Dávila v. Corporación De Puerto Rico Para La Difusión Pública

United States Court of Appeals
For the First Circuit

No. 06-2353

ERNESTO DÁVILA,

Plaintiff, Appellant,

v.

CORPORACIÓN DE PUERTO RICO PARA LA DIFUSIÓN PÚBLICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

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

Eli B. Arroyo on brief for appellant.
Juan M. Frontera-Suau on brief for appellee.

August 7, 2007
 SELYA, Senior Circuit Judge. In this age discrimination

case, plaintiff-appellant Ernesto Dávila challenges the entry of

summary judgment in favor of his former employer, defendant-

appellee Corporación de Puerto Rico para la Difusión Pública (the

Station). Discerning no reversible error, we affirm.

I. BACKGROUND

The critical facts are uncomplicated. The Station is

Puerto Rico's public broadcasting outlet. On August 1, 2000, it

hired the appellant as a temporary worker in its engineering

department. One month later, the appellant received an appointment

as chief engineer, subject, however, to an explicit 10-month

probationary period. During that interval, the appellant was to be

trained in the duties of the position and periodically evaluated.

Evaluations were conducted on three occasions during the

probationary period: in December 2000, March 2001, and May 2001.

These reviews, composed by the Station's director of engineering,

Jorge E. González-Fonseca, were generally unfavorable. According

to González-Fonseca, the appellant lacked a working knowledge of

the Station's equipment, neglected to complete his assigned tasks

in a timely manner, and proved to be in constant need of

instruction.

Relying on these negative evaluations, the Station's

president, Linda Hernández, chose not to extend a permanent

-2-
appointment to the appellant and, instead, terminated his

employment at the end of the probationary period.

The appellant sued, asserting that the Station had

discriminated against him because of his age in violation of the

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

and Puerto Rico's anti-discrimination statute, P.R. Laws Ann. tit.

29, § 146 (Law 100). He claimed in substance that he was

terminated solely because González-Fonseca thought he was too old

for the job. The Station denied the pivotal allegations of the

complaint.

At the conclusion of discovery, the Station moved for

summary judgment. See Fed. R. Civ. P. 56. The district court

granted the motion over the appellant's objection, concluding that

there was no probative evidence of discriminatory animus. Dávila

v. Corporación de P.R. para la Difusión Pública, Civ. No. 04-2002,

2006 WL 2092570 (D.P.R. July 26, 2006). As an alternative ground,

the district court ruled that the Station was immune from the

appellant's claims for damages. See U.S. Const. amend. XI. This

timely appeal ensued.

II. DISCUSSION

We subdivide our analysis into several segments. First,

we briefly limn the standard of review and, relatedly, the summary

judgment standard. Next, we deal with an evidentiary question

concerning certain untranslated Spanish-language documents. Third,

-3-
we explain why we eschew any inquiry into the question of Eleventh

Amendment immunity. When these preliminaries have been completed,

we turn to the merits of the discrimination claims.

A. Standards.

We review a district court's entry of summary judgment de

novo. See Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.

2006). Like the district court, we must take the facts of record

in the light most flattering to the nonmovant (here, the appellant)

and draw all reasonable inferences in that party's favor. See id.

The object of summary judgment is "to pierce the

boilerplate of the pleadings and assay the parties' proof in order

to determine whether trial is actually required." Acosta v. Ames

Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004) (quoting Wynne v.

Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).

Thus, summary judgment is appropriate only when the record "show[s]

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(c).

For this purpose, an issue is genuine if "a reasonable

jury could resolve the point in favor of the nonmoving party."

Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). By

like token, a fact is material if it has the potential to determine

the outcome of the litigation. See Calvi v. Knox County, 470 F.3d

422, 426 (1st Cir. 2006). Where, as here, the nonmovant has the

-4-
burden of proof and the evidence on one or more of the critical

issues in the case "is . . . not significantly probative, summary

judgment may be granted." Acosta, 386 F.3d at 8 (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

B. Spanish-Language Documents.

We next address a threshold matter. In support of its

motion for summary judgment, the Station submitted an array of

papers. These included several Spanish-language documents

unaccompanied by corresponding English translations. Submission of

these documents contravened a local rule requiring all litigation

papers to be submitted in English. See D.P.R.R. 10(b). The

district court granted the Station leave to file these Spanish-

language writings but ordered certified translations to be

furnished within one month's time. The Station failed to comply.

