimination or
to dissatisfaction with her working conditions. Angulo asked de la
Vega to withdraw her resignation and to continue working for the
Star. At first she agreed to continue her employment, but on
November 13, 2000, she submitted a second letter of resignation.
It stated:
The environment and supervision style you have
shown in our work interaction, more or less
during the last months, do not permit me to
continue [working for the Star]. On multiple
occasions I have sat down with you and we have
spoken about this matter. Nevertheless[,]
during the last months it has intensified and
it reached its optimum level on Thursday,
November 9.1
Again, Angulo asked de la Vega to withdraw her resignation, and
again de la Vega agreed to continue working for the Star.
Finally, on February 5, 2001, de la Vega submitted her
third and final letter of resignation. In that letter she related
an incident occurring on February 2, 2001, in which Angulo had
reprimanded her in front of several senior members of the Star's
1
Neither this letter, nor de la Vega's complaint, specified
the events of November 9 to which de la Vega referred.
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staff after she interrupted a meeting. She referred to past
instances in which she had asked Angulo to address such matters in
private to avoid embarrassment. She further referred to the
"constant hostile confrontation level that you had been showing
toward me during the last two years." For a third time, Angulo
asked de la Vega to return to her duties at the Star. This time,
however, de la Vega refused. In a letter dated April 1, 2001,
Angulo reluctantly accepted de la Vega's resignation as Executive
Assistant to the President and suggested that she might continue to
work for the Star as a consultant.2
On or about May 4, 2001, de la Vega filed an age
discrimination charge with the Anti-Discrimination Unit of the
Puerto Rico Department of Labor and the Equal Employment
Opportunity Commission (EEOC). After receiving "right to sue"
letters, she brought this action in district court.
II.
De la Vega filed her complaint on February 26, 2002,
alleging that the Star had constructively discharged her from her
employment in violation of the ADEA and Puerto Rico's Law 100. The
Star filed its response on May 22, 2002. The district court
scheduled a trial date of May 28, 2003, and the parties undertook
discovery. On February 11, 2003, the Star filed a motion for
2
The record does not indicate whether de la Vega ever
performed consulting work for the Star.
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summary judgment. Pursuant to local rule 7.1(b) of the District of
Puerto Rico, de la Vega's response to this motion was due by
February 21, 2003.3 She did not file a timely response, and the
Star filed a motion requesting entry of judgment on February 27,
2003.4
On March 4, 2003, the district court granted the Star's
unopposed motion for summary judgment. On March 5, 2003, de la
Vega filed a motion requesting reconsideration of the judgment; on
March 14, 2003, she filed an opposition to the Star's motion for
summary judgment. On March 18, 2003, the district court denied de
la Vega's motion for reconsideration, admonishing plaintiff's
counsel for failing to meet the filing deadline and failing to
request an extension of time. On March 21, 2003, de la Vega filed
a second motion requesting reconsideration of the judgment; on
April 3, 2003, the district court denied that motion without
comment.
3
D.P.R. R. 7.1(b) (formerly rule 311.5) provides in relevant
part:
Unless within ten (10) days 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.
4
According to de la Vega's counsel, he had prepared a motion
asking for an enlargement of time to file a response to the summary
judgment motion, but had inadvertently failed to file the motion
with the court. Counsel also claims that he did not learn of the
Star's February 27 motion requesting entry of judgment until March
10, 2003.
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De la Vega now appeals from the district court's order of
March 4, 2003, entering summary judgment in favor of the Star. She
argues on appeal that, even when unopposed, the district court may
grant a motion for summary judgment only if it concludes that there
is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. In this case, she
contends that the district court never undertook this required
analysis and instead granted the Star's motion as a sanction
against de la Vega for failing to meet the filing deadline for a
response to the Star's summary judgment motion. Further, she
contends that the Star's motion did not establish its entitlement
to summary judgment as a matter of law. We take each of these
arguments in turn.5
III.
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
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." Fed. R. Civ. P. 56(c). "A fact
is material if it carries with it the potential to affect the
5
In addition, de la Vega argues that her failure to file a
timely opposition to the Star's motion for summary judgment was not
the kind of inexcusable neglect or egregious conduct that would
warrant an entry of judgment in favor of the opposing party.
