USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1660
CELIA SANTIAGO, ET AL.,
Plaintiffs, Appellants,
v.
CANON U.S.A., INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
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Before
Cyr, Senior Circuit Judge,
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Pieras*, Senior District Judge,
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and DiClerico**, District Judge.
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Alice Net Carlo for appellants.
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Richard H. Silberberg, with whom Robert G. Manson, Dorsey &
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Whitney LLP, Jaime E. Toro-Monserrate and McConnell Valdes were on
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brief for appellee.
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February 20, 1998
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*Of the District of Puerto Rico, sitting by designation.
**Of the District of New Hampshire, sitting by designation.
CYR, Senior Circuit Judge. Professional Microfilm,
CYR, Senior Circuit Judge.
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Inc. ( Professional ) and Celia Santiago, its president, appeal
from a district court judgment dismissing their complaint alleg-
ing that Canon U.S.A., Inc. ( Canon ) (i) violated the Puerto
Rico Dealer Act, P.R. Laws Ann. tit. 10, 278 et seq., by termi-
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nating its dealership agreement with Professional, (ii) contra-
vened Santiago's rights under P.R. Constitution art. II, 1, by
discriminating against Professional on account of Santiago s
gender and, (iii) inflicted mental anguish on Santiago and her
husband, see P.R. Civil Code Article 1802. We affirm the dis-
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trict court judgment.
I
I
BACKGROUND
BACKGROUND
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Santiago is the president of Professional Microfilm,
Inc., a San Juan company which has retailed micrographic products
for over 25 years. She and her husband are its sole sharehold-
ers. Since 1984, Professional has contracted with Canon as a
nonexclusive distributor of micrographic products in Puerto Rico.
Santiago took over its management and operation from her father
in 1989. The following year, Professional entered into a nonex-
clusive distributorship agreement with Canon relating to the
Canofile 250, an innovative optical disk filing product. Over
the next three years Canon initiated various adverse actions
against Professional and Santiago, culminating in 1993 with its
designation of Systronics, Inc. as its second nonexclusive
2
Canofile 250 distributor.1
Professional, Santiago, and her husband filed their
federal complaint against Canon in August 1993. Count 1 alleged
that Canon conducted a "pattern of intentional and discriminatory
conduct impairing the [Canofile 250] dealership" contrary to P.R.
Constitution art. II, 1, which broadly prohibits gender-based
discrimination. Count 2 charged that the Systronics designation
constituted an unjustified "impairment" of Professional s nonex-
clusive Canon distributorship, contrary to the Puerto Rico Dealer
Act. Count 3 asserted that abusive conduct and acts of harass-
ment" by Canon caused Santiago "mental suffering, anxiety, an-
guish, and humiliation," contrary to P.R. Civil Code Article
1802.
After Canon moved to dismiss the complaint, see Fed. R.
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Civ. P. 12(b)(6),2 and the parties submitted documents beyond the
pleadings, the motion was converted to one for summary judgment.
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1The complaint also alleges that Canon (1) "interfered" with
Professional's "principal retail client" in order to "discredit"
Professional; (2) through its representatives, used
unidentified "derogatory epithets" against Santiago, "denigrating
her dignity as a woman"; (3) deliberately delayed its delivery of
the Canofile 250 to Professional until November 1991, thereby
preventing Professional from an earlier entry into the retail
market; (4) provided Professional with incomplete technical
information and product enhancements in connection with the
Canofile 250, thereby "adversely affect[ing] plaintiff's (sic)
sales efforts"; (5) withheld purchase orders placed by
Professional, and falsely alleged that Professional had serious
credit problems; and (6) refused, in March 1993, to provide
Professional with 24 Canofile 250s previously ordered.
2Alternatively, Canon unsuccessfully sought to transfer the
case to the United States District Court for the Eastern District
of New York pursuant to the forum-selection clause in its
dealership agreements. See 28 U.S.C. 1404(a).
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3
See Fed. R. Civ. P. 12(b), (c). A magistrate judge recommended
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that summary judgment be entered for Canon on all claims, since
the Canofile 250 contract expressly stated that the Professional
dealership was to be "nonexclusive;" the parol evidence rule
barred extrinsic evidence to the contrary; and, therefore, the
designation of Systronics as a second Canofile 250 distributor
could have effected no wrongful "impairment" under the Dealer
Act.
