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The full case caption appears at the end of this opinion. Plaintiff-appellant Felix Landrau-Romero (“Landrau”) appeals from thedistrict court’s entry of summary judgment in favor of Landrau’s employer, defendant-appellee Banco Popular.We affirm in part and vacate in part, and remand for further proceedings not inconsistent with this opinion. BACKGROUND We set forth the relevant facts in the light most favorable to the appellant. See New York StateDairy Foods, Inc. v. Northeast Dairy Compact Comm’n, 198 F.3d 1, 3 (1st Cir. 1999). Landrau, ablack man, was employed by Banco Popular from 1981 until his resignation in 1995. He began as aclerk in the collection department, and was transferred in 1988 to the insurance unit of themortgage department for the remainder of his employment. On April 1, 1993, Landrau’s supervisor, Carmen Sand�n, retired from her position as supervisor ofthe mortgage insurance services. Several Banco Popular employees applied for the vacant position,including Landrau. In April, 1993, a white man, Jaime Bou, was selected and became Landrau’ssupervisor. Bou subjected Landrau’s work to closer scrutiny than that of the other employees in the unit, andclosely monitored Landrau’s whereabouts. This monitoring included forcing Landrau to leave a noteon his desk every time he went on break, to the bathroom, or to get a drink of water. At one pointafter June 30, 1994, Bou verbally admonished Landrau for taking a break without providingnotification of his whereabouts (“the break incident”). When Landrau brought co-workers to explainto Bou that Landrau had in fact informed them of his whereabouts, Bou “said nothing.” Bou criticized and “yelled” at Landrau more frequently than other employees, sometimes in front ofLandrau’s coworkers. Moreover, after Landrau suffered an injury at work and returned fromdisability leave on December 29, 1993, Bou assigned him physically strenuous tasks in disregard ofan accommodation ordered by the State Insurance Fund. This disregard of Landrau’s disabilitycontinued through June or July, 1994. In March or April, 1994, Landrau received a written reprimand for misidentifying the date oncertain paperwork, which caused duplicate payments to be made. On June 30, 1994, Bou gave Landrauanother reprimand for continuing to repeat these mistakes. Landrau’s performance evaluations,which had been excellent under his previous supervisors, declined. Landrau contends that theerrors were due to the bank’s failure to provide him with adequate computer training, which hiscoworkers received. Landrau alleges other harassment, including Bou’s attempt to “frame” him in June, 1994, by usingLandrau’s computer to commit errors for which Landrau was blamed. Bou and other supervisors madejokes and comments about his race, including remarking upon his “kinky hair.” One of thesupervisors also complained in writing about Landrau’s meeting with other Banco Popular employeesto discuss filing a race discrimination complaint. In an attempt to remove himself from these circumstances, Landrau submitted applications for otherpositions within Banco Popular, but was not hired. [FOOTNOTE 1] Landrau complained to Banco Popular about thealleged harassment and racial discrimination. In a letter dated March 7, 1994, Landrau stated thathe had been unfairly subjected to reprimands after Bou replaced Sand�n, and that “work becamehell.” On June 14, 1994, Landrau wrote a letter to general manager Felipe Franco alleging that Bouwas mistreating him due to race discrimination; on August 26 of that year, Landrau wrote anotherletter to Franco complaining that he had been turned down for Sand�n’s position and that hisperformance evaluations had fallen since Bou became his supervisor. Banco Popular investigated the allegations, and, in a report dated November 3, 1994, concludedthat Landau’s problems were not caused by discrimination. Landrau’s job duties, pay, and physicalworking environment did not change while Bou was his supervisor. On February 15, 1995, Landrau submitted a letter of resignation stating that he was leaving BancoPopular because he had another job opportunity. On February 28, 1995, the day that resignation wasto be effective, he submitted another letter, this time stating that the true reason for hisresignation was discrimination. Landrau filed charges of discrimination with the Anti-Discrimination Unit of Puerto Rico’s LaborDepartment and the Equal Employment Opportunity Commission (EEOC) on or about March 9, 1995. [FOOTNOTE 2] TheEEOC issued him a “right-to-sue” letter on January 16, 1996. On April 16, 1996, Landrau filedemployment discrimination claims against Banco Popular in the District Court for the District ofPuerto Rico pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq. andPuerto Rico’s anti-discrimination statute, Law 100, P.R. Laws Ann. 29, � 146 et seq. [FOOTNOTE 3] He appearsto have alleged three adverse employment actions on the basis of his race and color: (1) thatBanco Popular failed to promote him to Sand�n’s position; (2) that he was subjected to harassmentafter Bou became his supervisor; and (3) that the harassment became so intolerable that itresulted in his constructive termination. On August 11, 1997, Banco Popular moved for summary judgment on the grounds that (1) Landrau couldnot adduce sufficient evidence to support his constructive discharge claim; and (2) Landrau’sfailure-to-promote claim was time-barred because he did not file a charge of discrimination withinthe 300-day time limit set forth in Title VII. Landrau opposed the summary judgment motion,contending that his working conditions amounted to actionable harassment and constructivedischarge, and that Banco Popular’s failure to promote him was discriminatory. Landrau did not,however, explicitly counter defendants’ time bar argument or address the state law claims. In support of his opposition to Banco Popular’s summary judgment motion, Landrau submitted, interalia, affidavits by Sand�n and another former supervisor that discussed a general climate ofracial discrimination at Banco Popular. Specifically, Sand�n stated in her affidavit that she”always had the impression that black candidates like Mr. Landrau were not welcome [sic] by thetop management of Banco Popular for trainee positions in management nor for supervisorypositions.” The other former Banco Popular supervisor, Angel Rivera Colon, stated: I had my reservations that [Landrau] would not be selected just for been [sic] black, consideringthat a white applicant, Mr. Jaime Bou, had already applied for the position. In fact, during my 29years of experience in Banco Popular it was an unwritten law that somehow was conveyed to usofficials, that if there was a white applicant and a black applicant for the same position, thewhite applicant would get the position, and that was accepted as an implied rule, although nobodydared to publicly talk about it or openly admitting [sic] it. Also it was well known to me thatblacks were not welcomed for management positions, although nobody told me so explicitly. The district court allowed Banco Popular’s motion for summary judgment on February 23, 1999. SeeRomero v. Banco Popular de Puerto Rico, 35 F. Supp. 2d 195 (D.P.R. 1999). The court stated in afootnote that Landrau’s failure to file a timely charge of discrimination with the EEOC provided abasis for awarding summary judgment to Banco Popular, but went on to address the merits ofLandrau’s claims. The district court determined that Landrau had established a prima facie case ofdiscrimination based upon the fact that Bou had been hired to fill Sand�n’s position. Landraufailed to rebut Banco Popular’s nondiscriminatory explanation for the selection of Bou, however,with sufficient evidence of discrimination. [FOOTNOTE 4] The district court stated that the affidavits offered by Sand�n and Rivera did not sufficientlyestablish discriminatory intent. It also concluded that Landrau did not adduce sufficient evidenceof race-based harassment or constructive discharge. On March 9, 1999, Landrau filed a motion to set aside the opinion and order and forreconsideration pursuant to Fed. R. Civ. P. 59(e). For the first time, Landrau asserted that thetime period for filing his charge of discrimination should be tolled due to operation of thediscovery rule and the “continuing violation” doctrine. The district court denied the motion onMarch 29, 1999. Landrau appeals. II. DISCUSSION This Court reviews orders for summary judgment de novo, construing the record in the light mostfavorable to the nonmovant and resolving all reasonable inferences in that party’s favor. SeeHoulton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). This standardof review does not limit us to the district court’s rationale; we may affirm the entry of summary judgment on “any groundrevealed by the record.” Id. A. Failure to promote The district court correctly determined that Landrau’s failure to promote claim was time-barred.42 U.S.C. � 2000e-5(e) provides that a charge shall be filed with the EEOC “within one hundred andeighty days after the alleged unlawful employment practice occurred,” or within 300 days after theunlawful practice if “the person aggrieved has initially instituted proceedings with [anauthorized] State or local agency.” The longer period is available only in so-called “deferral”jurisdictions, including Puerto Rico. See Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278& n.4 (1st Cir. 1999). Assuming that the longer period applied, Landrau had 300 days after the alleged adverse employmentaction to file his charge with the EEOC. For purposes of his failure to promote claim, the clockbegan to run no later than April, 1993, when Bou filled the position Landrau had sought,necessarily notifying Landrau that Bou had been selected instead of him. Landrau did not file hischarge of discrimination until March 9, 1995, nearly two years later. He thus failed to complywith the 300-day limitation period. “This omission, if unexcused, bars the courthouse door, ascourts long have recognized that Title VII’s charge-filing requirement is a prerequisite to thecommencement of suit.” Id. at 278. Landrau contends on appeal that the doctrines of notice and “continuing