Rivera v. Puerto Rico Aqueduct & Sewers Authority

United States Court of Appeals
For the First Circuit
No. 02-1349
MAYRA ROSARIO RIVERA,
Plaintiff, Appellant,
v.
PUERTO RICO AQUEDUCT AND SEWERS AUTHORITY; JOSE IVAN COLON;
BENJAMIN POMALES; PERFECTO OCASIO; JOSE E. NIEVES; PUERTO RICO
SERVICES GROUP CORP.; PROFESSIONAL SERVICES GROUP
OF PUERTO RICO, INC.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Lynch and Howard, Circuit Judges,
and Shadur,* Senior District Judge.
Bruce J. McGiverin for appellant.
Pedro J. Manzano-Yates, with whom Fiddler, Gonzalez &
Rodriguez, LLP were on brief for appellee Puerto Rico Aqueduct and
Sewers Authority.
Sylvia Roger-Stefani for appellees Jose Ivan Colon; Benjamin
Pomales; Perfecto Ocasio; Jose E. Nieves; Puerto Rico Services
Group Corp.
Rafael J. Vazquez-Gonzalez for appellee Professional Services
Group of Puerto Rico, Inc.
June 9, 2003
*Of the Northern District of Illinois, sitting by designation.
HOWARD, Circuit Judge. Plaintiff-appellant Mayra Rosario
appeals a district court order granting summary judgment to the
Puerto Rico Aqueduct and Sewer Authority ("PRASA"), Professional
Services Group ("PSG"), José Iván Colón, Benjamin Pomales, Perfecto
Ocasio and José Nieves on her employment discrimination claims.
The gravamen of Rosario's complaint was that she was subjected to
a hostile work environment because of her religion in violation of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42
U.S.C. § 1983, and Puerto Rico law. The district court determined
that Rosario presented neither viable nor timely Title VII and §
1983 claims, and declined to exercise supplemental jurisdiction
over the Commonwealth law claims. We agree and accordingly affirm.
I. Background
We recount the facts in the light most favorable to
Rosario. Preferred Mut. Ins. Co. v. Travelers Cos., 127 F.3d 136,
137 (1st Cir. 1997).
PRASA, a Puerto Rico water utility, hired Rosario in
1979. Her first few years at PRASA were auspicious: she competed
for, and was awarded, several promotions within the budget
department, rising from Budget Technician I to Budget Analyst III.
Early into her tenure at PRASA, Rosario became an adherent of
charismatic Catholicism, a revival movement within the Catholic
church whose members practice an "intense" form of Catholicism. As
-3-
a charismatic Catholic, Rosario's spirituality permeated her life,
including her work.
During her first few years at PRASA, Rosario's workplace
environment was "calm," but her "interior peace" was disturbed when
Lydia Feliciano, and later José Antonio Rivera Bauzó, joined her
department. Rosario believed that her tense relations with
Feliciano and Rivera stemmed from her outwardly religious outlook
and high expectation of others. According to Rosario, her co-
workers discussed religion interminably, criticizing the Catholic
church and, in turn, Rosario for her ardent religiosity.
In this environment, Colón became Rosario's direct
supervisor in 1992. Rosario contended that Colón treated her
unfairly: he failed to assign her work, criticized her performance,
denied her vacation time, did not offer her computer training, and
changed the lock of the door to the office without giving her a new
key. Rosario complained to Colón that her co-workers' conduct
offended her religious beliefs but he failed to pursue the matter.
According to Rosario, Feliciano was one of the main
actors contributing to the hostile work environment in the budget
office. Feliciano persistently offended Rosario's belief system.
She was tenaciously vulgar, using expletives (some of which were
directed at Rosario) regularly. When Rosario complained, Feliciano
nicknamed her "Mother Theresa." Rosario also took fault with
Feliciano's lax work ethic. She recorded in a notebook Feliciano's
-4-
violations of PRASA's regulations. Rosario believed that
Feliciano, uncomfortable with Rosario's discipline and religiosity,
mistreated her.