Plaintiffs objected to the report and recommendation,
see P.R. Local R. 510.2, on the ground that the parol evidence
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rule does not apply to alleged Dealer Act violations and that
Canon made oral assurances that its Canofile 250 dealership
agreement with Professional would remain exclusive. Plaintiffs
further complained that the magistrate judge failed to consider
their gender-discrimination and mental-anguish claims.
The district court endorsed the report and recommenda-
tion relating to the Dealer Act claim, citing our intervening
decision in Borschow Hosp. & Med. Supplies, Inc. v. Cesar
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Castillo, Inc., 96 F.3d 10, 16 (1st Cir. 1996) (holding
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nonexclusivity provision in dealership agreement dispositive of
Dealer Act claim), and dismissed the gender-discrimination and
mental-anguish claims on three grounds. First, since Canon had
not impaired its dealership relationship with Professional, its
designation of Systronics could not have been an adverse or
discriminatory act. Second, the Puerto Rico Supreme Court has
yet to recognize a private cause of action for gender discrimina-
4
tion under P.R. Constitution art. II, 1. Finally, the broad
assertions that Canon engaged in a pattern of discriminatory
conduct, see supra note 1, were not causally linked to its
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decision to designate Systronics as a second Canofile 250 dis-
tributor in Puerto Rico.
In their motion for reconsideration, see Fed. R. Civ.
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P. 59(e), plaintiffs contended, inter alia, that even if our
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Borschow decision did foreclose a Dealer Act claim, the "pattern"
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of discriminatory actions engaged in by Canon before and after
its designation of Systronics as a second distributor (e.g., use
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of derogatory sexual epithets) constituted discrete "impairments"
sufficient to serve as independent bases for their Dealer Act
claim. The district court denied the motion for reconsideration
on the ground that the issue had not been preserved either in
plaintiffs opposition to the dispositive motions filed by Canon
or in their objections to the report and recommendation submitted
by the magistrate judge. Plaintiffs now appeal from the district
court order dismissing their complaint and from its denial of
their motion for reconsideration.
II
II
DISCUSSION
DISCUSSION
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A. The Dealer Act Claim
A. The Dealer Act Claim
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Although plaintiffs acknowledge their failure to raise
in timely fashion as an independent basis for their Dealer Act
claim the contention that Canon engaged in a pattern of
discriminatory conduct both before and after the Systronics
5
designation, they argue that their waiver should be excused be-
cause the magistrate judge expressly recognized such a pattern of
conduct in the report and recommendation, and the district court
therefore had an independent duty to scrutinize the record de
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novo before adopting the report and recommendation, even absent
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specific objection under Local Rule 510.2. We disagree.
The district court is under no obligation to discover
or articulate new legal theories for a party challenging a report
and recommendation issued by a magistrate judge.3 Borden v.
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Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987)
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( Appellant was entitled to a de novo review by the district
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court of the [magistrate s] recommendations to which he objected,
however he was not entitled to a de novo review of an argument
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never raised. ) (citation omitted). Given proper notice, see
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Magistrate's Report, at 10 ("Failure to comply with [P.R. Local
R. 510.2] precludes further appellate review."), a party s
failure to assert a specific objection to a report and recom-
mendation irretrievably waives any right to review by the dis-
trict court and the court of appeals. See Henley Drilling Co. v.
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McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); 28 U.S.C.
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636(b)(1). Finally, a Rule 59(e) motion is " aimed at reconsid-
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3There is no record indication that the magistrate judge was
ever alerted to the legal theory belatedly asserted by plaintiffs
in their motion for reconsideration before the district court.
Instead, the magistrate judge mentioned a pattern of conduct by
Canon merely as background in describing plaintiffs
constitutional and mental-anguish claims. In the ensuing legal
analysis, however, the magistrate judge neither stated nor
implied an awareness that plaintiffs were claiming that such
conduct had any bearing on their Dealer Act claim.
6
eration, not initial consideration, " and may not be used to
argue a new legal theory." FDIC v. World Univ., Inc., 978 F.2d
____ _________________
10, 16 (1st Cir. 1992) (citation omitted).4 Accordingly, we
affirm the summary judgment ruling dismissing the Dealer Act
claim.
