Of the United States Court of Appeals for the Eighth Circuit, *

sitting by designation.

United States Court of Appeals

For the First Circuit

________________

No. 05-1854

CARLOS FONTÁNEZ-NÚÑEZ, 

NORA RIVERA-CARDENALES, 

CONJUGAL PARTNERSHIP FONTÁNEZ-RIVERA,

Plaintiffs, Appellants,

v.

JANSSEN ORTHO LLC;

JOHNSON & JOHNSON, INC.; 

ANGEL NATAL, IN HIS OFFICIAL AND PERSONAL CAPACITY;

JORGE ROS, IN HIS OFFICIAL AND PERSONAL CAPACITY;

CARLOS OTERO, IN HIS OFFICIAL AND PERSONAL CAPACITY;

AIXA BERRÍOS, IN HER OFFICIAL AND PERSONAL CAPACITY; 

XYZ INSURANCE COMPANY,

Defendants, Appellees.

________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

_______________

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Hansen, Senior Circuit Judge.*

______________ 

Carmen Eva García-Cárdenas on brief for appellants.

Carl Schuster, María Santiago-Ramos, and Lourdes C. HernándezVenegas, of Schuster Usera & Aguiló LLP, on brief for appellees.

May 8, 2006
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HANSEN, Senior Circuit Judge. Carlos Fontánez-Núñez, his wife

Nora Rivera-Cardenales, and the Conjugal Partnership FontánezRivera (collectively "Fontánez") brought suit under Title VII of

the Civil Rights Act, 42 U.S.C. §§ 2000e-2000h-6, and the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634,

claiming gender and age discrimination in employment as well as a

hostile environment. The district court dismissed the claims

against the individual defendants and granted summary judgment to

the corporate defendants, Janssen Ortho LLC and Johnson & Johnson,

Inc. (collectively "Janssen"). Fontánez appeals the grant of

summary judgment, arguing that the existence of material issues of

fact make summary judgment inappropriate. We affirm. 

I.

We ordinarily state the facts in a summary judgment context in

the light most favorable to the nonmoving party. See Cordero-Soto

v. Island Finance, Inc., 418 F.3d 114, 119 (1st Cir. 2005). In

this case, however, the district court accepted as true all of

Janssen's uncontested facts because Fontánez had failed to oppose

Janssen's statement of uncontested facts as required by Local Civil

Rule (L.Cv.R.) 56(c) (requiring a party opposing a summary judgment

motion to "admit, deny, or qualify the facts by reference to each

numbered paragraph of the moving party's statement" and to "support

each denial or qualification by a record citation"). See L.Cv.R.

56(e) (stating that facts supported by record citations "shall be
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deemed admitted unless properly controverted"). We recite an

abbreviated version of the facts accepted as true by the district

court, and we view other facts gleaned from the record in the light

most favorable to Fontánez, unless they are inconsistent with the

uncontested facts stated by Janssen.

Carlos Fontánez-Núñez worked for Janssen Ortho LLC from July

1996 until his termination in 2001. Throughout those years, he was

promoted and received several salary increases. Two of his early

positions with the company were in the Quicksolv Department. He

reported to Angel Natal who he alleges created a discriminatory and

hostile work environment. Specifically, Fontánez said that Natal

used foul language and often made sexual and gender-based harassing

comments to him or in his presence. He said Natal would call him

"gray haired" or would tell him he looked like a certain co-worker

who was considered to be slow and incompetent. Fontánez states

that co-workers would call him "la cacatua" (the cockatoo) behind

his back because of his gray hair. According to Fontánez, Natal

also made offensive comments referencing homosexual activity, once

noting that Fontánez was a pharmacist and expressing an opinion, in

vulgar terms, that all pharmacists are homosexuals. Fontánez

stated that co-workers would then call him (Fontánez) gay or would

ask him whether he was gay. Fontánez admitted that these incidents

occurred in 1997. 
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In October 1998, Fontánez performed well and was promoted to

the position of Quicksolv Project Leader, which gave him

supervisory responsibility and a new supervisor, Quicksolv and

Engineering Director Luis Guillermo Pérez. Meanwhile, Natal had

been transferred to the Packaging Department as Packaging Manager.

