UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-1867
MIGUEL ANGEL AYALA-GERENA, ET AL.,
Plaintiffs - Appellants,
v.
BRISTOL MYERS-SQUIBB COMPANY, d/b/a BRISTOL MYERS-SQUIBB, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Jes s Hern ndez-S nchez, with whom Hern ndez S nchez Law
Firm was on brief for appellants.
Carl Schuster, with whom Schuster Aguil & Santiago was on
brief for appellees.
September 5, 1996
TORRUELLA, Chief Judge. Plaintiffs-Appellants, former TORRUELLA, Chief Judge.
employees of Squibb Manufacturing, Inc. ("SMI"), their wives, and
their conjugal partnerships, brought action below seeking damages
arising from the termination of their employment. They brought
alleged violation of their civil rights under 42 U.S.C. 1981
due to their dismissal due to their national origin and/or race
as Puerto Ricans; violation of their right to privacy under 8
of Article II of the Constitution of the Commonwealth of Puerto
Rico; defamation under 32 L.P.R.A. 3141-3149; and for breach of
contract.1 The United States District Court, District of Puerto
Rico, dismissed the last claim and granted summary judgment on
the first three in favor of Defendants-Appellees, Bristol-Myers
Squibb Co. ("BMSC") and four of its employees: Mark Geraci,
Director of Corporate Security ("Geraci"), Eugene Hackett,
Manager of Corporate Security ("Hackett"), Tibur Kerr, Acting
Plant Administrator ("Kerr"), and Bryan Dunne, Manager of
Corporate Security ("Dunne"). This appeal ensued. We affirm.
BACKGROUND BACKGROUND
Reviewing the summary judgment materials in the light
most favorable to Appellants, the nonmovants, and drawing all
reasonable inferences in their favor, see, e.g., Alan Corp. v.
Int'l Surplus Lines Ins. Co., 22 F.3d 339, 341 (1st Cir. 1994),
we present a thumbnail sketch of the factual background,
providing greater detail as the need arises.
1 Appellants requested, and the court granted with prejudice, dismissal of their claim under Puerto Rico Law 100 of June 30, 1959, 29 L.R.P.A. 146.
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Appellants, all Puerto Ricans, were regular employees
of SMI -- which is not a party to this action -- in Humacao,
Puerto Rico. It is uncontested that SMI's employees are mostly
Puerto Rican. According to Appellants' complaint, Geraci,
Hackett, Kerr and Dunne of BMSC were sent to Puerto Rico in 1991
and 1992 in connection with a security investigation regarding
missing inventory at SMI and the suspected illegal trafficking of
pharmaceutical drugs and other products. According to
Appellants' complaint, Appellees developed a "discriminatory and
persecutorial policy" against them in furtherance of BMSC's
interest in taking control of SMI's management. Geraci and
possibly others at BMSC contracted with certain named individuals
to carry on the security investigation, which included conducting
a surveillance of Appellants and their families, pressuring
Appellants to testify falsely against SMI's management as part of
BMSC's attempt to gain control over SMI, and using illegal means
to obtain evidence to be used to dismiss Appellants. Geraci and
Dunne individually interviewed SMI employees, including
Appellants, as part of the ongoing security investigation. On or
about the date of the individual interviews, Appellants were
dismissed from their employment at SMI between March and May 1992
without being told the reason for their dismissal. It is
uncontested that no one else participated in these interviews
except for a translator, that the interviews took place in a
discrete manner, and that it was Appellants that subsequently
publicized the details of the interviews.
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DISCUSSION DISCUSSION
Appellants raise four challenges to the district
court's grant of summary judgment: (i) discovery was improperly
cut off; (ii) their production of documents was erroneously
denied; (iii) summary judgment was erroneously granted on their
conspiracy claims; and (iv) summary judgment was improperly
granted on their breach of contract claim. We address each.
Because the first two involve intertwining facts and the same
standard of review, we address them together.
A. Discovery Cut Off & Document Production A. Discovery Cut Off & Document Production
Appellants raise two discovery-related challenges on
appeal. First, invoking Fed. R. Civ. P. 56(f), Appellants argue
that the district court erred when it granted summary judgment
without affording them the benefit of conducting a reasonable
discovery. In support thereof, they claim they were diligent in
their pursuit of discovery but that Appellees refused to comply
with their requests and the district court granted summary
judgment without acting upon their motions to compel discovery.
Second, they claim error by the district court's denial of their
February 9, 1994, request for production of certain documents.
Appellees counter, asserting that the record clearly shows that
the district court granted Appellants ample time to conduct
discovery, and that they did not "hide" any information from
Appellants. Thus, they contend that the district court did not
abuse its discretion in denying their document production request
as untimely.
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It is well settled that the trial judge has broad
discretion in ruling on pre-trial management matters, and we
review the district court's denial of discovery for abuse of its
considerable discretion. See Fusco v. General Motors Corp., 11
F.3d 259, 267 (1st Cir. 1994); Serrano-P rez v. FMC Corp., 985
F.2d 625, 628 (1st Cir. 1993). "We will intervene in such
matters only upon a clear showing of manifest injustice, that is,
where the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party." Mack
v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 186
(1st Cir. 1989). The same abuse of discretion standard applies
to a review of a district court's denial of a Rule 56(f) motion.
