Of the District of New Hampshire, sitting by designation. * 

# UnitedStates C ourt of App eals

For the First Circuit

No. 09-1804 ROBERT MELÉNDEZ, Plaintiff, Appellant,

v . AUTOGERMANA, INC., Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Justo Arenas, U.S. Magistrate Judge]

Before Torruella, Lipez, Circuit Judges, and Barbadoro, District Judge. *

Peter John Porrata, with whom Law Offic e s of Peter John Porrata, was on brief for appellant. Eduardo M. Veray-López, w i t hwhom Jesús R. Rabell-Méndez, Rabell-Méndez C.S.P., Phillip A. Escoriaza, and Zorrilla & Escoriaza Law Offices, were on brief for appellee.

October 12, 2010-2- TORRUELLA, Circuit Judge. In this age discrimination in employment action, Plaintiff-Appellant, Robert Meléndez (Meléndez), a former BMW car salesman at the Autogermana dealership in Puerto Rico, appeals the d istrict court's dismissal of his claim of discriminatory discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 (ADEA). Meléndez also challenges the district court's denial of his motions for reconsideration. In dis m i s sing Meléndez's claim at the summary judgment stage, the district court found that Meléndez successfully established a prima facie case of discrimination, but u l t imately concluded that Meléndez failed t o show that Autogermana's proffered nondiscriminatory reasons for dismissing him were pretexts that masked age discrimination. After careful review of the record, we affirm the district court's dismissal of Meléndez's age discrimination claim and find no abuse of discretion in the district court's denial of Meléndez's motions for reconsideration. I. Facts and Procedural History Melénde z w orked as a BMW car salesman for Defendant, Autogermana, Inc., over the course of approximately 10 years until Autogermana discharged him on July 7, 2006. Meléndez was 50 years of age at the time of his dismissal.

Throughout the course of his employment at Autogermana, Meléndez received several sales performance awards. For example, Meléndez received the Profiles in Achievement Award from B MW ofThe memorandum stated: 1 There will be a quarterly evaluation in which the -3- North America in 2001, 2002, 2003, 2004, and 2005. From 2004 to 2005, however, Meléndez also received several performance memoranda regarding his failure to meet the required sales quotas for particular months. On June 22, 2004, Melé n d ez received a performance warning which stated that Meléndez had failed to meet the used car sales quota of two vehicles. A second memor a n d um dated Au g ust 10, 2004 informed Meléndez that he had not sold the required thirteen new cars in the month of July 2004, and that he had one of the poorest sales records of the sales department staff. In 2005, Meléndez received performance warnings because he failed to meet the monthly sales quota in the months of March and April.

In March 2006, and prior to dismissing Meléndez, Autogermana adopted and implemented a new monthly sales quota. In a memorandum dated February 25, 2 0 0 6 , Autogermana informed its sales staff that a new monthly sales quota and payment structure would be adopted on March 1, 2006, requiring all salespersons to sell twelve new cars and one used car each month. The memorandum also informed employees that they would be required to sell at least 85% of their new car sales monthly quota, and that those who did not mee t t h i s threshold would be "subject to immediate dismissal. " Autogermana was to perform quarterly evaluations beginning on July 7, 2006. 1salesp e r s o n's individual sales will be taken year to

date, and it will be compared with the quota accrued to the corresponding period. Every salesperson that meets less than 85% o f h is quota of new cars is subject to immediate dismissal from his job at the Company. If m e e t ing [sic] between 85% and 99% of their [sic] quarterly quota, the salesperson will receive a performance memorandum. If the salesperson receives three memoranda within a period of 12 months, he will be subject to dismissal from his job at the Company. Quarterly evaluations will be performed in the following dates: April 7[,] July 7[ , ] October 7[,] [and] January 7[.] Only three quarters will be evaluated during [the] 2006 fiscal year, beginning on July 7, 2006. In his deposition, Meléndez admitted that Autogermana was 2 planning to dismiss at least four other employees who had not met the new monthly quota. -4-

Shortly after the new sales quota was a dopted, Autogermana discharged M e l éndez. The letter of dismissal stated that after evaluating Meléndez's sales performance in light of the new sales quota, Autogermana had determined that Meléndez had not met the quota and was thus subject to dismissal. The letter also explained that Autogermana had evaluated Meléndez's sales performance during the prior eighteen months. On that same day, Autogermana discharged Carlos Palmero, a fellow salesperson who was approximately 32 years of age. 2