Because we hold that the district court improperly granted the
Star's summary judgment motion as a sanction against de la Vega, we
do not address this argument.
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outcome of the suit under the applicable law." One Nat'l Bank v.
Antonellis, 80 F.3d 606, 608 (1st Cir. 1996) (citation and internal
quotation marks omitted). We review the district court's grant of
summary judgment de novo. Id.
Rule 56(e) governs the obligations of adverse parties to
respond to a summary judgment motion. It provides in relevant
part:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of the adverse party's pleading,
but the adverse party's response . . . must
set forth specific facts showing that there is
a genuine issue for trial. If the adverse
party does not so respond, summary judgment,
if appropriate, shall be entered against the
adverse party.
Fed. R. Civ. P. 56(e) (emphasis added). We have previously
emphasized the import of the last quoted sentence:
It is well-settled, however, that [the
language of Rule 56(e)] does not mean that a
moving party is automatically entitled to
summary judgment if the opposing party does
not respond. . . . [T]he district court cannot
grant a motion for summary judgment merely for
lack of any response by the opposing party,
since the district court must review the
motion and the supporting papers to determine
whether they establish the absence of a
genuine issue of material fact. . . .
. . . The court must first inquire
whether the moving party has met its burden to
demonstrate undisputed facts entitling it to
summary judgment as a matter of law.
Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989) (per curiam)
(citations omitted); see also NEPSK, Inc. v. Town of Houlton, 283
-8-
F.3d 1, 7-8 (1st Cir. 2002) ("[A] district court may not
automatically grant a motion for summary judgment simply because
the opposing party failed to comply with a local rule requiring a
response within a certain number of days.").
In this case, the district court issued three rulings,
none of which determined whether the Star had established
undisputed facts entitling it to summary judgment as a matter of
law. On March 4, 2003, the district court entered a judgment
stating in its entirety: "Plaintiff has failed to respond to
Defendant's motion for summary judgment. Accordingly, Defendant's
motion is granted and judgment is hereby entered dismissing all
claims in favor of the Defendant." On March 18, 2003, the district
court denied de la Vega's first motion for reconsideration, stating
that "there is absolutely no excuse for a party to miss a court
mandated deadline without submitting a simple motion for an
extension of time." (emphasis in original). The court suggested
that the episode should "be a reminder to Plaintiff's counsel that
[t]he law ministers to the vigilant not to those who sleep upon
perceptible rights. [A] litigant . . . cannot be routinely
rewarded for somnolence and lassitude." (citation and internal
quotation marks omitted) Finally, the court's ruling on de la
Vega's second motion for reconsideration consisted of a single
word: "Denied."
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We have noted that "it is within the district court's
discretion to dismiss an action based on a party's unexcused
failure to respond to a dispositive motion when such a response is
required by a local rule." Town of Houlton, 283 F.3d at 7. "It is
equally clear, however, that a district court cannot enforce its
local rules in a way that conflicts with the Federal Rules of Civil
Procedure." Id. In this case, the district court did not comply
with Fed. R. Civ. P. 56(e). Rather, the district court appears to
have entered summary judgment for the Star solely as a sanction for
de la Vega's failure to file a timely response to the Star's
summary judgment motion. Rule 56 does not permit such a
disposition. The district court's entry of summary judgment as a
sanction was an error of law.
IV.
Although the district court erred in entering summary
judgment as a sanction, the court did not have to accept de la
Vega's late filing. We have previously laid out the consequences
to parties who do not timely file an opposition to a motion for
summary judgment:
[T]he opposing party, by failing to file [a
response] as required by the rule, waives the
right to controvert the facts asserted by the
moving party in the motion for summary
judgment and the supporting materials
accompanying it. The court will accept as
true all material facts set forth by the
moving party with appropriate record support.
If those facts entitle the moving party to
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judgment as a matter of law, summary judgment
will be granted.