violation” equitablytolled the limitation period. He argues that he was unaware that defendant’s actions weremotivated by racial discrimination until July 14, 1994, and that all of the adverse actions werepart of a continuous pattern of harassment and discrimination. Hence, he contends, his failure totimely file his charge of discrimination was excused. Landrau failed to make this argument, however, in his opposition to Banco Popular’s motion forsummary judgment. [FOOTNOTE 5] Therefore, he has waived it. See Bullington v. United Air Lines, Inc., 186F.3d 1301, 1311 (10th Cir. 1999) (refusing to consider continuing violation theory that was notadequately presented in district court); see also Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,354 (1st Cir. 1992). To be sure, Landrau asserted a tolling argument in his motion for reconsideration pursuant to Fed.R. Civ. P. 59(e). It is well-settled, however, that new legal arguments or evidence may not bepresented via Rule 59(e); rather, motions under that rule must either clearly establish a manifesterror of law or present newly discovered evidence. See Federal Deposit Ins. Corp. v. World Univ.,Inc., 978 F.2d 10, 16 (1st Cir. 1992). As Landrau’s tolling argument was available to him beforejudgment was entered, he could not raise it under Rule 59(e), and we are not obliged to considerit now. See id. In any event, Landrau’s tolling argument lacks merit. No continuing violation can be found wherethe plaintiff was aware of the alleged discrimination outside of the time for filing a charge: Even where a plaintiff alleges a violation within the appropriate statute of limitations period,the continuing violation claim will fail if the plaintiff was or should have been aware that hewas being unlawfully discriminated against while the earlier acts, now untimely, were takingplace. Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998). The recordcontains a handwritten note by Landrau dated March 9, 1994, stating, “we, who are black, weredenied the position and [it] was given to the only white that applied for it, Mr. Jaime Bou.”Thus, Landrau apparently was aware of the alleged discrimination with regard to Bou’s hiringapproximately a full year before he filed his charge of discrimination with the EEOC. Accordingly,neither the doctrine of notice nor of continuing violation could resuscitate his failure topromote claim. See id. As Landrau’s failure to promote claim was time-barred, we need go no further with respect to thatclaim. B. Constructive discharge Landrau contends that the district court erred in concluding that there was insufficient evidenceto support his claim of constructive discharge under Title VII. In an employment discriminationcase alleging termination, the plaintiff first must establish a prima facie case, i.e., that he(1) was within a protected class; (2) met the employer’s legitimate performance expectations; (3)was actually or constructively discharged; and (4) was replaced by another with similar skills andqualifications. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Alleging constructive discharge presents a “special wrinkle” that amounts to an additional primafacie element. Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994). In such cases,the plaintiff must prove that his employer imposed “‘working conditions so intolerable [] that areasonable person would feel compelled to forsake his job rather than to submit to loomingindignities.’” Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999)(quoting Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993)) (alteration in original);see also Sanchez, 37 F.3d at 719. Here, the district court concluded that Landrau did not adduce sufficient evidence to support aconstructive discharge claim, noting that the alleged events did not occur close in time toLandrau’s termination. We think that Landrau’s resignation came too late after the offensiveconduct to be labeled a constructive discharge. See Smith v. Bath Iron Works Corp., 943 F.2d 164,167 (1st Cir. 1991). If a plaintiff does not resign within a reasonable time period after thealleged harassment, he was not constructively discharged. See id. (no constructive discharge foundwhere plaintiff quit six months after last reported incident of sexual harassment), and casescited. Here, Landrau has not adduced evidence of any incidents of mistreatment within a reasonable timeof his resignation in February, 1995. The specific events to which he has affixed dates — i.e.,the written reprimands, Bou’s attempt to frame him, Bou’s failure to accommodate his disability –occurred no later than June or July, 1994, at least seven months before Landrau’s resignation.Landrau has therefore failed to provide sufficient evidence of constructive discharge, and,accordingly, failed to make out a prima case of discriminatory termination. [FOOTNOTE 6] See Vega, 3 F.3d at480. Hence, the district court properly awarded summary judgment for Banco Popular on the issue ofconstructive discharge. C. Race-based harassment In his amended complaint and trial court brief, as well as in his appellate brief, Landrauasserted a claim of race-based