B. The Gender-Discrimination and Mental-Anguish Claims
B. The Gender-Discrimination and Mental-Anguish Claims
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Plaintiffs challenge the summary judgment ruling which
dismissed their gender-discrimination and mental-anguish claims
as merely incidental to their Dealer Act claim. Plaintiffs
insist that they consistently maintained throughout the pro-
ceedings below that all of Canon s adverse actions not merely
its Systronics designation evidenced gender discrimination and
contributed to their mental anguish. See supra note 1. As
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plaintiffs view it, even though Canon retained the contractual
right to designate Systronics as a second distributor, it could
not exercise that or any other right purely for gender-based rea-
sons without violating P.R. Constitution art. II, 1, and
tortiously inflicting mental anguish upon plaintiffs.
The magistrate judge and the district judge converted
the Rule 12(b)(6) motion to a motion for summary judgment without
objection by plaintiffs. See Fayetteville Investors v. Commer-
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cial Builders, Inc., 936 F.2d 1462, 1473 (4th Cir. 1991) (conver-
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sion challenges waivable); Jones v. Automobile Ins. Co. Of
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Hartford, 917 F.2d 1528, 1533 n.4 (11th Cir. 1990) (same);
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4 We note, as well, no plain error. See Douglass v. United
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Servs. Auto. Ass'n, 79 F.3d 1415, 1423-24 (5th Cir. 1996) (en
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banc).
7
Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 390 n.9 (5th Cir.
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1985) (same).5 Nor do plaintiffs challenge the conversion on ap-
peal, see Brief for Appellants at 25, 30 (referring to summary
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judgment ); Nieves v. University of P.R., 7 F.3d 270, 279 (1st
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Cir. 1993) (conversion waivable on appeal); Wright v. Holbrook,
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794 F.2d 1152, 1156 (6th Cir. 1986) (same).
The summary judgment rulings on the gender-discrimina-
tion and mental-anguish claims are therefore reviewed de novo,
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with all reasonable inferences to be drawn favorably to plain-
tiffs, the nonmoving parties. EEOC v. Green, 76 F.3d 19, 23 (1st
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5The original Canon motion sought to dismiss the complaint
only for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
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Canon attached pertinent dealership agreements, see Shaw v.
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Digital Equip. Corp., 82 F.3d 1194, 1219-20 (1st Cir. 1996)
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(noting that written documents integral to complaint like
contracts are not considered matters outside the pleadings
requiring Rule 12(b) conversion), and an affidavit relating
exclusively to its alternative motion for change of venue.
Although the parties are entitled to reasonable notice of an
impending conversion, as well as an opportunity to present all
material made pertinent to that motion by Rule 56, Fed. R. Civ.
P. 12(b); Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29-30
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(1st Cir. 1996), the record clearly discloses that these
plaintiffs invited the conversion. See Chaparro-Febus v.
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International Longshoremen Ass n, 983 F.2d 325, 332 (1st Cir.
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1992) (notice of impending conversion need not be express). In
their two succeeding opposition motions, for example, plaintiffs
attached Santiago s sworn statement, which reiterated their
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assertions that Canon had engaged in a pattern of discriminatory
conduct violative of P.R. Constitution art. II, 1 and P.R.
Civil Code Article 1802. See Fed. R. Civ. P. 56(e); David v.
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City and County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)
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(nonmovants submission of materials outside the pleadings waives
their objection to conversion), cert. denied, 118 S. Ct. 157
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(1997); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533
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(9th Cir. 1985) (same). Counting their surreply, plaintiffs had
more than two months to assemble their Rule 56 proffer. See
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Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.
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1997) (finding two months adequate to prepare materials in
anticipation of possible conversion, or move for Rule 56(f)
extension). See infra note 10.
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8
Cir. 1996). Summary judgment was in order unless plaintiffs ad-
duced evidence sufficient to establish each element essential to
their claim as to which they would have borne the burden at
trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477
___ _____________ _______
U.S. 317, 324 (1986); Nieves, 7 F.3d at 279.
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Although Canon acknowledges that the district court
relied in error upon an inadequate ground in dismissing the
constitutional claim, see supra Section I, we may affirm on any
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ground supported by the record, Levy v. FDIC, 7 F.3d 1054, 1056
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(1st Cir. 1993). Even assuming their constitutional claim for
gender discrimination were cognizable under Puerto Rico law,6
plaintiffs Rule 56 proffer generated no trialworthy issue as to
whether a gender-based animus motivated Canon s so-called pat-
tern of conduct.