Jaroma, 873 F.2d at 21. Thus, the district court had the authority
to rule on the record as developed by the parties' timely
submissions, taking as true the facts asserted in the summary
judgment motion of the Star so long as they were adequately
supported by the record. See, e.g., Mendez v. Banco Popular de
P.R., 900 F.2d 4, 7-8 (1st Cir. 1990) (affirming a summary judgment
ruling where the district court based its analysis only on the
timely filings).
We have before us on appeal the elements of the record
that the district court should have considered in analyzing the
summary judgment motion under Rule 56. Since our review of such a
summary judgment decision would be de novo, we see no purpose in
remanding this case to the district court to conduct the proper
analysis. Moreover, "[a]n appellate panel is not restricted to the
district court's reasoning but can affirm a summary judgment on any
independently sufficient ground." Mesnick v. General Elec. Co.,
950 F.2d 816, 822 (1st Cir. 1991). Therefore, we will address the
merits of the Star's summary judgment motion.6
The ADEA makes it unlawful for an employer "to discharge
any individual or otherwise discriminate against any individual
6
Still, we would always prefer to have the benefit of the
district court's analysis of the merits of a party's summary
judgment motion.
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with respect to [her] compensation, terms, conditions or privileges
of employment, because of such individual's age." 29 U.S.C. §
623(a)(1). To prevail on a claim under the ADEA, a plaintiff must
first establish a prima facie case. This requires the plaintiff to
show that "(1) she was at least forty years of age; (2) her job
performance met the employer's legitimate expectations; (3) the
employer subjected her to an adverse employment action (e.g., an
actual or constructive discharge); and (4) the employer had a
continuing need for the services [the claimant rendered]."
Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 n.5 (1st Cir. 2002)
(citing to Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.
2000).
De la Vega contends that the "adverse employment action"
she suffered was a constructive discharge.7 See Suarez, 229 F.3d
at 54 ("Just as the ADEA bars an employer from dismissing an
employee because of his age, so too it bars an employer from
engaging in a calculated, age-inspired effort to force an employee
to quit. Accordingly, a constructive discharge can ground an
employment discrimination claim."). "To prove constructive
discharge, a plaintiff must usually 'show that her working
conditions were so difficult or unpleasant that a reasonable person
7
Neither the Star nor de la Vega disputes that she was at
least forty years of age, that she met the Star's reasonable
employment expectations, or that the Star had a continuing need for
the services that de la Vega provided while employed at the Star.
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in [her] shoes would have felt compelled to resign.'" Lee-Crespo
v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.
2003) (citation omitted). "It is not enough that the plaintiff
suffered 'the ordinary slings and arrows that workers routinely
encounter in a hard, cold world.'" Id. (citation omitted).
De la Vega's complaint alleged that:
[O]n or about June 6, 1997, [de la Vega] was
substituted by a less qualified and much
younger person.8 Thereafter, [her] job
performance was subject to a vicious and
unreasonable attack. Although her title as
Executive Assistant and Human Resources
Manager remained the same, [de la Vega] was
stripped of essentially all authority and/or
decision making power. [The Star] was so
eager to get rid of [de la Vega] that on more
than one occasion she was humiliated before
other employees of [the Star]. As a result of
this humiliating and discriminatory treatment
by [the Star], [de la Vega] was forced to
resign involuntarily from her employment
effective February 5, 2002.
Despite its reference to "humiliating and discriminatory
treatment," the complaint does not set out any specific instance of
workplace harassment. Other than the promotion of Hasbun to
General Manager, and the resulting alleged reduction in de la
8
The reference to June 6, 1997, appears to be an error. Mr.
Hasbun was promoted to the position of General Manager on April 28,
1998. De la Vega has not alleged that the hiring or promotion of
any other person at the Star caused her to lose authority or
decision-making power.