See, e.g., Resolution Trust Corp. v. North Bridge Assoc., Inc.,
22 F.3d 1198, 1203 (1st Cir. 1994); Price v. General Motors,
Corp., 931 F.2d 162, 164 (1st Cir. 1991).
Before addressing Appellants' arguments, we detail the
pertinent procedural history as revealed by the relevant docket
entries:
1. 8/10/92: Complaint filed.
2. 5/18/93: Scheduling Order sets discovery deadline
for 10/15/93. 3. 10/18/93: Appellants move to extend discovery.
New deadline set for 11/30/93. 4. 11/15/93: Appellants request document production
pursuant to Fed. R. Civ. P. 34. 5. 11/18/93: Appellants move again to extend
discovery. New deadline set for 1/3/94. Court states this is the last extension. 6. 12/8/93: Appellants move for status conference to
clarify discovery and to further extend discovery by sixty days. Denied. 7. 12/17/93: Pretrial Conference set for 2/4/93.
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8. 1/3/94: Appellants move to order witnesses to
attend oral deposition. Denied (see 11, below). 9. 1/10/94: Appellees move for summary judgment
(SJ). 10. 1/14/94: Appellants move for extension to oppose
SJ. Granted. Opposition due by 2/20/94. 11. 1/14/94: Appellants move again to clarify
discovery process. Denied, citing failure to comply with Fed. R. Civ. P. 45(c) regarding personal service of subpoena and noting that it cannot allow further disruption in the scheduling order. 12. 2/2/94: Appellees submit proposed pretrial
order. 13. 2/3/94: Appellants file SJ opposition.
14. 2/4/94: Pretrial Conference. Court grants
parties until 2/10/94 to prepare joint pretrial order. Court denies Appellees' motion to dismiss. 15. 2/9/94: Appellants move to supplement opposition
to SJ, to compel document production, and to appoint special process server. 16. 2/10/94: Pretrial Conference. Appellants submit
proposed pretrial order. Court grants pretrial order. 17. 2/17/94: Appellees file response to SJ
opposition. 18. 3/11/94: Court grants SJ, denies Appellants'
motion to compel document production and to appoint a special process server. Court enters partial judgment in favor of Appellees. Appellants' severance pay claim, as ordered to be amended, remains. 19. 3/21/94: Appellants move to postpone jury trial
to file reconsideration motions and motion for new trial. Granted. 20. 3/28/94: Appellants move for reconsideration of
grant of SJ. Denied (see 22, below). 21. 3/29/94: Appellants move for additional
discovery. 22. 6/5/95: Court denies Appellants' motion for
reconsideration, grants Appellees' motion to strike third amended complaint, and denies Appellants' leave to file a fourth amended complaint.
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We turn first to Appellants' reliance on Rule 56(f).
Rule 56(f) "looms large" when a party claims an inability to
respond to an opponent's summary judgment motion because of
incomplete discovery, Resolution Trust Corp., 22 F.3d at 1202,
given that it is "intended to safeguard against judges swinging
the summary judgment axe too hastily," id. at 1203. While
certainly district courts should construe Rule 56(f) motions
generously, we have noted that
[t]his does not mean . . . that [it] has no bite or that its prophylaxis extends to litigants who act lackadaisically; use of the rule not only requires meeting several benchmarks . . . , but also requires due diligence both in pursuing
discovery before the summary judgment
initiative surfaces and in pursuing an
extension of time thereafter. In other words, Rule 56(f) is designed to minister to the vigilant, not to those who slumber upon perceptible rights.
Id. at 1203 (emphasis added). We have also held that a party
must invoke Rule 56(f) within a reasonable time following the
receipt of a motion for summary judgment. Id. at 1204.
With this rubric in mind, we find that Appellants'
invocation of Rule 56(f) is misplaced for at least two reasons.
First, the record shows that Appellants filed their original
opposition to summary judgment without previously informing the
court of their inability to properly oppose summary judgment due
to incomplete discovery. In fact, Appellants never sought an
additional extension of the discovery deadline before filing
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their opposition.2 Moreover, both Appellants' original3 and
supplemental4 oppositions to summary judgment are deafeningly
silent as to their inability to oppose summary judgment due to
incomplete discovery. The first time Appellants informed the
district court about outstanding discovery was during the
February 4, 1994, and February 10, 1994, pre-trial conferences,
after having already filed their opposition and supplemental
opposition respectively.
Second, we are hard-pressed to conclude that this
record supports a finding that Appellants exercised due diligence
or were otherwise "vigilant" before Appellees moved for summary
judgment on January 10, 1994. After requesting and receiving two
extensions, discovery concluded on January 3, 1994 -- almost
2 While they did file on January 14, 1994, a motion to clarify the discovery process, they did not mention in that motion their need for additional discovery in order to properly oppose summary judgment. The district court denied their motion, noting their failure to comply with the Federal Rules of Civil Procedure regarding service and the ample time they had for discovery.