More than two months after ordering the filing of

translations, the district court entered summary judgment for the

Station. Dávila, 2006 WL 2092570, at *7. In its decision, the

court did not allude to the missing translations. The appellant

contends that the rendering of summary judgment with the

untranslated documents in the record constituted reversible error.

"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) (citation and

internal quotation marks omitted); see 48 U.S.C. § 864 (requiring

-5-
that "all pleadings and proceedings in the United States District

Court for the District of Puerto Rico . . . be conducted in the

English language"). When a district court accepts foreign-language

documents without the required English translations, an appellate

court cannot consider the untranslated documents on appeal. See

Estades-Negroni v. Assocs. Corp. of N. Am., 359 F.3d 1, 2-3 (1st

Cir. 2004); Fed. R. App. P. 10. Where the record shows that

English translations were used in the trial court but somehow were

not put into the record as they should have been, the parties may

invoke Fed. R. App. P. 10 to correct the record. See, e.g., United

States v. Vazquez Guadalupe, 407 F.3d 492, 498 (1st Cir. 2005).

That is not the situation here. If the untranslated documents are

or may be essential to the resolution of an issue raised on appeal,

and are not subject to cure by means of Fed. R. App. P. 10, the

lack of translation may undermine meaningful appellate review.

United States v. Rivera-Rosario, 300 F.3d 1, 10 (1st Cir. 2002).

The documents in question here, translations of which

have been made available on appeal, consist of the appellant's

performance evaluations, letters from the Station's president

notifying him of his appointment and termination respectively, and

excerpts from his deposition testimony. It is crystal clear that

none of these documents bear on any of the issues that the court

found dispositive in adjudicating the summary judgment motion. In

any event, in addition to the untranslated documents, the Station

-6-
submitted other documents with its motion for summary judgment.

These included a sworn statement, in English, from Nancy Piñero,

the director of the Station's legal division. In that statement,

Piñero summarized the contents of the appellant's personnel file,

including the three performance reviews. Whatever additional

information might exist in the untranslated documents is wholly

extraneous and, therefore, inconsequential to the district court's

resolution of the matter. In short, the existence of the Piñero

statement makes it readily evident that nothing contained in the

documents had any bearing on the district court's ratio decidendi.

That ends this aspect of the matter. Because the

untranslated documents had no potential to affect the disposition

of the case at the summary judgment stage, we conclude that the

mere presence of the untranslated documents in the district court

record cannot support a claim of reversible error. See González-

De-Blasini, 377 F.3d at 89.

C. Eleventh Amendment Immunity.

The district court found, as an alternate ground of

decision, that the Station enjoys Eleventh Amendment immunity. The

appellant not only disputes that finding but also advances a claim

of waiver.

This contretemps might easily be mistaken as a threshold

issue. After all, the Eleventh Amendment has been described as

implicating subject-matter jurisdiction. See, e.g., Wis. Dep't of

-7-
Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J.,

concurring). This is potentially important because, in many

instances, colorable challenges to a court's subject-matter

jurisdiction must be adjudicated prior to adjudicating the merits

of a case. See Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 93-95 (1998).

Here, however, controlling circuit precedent allows us to

defer thorny Eleventh Amendment questions in cases in which it is

perfectly clear that the state entity will prevail on the merits.1

See Parella v. Ret. Bd. of R.I. Employees' Ret. Sys., 173 F.3d 46,

53-57 (1st Cir. 1999). This is such a case. Consequently, we

avail ourselves of this bypass option and proceed directly to the

merits of the appellant's claims.

D. The Merits.

The appellant seeks to recover on three causes of action.

First, he claims that the Station violated his procedural due

process rights in failing to provide him with notice and a hearing

prior to his discharge. Second, he claims that his ouster was

predicated on age and, thus, violated the ADEA. Third, he recasts

his federal age discrimination claim in the idiom of Law 100. We

deal with each cause of action in turn.

1
For purposes of the Eleventh Amendment, Puerto Rico is the
functional equivalent of a state. See Espinal-Dominguez v. Puerto
Rico, 352 F.3d 490, 494 (1st Cir. 2003).

-8-
 1. Due Process. The appellant asserts, for the first

time on appeal, that the Station abridged his procedural due

process rights by failing to grant him notice and an opportunity to

be heard prior to cashiering him. Although he concedes that a

probationary employee has no such rights, see, e.g., Somers v. City

of Minneapolis, 245 F.3d 782, 785 (8th Cir. 2001), he posits that

he had moved from probationary status to career status before the

ax fell.