In 1999, when the company closed its Quicksolv Department, Natal

recommended Fontánez for a newly created Packaging Manager

position, and the company offered Fontánez the position.

Fontánez's performance as Packaging Manager, however, only

marginally met the company's expectations. Fontánez lacked the

ability to make prompt decisions and lacked certain basic

administrative skills required for the position. During his tenure

as Packaging Manager, deficiencies in his performance caused

untimely product packaging, in turn resulting in unfulfilled

product orders. Additionally, he failed to implement certain

measures required for FDA compliance. Natal provided him some

informal counseling in areas in which he needed to improve his job

performance.

Fontánez asserts that Natal's harassment continued through

February 2001, though he was not always Fontánez's direct

supervisor. Specifically, sometime in early 2001, Natal allegedly

remarked in quite vulgar terms to Fontánez that he (Natal) was

looking for a homosexual to engage in sexual relations with him.

Fontánez complained that Natal would straighten the front of
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Natal's pants or touch his own buttocks in Fontánez's presence and

that Natal continued to use foul and vulgar language in the

workplace. Fontánez stated that these actions made him feel

nervous, made him put forth a greater effort than others to gain

acknowledgment, and made him feel he must speak succinctly at

meetings or be told to shut up. 

In March 2000, Fontánez's then-supervisor, Aixa Berríos,

Packaging and Materials Manager, met with Fontánez to discuss

several performance-related issues. She documented his performance

deficiencies in writing and advised him that improved performance

on his part was necessary to avoid further disciplinary action.

In February 2001, the company eliminated Fontánez's Packaging

Manager position as part of its implementation of a plan known as

the Lean Manufacturing Process. Rather than terminate Fontánez,

the company assigned him to the position of Senior Packaging

Process Facilitator, with supervisory authority over approximately

thirty-two employees. Berríos remained his supervisor. Due to

several deficiencies in Fontánez's job performance, Berríos

concluded that Fontánez was not performing the job at an acceptable

level of competence. She recommended his termination in March

2001. Carlos Otero, Human Resources Director, reviewed that

recommendation, and Jorge Ros, Plant Manager, made the ultimate

decision to terminate Fontánez on April 23, 2001. Natal was not
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involved in the termination decision and was no longer Fontánez's

supervisor at the time of his termination. 

At all relevant times, Janssen had well-established policies

designed to prevent discriminatory conduct and sexual harassment in

the workplace. These policies included a complaint mechanism for

employees. Fontánez received a copy of this policy. Although

aware of the company's antidiscrimination policies and procedures,

Fontánez complained of harassing conduct to a supervisor only once.

Fontánez states that he told Pérez of the harassing conduct in

1997. Pérez did not play a role in the decision to terminate

Fontánez, and Fontánez did not thereafter use Janssen's sexual

harassment policies or its established complaint mechanism.

On May 2, 2001, Fontánez filed a charge of discrimination with

the Anti-Discrimination Unit of the Puerto Rico Department of

Labor. Fontánez then filed suit in federal court, alleging that he

suffered a hostile work environment due to sexual harassment by his

supervisor, Angel Natal, and that he was terminated on the basis of

his gender and age in violation of Title VII, the ADEA, and Puerto

Rico law. The district court granted the plaintiffs' request for

voluntary dismissal of the Puerto Rico law claims and issued a

partial summary judgment dismissing with prejudice the Title VII

and ADEA claims against the individual defendants – Natal, Ros,

Otero, and Berríos. Janssen sought summary judgment on the

remaining claims. The district court granted Janssen's summary
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judgment motion, concluding that many of the acts complained of

were time-barred, that Fontánez had not established a prima facie

case of age discrimination, and that there was no evidence of

actionable sexual harassment or a hostile environment. Fontánez

appeals. 

II.