3 Appellants' ten-page opposition addressed the merits of Appellees' arguments in favor of summary judgment, attached various depositions and suggested that, if the court "[had] any doubt" about the truth as revealed by the attached depositions, it could schedule a hearing or grant additional time for Appellants to address in greater detail each of the "defendants' outrageous conclusions." Docket No. 50, p. 9. The only basis advanced for not responding to each of the arguments was "time restrictions."
4 While Appellants do state in their supplemental opposition that the records finally received from Appellees are "incomplete according to the depositions taken to [sic] co-defendants . . . [which] are part of the record", Appellants do not argue that they are unable to oppose summary judgment because of incomplete discovery; indeed, they state that "although incomplete . . . [these records] clearly reveal the discriminatory animus." Docket No. 51, p. 2.
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eighteen months after Appellants filed their complaint on August
10, 1992, and almost eight months after the court's May 18, 1993,
scheduling order. Appellants did not serve a request for
document production until November 12, 1994, after they had
received their first extension5 and only two weeks prior to the
end of the new discovery period set for November 30, 1994.
Furthermore, Appellants failed to meet with Appellees
pursuant to Local Rule 311.11 to discuss Appellees' timely
objections to their document request -- as set forth in two
letters, dated November 24, 1993, and December 15, 1993 -- prior
to the conclusion of discovery on January 3, 1994. See Local
Rule 311.11. Pursuant to this Rule, parties are required to meet
in a good faith effort to eliminate disputes regarding discovery
prior to filing any discovery-related motion or objection. The
Rule also provides that, unless relieved by agreement or by order
of the court upon good cause shown, counsel must meet within ten
days of service of a letter requesting a Rule 311.11 conference,
and that Appellants -- as the movants -- bore the responsibility
for arranging a conference. See Local Rule 311.11. Here, the
record clearly shows that Appellants failed to comply with the
Rule or carry their burden thereunder. Not only is it undisputed
that the parties' Local Rule 311.11 meeting was not held until
February 1, 1994 -- more than two months after Appellees' first
5 In their first motion for extension, dated October 11, 1993, Appellants represented to the court that neither party had yet completed the interrogatories but that both parties had worked diligently in the matter.
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timely objection and more than one month after Appellees' second
letter which expressly invited Appellants' counsel to meet on
December 27, 1993 -- but there is absolutely no evidence of
timely notification to the court or of good cause for the failure
to meet earlier or to timely advise the court.
Moreover, after Appellees filed their motion for
summary judgment, Appellants never filed for another discovery
extension prior to filing their opposition to summary judgment on
February 3, 1994. As noted above, it was not until the February
4 and February 10 pre-trial conferences that Appellants informed
the district court of Appellees' failure to produce documents --
almost one month after the second-extended discovery period had
concluded and the day after Appellants had filed their opposition
to summary judgment.
Attempting nonetheless to invoke the benefits of Rule
56(f), Appellants argue that in order to trigger Rule 56(f) the
nonmoving party need only submit an equivalent statement,
preferably in writing, of their need for additional discovery.
See, e.g., St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d
1309, 1313-14 (3d Cir. 1994); Wichita Falls Office Assoc. v. Banc
One Corp., et al., 978 F.2d 915, 919 (5th Cir. 1992), cert.
denied, 508 U.S. 910 (1993). Relying on these two cases, they
insist that they triggered Rule 56(f), because "through the whole
procedure of the case [they] presented in writing and before the
court more than plausible basis to believe that discoverable
materials existed which were essential to their case and would
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raise truthworthy issues." Appellants' Brief, p. 24. Unlike
Appellants here, the parties in those cases both requested Rule
56(f) extensions after the opposing party filed a motion for
summary judgment, specified that discovery had not concluded, and
identified the outstanding items which would be dispositive to
the issues raised. More importantly, unlike the instant case,
the facts in those cases indicated that the nonmovants had not
been dilatory in obtaining discovery. See St. Surin, 21 F.3d at
1315 (concluding that nonmovant should not suffer from a failure
of proof caused by his accommodation of the movant's requests for
delay); Wichita Falls, 978 F.2d at 919 (finding that nonmovant
was not dilatory because it reasonably awaited outcome of pending
negotiations). In any event, we remain unpersuaded by
Appellants' list of the allegedly numerous times they brought
this matter to the court's attention; in fact, their list belies
that they so informed the court. For example, contrary to their
claim, Appellants' two-paragraph request for an extension to
oppose summary judgment makes no reference whatsoever to
discovery matters. Similarly, while Appellants claim that their
opposition to Appellee's motion for summary judgment "state[d] to
the Court the situation about the documents and information that
defendants were refusing to provide," Appellants' Brief, p. 23, a
review of their opposition reveals no such statement.
In light of the two extensions granted, the latter
stating that this was the final extension, Appellants' failure to
comply with Local Rule 311.11, and what appears to us as an
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overall lack of due diligence, we find no abuse of discretion by
the district court. Contrary to Appellants' assertion, in no way
did the district court grant summary judgment "without [their]
benefit to [sic] a reasonable discovery." Indeed, the district
court was never put in the position of granting a Rule 56(f)
motion given that Appellants only informed the court about
Appellees' failure to produce discovery after the conclusion of
discovery, after Appellants' oppositions to summary judgment had
been filed, and on the eve of the pre-trial stage.