Rivera also partook in the persistent provocation of
Rosario. Rosario cites several unrelated incidents to make this
point: Rivera pounded his fist on her desk yelling at her to get
to work on several occasions, made absurd gestures at her, and
constantly directed inappropriate comments towards her. On
Rosario's birthday, for instance, Rivera gave her a card with a pig
wearing a rosary with her birth date emblazoned at the top. Rivera
also directed verbal taunts at Rosario including, "You've got to
abuse women and hit them hard"; "I am going to smack your face
open"; and "You pass your time buying pornographic movies, and
later you're climbing the walls." Rivera would make such comments
to Rosario in the presence of their co-workers.
Rosario believed that Colón and her co-workers wanted her
transferred to another department because of her fervent
Catholicism. Indeed, Colón wrote a memorandum to the subdirector
of finance in 1994 requesting Rosario's transfer to another office.
Rosario points to the fact that Colón had no good grounds for
seeking that transfer.
In September 1995, PSG took over PRASA's administrative
and maintenance responsibilities. Several months later, in May
1996, Colón met with the budget specialists and advised them that
-5-
one budget specialist would be placed within the jurisdiction of
PSG because of the administrative shuffle caused by the PSG
contract. In July 1996, Rosario received a letter notifying her
that, although she would continue in her present position, she was
thereafter under the supervision of PSG personnel. Despite this
personnel change, Rosario remained in the same office with the same
position.
In August 1996, Rosario filed an administrative appeal of
her transfer to PSG on the ground that she had seniority over
employees who were not transferred. Rosario subsequently met with
PRASA's executive director, Benjamin Pomales, and he assured her
that, for all practical purposes, PSG was the same as PRASA.
Pomales also stated that Colón had informed him that Rosario did
not have any work to do in her old position.
Rosario did not believe that her grievances were resolved
following her meeting with Pomales. Eventually, on September 19,
1997, she filed a complaint with the Equal Employment Opportunity
Commission("EEOC") and the Puerto Rico Department of Labor and
Human Resources. Rosario did not make the EEOC complaint part of
the record, and so the scope of the complaint is not evidence. The
EEOC issued a right-to-sue letter on June 5, 1998.
Meanwhile, in March 1998, Rosario received a letter from
José Nieves, PRASA's interim human resources manager, informing her
that she was going to be relocated to another floor. After
-6-
objecting to this transfer to Nieves, Rosario was moved to a
smaller office in the finance area. Along with this physical
transition, Rosario assumed the temporary position of "interim
supervisor" for the reimbursement area. Her immediate supervisor
was Elizabeth Romero. In the initial period following her
transfer, Romero failed to assign Rosario work despite Rosario's
repeated requests for assignments. Although she finally received
work in September 1998, she had neither work nor a computer one
year later. Rosario claims that she has suffered severe depression
and anxiety because of the harassment at PRASA.
On September 2, 1998, Rosario commenced this action pro
se pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq., and Commonwealth law, asserting claims for discrimination
in the workplace against PRASA. Rosario was still employed by PSG
when she filed this action. Prior to serving the complaint,
Rosario retained counsel and, on December 29, 1998, amended her
complaint to add as defendants PSG, Colón, Pomales, Ocasio and
Nieves, and to add claims under 42 U.S.C. § 1983. Rosario sought
damages, a declaratory judgment and an injunction reinstating her
to her former position with PRASA. Rosario subsequently amended
the complaint again, charging defendants with religious harassment
and discriminatory transfer under Title VII, and an Equal
Protection violation under § 1983. The religious discrimination
theory advanced was that the defendants had engaged in a scheme of
-7-
"spiritual harassment" through mockery, vulgar language, and other
offensive conduct contrary to "normally acknowledged civil
parameters." Such harassment, Rosario contended, caused her
profound mental and moral anguish. She sought damages collectively
exceeding three million dollars to compensate her for her emotional
distress.
