Mercado Garcia v. Ponce Federal Bank ( 1992 )


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  • USCA1 Opinion









    November 19, 1992
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________


    No. 91-2296

    JULIO A . MERCADO-GARCIA,
    MARIA DEL CARMEN AVILA MUGICA,
    AND THEIR MARITAL CONJUGALSHIP,

    Plaintiffs, Appellants,

    v.

    PONCE FEDERAL BANK, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

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

    ____________________

    Before

    Breyer, Chief Judge,
    ___________
    O'Scannlain,* and Cyr, Circuit Judges.
    ______________

    ____________________

    Pia Gallegos with whom Harry Anduze Montano was on brief for
    _____________ ______________________
    appellants.
    Gregory T. Usera with whom Goldman Antonetti Ferraiuoli &
    __________________ __________________________________
    Axtmayer was on brief for appellees.
    ________

    ____________________


    ____________________

    _____________________

    *Of the Ninth Circuit, sitting by designation.


















    O'SCANNLAIN, Circuit Judge: In this case involving
    O'SCANNLAIN _____________

    claims of age and employment discrimination we must resolve

    several issues of first impression.



    I

    Julio Mercado-Garcia ("Mercado") was fifty years

    old and had been in the employ of the Ponce Federal Bank

    ("the Bank") for eleven years when he was discharged from

    his position as Vice President for Human Resources in 1988.

    The final year of his tenure had not apparently been

    pleasant. Mercado says that his problems began in November

    1987 when he refused to accede to his supervisor's request

    that he falsify certain personnel records. By his refusal

    to act in a manner he believed to be illegal, Mercado

    allegedly precipitated a campaign of harassment,

    intimidation, and discrimination against himself.

    Eventually Mercado was asked, and asked again, to

    submit his resignation. When he refused, the Bank

    terminated his employment. A letter from the Bank reached

    Mercado on October 13, 1988, confirming his discharge

    effective September 30, 1988. He alleges, however, that his

    ill treatment at the hands of the Bank did not end there,

    for the Bank, assertedly without cause, promptly cancelled

    his VISA card and prematurely called a loan he had taken out

    from the Bank. In addition, says Mercado, the Bank failed

    to provide him timely notice of his rights to continue under




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    the Bank's health and life insurance policies, thereby

    causing him to lose coverage.

    Mercado filed his complaint in this case in July

    1989 alleging violations of the Age Discrimination in

    Employment Act, 29 U.S.C. 621-634 ("ADEA"), the Employee

    Retirement Income Security Act, 29 U.S.C. 1001-1461

    ("ERISA"),1 the Equal Credit Opportunity Act, 15 U.S.C.

    1691-1691f ("ECOA"), and the Consolidated Omnibus Budget

    Reconciliation Act, 29 U.S.C. 1161-1168, ("COBRA"), as

    well as a federal breach of contract claim2 and pendent

    state law causes of action. In the district court, the Bank

    prevailed on all claims, some by dismissal under Federal

    Rule of Civil Procedure 12(b)(6) and others by grant of

    summary judgment. Mercado timely appealed.



    II

    We turn first to Mercado's claim under the ECOA.

    Section 701 thereof provides as follows:

    (a) It shall be unlawful for any creditor to
    discriminate against any applicant, with respect to
    any aspect of a credit transaction --


    ______________________
    1 On appeal, Mercado has asserted no error in connection
    with the district court's dismissal of his ERISA claim for
    interference with retirement benefits in violation of 29
    U.S.C. 1140. We therefore deem any such argument waived.

    2 The district court had original jurisdiction over the
    federal questions presented in this case pursuant to 28
    U.S.C. 1331. See also 12 U.S.C. 632; 15 U.S.C.
    _________
    1691e(f); 29 U.S.C. 1132(e). This court has jurisdiction
    over the final decision of the district court pursuant to 28
    U.S.C. 1291.

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    (1) on the basis of race, color, religion,
    national origin, sex or marital status, or age
    (provided the applicant has the capacity to
    contract) . . . .