Summary judgment may be warranted even as to such
elusive elements as a defendant s motive or intent where the
non-moving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation. " DeNovellis
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v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (citations omit-
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ted); see Pilgrim v. Trustees of Tufts College, 118 F.3d 864,
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870-71 (1st Cir. 1997); Smith v. Stratus Computer, Inc., 40 F.3d
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11, 13 (1st Cir. 1994); Velazquez v. Chardon, 736 F.2d 831, 833-
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6Cf., e.g., Arroyo v. Rattan Specialties, Inc., 117 P.R. Dec.
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35, 64-65 (1986) (noting that enunciated constitutional rights
operate ex proprio vigore, permitting individuals to sue for
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violations). But see Carlton v. Worcester Ins. Co., 923 F.2d 1, 3
___ ___ _______ __________________
(1st Cir. 1991) (party who invokes federal diversity jurisdiction
cannot expect federal court to blaze new trails in state law).
9
34 (1st Cir. 1984). A plaintiff [claiming discrimination] may
not prevail simply by asserting an inequity and tacking on the
self-serving conclusion that the defendant was motivated by a
discriminatory animus. Coyne v. City of Somerville, 972 F.2d
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440, 444 (1st Cir. 1992) (quoting Correa-Martinez v. Arrillaga-
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Belendez, 903 F.2d 49, 53 (1st Cir. 1990)).
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The only smoking gun allegation in the complaint is
that unidentified Canon representatives uttered unspecified
derogatory epithets denigrating [Santiago s] dignity as a woman
and as a human being. That bare allegation, parroted without
elaboration in a Rule 56 proffer, see supra note 5, disclosed
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neither the substance and context of the epithets,7 nor the
identity and capacity of the person(s) employing them.8 See
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7See Speen v. Crown Clothing Corp., 102 F.3d 625, 636 (1st
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Cir. 1996) ( [I]solated or ambiguous remarks, tending to suggest
animus based on age, are insufficient, standing alone, to prove
an employer's discriminatory intent. ) (citation omitted), cert.
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denied, 117 S. Ct. 2457 (1997); Lehman v. Prudential Ins. Co. of
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Am., 74 F.3d 323, 329 (1st Cir. 1996) (same); Alexis v.
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McDonald s Restaurants of Mass., Inc., 67 F.3d 341, 348 (1st Cir.
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1995) (suggesting that remarks should be [v]iewed in context to
determine if animated by discriminatory intent); see also Woodman
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v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir. 1995) (noting
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that proponent must show that hearsay statements concern matters
within the scope of [declarant s] agency or employment ) (citing
Fed. R. Evid. 801(d)(2)(D)).
8The identity of the speaker often is crucial to ascertaining
not only intent but any causal connection between the remark and
the alleged adverse action directed against the plaintiff. See,
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e.g., Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 616 (1st Cir.
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1996) (noting that it is appropriate to discount "stray remarks
in the workplace . . . , statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process
itself") (citation omitted); Betkerur v. Aultman Hosp. Ass n, 78
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F.3d 1079, 1095 (6th Cir. 1996) ( [T]he lower court properly
discounted the discriminatory remarks . . . by
non-decisionmakers. ).
10
Jones v. Merchants Nat'l Bank & Trust Co. of Indianapolis, 42
_____ ___________________________________________________
F.3d 1054, 1059 (7th Cir. 1994) ("'The object of [Fed. R. Civ. P.
56(e)] is not to replace conclusory allegations of the complaint
or answer with conclusory allegations of an affidavit. ") (cita-
tion omitted).
At summary judgment, the district court cannot accept
on faith conclusory assessments by claimants that unspecified and
unattributed epithets were derogatory and denigrating, let
alone demonstrated discriminatory intent. See Pilgrim, 118 F.3d
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at 871 (noting that plaintiff s [subjective] perception is not
evidence of discriminatory intent, hence not enough to with-
stand summary judgment ); Correa-Martinez, 903 F.2d at 53 (noting
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that, even at the Rule 12(b)(6) stage, plaintiff may not rest on
'subjective characterizations ) (citation omitted); see also
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Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th
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Cir. 1996) (en banc) ( It is . . . well settled that an
employee's subjective belief that he suffered an adverse employ-
ment action as a result of discrimination, without more, is not
enough to survive a summary judgment motion, in the face of proof
showing an adequate nondiscriminatory reason. ).9
The counterproffer from Canon makes the uncontroverted
representation that Professional remains its sole authorized
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micrographic products distributor in Puerto Rico. Thus, before
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9Nor did the plaintiffs proffer competent Rule 56 evidence
supporting their allegation, based on information and belief,
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that Santiago was the only woman heading a Canon dealership in
the United States.