For obvious reasons, we also find no abuse of
discretion by the district court when it denied what was clearly
Appellants' untimely motion to compel document production. We
remind Appellants that Local Rule 311.11 expressly prohibits the
court from entertaining any motion relating to discovery unless
the moving party -- here, Appellants -- first advised the court,
in writing, that the parties have been unable to resolve their
differences or reach an agreement after counsel have held the
required conference, or that counsel for respondent has refused
to confer or delayed the conference without good cause. See
Local Rule 311.11. The first time Appellants provided written
notification was on February 9, 1994. The court informed
Appellants during the February 10, 1994, pre-trial conference
that, had they timely filed a written motion to compel, the court
could have requested the documents and made an in camera
inspection of them to assess the legitimacy of Appellees'
objections. As the district court correctly noted in its order
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denying Appellants' post-summary judgment motion requesting
additional discovery and a new trial, Appellants waited more than
one month after the second extended discovery deadline had
elapsed to properly request an order from the district court.
Appellants' claim that Appellees were "hiding" information is
essentially irrelevant against the backdrop of their own lack of
diligence as evidenced by the lateness of the Local Rule 311.11
meeting and their untimely motion to compel document production.
In sum, based on our review of the record, we find no
abuse of discretion by the district court with respect to either
of Appellants' claimed errors; indeed, in light of Appellants'
lack of diligence and failure to follow the rules, we do not even
find a hint of any abuse of the district court's broad
discretion. As we have stated before, "[s]ticking the appellate
nose too readily into the district court's scope-of-discovery
tent is, we think, a recipe for disaster." Mack, 871 F.2d at
187. Where, as here, the district court could have allowed
further discovery, "it was certainly free to call the shot the
other way." Id. None of Appellants' arguments, including those
not addressed, persuade us that this record warrants a disruptive
"nosey" appearance.
B. Summary Judgment B. Summary Judgment
1. The Standard 1. The Standard
We afford plenary review to the entry of summary judgment
on Appellants' claims. See, e.g., Perkins v. Brigham & Women's
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Hospital, 78 F.3d 747, 748 (1st Cir. 1996); Smith v. F.W. Morse &
Co., 76 F.3d 413, 428 (1st Cir. 1996). The function 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." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d
791, 794 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993).
"The criteria are familiar: a court may grant summary judgment
if the nisi prius roll discloses no genuine issue of material
fact and if, viewing the entire record in the light most
flattering to the nonmovant, the proponent demonstrates its
entitlement to judgment as a matter of law." Perkins, 78 F.3d at
748; see Fed. R. Civ. P. 56 (c). In order to survive the "swing
of the summary judgment axe," Mack, 871 F.2d at 181, the
nonmoving party must produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for it; if that party cannot produce such evidence, the
motion must be granted. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986). "The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson, 477 U.S.
at 247-48 (emphasis in original). "[S]peculation and surmise,
even when coupled with effervescent optimism that something
definite will materialize further down the line, are impuissant
in the face of a properly documented summary judgment motion."
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Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st
Cir. 1996). "Moreover, '[e]ven in cases where elusive concepts
such as motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported
speculation.'" Goldman v. First Nat'l Bank of Boston, 985 F.2d
1113, 1116 (1st Cir. 1993) (quoting Medina-Mu oz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
Based upon our independent review of the summary
judgment materials, we note as an initial matter that Appellants'
challenge on appeal is augmented by its failure, as the district
court noted, to present a thorough and specific opposition to
Appellees' well-documented motion for summary judgment.
Appellants' failure to provide a separate statement of disputed
facts resulted in the district court's taking of Appellees'
statement of uncontested facts as admitted. See Local Rule
311.12; see also Stepanischen v. Merchants Despatch Transp.
Corp., 722 F.2d 922, 930 n.2 (1st Cir. 1983). The district court
also properly disregarded Appellants' numerous unsupported
factual allegations. These missteps below accompany Appellants
on appeal, making their challenge more of an uphill battle than
it otherwise might have been. That said, we address each of
their claims in turn.
2. The Section 1981 Claim 2. The Section 1981 Claim
The Law The Law
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In order to prevail under Section 1981, a plaintiff
must prove purposeful employment discrimination: the ultimate
issue is whether the defendant intentionally discriminated
against the plaintiff, under the by-now familiar analytical
framework used in disparate treatment cases under Title VII. See
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).
Absent direct evidence of race and/or national origin
discrimination, the burden-shifting framework established in
McDonnell Douglas Co. v. Green, 411 U.S. 792, 802-05 (1973),
comes into play. See St. Mary's Honor Center v. Hicks, 509 U.S.
502, 505-07, (1993); Patterson v. McLean Credit Union, 491 U.S.
164, 109 (1989); Goldman, 985 F.2d at 1116-17.
Under the McDonnell Douglas framework, a plaintiff
first must make a prima facie showing of discrimination,
established by proving: (i) that plaintiff is a member of a
protected class; (ii) that plaintiff performed his or her job
satisfactorily; (iii) that plaintiff was discharged; and (iv)
that plaintiff's position remained open and was eventually filled
by persons with plaintiff's qualifications. St. Mary's Honor
Center, 509 U.S. at 506. A plaintiff's successful production of
a prima facie case creates a presumption of discrimination. Id.