After the defendants unsuccessfully moved to dismiss,
PSG, and subsequently PRASA and its officers, sought summary
judgment on the grounds that Rosario had not made out a prima facie
claim under Title VII, and that some of the conduct in question was
time-barred. PRASA also challenged Rosario's § 1983 claim on the
ground that Rosario had failed to establish that the discrimination
was pursuant to its custom or policy. City of Canton, Ohio v.
Harris, 489 U.S. 378, 389 (1989).
In two memoranda and orders, the district court granted
the defendants' motions and ordered Rosario to show cause why her
§ 1983 claim against PSG should not be disposed of on the same
ground as her claim against PRASA (based on her failure to
establish that a PSG custom or policy violated her constitutional
rights). The crux of the court's rulings was that there was no
credible allegation that the charged conduct was motivated by
religious discrimination. The court stated that the outcome of the
case might be different if Rosario had brought a sex-based
discrimination claim as "Rivera's comments would be strong evidence
-8-
to support such a claim." The court concluded that Rosario's claim
based on the July 1996 transfer was time-barred because Rosario,
aware of this adverse employment action, had a duty to contest it
within the statutorily prescribed period.
Rosario subsequently moved for reconsideration of the
court's order. She also sought to introduce a claim for sex-based
discrimination. The district court denied the motion and, upon
receipt of Rosario's response to the show cause order, awarded
summary judgment to PSG on Rosario's § 1983 claim. The court
further dismissed without prejudice Rosario's Commonwealth law
claims. This appeal followed.
II. Discussion
Rosario argues that there is sufficient record evidence
to support a claim of religious discrimination under Title VII and
§ 1983. See Sabree v. United Bhd. of Carpenters and Joiners Local
No. 33, 921 F.2d 396, 399 (1st Cir. 1990)("[O]ur review will be
most searching in cases, such as this, that turn upon the issue of
motive or intent."). The thrust of her argument, as we understand
it, is that she raised a genuine issue of material fact that she
was subject to constant harassment in her workplace if not because
of religion then because of her values and upright lifestyle (which
she maintains is a product of her religion). Such a proffer,
according to Rosario, lays the necessary foundation for her
religious discrimination claims under either statute.
-9-
Rosario also argues that her claims arising from her July
1996 and March 1998 transfers are not barred on statute of
limitations and exhaustion grounds because they were part of a
continuing violation. See O'Rourke v. City of Providence, 235 F.3d
713, 730 (1st Cir. 2001) (describing the continuing violation
doctrine as an "equitable exception that allows an employee to seek
damages for otherwise time-barred allegations if they are deemed
part of an ongoing series of discriminatory acts..."). Finally,
Rosario challenges the district court's refusal to entertain new
evidence and her sexual harassment claim after the entry of partial
summary judgment. We first address whether Rosario's claims based
on her two transfers are procedurally barred under Title VII, and
then turn to the substance of her remaining arguments.
A. The Discriminatory Transfer Claims Under Title VII
Under Title VII, a plaintiff in a deferral jurisdiction
such as Puerto Rico must file a charge with the EEOC within 300
days after "the alleged unlawful employment practice occurred." 42
U.S.C. § 2000e-5(e)(1)(2000). Rosario filed her charge with the
EEOC on September 19, 1997, more than 300 days after the July 1996
transfer. Rosario argues that her Title VII claim based on this
transfer is nonetheless timely under the "continuing violation
doctrine," which would allow her to recover for the July 1996
transfer notwithstanding the limitations period if the transfer is
sufficiently related to acts alleged in a timely charge.