"We review the grant of summary judgment de novo, based on the

record as it stood before the district court." Cordero-Soto, 418

F.3d at 118. Summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "Once

the moving party avers the absence of genuine issues of material

fact, the nonmovant must show that a factual dispute does exist,

but summary judgment cannot be defeated by relying on improbable

inferences, conclusory allegations, or rank speculation." Ingram

v. Brink's, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005).

Fontánez attempts to argue on appeal that factual disputes

exist to preclude summary judgment, but his argument wholly ignores

the district court's decision to deem Janssen's statement of

uncontroverted facts as true pursuant to Local Rule 56(e). "This

court has held repeatedly that the district court in Puerto Rico is

justified in holding one party's submitted uncontested facts to be
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admitted when the other party fails to file oppositions in

compliance with local rules." Torres-Rosado v. Rotger-Sabat, 335

F.3d 1, 4 (1st Cir. 2003). "This, of course, does not mean the

unopposed party wins on summary judgment; that party's uncontested

facts and other evidentiary facts of record must still show that

the party is entitled to summary judgment." Id. Because Fontánez

does not argue that the district court erred in deeming Janssen's

uncontested facts as true, he has waived the issue. See id. at 5.

We thus consider the record as it existed before the district

court, deeming Janssen's uncontested facts admitted. Id. 

Fontánez first asserts that the district court erred in

concluding that most of the discrete acts of discrimination alleged

are time-barred. We find no error. The district court correctly

noted that the administrative charge was filed on May 2, 2001, and

consequently held that all discrete actions of harassment or

discriminatory conduct occurring before July 25, 2000 (300 days

before the claim was filed), are time-barred. See Nat'l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("[D]iscrete

discriminatory acts are not actionable if time barred," and "[e]ach

discrete discriminatory act starts a new clock for filing charges

. . . within the 180- or 300-day time period after the discrete

discriminatory act occurred."); see also 42 U.S.C. § 2000e-5(e)(1)

and 29 U.S.C. § 626(d). 
-9-

Our review of the record convinces us that the district court

properly granted summary judgment to Janssen on Fontánez's claims

of gender and age discrimination in his termination. Fontánez has

presented no direct evidence of age or gender discrimination and

must therefore raise an inference of discrimination through the

familiar McDonnell Douglas burden-shifting framework. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See RiveraAponte v. Restaurant Metropol # 3, Inc., 338 F.3d 9, 11 (1st Cir.

2003). Under this framework, to raise an inference of either age

or gender discrimination sufficient to withstand summary judgment,

it is necessary for a plaintiff to demonstrate, inter alia, that

his or her job performance met the employer's legitimate

expectations. See, e.g., Hoffman v. Applicators Sales and Serv.,

Inc., 439 F.3d 9, 17 (1st Cir. 2006)(stating the elements for a

prima facie case of age discrimination); Smith v. Stratus Computer,

Inc., 40 F.3d 11, 15 (1st Cir. 1994)(stating the elements for a

prima facie case of sex discrimination), cert. denied, 514 U.S.

1108 (1995). Fontánez cannot make this showing. The undisputed

evidence establishes that Fontánez's job performance was not

meeting his employer's legitimate expectations at the time of his

termination. 

Fontánez attempts to justify his job performance by asserting

disputed facts in his argument to this court. The facts of

Janssen's statement of uncontested facts, however, are deemed
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admitted and may not now be controverted. The record demonstrates

that Fontánez held five different positions with Janssen, each with

a higher salary than the last, but he did not perform well in the

last two positions. Janssen appointed Fontánez to the Process

Facilitator position rather than fire him when his prior position

was eliminated, Fontánez was aware of the responsibilities of the

job when he accepted the position, and Janssen terminated Fontánez

for unacceptable performance of those responsibilities in several

respects. Accordingly, the district court properly granted summary

judgment on Fontánez's age and gender discrimination claims. 

Even putting aside the prima facie case, as we have often

done, and turning "instead, to whether there is evidence that,

notwithstanding the employer's stated reasons for the termination,

the real reason, at least in part, was age and gender

discrimination," Hillstrom v. Best Western TLC Hotel, 354 F.3d 27,

31 (1st Cir. 2003), we conclude that summary judgment was proper.