harassment that is separable from the failure to promote andconstructive termination claims. [FOOTNOTE 7] See Lattimore, 99 F.3d at 463. An employee states a claim underTitle VII if he alleges offensive, race-based conduct that is severe or pervasive enough to createan objectively hostile or abusive work environment and is subjectively perceived by the victim asabusive. See id. [W]hether an environment is “hostile” or “abusive” can be determined only by looking at all thecircumstances. These may include the frequency of the discriminatory conduct; its severity;whether it is physically threatening or humiliating, or a mere offensive utterance; and whether itunreasonably interferes with an employee’s work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Unlike the failure to promote claim, Landrau’s harassment claim is not time-barred. As discussedsupra, he described specific episodes of mistreatment as well as ongoing harassment occurringwithin the 300-day limitations period set forth in 42 U.S.C. � 2000e-5(e). The district court stated that Landrau had not provided “enough evidence to support a finding ofcontinuous harassment, unreasonably tight supervision, or imposition of a hostile workingenvironment.” In so concluding, it referenced only the two written reprimands Landrau receivedafter Bou became his supervisor and the break incident (in which Landrau brought co-workers to Bouto explain that he had given proper notice when he took a meal break). The court apparently didnot take into account other specific aspects of the mistreatment Landrau alleged in his depositionand affidavit — including, inter alia, the verbal criticisms, the monitoring of his whereabouts,the reference to “kinky hair,” Bou’s purported attempt to “frame” him, Bou’s failure toaccommodate Landrau’s physical injury, and the complaint about his meeting with other blackemployees to discuss a discrimination claim — that were not imposed on white employees. There is, to be sure, some tension between Landrau’s affidavit in support of his opposition tosummary judgment and his deposition. In his affidavit he states that he was subjected to ongoingcriticism and harassment, including Bou’s “almost daily” verbal reprimands, weekly “yelling,” andheightened monitoring of his work and whereabouts. But when asked earlier to describe specific”admonishments” in his deposition, Landrau enumerated only the two written reprimands and thebreak incident. The comprehensiveness of this response, however, is rendered somewhat ambiguous bythe fact that when asked whether he had received any “verbal admonishments,” he mentioned “[t]hepersecutions that I have always had,” then went on to discuss the break incident. He later statedin his deposition that he did not “recall” other “admonishments” at that time. While fodder forimpeachment, Landrau’s statements do not involve the sort of direct contradiction that we haveheld fails to create a “genuine” factual dispute for summary judgment purposes. See, e.g.,Borowiec v. Local No. 1570, 889 F.2d 23, 27 (1st Cir. 1989). Looking at the totality of the circumstances, we find the evidence in Landrau’s affidavit anddeposition, while close to the line, to be sufficient to withstand summary judgment. [FOOTNOTE 8] We must, ofcourse, consider the evidence and all reasonable inferences therefrom in the light most favorableto Landrau. See Buenrostro v. Collazo, 973 F.2d 39, 41 (1st Cir. 1992). This evidence might, ifproven, support a race-based harassment claim. See, e.g., Danco, Inc. v. Wal-Mart Stores, Inc.,178 F.3d 8, 16 (1st Cir. 1999) (plaintiff alleged comments or jokes of a racial nature);Lattimore, 99 F.3d at 463 (plaintiff alleged that he was coerced into performing tasksinconsistent with his medical restriction, unlike white employees). Alleged conduct that is notexplicitly racial in nature may, in appropriate circumstances, be considered along with moreovertly discriminatory conduct in assessing a Title VII harassment claim. See DeGrace v.Rumsfield, 614 F.2d 796, 800 (1st Cir. 1980) (evidence of equipment sabotage and co-workers’”silent treatment” considered along with racially explicit notes); see also Williams v. GeneralMotors Corp., 187 F.3d 553, 563-64 (6th Cir. 1999) (sexual harassment); O’Shea v. Yellow Tech.Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999); Carter v. Chrysler Corp., 173 F.3d 693, 701(8th Cir. 1999). We note further that there is evidence that Landrau complained about his allegedmistreatment to Banco Popular’s management, and that he suffered emotional harm as a result of theharassment. On the present state of the record, we cannot say that there is no genuine issue ofmaterial fact concerning Landrau’s race-based harassment claim. Thus, while we take no view on itsultimate merits, we must vacate the district court’s entry of summary judgment on that claim andremand it for further proceedings not inconsistent with this opinion. D. State law claim On appeal, Landrau asserts that his discrimination claim under Puerto Rico Law 100 should survivesummary judgment. [FOOTNOTE 9] The district court did not analyze or even mention his Law 100 