11
the alleged pattern of conduct by Canon could be attributed to
gender discrimination, one rationally would need to question not
only why Canon retained Professional as its sole Puerto Rico
dealer in micrographic products, and one of two Puerto Rico
dealers in Canon optical disk filing products, but also why it
entered into the October 1990 Canofile 250 dealership agreement
with Santiago in the first place. In our judgment, based on
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these conflicting proffers the trier of fact could not find that
the facially nondiscriminatory conduct engaged in by Canon
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actually was motivated by gender discrimination except by resort-
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ing to rank speculation.10
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Finally, the Rule 56 proffer on the mental-anguish tort
claim under P.R. Civil Code Article 1802 fares no better.
Plaintiffs were required to establish that in some appreciable
measure the[ir] health, welfare and happiness . . . were really
affected, Ruiz-Rodriguez v. Colberg-Comas, 882 F.2d 15, 17 (1st
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10Plaintiffs further contend that the district court erred in
denying them an opportunity to undertake discovery before
granting summary judgment. We review only for manifest abuse of
discretion. See Mills v. State of Maine, 118 F.3d 37, 50 (1st
___ _____ _______________
Cir. 1997). We find none. First, plaintiffs neither filed the
motion for continuance nor the supporting affidavit required
under Rule 56(f). See Springfield Terminal Ry. Co. v. Canadian
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Pac. Ltd., __ F.3d __, __ (1st Cir. 1997) [No. 97-1783, 1997 WL
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775553, at *7 (1st Cir. Dec. 22, 1997)] ( Rule 56(f) of the
Federal Rules of Civil Procedure specifically calls upon a
litigant who feels prejudiced by too precipitate a demand for
summary judgment to file a timely affidavit with the court
asserting the need for further discovery. As we have held,
failure to resort to such first aid will ordinarily bar belated
aid. ). Second, notwithstanding plaintiffs plain waiver, the
crucial deficiencies in their Rule 56 proffer simply are not
attributable to a need for further discovery, especially since
plaintiffs presumably knew which Canon representatives uttered
sex-based epithets, as well as their substance and context.
12
Cir. 1989) (quoting Moa v. Commonwealth, 100 P.R.R. 572, 585-86
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(1972)), and they experienced deep moral suffering and anguish,
and [not merely] a passing affliction, de Jesus v. Eastern Air
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Lines, Inc., 708 F. Supp. 470, 472 (D.P.R. 1989) (citing
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Hernandez v. Fournier, 80 D.P.R. 94, 104 (1957)). These showings
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turn upon an evaluation of: (1) the severity of the pain suf-
fered; (2) its duration; and (3) its mental consequences.
Lopez-Nieves v. Marrero-Vergel, 939 F. Supp. 124, 126 (D.P.R.
____________ ______________
1996).11
Plaintiffs offered only their conclusory assertion that
Santiago and her husband have been exposed to mental suffering,
anxiety, anguish and humiliation, with no independent corrobora-
tion, cf. Cruz v. Molina, 788 F. Supp. 122, 129 (D.P.R. 1992)
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(court sitting as trier of fact rejected plaintiff s uncorrobo-
rated testimony of mental anguish, where he was not a physician,
nor had he consulted a physician); supra note 11. Moreover,
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since any emotional injury to plaintiffs presumably resulted
primarily from the alleged use of sex-based epithets by Canon
representatives, and plaintiffs offered no competent evidence
as to the substance of the epithets, a rational factfinder would
have no evidentiary basis for determining whether the alleged
remarks were likely to have caused Santiago or her husband the
type of deep moral suffering and anguish required under Article
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11Since plaintiffs cited no cases defining the mental-anguish
standard, and filed no reply brief challenging Canon s citation
to these district court decisions, we simply assume, without
deciding, that the cited decisions describe the applicable
commonwealth standard.
13
1802. See DeNovellis, 124 F.3d at 306 (nonmovant cannot rest[]
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merely upon conclusory allegations, improbable inferences, and
unsupported speculation. ") (citation omitted).
Affirmed.
Affirmed.
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14