    15 U.S.C. 1691(a)(1). Mercado contends that summary

    judgment was erroneously entered against him on his claims

    under this section. Before reaching the merits of this

    contention, we must first analyze how the commands of the

    ECOA are to be applied, a matter we consider for the first

    time.

    It is apparent that the plain language of the

    statute itself does not resolve a number of questions that

    are fundamental to its enforcement by the courts. In

    particular, the statute does not reveal what it is an ECOA

    plaintiff like Mercado must establish in order to make out a

    prima facie case of unlawful discrimination in a credit

    decision and to withstand a creditor's motion for summary

    judgment.

    When faced with a matter of statutory construction

    that is of first impression we have looked for guidance to

    our construction of other, similar enactments. See De Jesus
    ___ ________

    v. Banco Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir.
    _______________________________

    1990) (looking to precedent regarding grant of attorney's

    fees under 42 U.S.C. 1988 in interpreting "similar"

    attorney's fees provisions of Truth in Lending Act). Doing

    so in this instance, we find in the Equal Employment

    Opportunity Act, 42 U.S.C. 2000e-2 ("EEOA"), an





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    appropriate model, and cases interpreting that statute

    instructive. The EEOA seeks to prohibit discrimination in

    the employment arena much as does the ECOA in the realm of

    credit decisions. Indeed, the two statutes use nearly

    identical language in seeking to achieve their purposes. We

    therefore approve the district court's decision to follow

    the lead of other circuits and analyze the ECOA as we have

    analyzed the parallel provisions of the EEOA. See Bhandari
    ___ ________

    v. First Nat'l Bank of Commerce, 808 F.2d 1082, 1100-01 (5th
    _______________________________

    Cir. 1987) (language of ECOA is "closely related" to that of

    EEOA and "was intended to be interpreted similarly");

    Williams v. First Fed. Sav. & Loan Ass'n, 554 F. Supp. 447,
    ________________________________________

    448-49 (N.D.N.Y. 1981) ("protections afforded by the ECOA

    should be applied in the same manner as those created by"

    the EEOA), aff'd, 697 F.2d 302 (2d Cir. 1982).
    _____

    Applying the settled law regarding discrimination

    in employment to Mercado's claim of age discrimination in

    the Bank's credit decisions, it is apparent that Mercado

    bore the burden of pleading a prima facie case of age

    discrimination. See Texas Dep't of Community Affairs v.
    ___ _____________________________________

    Burdine, 450 U.S. 248, 252-56 (1981); Olivera v. Nestle
    _______ ___________________

    Puerto Rico, Inc., 922 F.2d 43, 46-47 (1st Cir. 1990).
    ___________________

    Assuming arguendo that he succeeded in doing so, the burden
    ________

    then shifted to the Bank "to articulate some legitimate,

    nondiscriminatory reason" for the actions of which Mercado

    complains. Burdine, 450 U.S. at 253.
    _______




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    We think the Bank carried this burden. The Bank

    explained that the cancelled VISA card was a special

    employee credit card, to which Mercado was no longer

    entitled after his termination. A new non-employee VISA

    card was made available to Mercado just two weeks after

    cancellation of the employee card. Similarly, the called

    loan had been offered to Mercado on favorable terms, as a

    special benefit incident to his employment by the Bank.

    Mercado, the Bank argued, could not reasonably expect to

    continue to be afforded the preferential treatment reserved

    for Bank employees once he was one no longer. Furthermore,

    it appears that Mercado had, upon learning that his

    discharge was imminent, run up substantial checking account

    overdrafts and withdrawn large amounts of cash through his

    employee VISA card, suggesting that he might be a credit

    risk.