claim, butsimply dismissed Landrau’s complaint in its entirety. It seems likely that the district court,having decided that Landrau’s Title VII claims should be dismissed, declined to retainjurisdiction over the state law claim. This disposition cannot stand in light of our reversal ofthe ruling on the Title VII harassment claim. We therefore vacate the district court’s dismissalof Landrau’s harassment claim under Law 100, and remand it for further consideration notinconsistent with this opinion. [FOOTNOTE 10] Banco Popular contends that Landrau has waived his Law 100 claim because he failed to argue itbelow in his opposition to summary judgment. In its brief in support of summary judgment, however,Banco Popular focused exclusively on Landrau’s Title VII claims and did not address the Law 100claim in any manner. [FOOTNOTE 11] Landrau could fairly have understood that Banco Popular was moving forsummary judgment only on the Title VII claims, and that he was not required to address the meritsof the Law 100 claim. Affirmed in part and reversed in part, and remanded for further proceedings not inconsistent withthis opinion. Each party to bear his or its own costs. FOOTNOTES FN1 As to at least two of those positions, Landrau admitted that he was not hired because he lackedthe necessary experience and training. He does not contend that he was denied any of thesepositions due to racial discrimination. FN2 March 9, 1995, is the date on the Department of Labor discrimination charge form contained inthe record, although Landrau’s complaint and the district court’s opinion state that the chargewas filed on February 28, 1995. This discrepancy is not material. FN3 The complaint originally alleged age discrimination as well as race discrimination; the ageclaim was later dropped. FN4 The district court appeared to confuse or conflate the different adverse employment actions inapplying the burden-shifting analysis. For example, it stated that Landrau established a primafacie case of racial discrimination because Bou was hired instead of him, but pointed to Landrau’sfailure to adduce evidence of harassment or constructive discharge in concluding that Landrau didnot rebut Banco Popular’s explanation that Bou was the more qualified applicant. Because thealleged adverse employment actions are factually distinct, we analyze them separately on appeal.See Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1st Cir. 1996). FN5 Although Landrau’s opposition to the motion for summary judgment made passing mention of “continuous”harassment, he did not explicitly assert a tolling argument in his accompanying brief. To the extent that hediscussed a “pattern” of treatment, it was in the context of harassment and constructive discharge, nottolling of the limitations period for his discrimination charge. Nor does Landrau argue on appeal that he hadtimely raised this argument below. FN6 Although the district court correctly determined that no rational juror could have believed that Landrauwas constructively discharged, it nonetheless held that he passed the prima facie hurdle because he wasqualified for Sand�n’s position. As to Landrau’s termination claim, this was a non sequitur. See note 4,supra. FN7 Although Landrau sometimes characterizes the harassment as “retaliatory” in his briefs, he makes no effortto address the established framework for a Title VII retaliation claim, see, e.g., Simas, 170 F.3d at 44,i.e., he does not explicitly set forth evidence of protected activity or its causal connection to theharassment. Hence, we do not consider a separate retaliation claim. FN8 Also contained in the summary judgment record below is an excerpt from the deposition of Landrau’spsychiatrist, who stated (based on his sessions with Landrau) that Landrau was called a “good Negro” by BancoPopular personnel. This evidence is inadmissible hearsay, however, and thus cannot be taken into account forpurposes of the summary judgment calculus. See Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998). FN9 As with Landrau’s Title VII claim, the state law claim appears to encompass discriminatory failure topromote, harassment and constructive discharge. FN10 For the reasons we have set forth regarding the similar federal claims, we affirm the dismissal ofLandrau’s state-law failure to promote and constructive discharge claims. In all events, we note that Landraudoes not argue on appeal that the timeliness of these claims should be analyzed differently under Law 100than under Title VII. FN11 This failure, therefore, is distinguishable from Landrau’s failure to oppose Banco Popular’s statute oflimitations argument. See section A, supra.
Landrau-Romero v. Banco Popular de Puerto Rico United States Court of Appeals For the First Circuit No. 99-1708 FELIX A. LANDRAU-ROMERO, Plaintiff, Appellant, v. BANCO POPULAR DE PUERTO RICO, Defendant, Appellee. Appeal From: United States District Court for the District of Puerto Rico Before: Selya, Campbell, and Stahl Counsel for Appellant: Luis R. Mellado Gonzalez Counsel for Appellee: Pedro J. Manzano-Yates Filed: April 6, 2000
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