-10-
The "continuing violation doctrine" does not preserve
Rosario's claim. The Supreme Court has recently elaborated on the
meaning of the term "continuing violation," holding that a discrete
discriminatory act transpires only at the time it takes place, even
if it was related to acts that were timely filed. National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2073
(2002). "Each discrete discriminatory act starts a new clock for
filing charges alleging that act. The charge, therefore, must be
filed within the 180- or 300-day time period after the discrete
discriminatory act occurred." Morgan, 122 S.Ct. at 2072. The
Court made plain that "[d]iscrete acts such as termination, failure
to promote, denial of transfer or refusal to hire... constitute[]
a separate actionable unlawful employment practice." Id. at 2073
(emphasis added). The July 1996 transfer is therefore a time-
barred discrete act. See id.; see also Miller v. N.H. Dep't of
Corr., 296 F.3d 18, 22 (1st Cir. 2002).
The March 1998 transfer is also a discrete act
constituting "a separate and actionable unlawful employment
practice." Morgan, 122 S.Ct. at 2073. Yet Morgan does not address
whether a previously filed EEOC complaint must be amended to
encompass subsequent discrete acts in order to render such acts
susceptible to judicial review. We have held that a judicial
complaint can encompass discrete acts of retaliation "reasonably
related and grow[ing] out of the discrimination complained of to
-11-
the agency..." Clockedile v. N.H. Dep't of Corr., 245 F.3d 1, 6
(1st Cir. 2001). But in Clockedile we declined to decide whether
a judicial complaint also may encompass non-retaliatory but related
discrete acts which took place after the discrimination described
in the charge if the plaintiff failed to amend her charge or to
file a new one detailing the new acts. Id.We do not need to decide that question here. The
defendants articulated a non-discriminatory reason for the transfer
-- the facilitation of the transition to PSG supervision -- and
Rosario has not presented any evidence from which a reasonable fact
finder could conclude that this explanation is a pretext masking
religious discrimination. See, e.g., McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). Thus, even if we assume
arguendo that Rosario was not required to first present the agency
with her allegation that the 1998 transfer was discriminatory,
Rosario's discrimination claim under Title VII fails insofar as it
is based on the 1998 transfer.
B. Title VII and Hostile Work Environment Claims
Rosario next challenges the district court's award of
summary judgment on her hostile work environment claim. The court
concluded that religious discrimination was not behind the
offending conduct because the vast majority of incidents did not
contain any religious overtones and that animus could not be
inferred from the record. Rosario responds that the question of
-12-
whether her overt religious practice was the source of the hostile
environment she experienced is a jury issue. This argument fails.
To make out a viable workplace harassment claim based on
religion, the plaintiff must establish that: (1) she is a member
of a protected class; (2) she was subject to uninvited
harassment;(3) the offending conduct was because of her religion;
(4) the harassment was severe and pervasive; (5) the offending
conduct was both objectively and subjectively offensive and (where
employer liability is sought); (6) there was a basis for such
liability.1 O'Rourke, 235 F.3d at 728 (emphasis added); I.B.
Lindemann & P. Grossman, Employment Discrimination Law 755-56 (3d
ed. 1996). Here, there is no dispute that Rosario was a member of
a protected class. The defendants also admit that Rosario was
subject to uninvited "rude and unprofessional" conduct which we
assume was severe and pervasive. We thus turn to whether there is
a genuine issue of material fact as to whether the alleged hostile
work environment was because of religion. On that score,
regardless of the evidentiary course the plaintiff charts, she must
show that alleged discriminatory conduct was not "merely tinged"
1
In support of her claim, Rosario recounted a miscellany of
incidents of discrimination during the preceding decade. Such
alleged discriminatory acts may be considered as background
evidence even if they fall outside the filing period so long as one
act supporting the claim occurs within the filing period. Morgan,
122 S.Ct. at 2072. Given the litany of harassing acts alleged, we
assume arguendo that Rosario satisfies this test.