The appellant bases this proposition on a statute that

provides in pertinent part that a probatory work contract "in no

case shall exceed three (3) months." P.R. Laws Ann. tit. 29, §

185(h). The statute further declares that, "should the employee

continue to work for the employer after the term established in the

probatory work contract, said employee shall acquire all the rights

of an employee." Id. The appellant takes this to mean that the

10-month probationary period to which he subscribed was illegal and

that he attained the status of a permanent employee after occupying

the chief engineer position for three months and one day.

This is an interesting argument, but it comes as an

afterthought. The appellant did not present it to the district

court. The argument is, therefore, forfeited.2 See United States

2
The Station argues that the appellant waived this argument by
not raising it before the district court. We do not agree. A
party waives a right only if he intentionally relinquishes or
abandons it; he forfeits a right by failing to assert it in a
timely manner. See United States v. Olano, 507 U.S. 725, 733

-9-
v. Leahy, 473 F.3d 401, 409-10 (1st Cir. 2007). We review

forfeited issues for plain error. See id. at 410. Plain error

review is not appellant-friendly; we will resuscitate a forfeited

argument only if the appellant demonstrates that "(1) an error

occurred (2) which was clear or obvious and which not only (3)

affected the [appellant's] substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

the judicial proceedings." United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001). As we explain below, the appellant in this

case cannot satisfy this exacting standard.

The Station was created by statute as an independent

public service corporation. See Public Broadcasting Corporation,

P.R. Laws Ann. tit. 27, §§ 501-513. Pursuant to this statutory

scheme, the Station is authorized to "adopt, amend and repeal

regulations to govern its affairs and activities." Id. § 504(3).

It is also authorized to "appoint and contract . . . employees . .

. in accordance with the personnel regulations that are

promulgated." Id. § 504(11).

Exercising these powers, the Station promulgated a

comprehensive set of regulations. See P.R. Reg. No. 5468 (July 13,

1995). Pertinently, one of those regulations provides that the

(1993); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.
2002). Because the argument in question was not identified in any
form or fashion below, the appellant could not be said, on this
record, to have intentionally abandoned it.

-10-
duration of a probationary work period for a Station recruit can be

between three months and one year. See id. § 8.9(2).

This regulation, which validates the 10-month

probationary period contained in the appellant's contract, arguably

conflicts with section 185(h) in that it purports to allow

probationary periods longer than three months. The question, then,

reduces to whether the Puerto Rico legislature intended the general

statute — section 185(h) — to restrict the latitude that it gave to

the Station in an entity-specific statute. There is no controlling

case law to guide us on how to navigate our way through such a

conflict. As a result, the answer to the nuanced question that the

appellant's argument poses is not immediately obvious.

That is game, set, and match. The lack of any clear,

easily determinable answer to a legal conundrum is, in itself,

enough to defeat a claim of plain error. See United States v.

Cordoza-Estrada, 385 F.3d 56, 60 (1st Cir. 2004). Accordingly, we

reject the appellant's procedural due process claim.

2. ADEA. The ADEA makes it unlawful for an employer to

"discharge any individual or otherwise discriminate against any

individual . . . because of such individual's age." 29 U.S.C. §

623(a)(1); see Suárez, 229 F.3d at 53. The appellant alleges that

his discharge transgressed this proscription.

When an employee claims to have been discharged in

violation of the ADEA, he must shoulder the ultimate "burden of

-11-
proving that his years were the determinative factor in his

discharge, that is, that he would not have been fired but for his

age." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991)

(quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st

Cir. 1988)). The Supreme Court has developed a burden-shifting

framework to facilitate the process of proving discrimination in

the absence of direct evidence. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973), see also Sanchez v. P.R. Oil

Co., 37 F.3d 712, 718-20 (1st Cir. 1994) (applying that framework

in an ADEA case).

The initial burden lies with the plaintiff to demonstrate

a prima facie case of discrimination. See, e.g., Velázquez-

Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007). To

satisfy this burden, the plaintiff must produce evidence showing

four facts: (i) that he was at least forty years old when shown the

door; (ii) that his job performance met or exceeded the employer's

legitimate expectations; (iii) that his employer actually or

constructively discharged him; and (iv) that his employer had a

continuing need for the services he formerly furnished. See id.;

Suárez, 229 F.3d at 53.