Upon such a showing, the burden of production shifts to the
defendant in order to show a legitimate, nondiscriminatory reason
for plaintiff's termination. Id. If the defendant is
successful, the plaintiff must then show that defendant's reason
is merely pretextual and that defendant intentionally
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discriminated against him or her. Id. at 507. In the context of
a summary judgment proceeding, once the employer articulates a
legitimate, nondiscriminatory basis for its adverse employment
decision, the plaintiff must offer direct or indirect evidence
sufficient to show that the employer's decision to discharge him
or her was wrongfully based on race or national origin. See
e.g., Pages-Cahue v. Iberia Airlines of Spain, 82 F.3d 533, 536-
37 (1st Cir. 1996) (involving age discrimination claim)
(collecting cases).
The McDonnell Douglas framework, however, only comes
into play where there is no direct evidence of discrimination.
In cases involving direct evidence of discriminatory motive, the
burden of persuasion shifts from the employee to the employer,
who must then affirmatively prove that it would have made the
same decision even if it had not taken the protected
characteristic into account. See e.g., Smith v. F.W. Morse &
Co.,Inc., 76 F.3d 413, 421 (1st Cir. 1996) (citations omitted).
While we have held that "[d]irect evidence is evidence which, in
and of itself, shows a discriminatory animus," see, e.g., Jackson
v. Harvard Univ., 900 F.2d 464, 467 (1st Cir. 1990), it is not
always clear what constitutes direct evidence, see Smith, 76 F.3d
at 421; id. at 431 (Bownes, Senior Circuit Judge, concurring)
(noting that the majority reference to "smoking gun" evidence
obscures the fact that this Circuit has yet to clearly define
what constitutes direct evidence of gender discrimination).
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As far as the instant case is concerned, however, we do
know that, at a minimum, direct evidence does not include stray
remarks in the workplace, particularly those made by
nondecisionmakers or statements made by decisionmakers unrelated
to the decisional process itself. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 251-52 (1989) (plurality op.); id. at 277-
78 (O'Connor, J., concurring); Smith, 76 F.3d at 433 (concurring
opinion). While perhaps probative of discrimination, stray
remarks do not satisfy a plaintiff's burden of proving
discrimination by direct evidence. Price Waterhouse, 490 U.S. at
277 (O'Connor, J. concurring). In our view, such stray remarks
lack the necessary link between the alleged speaker's
discriminatory remark and the adverse employment decision. Cf.
Smith, 76 F.3d at 421 (suggesting that direct evidence of
employment discrimination based on gender would be "an admission
by the employer that it explicitly took actual or anticipated
pregnancy into account in reaching an employment decision").
With the legal framework outlined, we turn to see
whether Appellants can avoid the "swing of the summary judgment
axe," Mack, 871 F.2d at 181, mindful that a district court's
grant of summary judgment against the employee will be upheld if
the record is devoid of adequate direct or circumstantial
evidence of the employer's discriminatory intent.
Analysis Analysis
In the instant case, the district court rejected
Appellants' contention that they proved by direct evidence
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Appellees' discriminatory animus in terminating their employment.
It focused on two remarks, disregarding others on the basis that
they were not substantiated. We, too, follow the district
court's steps and will focus only on the two properly
substantiated remarks.6 The summary judgment materials show that
the two remarks upon which Appellants rely were made on or about
the date of Appellants' respective dismissals. The first remark
pointed to was allegedly made by Hackett, in which he stated that
the company had a "black mafia [which was] getting rich at the
expense of the company." Deposition of Serrano, p. 125, lines
21-23. The second was allegedly made by both Hackett and Geraci,
in which they stated that Serrano, as a Puerto Rican, may never
get another opportunity to work for a North American company if
Serrano were to be fired by SMI. Id. at 86, lines 13-21.
As we understand Appellants' arguments, they
essentially claim that the references to a "black mafia" and to
their being Puerto Rican are "smoking gun" evidence of Appellees'
discriminatory animus in terminating their employment. For this
to be so, Appellants must demonstrate that "black mafia" refers
6 We decline Appellants' request to take into consideration the sworn statements submitted with their motion for reconsideration. Not only were they not part of the original summary judgment materials, but Appellants have not demonstrated why this new evidence could not have been timely provided with the summary judgment materials. See Roche v. John Hancock Mutual Life Ins.
Co., 81 F.3d 249, 253 (1st Cir. 1996) ("Put bluntly, 'motions for
summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal.'") (quoting Maldonado-Denis v. Castillo-Rodr guez, 23
F.3d 576, 581 (1st Cir. 1994)).
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to Appellants' racial or ethnic background and that these
references were made in connection with the decisional process.
We turn first to the meaning of "black mafia." As an
initial matter, we note that the record sheds little light on its
meaning, and does not demonstrate that it has anything to do with
Appellants' racial or ethnic background.7 In fact, when pressed
during oral argument, counsel for Appellants simply stated that
he "gathered" it referred to Puerto Ricans. The very few
references to "black mafia" pointed to by Appellants in their
opposition to summary judgment suggest that "black mafia"
referred to, as Appellant Serrano testified in his deposition,
members of SMI's management "who were getting rich at the expense
of the company, at [BMSC's] expense"; indeed, Serrano's testimony
that the "['black mafia'] was made up by all the managers" seems
to undercut Appellants' claim that Appellees were referring to
them as members of a "black mafia." Id. at 125, lines 23-24.