    The Bank having come forward with apparently

    legitimate, nondiscriminatory reasons for its actions,

    Mercado, in order to defeat the Bank's motion for summary

    judgment, was required to offer evidence sufficient to

    demonstrate by a preponderance that these reasons were in

    reality a pretext for age discrimination. Id.; Olivera, 922
    ___ _______

    F.2d at 47-48. This he was unable to do. Mercado failed to

    plead any verifiable facts showing that the Bank's credit

    decisions were based on his age. While he recited alleged

    incidents of age discrimination by the Bank against himself




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    and others, he did not present any facts showing such

    discrimination in the calling of his loan and the temporary

    invalidation of his VISA card. Conclusory assertions or

    mere allegations, in lieu of documented facts, cannot

    withstand a summary judgment motion. Sheinkopf v. Stone,
    ____________________

    927 F.2d 1259, 1262 (1st Cir. 1991).

    Mercado's showing raised no genuine issue as to

    whether the Bank's articulated reasons for limiting his

    credit were merely pretextual. The district court therefore

    correctly granted summary judgment against Mercado on this

    claim. See Ramos v. Roche Products, Inc., 936 F.2d 43, 47
    ___ _____________________________

    (1st Cir.) (where there is no direct evidence that unlawful

    discrimination was a motivating factor in employer's

    decision, defendant need only articulate a plausible

    nondiscriminatory reason therefor to meet its burden in

    showing the absence of discriminatory intent), cert. denied,
    ____________

    112 S. Ct. 379 (1991); Villanueva v. Wellesley College, 930
    _______________________________

    F.2d 124, 127-28 (1st Cir.) (plaintiff must introduce

    evidence sufficient to raise a reasonable inference of

    discriminatory intent to defeat summary judgment), cert.
    _____

    denied, 112 S. Ct. 181 (1991).
    ______



    III

    Mercado next attempts to establish that the Bank

    breached his loan agreement by calling his loan






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    prematurely.3 His task is complicated by the fact that

    there is a written document evidencing the loan agreement --

    a promissory note signed by Mercado -- that provides that

    the loan is due on demand. In the district court, Mercado

    sought to introduce parol evidence to show an oral agreement

    that the loan term was in fact five years. The Bank,

    perhaps contrary to its interest, responded by presenting

    extrinsic evidence that the loan was for a one year term.

    In any event, we are convinced that the demand note

    is conclusive of this issue. The extrinsic evidence

    presented by the parties is of no relevance because Puerto

    Rico's parol evidence rule, P.R. Laws Ann. tit. 32, App. IV

    R. 69 (1983), requires us to ignore such evidence "when the

    agreement . . . is clear and unambiguous." Catullo v.
    __________

    Metzner, 834 F.2d 1075, 1079 (1st Cir. 1987). Rule 69(B)
    _______

    reads in pertinent part:

    When in an oral or written agreement . . .
    all the terms and conditions constituting
    the true and final intention of the parties
    have been included, such agreement shall be
    deemed as complete, and therefore, there
    can be between the parties . . . no
    evidence extrinsic to the contents of the
    same, except in the following cases:




    ______________________
    3 Civil claims involving a United States corporation that
    arise out of a banking transaction in a dependent or insular
    possession of the United States are placed within the
    original jurisdiction of the district courts by 12 U.S.C.
    632. Puerto Rico is a dependent possession for purposes of
    this statute. Conjugal Soc'y Composed of Juvenal Rosa v.
    ____________________________________________
    Chicago Title Ins. Co., 646 F.2d 688, 689 (1st Cir. 1981)
    ______________________
    (per curiam).

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    (1) Where a mistake or imperfection of
    the agreement is put in issue by the
    pleadings;

    (2) Where the validity of the
    agreement is the fact in dispute.

    This rule does not exclude other evidence
    of the circumstances under which the
    agreement was made or to which is related
    such as the situation of the subject matter
    of the instrument or that of the parties,
    or to establish illegality or fraud.

    P.R. Laws Ann. tit. 32, App. IV R. 69(B).