On November 16, 2007, Meléndez filed the present suit in the United States District Court for the District of Puerto Rico, claiming that he was terminated because of his age in violation of the ADEA a n d Puerto Rico Law 100. Autogermana moved for summary judgment. On March 17, 2009, the district court granted summary"Law 80 imposes a monetary penalty on employers wh o d i s miss 3 employees without just cause." Otero- B u r g o s v. Inter Am. Univ., 558 F.3d 1, 7 (1st Cir. 2009). If t he employee is discharged wi t h o ut just cause, he is entitled to severance pay known as a "'mesada,' which is calculated using a formula provided by the statute." Id. -5- judgment in Autogermana's favor on the age discrimination claim and dismissed Meléndez's supplemental state law claim under Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146-51. The district court found that Meléndez had established a prim a facie case of discrimination, but ultim a t e ly concluded that Meléndez failed to show that Autogermana's proffered non-discriminatory reason for discharging Meléndez was a pretext for age discrimination.

On March 30, 2009, M e l éndez filed a motion for reconsideration of the judgment in which he also requested a stay of the judgment pending final resolution of a parallel state case, Meléndez v. Autogermana, Inc., Civil No. KPE 2007-1402 (807) (P.R. Ct. of First Instance March 30, 2009), in which Meléndez claimed he was entitled to severance pay under Puerto Rico Law No. 80. On 3 April 4, 2009, Meléndez submitted a second motion for

reco n s i d e r a t i o ni nwh i c hh e e x p l a i n e dt h a t t h e C o mm o n w e a l t hof Puerto Rico's trial court had issued a judgment granting him relief under Puerto Rico Law 80. Arguing that once the state-court jud gme n t b e c ame f i n a l i t w o u l dh a v e p r e c l u s i v e e f f e c t o nt he present ADEA litigation, Meléndez requested a stay of the district court proceedings and/or judgment. Meléndez also requested leave-6-

to file an English translation of the state-court judgment. The district court denied the two motions for reconsiderati o non April 23, 2009. Subsequent to the district court's denial of Meléndez's first two motions for reconsideration, he filed a motion for reconsideration of the district court's April 23rd order, and requested leave to file an English translation of the state-court judgment granting him severance pay under Puerto Rico Law 80. The district court denied this third motion. Meléndez subsequently filed this timely appeal, challe n g ing both the dismissal of his ADEA claim and the district court's denial of his motions for reconsideration. II. Standard of Review

"We review the district court's grant of summary judgmentde novo, viewing the facts in the light most favorable to the nonmoving party." Roman v. Potter, 604 F.3d 34, 38 (1st Cir. 2010). Summary judgment is appro p r i ate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). III. Discussion A. ADEA claim

The ADEA makes it unlawful for an employer to take an adverse employment action against an employee who is forty years ofThe parties have characterized this as a firing and replacement 4 case and the district court assumed it was. We thus abide by this characterization. -7- age or older on the basis of his age. 29 U.S.C. §§ 623(a), 631(a). In an ADEA claim, the employee "shoulder[s] the ultimate 'burden of proving that his years were the determinative factor in his discharge, that is, that he would not have been fired but for his age.'" Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 48 (1st Cir. 2008).

Absent direct evidence of discrimination, a plaintiffemployee may avail himself of the McDonnell Douglas burden-shifting framework to "prove that he would not have been fired but for his age." Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007) (citation omitted). Under this framework, the plaintiff-employee must show: (1) that he was at least forty years old when he wa s f i r e d ; (2) that his job performance met the employer's legitimate expectations; (3) that he suffered an adverse employment action such as a firing; and (4) that the employer filled the position, thereby showing a continuing need for the services that he had been rendering. See Vélez v. Thermo King de 4 P.R., 5 8 5 F . 3 d441, 447 (1st Cir. 2009); Suárez v. Pueblo Int'l Inc., 229 F.3d 49, 53 (1st Cir. 2000). This "prima facie showing is not especially burdensome, and once established, gives rise to a rebuttable presumption that the employer engaged in intentionalMeléndez argues that in ass e s s i n g whether a plaintiff-employee 5 established a prima facie case of discr i m i n a tion under the ADEA, this court should not require evidence that the plaintiff's duties -8- age-based discrimination." Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir. 1995) (citations omitted).