Based on the record, we are hard-pressed to conclude Appellees
were referring to Appellants with a discriminatory animus based
on their race or national origin.
7 In this regard, we note that use of the adjective "black" does not necessarily refer to skin color. It has been widely used to describe, among other things, sinister or evil actions or characters. See Merriam Webster's Collegiate Dictionary, Tenth
Ed., pp. 118-20 (1993). "Mafia" is defined as a particular "criminal organization" or "a group of people likened to the Mafia," id. at 699. Taken together, "black" could arguably
describe the collective skin color of the members of the criminal organization or the group's illegal, illicit or clandestine activities in a similar vein to "black market."
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While we could end the inquiry here, we note that even
assuming that the term "black mafia" was racially or ethnically
charged, neither of these statements constitutes direct evidence
of discrimination. While the close time frame between the
interviews and the dismissals is suspicious, see Smith, 76 F.3d
at 423 (noting temporal proximity as a factor); id. at 432
(citing cases), Appellants have not demonstrated -- as the
district court noted -- that they were terminated because of
their race or national origin or that the speakers were
decisionmakers who made the comments in connection with the
decisional process. Indeed, Hackett and Geraci are employees of
BMSC, not SMI, and it is uncontested that Appellants were
employees of SMI at the time of their dismissals.
Even assuming, as Appellants allege, that Hackett and
Geraci ordered SMI's Human Resources Director to terminate
Appellants' employment does not assist Appellants, because of
their failure to provide specific factual support that the
alleged remarks were made in connection with the employment
decisional process. Resting on conclusory allegations,
improbable inferences and unsupported speculation does not
suffice. See Goldman, 985 F.2d at 1116. In other words,
Appellants have failed to show what we consider to be the
necessary link between the speakers' statements and the decision
to terminate Appellants' employment. Our conclusion is
particularly reinforced by the uncontested fact that Appellants
did not mention their race or national origin as a factor when
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asked why they thought their employment had been terminated:
some admitted that they had no knowledge of the reason while
others offered the non-discriminatory reason that their dismissal
was connected to the ongoing security investigation.8
For the foregoing reasons, we find no reason on this
record to consider these alleged statements to be anything more
than "stray remarks" which fail to satisfy Appellants' burden of
production of direct evidence. We merely add this: contrary to
what seems to drive Appellants' argument, the mere fact that it
is possible, indeed probable, that there was some connection
between Appellants' dismissal and the security investigation does
not render Appellants' termination ipso facto discriminatory.
Because we conclude that Appellants have failed to
demonstrate discriminatory animus by direct evidence, we consider
next whether Appellants can do so through a prima facie case.
This analysis is, for Appellants, painfully quick: While they
satisfy the first and third prongs, as they are members of a
protected class as Puerto Ricans and they were all terminated,
they have not proven that they performed their jobs adequately or
that persons with their qualifications filled their job
positions; indeed, they do not even argue as much in their
appellate brief. In light of their failure to prove a prima
8 It is also uncontested that Appellants were not present when the decision to terminate their employment was made. We do not give this fact much weight considering that an employee's presence at that actual moment is more likely to be an anomaly than the rule.
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facie case, we do not need to proceed further with the McDonnell
Douglas analysis.
In light of Appellants' failure to carry the ultimate
burden of proving that Appellees discriminated against them on
the basis of their race or national origin, we affirm the grant
of summary judgment, pausing only to add this: The foregoing
and, particularly, the plethora of allegations unclothed by any
specific factual record evidence, suggest to us that Appellants'
claims of discrimination based on race and national origin are
but mere "unsupported conclusions . . . [which plausibly] . . .
sprout[ed] as easily as crabgrass in an imaginative litigant's
(or lawyer's) word processor." The Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 16 (1st Cir. 1989) (noting that "to avoid
tarring defendants' reputation unfairly and to prevent potential
abuses, we have consistently required plaintiffs to outline facts
sufficient to convey specific instances of unlawful
discrimination.").
2. The Defamation Claim 2. The Defamation Claim
Appellants claim damages from defamation based on four
incidents: (i) alleged public and intraoffice accusations by
Appellees that Appellants were thieves; (ii) newspaper articles
which discussed, among other matters, the irregularities in SMI's
inventory; (iii) the interviews in which Appellants were
questioned while a third party, a translator, was present; and
(iv) statements labeling Appellants as members of a "black
mafia." The district court thoroughly reviewed Appellants'
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arguments in support of their claim, concluding that in each of
the four instances Appellants -- for a variety of reasons --
failed to meet their burden of proving defamation. We agree.
"Under Puerto Rico law, a defamation claim requires
that the plaintiff prove: (1) that the information is false, (2)
that plaintiff suffered real damages, and (3) in the case of a
private figure plaintiff, that the publication was negligent."