    Mercado does not allege in his pleadings that the

    demand note contained any mistakes or imperfections, and he

    admits signing the note. He argues, however, that his

    proffered evidence as to the actual term of the note

    constitutes "other evidence of the circumstances under which

    the agreement was made," and is, as such, admissible. We do

    not agree. Consideration of "other evidence" is neither

    necessary nor permissible if it is offered to contradict a

    clear term of a written agreement. In this case, as to the

    term of the loan, the promissory note can "be understood in

    one sense alone, without leaving any room for doubt,

    controversies or difference of interpretation, . . . without

    necessitating for [its] understanding any reasoning or

    illustration susceptible to challenge." Catullo, 834 F.2d at
    _______

    1079 (quoting Heirs of Ramirez v. Superior Court, 81 P.R.R.
    ___________________________________

    347, 351 (1959)). We are therefore bound to look no further

    than the note itself. Its repayment provisions could hardly

    be clearer or less ambiguous: the loan is due upon the demand




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    of the Bank. The plain terms of the parties' written

    agreement cannot be contradicted with parol evidence. The

    district court thus properly entered summary judgment for the

    Bank on this issue, since the agreement itself was conclusive

    as to all material questions of fact.



    IV

    Mercado contends that the district court erred in

    granting summary judgment against him on his COBRA claim.

    Under the COBRA amendments to ERISA, a plan participant or

    beneficiary must, on leaving his employer, be advised by the

    plan administrator that he may continue his ERISA health and

    life insurance coverage if he is willing to assume the

    payments. 29 U.S.C. 1166. Mercado alleged that the Bank

    failed to inform him timely of his right to elect to continue

    his benefits and that because of this failure he missed the

    deadline for electing continued insurance coverage.

    The district court correctly found that Mercado

    raised no genuine issue of fact as to whether the Bank had

    caused his failure to make the necessary election. The Bank,

    as the ERISA plan administrator, asserted that it notified

    Mercado on two separate occasions of his election rights. The

    first notice was sent by first class mail within fourteen days

    of Mercado's termination in compliance with 29 U.S.C.








    10












    1166(c). Mercado denies ever receiving the letter.4 In any

    case, after Mercado complained to the Bank, the Bank sent him

    the relevant forms and a copy of its earlier letter by

    certified mail. Mercado admits that he received this letter.

    Under COBRA, Mercado had sixty days from the date he

    received the notice conveyed by this certified letter to elect

    continued insurance coverage. 29 U.S.C. 1165(1)(C)(ii).

    See Communications Workers of America, Dist. One, AFL-CIO v.
    ______________________________________________________________

    NYNEX Corp., 898 F.2d 887, 888-89 (2d Cir. 1990). Mercado
    ____________

    admits failing to make the necessary election within this time

    period, and does not explain how the Bank's conduct prevented

    him from doing so. The Bank was therefore properly granted

    summary judgment on this claim.



    V

    Finally, Mercado asserts that the district court

    erred in dismissing his ADEA claim.

    A statutory prerequisite to a civil action alleging

    age discrimination in employment is the filing of a timely

    complaint with the Equal Employment Opportunity Commission

    ("EEOC"). 29 U.S.C. 626(d). A charge of unlawful

    discrimination must be filed with the EEOC within 300 days of



    ______________________
    4 Because we decide this issue on other grounds, we need
    not address the widely accepted presumption that Mercado
    would have received the properly addressed, stamped, and
    mailed letter in a timely fashion. See, e.g., Federal Ins.
    ___ ____ ____________
    Co. v. Summers, 403 F.2d 971, 975 (1st Cir. 1968) (applying
    ______________
    Massachusetts law).

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    the allegedly discriminatory act in states that have enacted

    employment discrimination laws, and within 180 days in states

    having no such laws. 29 U.S.C. 626(d)(1) & (2), 633(b).

    See Kale v. Combined Ins. Co., 861 F.2d 746, 750 (1st Cir.
    ___ _________________________

    1988). While Puerto Rico appears to have laws of the required

    type, we do not here decide whether for purposes of 29 U.S.C.