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Vega's authority, the complaint does not set out a single specific
allegation of discriminatory conduct.9
The Star's summary judgment motion sets out several facts
that, if true, adequately refute de la Vega's allegations.10
Hasbun's affidavit states that, as general manager, he did not
supervise de la Vega, did not oversee her work, and did not become
involved in the personnel issues for which de la Vega was
responsible. It further states that he did not become involved in
any of de la Vega's duties after de la Vega resigned in February of
2001. Angulo's affidavit states that, during de la Vega's time at
the Star, she was never subject to demotion or adverse disciplinary
action and was never threatened with termination. He states that
Hasbun was hired to oversee the production and sales departments at
the Star, duties for which Angulo himself had previously been
responsible. He states that, at all times during de la Vega's
9
We recognize that a non-moving party cannot rely upon
allegations in a complaint to contest a motion for summary
judgment. See, e.g., Kelly v. United States, 924 F.3d 355, 357
(1st Cir. 1991) (stating that, in a summary judgment motion, "the
nonmovant may not rest upon mere allegations in . . . an unverified
complaint or lawyer's brief"). We cite the complaint here only to
explain the nature of de la Vega's constructive discharge claim.
10
The Star also asserts in its summary judgment motion that de
la Vega's claim is time barred because she knew or should have
known of the adverse employment action when Hasbun was promoted in
April of 1998, and therefore had to file her complaint within 300
days after that promotion. See 29 U.S.C. § 626(d); American
Airlines v. Cardoza-Rodriguez, 133 F.3d 111, 122-23 (1st Cir. 1998)
(discussing timeliness of ADEA claims). Because we find that de la
Vega has not established a prima facie case under the ADEA, we do
not reach the issue of timeliness.
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employment, she had a larger office than Hasbun and had two
assistants while Hasbun had none. Finally, Angulo states that he
never discriminated against de la Vega on the basis of her age or
for any other reason.
The Star also offers de la Vega's own letters of
resignation to refute her claim of age discrimination. While two
of the letters mention generally that de la Vega found Angulo's
managerial style to be troublesome, they do not recount the kind or
number of events necessary to show "harassment so severe and
oppressive that staying on the job while seeking redress . . . is
'intolerable.'" Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 33 (1st
Cir. 2003) (citation omitted) (discussing the requirements for
constructive discharge). Only the final letter recounts a specific
instance of alleged harassment: an occasion on which Angulo
allegedly reprimanded de la Vega in front of other employees for
interrupting a meeting. Moreover, none of the letters alleges
discriminatory conduct based on de la Vega's age. Finally, the
parties agree that, after each resignation, Angulo asked de la Vega
to return to work. This conduct belies any intention by Angulo to
force de la Vega to resign by creating a hostile work environment.
To be sure, de la Vega tells a different story in the
late filed opposition to the Star's motion for summary judgment.
However, as stated above, in the absence of a timely response from
de la Vega, the district court could "accept as true all material
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facts set forth by the moving party with appropriate record
support." Jaroma, 873 F.2d at 21. On appeal, pursuant to our de
novo review, we can do the same. Therefore, on the alleged ground
of constructive termination, we conclude that de la Vega cannot
sustain a prima facie case of age discrimination under the ADEA.
The Star is entitled to summary judgment as a matter of law on de
la Vega's ADEA claim.
"Law 100 is the Puerto Rico equivalent of the federal
ADEA, providing for civil liability in age discrimination actions."
Cardona Jimenez v. Bancomercio de P.R., 174 F.3d 36, 42 (1st Cir.
1999). "Under Law 100, a plaintiff establishes a prima facie case
of age discrimination by (1) demonstrating that [she] was actually
or constructively discharged, and (2) alleging that the decision
was discriminatory." Baralt v. Nationwide Mut. Ins. Co., 251 F.3d
10, 16 (1st Cir. 2001). Thus, like the ADEA, Law 100 requires a
plaintiff to demonstrate an actual or constructive discharge as
part of a prima facie case of age discrimination.
As stated above, the Star established in its summary
judgment motion facts that adequately refute de la Vega's claim of
constructive termination. Because de la Vega fails to demonstrate
that she was constructively terminated, she cannot establish a
prima facie case of age discrimination under Law 100. Therefore,
for the same reason that her ADEA claim fails, her Law 100 claim
also fails. See Gonzalez, 304 F.3d at 73 n.7 ("The district court
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order dismissing the Law 100 claim must be affirmed as well, since
the merits of the age-discrimination claims asserted under the ADEA
and Law 100 are coterminous.") (citation omitted).
Affirmed.
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