Here, the first, third, and fourth prongs of the

appellant's prima facie case are not in dispute. The Station

acknowledges that the appellant was in the protected age group on

May 31, 2000; it admits that it terminated his employment on that

-12-
date; and it concedes that it hired a replacement upon the

appellant's departure. There is a substantial question as to

whether the appellant has satisfied the second element but we

assume for the sake of argument that he has made the requisite

showing.

Once a plaintiff establishes a prima facie case, a

presumption of discrimination arises and the burden of production

shifts to the employer to proffer a legitimate, nondiscriminatory

reason for the discharge. See Rivera-Aponte v. Rest. Metro. #3,

Inc., 338 F.3d 9, 11 (1st Cir. 2003). The employer's burden is not

a burden of persuasion; the employer need do no more than

articulate a reason which, on its face, would justify a conclusion

that the plaintiff was let go for a nondiscriminatory motive. See

Sanchez, 37 F.3d at 720; Mesnick, 950 F.2d at 823.

In this instance, the Station asserted, through the sworn

statement of Piñero, that the appellant was terminated because of

poor work performance during his probationary stint. This

statement, by itself, provides sufficient basis for the district

court's conclusion that the Station articulated a nondisciminatory

motive for the appellant's discharge. See Douglas v. J.C. Penney

Co., Inc., 474 F.3d 10, 14 (1st Cir. 2007); Woodman v. Haemonetics

Corp., 51 F.3d 1087, 1092 (1st Cir. 1995).

When, as in this case, the employer produces a facially

adequate explanation for the discharge, the presumption of

-13-
discrimination created by the plaintiff's prima facie case

disappears from view. See Ramírez Rodríguez v. Boehringer

Ingelheim Pharm., Inc., 425 F.3d 67, 78 (1st Cir. 2005). At that

juncture, the burden reverts to the plaintiff, who must show that

the "reason given by the employer for the discharge is pretextual,

and, moreover, that it is pretext for age discrimination."

Sanchez, 37 F.3d at 720. In other words, the bottom-line question

of discrimination vel non comes front and center. See Ramírez

Rodríguez, 425 F.3d at 78; Zapata-Matos v. Reckitt & Colman, Inc.,

277 F.3d 40, 45 (1st Cir. 2002). At summary judgment, this

question reduces to whether or not the plaintiff has adduced

minimally sufficient evidence to permit a reasonable factfinder to

conclude that he was fired because of his age. See Ramírez

Rodríguez, 425 F.3d at 78; Zapata-Matos, 277 F.3d at 45.

Here, the appellant endeavors to carry this burden by

showing that the Station's proffered reason was a pretext and that

he was actually cashiered because of his age. His efforts take two

forms. First, he tries to discredit his negative performance

evaluations. Second, he cites office gossip as a basis for

concluding that the Station wanted to get rid of him because of his

age. Neither offering bears fruit.

The appellant's claim that his work performance was

unfairly evaluated rests on three supporting allegations: that he

was not given adequate training; that the reviews were an

-14-
inaccurate reflection of his performance; and that González-Fonseca

was unqualified to compile the reviews because he did not hold an

engineering license. This is whistling past the graveyard. These

allegations, even if true, would indicate no more than that the

appellant's dismissal was unfair or unwise; they would not indicate

age discrimination. We explain briefly.

When assessing a claim of pretext in an employment

discrimination case, a court's focus is necessarily on the

motivations and perceptions of the decisionmaker. Mesnick, 950

F.2d at 824. Thus, as long as the Station believed that the

appellant's performance was not up to snuff — and the appellant has

presented no evidence suggesting that management thought otherwise

— it is not our province to second-guess a decision to fire him as

a poor performer.3 That is true regardless of whether, to an

objective observer, the decision would seem wise or foolish,

correct or incorrect, sound or arbitrary. See Velázquez-Fernández,

476 F.3d at 12; see also Mesnick, 950 F.2d at 825 (explaining that

"courts may not sit as super personnel departments, assessing the

merits . . . of employers' nondiscriminatory business decisions").

For a quondam employee to withstand summary judgment in an age

discrimination case, there must be some significantly probative

3
There is no evidence that management relied on biased
information from an employee who demonstrably possessed a
discriminatory animus. See Cariglia v. Hertz Equip. Rental Corp.
363 F.3d 77, 85-88 (1st Cir. 2004).

-15-
evidence from which the factfinder can infer that the employer

discharged the employee because of his age. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47 (2000).