Once the plaintiff-employee establishes a prima facie case for discrimination, the burd e nof production shifts to the defendant-employer to produce sufficient competent evidence to allow a rational fac t

- finder to conclude that a legitimate nondiscr i m i n a tory reason existed for the termination. See id.; see also Vélez, 585 F.3d at 448. If the employer articulates such a non-discriminatory reason, the plaintiff-employee must then prove "that the employer's given reason 'was pretextual' and th a t the record evidence would permit a reasonable jury to infer that the real reason was 'discriminatory animus' b a sed on his age." Cordero-Soto v. Island Finance, Inc., 418 F.3d 114, 119 (1st Cir. 2005). 1. First stage: the prima facie case

The district court concluded that Meléndez successfully mounted a prima facie case of age discrimination. On appeal, the parties agree that Meléndez satisfies the first, third, and fourth prongs of the prima facie case. Meléndez was 50 years old at the time he parted company with his former employer, he was discharged, and Aut o g e r m ana admitted it had a continuing need for Meléndez's services. Autogermana claims, however, that Meléndez has failed

5were assigned t o a person outside the age group protected by the

ADEA (someone unde r t h e a ge of 40). First, in holding that Meléndez had not provided sufficient evidence to show that he was dismissed because of his age, the district court did not require Meléndez to show that he was replaced by someone outside the protected class. Secondly, and more importantly, the Supreme Court rejected this contention in O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996), holding that "[b]ecause it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class [someone under the age of 40] is not a proper element of the McDonnell Douglas prima facie case." Beca u s e the touchstone of the ADEA inquiry is whether plaintiff suffered discrimination because of his age, plaintiff may make his prima facie case by showing that he was replaced by a much younger person, re g a rdless of whether the younger person was within the protected class. See id., at 313. -9- to satisfy the second prong of the prima facie case as he was not meeting the company's l e g i t i mate expectations at the time of his dismissal. To support this claim, Autogermana points to Meléndez's sub-par sales performance during the eighteen months prior to his dismissal, and to his fai l u r e to meet the new sales quota during the April-June 2006 quarter. Autogermana's argument regarding the prima facie case is unavailing.

First, we cannot "consider the employer's alleged nondiscriminatory reason for taking an adverse emp l o yment action when analyzing the prima facie case." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003); see also Vélez, 585 F.3d at 448 (same). Thus, because Au t o g ermana invoked Meléndez's failure to meet the sales quota in arguing that Meléndez was dismissed for non-discriminatory reasons, we cannot rely on Meléndez's poor sales performance in assessing whether he satisfied-10-

the legitimate expectations prong of the prima facie case. If we

were to consider Autogermana's stated reason for firing Meléndez as evidence t hat he was not meeting the company's expectations, we would "bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory

reason was in actuality a pretext designed to mask discrimination." Wexler, 317 F.3d at 574.

To show that he was mee t i n gAutogermana's legitimate expectations at the time of his dismissal, Meléndez points to his ten-year career at Autogermana. He relies on the awards he received from 2001 t o 2 0 0 5 f or his sales performance and on the fact that at the time of his dismissal, he earned roughly the same salary that he had received in prior years. Meléndez also contends that his failure to meet the sales quota in 2006 was due to reasons other than his poor or inadequate sales performance. He argues that the economic d o w n t u r n in Puerto Rico led to a reduction in overall company sales and that as a consequence, all or most salespersons were unable to meet the new sales quota. Mindful that an employee's burden at the prima facie stage is not particularly onerous, Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003), we find that the evidence proffered by Meléndez is minimally sufficient to show that there was a triable issue as toWe are cognizant that Meléndez's failure to meet the sales quota 6 for the April-June 2006 quarter could undermine Meléndez's contention that he was meeting his employer's legitimate expectations at the time of his dismissal. We will fully consider t h e e v i d e n c e r e g a r d i n gMe l é n d e z ' s s a l e s p e r f o rm a n c e i ne x am ining whether Autogermana's proffered reason for dismissing him was a pretext masking discrimination.-11- h i s ability to meet Autogermana's legitimate expectations. See 6 Woodman, 51 F.3d at 109 2 ( " p roffer of substantial wage increases and ten years of positive performance reviews, blemished by but one negative performance evaluation" found sufficient to create a triable issue as to whether employee was meeting his emplo y e r's legitimate e x p e c tations); Vélez, 585 F.3d at 448 (legitimate
expec t a t ions prong met where plaintiff relied on his twenty-four years of employment with defendant without being subject to discipline due to his performance). 2. Second stage: legitimate and non-dis c riminatory reason for dismissal Having held that Meléndez successfully established a prima facie case of age discrimination, we must determine whether Autogermana articulated a legitimate and non-discriminatory reason for dismissing Meléndez. We need not tarry. Autogermana claims that it discharged Meléndez because he failed to meet the sales quota that was implemented in March 2006. Autogermana also explains that it decided t o d i s charge Meléndez because his sales record during the eighteen months prior to his dismissal revealed that Meléndez was among the poorest performers in the company. We-12-

find that this is enough "to enable a rational factfinder to conclude that there e x isted a nondiscriminatory reason" for Meléndez's dismissal. Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997); see also García v. Bristol-Myers Sq u i b b C o . , 535 F.3d 23, 31 (1st Cir. 2008) (employer met its b u r d e n o f p r o v i d i n g a l e g i t i m a t e , n o n - d i s c r i m i n a t o r y r e a son by stating that employee was discharged due to her deficient performance). 3. Third and final stage: pretext and discriminatory animus