-13-
with remarks abhorrent to her religion but actually was, in either
character or substance, discrimination because of religion. Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In arguing that she presented sufficient proof of such
causation, Rosario points to her co-workers' repeated allusions to
religion and their persistent taunting and portrayal of her as
self-righteous. She further contends that the supervisors and, by
extension, the employers involved (i.e., Colón, Pomales, Nieves,
Ocasio, PSG and PRASA) are liable because they were well aware of
her predicament but failed to prevent the discrimination and
harassment when it was within their power to do so. Although the
record is not clear as to whether and to what extent each employer
knew about the several incidents of which Rosario complains, we
shall assume that Rosario's employers were aware that her co-
workers had engaged in inappropriate conduct and mistreated her.
We turn now to the specifics.
Rosario first points out that her co-workers were
critical of her faith and spirituality. She states that she was
given the nickname "Mother Theresa" by Feliciano, who was a co-
worker with less seniority (and not her supervisor). The record
makes clear, however, that the nickname was a response to Rosario's
scolding of Feliciano for her constant vulgarity. Rosario did not
appreciate Feliciano's profanity and she regularly let Feliciano
know it. But the evidence simply does not permit an inference that
-14-
the tense relations between the two was caused by religious
discrimination on the part of Feliciano.
Rosario next complains about a bawdy Christmas carol
mentioning her name and sung to her by Rivera (again a co-worker
with less seniority). Rosario asserts that the lyrics of the song
are offensive to her, given her deep religious convictions. We do
not doubt this is so. But the question is not whether a religious
person could find the song offensive; it is whether religious
animus prompted Rivera to sing it to her. And as with the "Mother
Theresa" remark, the record does not permit an affirmative response
to this question. The song was characteristic of the office's
vulgar and unprofessional environment -- an environment to which
all were subjected. But there is a conceptual gap between an
environment that is offensive to a person of strong religious
sensibilities and an environment that is offensive because of
hostility to the religion guiding those sensibilities. Rosario has
not provided us with evidence or argument sufficient to bridge that
gap.2
2
Of course, conduct need not be explicitly religious to
constitute harassment because of religion. Where there is evidence
of overtly discriminatory conduct, a court may also consider acts
that, on their face, do not support a claim for discriminatory
workplace harassment. O'Rourke, 235 F.3d at 729. In context, we
have held that subversion, exclusion, and denial of support can be
factors supporting a hostile work environment claim. Id. at 730.
Our inquiry focuses on whether the offending conduct was
discriminatory in form or function.
Rosario cites a patchwork of incidents spanning the latter
part of her career at PRASA to buttress her Title VII claim. The
-15-
Finally, Rosario complains of a birthday card given to
her by Rivera that depicted a pig wearing a rosary next to her birth
date.3 We certainly appreciate why Rosario was upset by the
connection made between her and the pig. Rivera relished being
provocative and successfully egged Rosario on. This is Rosario's
strongest evidence of religion-based discrimination, but it is also
evidence equally susceptible of a non-discriminatory intent. As she
testified, people in her office took it as a joke, and she remained
tranquil and viewed it as making fun of her. While a jury could
resolve the issue of intent in her favor, this single incident is
insufficient to support the edifice of her harassment claims and
insufficient by itself to be actionable. There is also no testimony
core of her argument is that her co-workers pointedly attempted to
offend her by swearing and making sacrilegious comments in her
presence. Feliciano, in particular, swore constantly and otherwise
engaged in lewd and discourteous conduct notwithstanding Rosario's
complaints. Rivera, for his part, targeted Rosario with offensive
taunts and aggressive conduct ostensibly meant to intimidate her.
He stated on more than one occasion that "you had to smack women";
he also accused her of "running around with men," attending gay
parades and clogging her toilet. The offending conduct, according
to Rosario, was not limited to her co-workers. Her supervisor,
Colón, not only failed to quell these outbursts, but he also gave
her no work, denied her vacation requests, and requested her
transfer to another office. But Rosario must demonstrate a
trialworthy issue as to whether this conduct was because of her
religion, and she has not done so.