    633(b) Puerto Rico is a "state" such that the 300-day

    limitations period applies. In this case, whichever deadline

    controls, Mercado failed to file a timely complaint. Mercado

    was terminated no later than October 13, 1988, the date he

    received the Bank's letter confirming his discharge. He did

    not file a claim with the Puerto Rico Anti-Discrimination Unit

    and the EEOC until November 8, 1989, well beyond the maximum

    limitations period on ADEA claims.

    Mercado nonetheless argues that equitable estoppel

    or equitable tolling should save his claim. We are not

    persuaded. "Equitable estoppel occurs where an employee is

    aware of his ADEA rights but does not make a timely filing due

    to his reasonable reliance on his employer's misleading or

    confusing conduct." Kale, 861 F.2d at 752. Mercado suggests
    ____

    that the Bank's offer to consider settlement, or its alleged

    requests that he refrain from filing an age discrimination

    complaint, constituted misleading conduct that adequately

    excuses his failure to meet the statutory deadlines. We are

    constrained to believe, however, that it is something less

    than "reasonable" for a party contemplating litigation to




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    allow itself to miss filing deadlines in "reliance" upon such

    cajolery from the opposing party. See Dillman v. Combustion
    ___ _____________________

    Eng'g, Inc., 784 F.2d 57, 61 (2d Cir. 1986) (employer must
    ___________

    misrepresent the limitations period or lull the plaintiff into

    believing commencing litigation is not necessary); Naton v.
    _________

    Bank of California, 649 F.2d 691, 696 (9th Cir. 1981)
    ____________________

    (defendant must have improper purpose or actual knowledge of

    its deceptive conduct before estoppel will toll time

    limitations).

    "Equitable tolling . . . casts a wider net." Kale,
    ____

    861 F.2d at 752. Tolling is appropriate where a plaintiff is

    "excusably ignorant" of his rights. Ignorance of an ADEA

    filing deadline may be "excusable" where it "is caused either

    by misconduct of an employer or by failure of that employer to

    conspicuously post the informational EEOC notices required by

    the ADEA . . . ." Id.; see Torres v. Superintendent of Police
    ___ ___ __________________________________

    of Puerto Rico, 893 F.2d 404, 407-08 (1st Cir. 1990). Even
    ________________

    then, however, tolling ends once "the employee receives actual

    notice of his statutory rights or retains an attorney." Kale,
    ____

    861 F.2d at 752.

    Here, Mercado had actual knowledge of his right to

    file with the EEOC during the entire period in which filing

    might have been sufficient to permit a later ADEA action. In

    his position as human resources manager, he himself had

    counseled the Bank in matters relating to age discrimination.






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    In addition, he was represented by counsel from November 1988

    on regarding this very suit.

    We are satisfied that neither equitable tolling nor

    equitable estoppel is implicated on these facts. The district

    court therefore correctly dismissed Mercado's ADEA claim.5



    VI

    Once the court dismissed some of the federal claims

    and resolved the others before trial by summary judgment, it

    had the discretion also to dismiss the pendent state claims.

    28 U.S.C. 1367(c)(3). Mercado's arguments to the contrary

    are without merit.

    Affirmed.
    ________












    ______________________
    5 Mercado further argues that the district court erred in
    disposing of his claimed entitlement to equitable tolling or
    estoppel under Federal Rule of Civil Procedure 12(b)(6).
    According to Mercado, the court considered evidence outside
    the pleadings, and thus should have treated the Bank's motion
    to dismiss as a motion for summary judgment. We affirm the
    district court's dismissal because Mercado wholly failed to
    plead facts showing actively misleading or deceptive conduct
    by the Bank that might permit him to rely on equitable
    tolling or estoppel. A fortiori, Mercado failed "to make a
    showing sufficient to establish the existence" of facts
    entitling him to relief under either of these doctrines, so
    that summary judgment would have been granted against him in
    any case. Celotex Corp. v. Catrett, 477 U.S. 317, 322
    ___________________________
    (1986).

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