Mojica Escobar v. Roca, 926 F. Supp. 30, 33 (D.P.R. 1996)
(citations omitted); see also Pages v. Feingold, 928 F. Supp.
148, 153 (D.P.R. 1996) (noting that negligence in defamation
cases is applied as interpreted under Section 1802 of the Civil
Code, 31 L.P.R.A. 5141); Garib Baz n v. Clavell, 94 J.T.S. 36,
p. 11677 (1994). For both libel and slander, Puerto Rico law
requires that plaintiff prove that the alleged defamation is
false. See 32 L.P.R.A. 3142 (defining libel); 32 L.P.R.A.
3143 (defining slander); see also Mojica Escobar, 926 F. Supp.
at 34; Villanueva v. Hern ndez Class, 91 J.T.S. 58, pp. 8696-97
(1991).
Here, what undercuts Appellants' defamation claim with
respect to the first three instances is their failure to present
a single shred of competent evidence, as distinguished from their
conclusory assertions, which tends to establish the falsity of
any of the alleged defamatory statements. Because of this
failure to carry their burden of proof as to the falsity of those
three statements, Appellants' defamation claim for both libel and
slander based on the first three instances necessarily fails.
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See Mojica Escobar, 926 F. Supp. at 34 (granting summary judgment
based on plaintiff's failure to carry burden of proving falsity
of offending publications). Based on our review of the record,
Appellants have utterly failed to carry their summary judgment
burden of presenting definite, competent evidence to rebut
Appellees' motion for summary judgment: they have failed to
establish the existence of a genuine, material triable issue
regarding the falsity of the alleged statements. The fact that
Appellees do not assert the truth of the alleged statements is
irrelevant here as Appellants have failed to establish an
essential element of their claim. Cf. id. In light of this, we
do not need to address the remaining elements in connection with
the first three instances.
As to the fourth instance, regarding the "black mafia,"
the district court correctly dismissed this statement as proof of
defamation in light of (i) Appellants' failure to provide
affidavits or deposition testimony supporting this allegation and
(ii) the fact that, while Appellant Serrano testified that
Appellee Hackett referred to a "black mafia," the reference was
not made in connection to Appellants but, as discussed above, in
reference to SMI's management.
Because we do not need to address whether Appellants
carried their burden as to the remaining elements, we do not
address their argument challenging the district court's grant of
qualified immunity relating to the interviews in which Appellants
were questioned. See Porto v. Bentley Puerto Rico, Inc., 92
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J.T.S. 175, 10248 (1992) (adopting the majority rule that
intracorporate communication is equivalent to publication while
also recognizing qualified immunity). We only add this: Even
assuming that Appellants had submitted evidence that the alleged
defamatory statements were false, based upon our review of the
summary judgment materials and Appellants' arguments we would
nonetheless conclude that their defamation claim fails and, thus,
would affirm the district court's grant of summary judgment.
Finally, Appellants also allege that the district court
erred because there was sufficient evidence of a conspiracy under
Puerto Rico law on the part of Appellees "to falsely accuse them
of being thieves and drug dealers." See 33 L.P.R.A. 4523(2)9;
see also People v. Arreche Holdun, 114 P.R. Dec. 99 (1988).
According to Appellants, the BMSC officials named as defendants
in the action below came to Puerto Rico "with the task of framing
and fabricating evidence to dismiss SMI officials so that BMSC
could control key positions." For support, Appellants point us
to their March 28, 1994, motion requesting additional discovery.
As an initial matter, we note that Appellants neither included in
their complaint a cause of action for conspiracy nor did the
9 This section provides, in pertinent part:
If two or more persons conspire . . . (2) to falsely or maliciously accuse another person of any crime, or to attempt that another to be charged or arrested for any crime; . . . shall be punished by imprisonment . . . , or a fine . . . .
L.P.R.A. T.33 4523(2).
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district court explicitly address conspiracy. Possible waiver
aside, we decline to consider their March 28, 1994, motion for
the simple reason that this was not part of the summary judgment
record. What is more, based on our own review of the summary
judgment materials, we find no record evidence to support
Appellants' naked assertion that Appellees framed false evidence
against Appellants. While their supplemental opposition to
summary judgment includes documents with references to a "gang"
and a "mafia" and to the stealing of inventory from SMI, this
does not prove there was a conspiracy. We need not consider this
argument further.
3. The Invasion of Privacy Claim 3. The Invasion of Privacy Claim
Appellants also seek damages based on Appellees'
alleged violation of their right to privacy under the Puerto Rico
Constitution, claiming that they were followed, telephoned, and
photographed without their permission and put on an "industrial
blacklist" which has hindered their efforts at securing new
employment. A claim for invasion of privacy is actionable under
Sections 1 and 8 of Article II of the Puerto Rico Constitution,
which, respectively, provide that "[t]he dignity of the human
being is inviolable" and that "[e]very person has the right to
the protection of law against abusive attacks on his honor,
reputation and private or family life." P.R. Const. art II,
1, 8; see generally, Mojica Escobar, 926 F. Supp. at 34-35;
L pez-Pacheco v. United States, 627 F. Supp. 1224, 1227-29
(D.P.R. 1986), aff'd, 815 F.2d 692 (1st Cir. 1987). The district
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court granted summary judgment on the basis of Appellants'
failure to provide any evidence that their privacy was invaded.