There is no evidence from which to conclude that the proffered

reason for his termination was not in fact the real reason.

Fontánez has not presented evidence from which to conclude that

Janssen's job expectations were illegitimate. Additionally, he has

not presented any evidence to demonstrate that either age or gender

discrimination was the real reason for the termination – or even a

motivating influence in the decision. See Hoffman, 439 F.3d at 17-
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18 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141

(2000)).

Fontánez also claims that he suffered sexual harassment and a

hostile work environment based on conduct by his supervisor, Natal,

and co-workers. Natal did not participate in the decision to

terminate Fontánez, and Fontánez does not claim that he was

constructively discharged due to the harassing conduct. "[When] a

supervisor's harassment did not result in a tangible employment

action against an employee, then the employee must show that the

harassment was so 'severe or pervasive' that, in essence, it

altered the terms or conditions of her [or his] employment." LeeCrespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 46 (1st

Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 752 (1998)). "The employer is then vicariously liable . . .

unless the employer can successfully assert the affirmative

defense" that it took reasonable care to promptly correct the

situation or that the plaintiff unreasonably failed to take

advantage of the corrective or preventive measures provided by the

employer. Id. (citing Ellerth, 524 U.S. at 765). "[W]here the

harassment is by a non-supervisory co-worker, the employer is

liable only if the plaintiff can show that the employer knew or

should have known of the charged . . . harassment and failed to

implement prompt and appropriate action." Arrieta-Colon v. Wal-
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Mart Puerto Rico, Inc., 434 F.3d 75, 85-86 (1st Cir. 2006)

(internal quotation marks omitted, alteration in original). 

We consider all of the circumstances "in determining whether

a work environment is sufficiently hostile or abusive, including

'the frequency of the discriminatory conduct; its severity; whether

it was physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance.'" Lee-Crespo, 354 F.3d at 46 (quoting

Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). A hostile work

environment claim is composed of a series of separate acts, but as

long as "an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be

considered by a court for the purposes of determining liability."

Morgan, 536 U.S. at 117. 

We agree with the district court's assessment that the facts

of this case do not rise to the level of severity or pervasiveness

considered to be actionable. Natal's purported continued use of

objectionable language and vulgar remarks in Fontánez's presence

were, according to Fontánez, often directed to many employees in

the area or described Natal's own conduct. While the vulgar

language was inappropriate to the workplace and completely

unprofessional, mere offensive utterances that did not unreasonably

interfere with the employee's work performance do not amount to

harassment that in essence altered the terms or conditions of
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Fontánez's employment. See Lee-Crespo, 354 F.3d at 46-47 ("[A]

supervisor's unprofessional managerial approach . . . [is] not the

focus of the discrimination laws."). Considering the whole record,

we cannot find that "the workplace [wa]s permeated with

discriminatory intimidation, ridicule, and insult that [wa]s

sufficiently severe or pervasive to alter the conditions of

[Fontánez's] employment and create an abusive working environment."

Morgan, 536 U.S. at 116 (internal quotation marks omitted).

Additionally, the undisputed facts establish that Janssen had

well established antiharassment and antidiscrimination policies

that included procedures for employees to follow in airing

grievances and that Fontánez failed to take advantage of these

procedures. Janssen's statement of undisputed facts establishes

that Fontánez's only complaint to a manager occurred in 1997, and

he did not thereafter make use of the company's complaint

procedures. Fontánez attempts to contradict that fact, asserting

on appeal that he "sought help through the years from the superiors

regarding the discrimination he was suffering at the hands first of

Natal and then of Natal, Berríos and the others, but no one paid

attention." (Appellants' Br. at 11.) On the record before us,

including the facts deemed admitted, Fontánez cannot now assert

that he made timely complaints which were ignored. The district

court properly granted summary judgment on the sexual harassment

and hostile work environment claims. 
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III.

The judgment of the district court is affirmed.