3
The defendants state that the rosary had nothing to do with
religion but rather was derivative of "Rosario." For the purposes
of summary judgment, we will assume arguendo that the rosary had
religious connotations.
-16-
by Rosario that she brought this incident to the attention of
management.
The summary judgment record shows that the budget office
at PRASA was an unprofessional environment. The workers frequently
swore, engaged in horseplay, and were derelict in their work duties.
And, as Rosario points out, she was different. Rosario attributes
that difference to her religious beliefs.4 There is no evidence
about whether there were other deeply religious people in the office
and how they were treated. Rosario's beliefs apparently motivated
her to act in certain ways. Rosario was not averse to proselytizing
and opining that her way was the right way. She would often chide
her co-workers for their obscene language and poor work habits, and
frequently documented their infractions of PRASA regulations.
Unsurprisingly, this course of conduct provoked them and they
responded in ways apparently meant to offend her. Such antics,
while deplorable, do not amount to a violation of Title VII. Cf.
Wilson v. U.S. West Communications, 58 F.3d 1337, 1342 (8th Cir.
1995) (noting that "Title VII does not require an employer to allow
an employee to impose his religious views on others."). A
constellation of factors led to the friction between Rosario and her
4
We note that neither the Constitution nor Title VII
prohibits honest disagreement about religion in the workplace.
Lindemann & Grossman, supra at 248 (noting that commentators and
Congress criticized the EEOC's proposed harassment guidelines on
religion because they could be interpreted as proscribing employees
from discussing religion in the workplace).
-17-
co-workers, but no reasonable fact finder could conclude on the
basis of the incidents we have described or the general atmosphere
in the office that one of these factors was an antipathy towards
Rosario's underlying religious convictions.5
C. Section 1983
Rosario next challenges the district court's dismissal of
her § 1983 claim. Relying on the two discriminatory transfer and
the hostile work environment claims she used in support of her Title
VII claim, Rosario posits that PSG and PRASA are liable
notwithstanding the fact that, in a § 1983 action, liability does
not attach pursuant to a respondeat superior theory.6 According to
Rosario, both entities are liable here because they engaged in a
policy and pattern of discrimination by failing to prevent the
hostile work environment and by promoting it (e.g., by transferring
her to another office with an interim position without any duties).
5
Because this ground is dispositive of Rosario's Title VII
claim, we need not address the remaining factors constituting a
workplace harassment claim. See supra at 13. Similarly, we do not
have to reach the district court's alternative holding that there
is no individual liability under Title VII. See Serapion v.
Martinez, 119 F.3d 982, 992 (1st Cir. 1997)(declining to "enter
th[e] thicket" of determining whether individual liability exists
under Title VII).
6
The parties do not dispute that both PSG and PRASA fall
within the definition of municipality under Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 690-695 (1978)
(negating respondeat superior liability of municipalities under §
1983 for violations of federal civil rights).
-18-
Rosario further contends, without any meaningful elaboration, that
the "deliberate indifference" of the various supervisors at PRASA
(Colón, Nieves, Pomales and Ocasio) to her plight gives rise to an
actionable equal protection violation. These arguments fail.
We agree with the district court that any claims against
PSG and PRASA must fail because there is no evidence of any policy
or custom that could warrant municipal liability. This holding
applies with equal force to her claims for injunctive and
declaratory relief as "the Supreme Court, in imposing the
precondition of an unconstitutional official municipal policy, was
directly addressing monetary, declaratory, or injunctive relief."
Dirrane v. Brookline Police Dep't, 315 F.3d 65, 71 (1st Cir. 2002)
(citing Monell, 436 U.S. at 690)(internal quotation marks
omitted)(emphasis in original).
Rosario's claim against the individual officers also
fails. When a plaintiff attempts to use § 1983 as a parallel remedy
to a Title VII claim, the prima facie elements to establish
liability are the same under both statutes.7 Lipsett v. Univ. of
Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988); Morris v. Oldham
7
A plaintiff may assert a concomitant employment
discrimination Title VII and § 1983 claim. Alexander v. Gardner-
Denver Co., 415 U.S. 36, 48-49 (1974) ("The clear inference is that
Title VII was designed to supplement rather than supplant, existing
laws and institutions relating to employment discrimination.")