Appellants do not explicitly appeal this aspect of the district
court's decision. Waiver aside, we nonetheless note that, based
upon our independent review of the record, we affirm the district
court's grant of summary judgment for the very same reason
enunciated by the district court.
4. Breach of the Employment Contract 4. Breach of the Employment Contract
Appellants argue on appeal that the district court
erred in dismissing their claim that BMSC violated the employment
contract between SMI and Appellants inasmuch as BMSC did not
comply with provisions in the Employee's Manual when it ordered
SMI to terminate Appellants' employment. See Santiago v. Kodak
Caribbean, 92 J.T.S. 11, 9164 (1992) (holding that employee
manuals describing rights and privileges constitute part of the
employment contract and that dismissals in violation thereof are
unjustified).10
The court dismissed their claim on the grounds that
Appellants had failed to join an indispensable party, SMI, whose
10 Relying on Santiago, Appellants contend that their dismissal
was unjustified because (i) they did not violate any of the listed violations and (ii) BMSC ordered their dismissal in violation of the established procedures. They also contend that BMSC violated its "Involuntary Termination Plan Policy" according to which any officer or employee dismissed up to December 1992, as a result of the merger would be paid a certain severance amount.
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joinder would destroy the court's diversity jurisdiction.11
Although Appellants argued that SMI was not indispensable because
SMI officers acted at the direction of BMSC, the district court
noted that their claim was inherently based on the fact that SMI
officers breached the employment contract when terminating their
employment. Citing Fed. R. Civ. P. 19(b), it concluded that,
because SMI officers were thus actors in the alleged breach, SMI
was an indispensable party. Noting its earlier factual finding,
set forth in its decision granting partial summary judgment, that
SMI is a separate entity from BMSC and that it was undisputed
that SMI and Appellants are both citizens of Puerto Rico, the
court concluded that SMI's joinder would result in the court
lacking diversity jurisdiction. In reaching its decision, the
district court also noted that Appellants could always bring
their breach of contract claim in the Commonwealth courts.
erred in concluding that there was no diversity jurisdiction in
only the briefest of manners, providing only one short paragraph
without citation to case law or to Fed. R. Civ. P. 19. Apart
from reiterating that SMI is a subsidiary under BMSC's "complete
control" and that BMSC is a Delaware corporation with its
principal place of business in New York, Appellants do not
otherwise challenge or explain the error of the district court's
earlier factual finding based on the summary judgment materials
11 Having previously dismissed the federal claims, the district court noted that its jurisdiction over the breach of contract claim was based on the diversity of the parties' citizenship.
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that SMI is a separate company from BMSC. In a similarly
superficial manner, Appellants merely reiterate that SMI is not
an indispensable party because the injury and damages were caused
by BMSC, providing no adequate basis for concluding why the
district court erred in concluding that SMI, an actor in the
alleged breach, was an indispensable party.
The weakness of Appellants' arguments here leads us to
find waiver. See e.g., McCoy v. Massachusetts Inst. of Techn.,
950 F.2d 13, 23 (1st Cir. 1991) (finding waiver where party
failed to meet affirmative responsibility of putting "best foot
forward in an effort to present some legal theory that will
support [its] claim"), cert. denied, 504 U.S. 910 (1992); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (reiterating that
"issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived."),
cert. denied, 494 U.S. 1082 (1990). Indeed, in light of
Appellants' failure to even mention Rule 19, let alone claim
error thereunder, we see no reason why we should embark on Rule
19's indispensable party analysis, see Fed. R. Civ. P. 19(b)
(enumerating factors to be considered to determine whether in
equity and good conscience courts should proceed without absent
party when joinder would deprive the court of jurisdiction); see
also, Pujol v. Shearson/American Express, Inc., 877 F.2d 132,
134-138 (1st Cir. 1989) (discussing indispensable party
analysis), and explore arguments on their behalf, see McCoy, 950
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F.2d at 22 ("Overburdened trial judges cannot be expected to be
mind readers.").
We agree with the district court that inherent in
Appellants' claim is that SMI officers were the actors in the
alleged breach: while BMSC may have "ordered" Appellants'
dismissal, it was SMI officers that did not comply with the
dismissal provisions set forth in the Employee Manual. In light
of this and the two undisputed facts that SMI (i) is a separate
legal entity from BMSC and (ii) was Appellants' employer at the
time of their dismissal, we conclude that Appellants' cause of
action for severance pay could not be brought against BMSC as any
claim arising under the employment contract between Appellants
and SMI should have been brought against SMI. Furthermore, while
Appellants may not have their day in federal court, they are not
-- contrary to their assertions -- deprived of their day in
court: Because the applicable statute of limitations was tolled
by Appellants' filing of their action in federal court, see 31
L.P.R.A. 5303, Appellants will be able to file their claims
based on breach of the employment contract, as well as other
claims, in the Commonwealth court.
CONCLUSION CONCLUSION
Without commenting on the propriety of Appellants'
dismissals or the manner in which they were dismissed, the
district court's decision is affirmed for the foregoing reasons. affirmed
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