Proof of pretext may give rise to such an inference; proof of a

mistaken judgment does not.

This brings us to the appellant's other evidence of age

discrimination: his own affidavit, in which he asserted that

several unidentified co-workers had told him that González-Fonseca

believed that he (the appellant) "was too old to hold the position

of Chief Engineer."

The district court refused to give weight to this

statement, and so do we. The appellant offered the statement to

prove the truth of the matter asserted; that is, that González-

Fonseca believed the appellant was too old for the job. But the

appellant had no personal knowledge of any conversations between

González-Fonseca and his co-workers, and none of the co-workers

signed an affidavit or gave a deposition in which the contents of

any such conversations were disclosed. Consequently, the statement

was hearsay. See Fed. R. Evid. 801(c). It is black-letter law

that hearsay evidence cannot be considered on summary judgment.

See Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998);

Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990); see

also Fed. R. Civ. P. 56(e).

-16-
 In an effort to salvage this evidence, the appellant

labors to persuade us that the crucial statement is excluded from

the operation of the hearsay rule by either the exception for

party-opponent admissions or the exception for present sense

impressions. We are not convinced.

For a statement to qualify as an admission by a party-

opponent, the statement must be made by a party, a person

authorized by the party to make statements on its behalf concerning

the subject, or the party's agent or servant acting within the

scope of his or her agency or employment. See Fed. R. Evid.

801(d)(2); see also McDonough v. City of Quincy, 452 F.3d 8, 21

(1st Cir. 2006). While González-Fonseca would fit within this

taxonomy, he did not make the statement in question to the

appellant; rather, he is alleged to have made it to some

unidentified co-workers. Thus, unless these co-workers were of

sufficient stature to bind the Station, the statement is clearly

inadmissible as a mere third-party account of what González-Fonseca

is alleged to have said.

The appellant cannot clear this hurdle. He did not

identify his sources and, without that information, there is no

reliable way to tell whether they fit within any of the Rule

801(d)(2) categories. Therefore, the statement was not admissible

on this basis. See Orta-Castro v. Merck, Sharp & Dohme Química

P.R., Inc., 447 F.3d 105, 114 (1st Cir. 2006); see also Lopez-

-17-
Rosario, 134 F.3d at 35 (finding no abuse of discretion in

exclusion of hearsay statement absent any evidence that the person

who related the statement had authority to speak for the employer).

Alternatively, the appellant hawks the exception for

present sense impressions. Under this exception, a statement is

not hearsay if it describes or explains an event and is made either

while the declarant is perceiving the event or immediately

thereafter, such that the contemporaneity of the event and the

statement negate the possibility of deliberate falsification. See

Fed. R. Evid. 803(1) & advisory committee's note. The appellant

has offered no facts regarding the temporal relationship between

González-Fonseca's alleged comment and the co-workers' revelations

of what ostensibly was said. The appellant's account of the co-

workers' disclosures is thus rank hearsay and, as such,

inappropriate for consideration on summary judgment. See Lopez-

Rosario, 134 F.3d at 33.

That ends this aspect of the matter. Without González-

Fonseca's supposed statement, there is nothing in the summary

judgment record from which a reasonable factfinder could conclude

that the appellant was dismissed because of his age. Consequently,

summary judgment was appropriate in regard to the ADEA claim.

3. Law 100. The appellant's attempt to secure relief

under Law 100 need not detain us. As said, Law 100 is the Puerto

Rico anti-discrimination statute. As applied to age

-18-
discrimination, it differs from the ADEA only with respect to how

the burden-shifting framework operates.4 See Cardona Jimenez v.

Bancomerico de P.R., 174 F.3d 36, 42 (1st Cir. 1999).

We need not wax longiloquent. On the merits, age

discrimination claims asserted under the ADEA and under Law 100 are

coterminous. See Gonzalez v. El Dia 304 F.3d 63, 73 (1st Cir.

2002). That being so, it suffices to reiterate that the appellant

adduced no significantly probative evidence that his discharge was

motivated by age. Accordingly, the district court appropriately

entered summary judgment for the Station on the Law 100 claim. See

id.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reject the instant appeal.

Affirmed.

4
Because the plaintiff has adduced absolutely no evidence that
his firing was predicated on age, the differences between how Law
100 and the ADEA distribute the burdens of proof are immaterial to
our analysis. Thus, we need not discuss them here. See Am.
Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 125 (1st Cir.
1998).

-19-