Ramos v. Lujan ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 95-2060


                                   NIMIA M. RAMOS,


                                Plaintiff, Appellant,


                                         v.


                              MANUEL LUJAN, II, ET AL.,


                               Defendants, Appellees.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                           FOR THE DISTRICT OF PUERTO RICO


                     [Hon. Justo Arenas, U.S. Magistrate Judge]


                                ____________________


                                       Before


                                Selya, Circuit Judge,

                             Cyr, Senior Circuit Judge,

                              and Lynch, Circuit Judge.


                                ____________________



            Nimia M. Ramos Beauchamp on brief pro se.

            Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del

       Rio, Assistant United States Attorney, on brief for appellees.



                                ____________________


                                    July 16, 1997

                                ____________________







                      Per Curiam.   Appellant  Ramos-Beauchamp  ("Ramos")


            brought this  suit against  various officials  of her  former


            employer,
the
Department
of the Interior, National Park Service


            (collectively "DOI"), alleging discrimination on the basis of


            her
gender
and ethnicity (Hispanic).  Ramos claimed that while


            she was  employed as a  park ranger, she  was subjected to  a


            discriminator
ily hostile work environment, disparate treatment


            in
the
assignment of equipment, training, responsibilities and


            discipline; and a retaliatory constructive discharge.   Ramos


            initially
submitted
her
complaints to the DOI's office of equal


            opportunity
("OEO").  The OEO found no support for most of the


            charges, but did find disparate treatment in (1) a thirty-day


            disciplinary
suspension of Ramos's law enforcement commission,


            and
(2)
the
provision of certain equipment.  The DOI undertook


            remedial action; Ramos proceeded to district court.


                      Following a five-day bench trial, which was held by


            consent
of
the parties before a magistrate judge, judgment was


            entered for the defendant on all claims.  The court's factual


            findings and  legal conclusions are  set forth  in a  26-page


            opinion.


                      Ramos
timely
appealed, but failed to provide a trial


            transcript.  Unable  thus to review the issues, including  an


            evidentiary question which initially appeared substantial, we


            directed Ramos to provide  the transcript or face  dismissal.


            Citing  a  change   in  her   financial  circumstances,   she




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            successfully  sought  an  extension  of  time,  and  obtained


            permission
from
the
district court to proceed in forma pauperis


            with
production
of
the
transcript at government expense.  After


            further delays, the transcript was transmitted to this court.


                      Ramos assigns as  error the court's exclusion  from


            evidence of an  "administrative deposition" given by  another


            Hispanic female  park  ranger, Mirta  Maltes.   The  excluded


            "deposition," or sworn statement,  was taken in a  one-on-one


            question
and
answer
session conducted by the DOI's internal OEO


            investigator.


                      Exclusion of  this  evidence, Ramos  contends,  was


            contrary to the parties' "binding" joint pretrial memorandum,


            as incorporated into the court's final case management order.


            The final order twice referenced Maltes's statement.   Maltes


            was listed, first,  as a witness for Ramos "by  deposition."


            Maltes's "sworn statement"  also was listed as a DOI  exhibit


            which, by the terms of the order, was "received in evidence."


                      Nonetheless, at trial  the DOI objected when  Ramos


            proffered
the
Maltes
statement during her case in chief.  After


            some  wrangling, the  statement  was excluded  from  evidence


            because, the magistrate held, it was hearsay and inadmissible


            under any exception to the hearsay rule, including the  open-


            ended exception in Fed. R. Evid. 804(b)(5).


                      We need  not definitively  resolve the  evidentiary


            question, however, since a close reading of the record  shows




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            that  regardless  of  whether  the  statement  was   properly


            admissible
or
inadmissible, its exclusion did not prejudicially


            affect Ramos's  "substantial rights," or  the outcome of  the


            trial.  Lubanski v. Coleco Industries, Inc., 929 F.2d 42,  45


            (1st Cir. 1991); see  also United States v. Legarda, 17  F.3d


            496, 498 (1st  Cir.) (holding that an erroneous exclusion  of


            evidence requires reversal only if it has a "substantial  and


            injurious effect or influence" on the verdict), cert. denied,


            513 U.S. 820 (1994).


                      The primary value of Maltes's statement was that it


            corroborated  Ramos's  allegations  of  disparities  in   the


            assignment of equipment, training, and responsibilities.  The


            very same facts, however, were placed in evidence by  Ramos's


            testimony.
Moreover, the disparities were not challenged, but


            were conceded by  the DOI's witnesses.   The DOI's  witnesses


            explained the uneven assignments as due to non-discriminatory


            factors.  Their explanations were accepted as credible by the


            magistrate.
Thus,
the
outcome of the trial on these claims was


            not  affected  by   the  exclusion  of  Maltes's   statement,


            encompassing as it did little more than conceded facts.


                      As to  Ramos's  other  claims,  Maltes's  statement


            contained no substantial supporting proof.  Maltes swore that


            she had no  personal knowledge of  the facts surrounding  the


            disciplinary
suspension of Ramos's law enforcement commission.


            The statement offered only one marginal fact in corroboration




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            of Ramos's  retaliation  claim (that  Ramos had  presented  a


            doctor's
note
to
excuse
an absence).1  And Maltes flatly denied


            knowledge  of  any disparities  in  overtime  pay  and  shift


            assignments.  Finally, while Maltes's statement  conclusorily


            characterized
the atmosphere at work as "male chauvinist," she


            also denied suffering any employment disadvantage due to  her


            gender,
thus
providing no factual support for Ramos's claim of


            a     discriminatorily     hostile     work     environment.




                      Ramos's
other assignments of error, as we understand


            them,2 fare no better.  We apprehend no error in the standard


            used by  the court  to assess the  claim of "abusive  working


            environment;" perceive no  prejudice in  the court's  alleged


            misstatement
of
Maltes's
employment title; find no abuse in the


            court's
evaluation of the credibility of the witnesses; and no


            basis for  the argument that the  court denied a "release  of


            pertinent information in  agency files."  To the extent  that


            Ramos
means
to
challenge
the weight of the evidence, we observe







               1The statement recites Maltes's "belief" that Ramos had

            encountered retaliation, but there is no recitation of a

            factual basis for the "belief."  And, although Maltes stated

            that she, too, feared retaliation, the only reason suggested

            for her fear is that on one occasion she felt threatened by a

            supervisor's "personal" animosity toward her.


               2Although the transcript has been available for several

            months, Ramos has not moved to supplement her brief with

            record references.


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            that this  was not  a "close" case.   There  is ample  record


            evidence to support the court's factual findings.


                      Affirmed.
















































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