Harassment of an employee because of her faith, whatever guise it
assumes, may constitute religious discrimination under the Equal
Protection Clause of the Fourteenth Amendment.
-19-
County Fiscal Court, 201 F.3d 784, 794 (6th Cir. 2000); Jemmott v.
Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (noting that courts commonly
apply Title VII law when analyzing § 1983 equal protection claims).
In either case, "the plaintiff must prove that the defendant[s]
acted with discriminatory intent." Richardson v. Leeds Police
Dep't, 71 F.3d 801, 805 (11th Cir. 1995). The inadequacy of
Rosario's Title VII claim establishes the inadequacy of her § 1983
claim.
D. Motion for Reconsideration
In her motion for reconsideration, Rosario attempted to
introduce new evidence and raise an additional claim of sex-based
discrimination. The district court rejected Rosario's requests,
citing her failure to introduce certain audio recordings and raise
the sex-discrimination claim until after the entry of summary
judgment. Rosario contends that district court erred in so holding.
We disagree.
We review a district court's denial of a motion under
Fed. R. Civ. P. 59(e) for abuse of discretion. Once a motion for
summary judgment has been allowed, "the district court has
substantial discretion in deciding whether to reopen the proceedings
in order to allow the unsuccessful party to introduce new material
or argue a new theory." Mackin v. City of Boston, 969 F.2d 1273,
1279 (1st Cir. 1992).
-20-
There was no error in the court's decision here to
disregard the audio recordings Rosario first introduced in
connection with her motion for reconsideration. Rosario suggests
that she was not at fault for her evidentiary tardiness: she did
not present the audio recordings during the summary judgment stage
(or earlier) because she needed to obtain better copies and
transcripts and the court refused to grant her more time to do so.
In effect, Rosario admits that the evidence she offered for the
first time in her motion for reconsideration was neither new nor
unavailable at the summary judgment stage. As a result, the
district court was not obliged to consider it after the entry of
summary judgment. E.g., Aybar v. Crispin-Reyes, 118 F.3d 10, 16
(1st Cir. 1997) (it is not an abuse of discretion for a district
court to deny a motion for reconsideration where the supporting
evidence was "neither new nor unavailable at the time the district
court entered judgment...").
Rosario next argues that, as the district court itself
acknowledged in its opinions, the record might have supported a
claim of sex-based discrimination even if not raised in the
complaint. The thrust of her argument, as we understand it, is that
pleadings should be construed "to do substantial justice." Fed. R.
Civ. P. 8(f). Rosario concedes that she failed to explicitly plead
a gender-based discrimination claim. She posits, however, that her
-21-
allegation of a hostile work environment embraced the full spectrum
of discriminatory conduct, including discrimination based on sex.
We see no reason to disturb the district court's
judgment. Plaintiffs should not resort to Rule 59(e) motions to
"raise arguments which could, and should, have been made before
judgment issued." FDIC v. World Univ., 978 F.2d 10, 16 (1st Cir.
1992) (quoting Harley-Davidson Motor Co., Inc. v. Bank of New
England, 897 F.2d 611, 616 (1st Cir. 1990)). Rosario endeavored to
make out a new legal argument in her motion for reconsideration
without any explanation as to why she had not done so earlier.
Under these circumstances, it would not promote "substantial
justice" to allow Rosario to raise a new legal claim. Landrau-
Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir.
2000) (explaining that a Rule 59(e) motion is inappropriate absent
a showing of a manifest error of law or newly discovered evidence).
III. Conclusion
Rosario has failed to produce sufficient evidence to
withstand a motion for summary judgment on her employment
discrimination claims. We therefore affirm the district court.
-22-