At the final stage of our inquiry, the burden shifts to Meléndez, who, unaided by the presumption that was previously raised in the prima facie case, must put forth sufficient facts for a reasonable fact-finder to conclude that Autogermana's proffered reason for discharging him is a pretext and t h a t the true reason behind the firing was discriminatory animus. See Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 6 (1st Cir. 2000). "It is not enough for a plaintiff merely to impugn the veracity of t h e e mployer's justification; he must 'elucidate specific facts which would e n a b le a jury to find that the reason given is not only a sham, but a sham intended to coveru pt he employer's real motive: age discrimination.'" Mesnick v. General Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990).-13- Meléndez puts forth several arguments in support of his claim that Autogermana's stated reason for dismissing him was pretextual. First, it is Mel é n d ez's theory that Autogermana improperly evaluated his sales record for the April-June 2006
qu a r t e r t h rough the lens of the new sales quota and that this raises the inference that Autogermana's proffer e d reason for his dismissal was pretextua l
. Secondly, Meléndez invokes his good sales record in the company to argue that considerations other than his sales performance led to his dismissal. Thirdly, Meléndez claims that the fact that, due to the economic downturn, overall company sales dropped and other salespersons were likewise unable to meet the sales quota raises the inference that the real reason behind hi s d i s missal was age discrimination. Finally, Meléndez claims that the new sales quota was "unreal" or unreasonable, and that Autogermana's reliance on the quota was but a pretext for illegal discrimination.

We begin by addressing Meléndez's claim that Autogermana misapplied the February 2006 memorandum in an effort to cover the real reasons behind his dismissal. Although the memorandum was far from a paragon of clarity, we cannot conclude that Auto g e rmana, having issued a m e m orandum informing employees that a new sales quota would be p u t into effect in March 2006, and having advised employees that the first quarterly evaluation was to be performed on July 7, 2006, was precluded from evaluating employee performance-14-

during the April-June quarter through the lens of the new sales quota. Moreover, even if we draw the inference that Autogermana could not evaluate Meléndez's sales performance through the lens of the new sales quota, we would only b e a b l e to conclude that Meléndez's dismissal was unjust or wrongful. This, howeve r , is insufficien t for a reasonable trier of fact to conclude that Autogermana's evaluatio n o fMeléndez's sales performance was a pretext masking its impermissible d iscriminatory animus. Cf. Feliciano de la Cruz, 218 F.3d at 8 (finding that "even if a rational trier of fact could infer from the evidence of pretext tha t [ e mp l o y e r ' s ] d e c i s i o nt o f i r e [ p l a i n t i f f ] w a s ' u n f a i r' (because she continued to perform her job well), that proof [was] insufficient to state a claim under Title VII" for discrimination on the basis of race). This is p articularly so in light of the evidence showing Meléndez's overall sub-par performance during the eighteen months prior to his dismissal.

While M e l é n d ez put forth some evidence to show that he had a successful record as a salesperson during his ten-year tenure at Autogermana, the record sup p o rts the conclusion that, at the time of his dismissal, Autogermana believed that Meléndez was not meeting the company's legitimate performance expectations. See id. at 7 (stating that the essence of the pre t e x t q u e stion is not whether plaintiff "was actually performing below expectations, but whether [the employer] believed that[]he was"). The evidenceBefore the district court, Melénde z l odged an objection to 7 Autogermana's reliance at summary judgment on statistical evidence -- tables -- regarding employee sales records for the years 2005 and 2006. In his statement of uncontested facts, Meléndez claimed that the tables were self-serving and that the statistics did not include details regarding the types o fcars each employee sold. The district court rejected Meléndez's obj e c t ion and relied on these tables in granting summary judgment in Autogermana's favor. Because Melé n d e z has not challenged the admissibility of the statistical evidence on a ppeal, we need not examine whether the district court abused its discretion i nconsidering the tables submitted by Autogermana. See Bennett v. Saint-Gobain Corp., 507 F.3d 23, 28 (1st Cir. 2007) ("abuse-of-discretion standard applies to a district court's decision to admit or exclude evidence at the summary judgment stage"). -15- presented by Autogermana reveals that, even ignoring the new sales quota, Meléndez had one of the poorest sales records in the
company. Meléndez's sales record from January 2006 until July

7 2006 reveals that he had the second poorest sales record, and sales statistics for the year 2005 also show that Meléndez was among the poorest performers within the company.

