Ramos v. Lujan ( 1997 )

[NOT FOR PUBLICATION]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
-3-
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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