Meléndez simply a s k s us to disregard the evidence regarding his inadequate sales per f o r m a nce at the time of his dismissal and to abide by his own assessment of his sales performance. We find that this is insufficient for a reasonable fact-finder to conclude that Autogermana did not actually believe that Meléndez was performing below expectations at the time of his dismissal. Regarding Meléndez's contention that the sales quota was "unreal," we should clarify that Autogermana's decision to adopt a new sales quota is a business decision that we may not question inFor example, it is undisputed that by May 2005, Autogermana had 8 sold 440 new cars, while Autogermana had sold 377 new cars by May 2006. -16- an employment discrimination case. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st C i r . 1 9 9 1) ("Courts may not sit as super personnel departments, assessing the merits - or even the rationality - of employers' nondiscriminatory business decisions."). That is, Meléndez's general averment that the sales quota was "unreal," i s insufficient to allow a reasonable factfinder to conclude that the quota was adopted and employed to mask Autogermana's discriminatory animus. After all, "[t]he 'ADEA does not stop a company from discharging an employee for any reason (fair or unfair) or for no reason, so long as the decision to fire does not stem from the person's age.'" Id. (citation omitted); see also Webber v. Int'l Paper Co., 417 F.3d 229, 238 (1st Cir. 2005) ("[P]ursuant to the 'business judgment' rule[,] an employer is free to terminate an employee for any nondiscriminatory reason even if its business judgment seems objectively unwise.") (citation omitted). Further, evidence showing that Autogermana's overall sales in 2006 were lower than its 2005 sales is insufficient for 8 a reasonable trier of fact to conclude that Autogermana discharged Meléndez for re a s o ns other than his sub-par sales performance. While new car sales had declined in 2006, some of the salespersons were indeed able to sell the requisite number of cars required byMeléndez specifically points to a nincident in which 9 Autogermana's General Manager publicly called him "la vieja" ("the old lady") because he wore outdated shoes. -17- the quota, or fell within the 85% threshold. Furthermore, the record supports the conclusion that Autogermana decided to dismiss the two salespersons with the poorest sales records and that the company also considered discharging other employees. Regardless of whether the economic down t u r n may have affected Meléndez's sales performance, the record shows that, when compared with his fellow co-workers, Meléndez was not meeting Autogermana's expectations. We thus find that Meléndez has failed to raise the inference that Autogermana's proffered reason for dismissing him was pretextual.

In his attempt to support a claim of discriminatory discharge, M e l é ndez states that Autogermana waged an insidious "discrimination campaign" against him, whereby members of Autogermana's staff regularly ostracized and mocked him because of his age. Meléndez argues that c o - w orkers referred to him as "el abuelo" ("grandpa"), or "el viejo" ("the old man"), since he was a single parent, and had his first child at the age of 45. Meléndez also refers to other incidents in which his co-workers criticized the way he dressed, remarking that he wore outdated suits and shoes. He also claims that co-workers intentionally excluded him

9 from a staff picture and that, prior to his dismissal, his desk was moved away from t h e lobby, thereby preventing him from greeting potential customers.-18- We recognize that some of these remarks by co-workers were related to Meléndez's age. We have explained, however, that "'stray workplace remarks,' as well as statem e n t s made either by non-decisionmakers or by decisionma k e rs not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus." González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002). While evidence of age-related comm e n t s may be sufficient to support an inference of pretext and discriminatory animus, Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000), Meléndez has failed to adduce sufficient evidence for a reasonable trier of fact to conclude that the remarks were both temporally and causally connected to Autogermana's decision to discharge him. Rivera-Aponte v. Restaurant Metropol #3, Inc., 338 F.3d 9, 12 (1st Cir. 2003) ("The lack of a direct connection between the words and the employment action significantly weakens their probative value.") (citation omitte d ) ; McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals, 140 F.3d 288, 301 (1st Cir. 1998) ("[E]ven if [stray] remarks are relevant for the pretext inquiry, their probativeness is circumscribed if they were made in a situation temporally remote from the date of the employment decision."). T h e s e remarks, even if ageist, are insufficient to overcome the compelling evidence proffered by Autogermana showing that Meléndez was dismissed due to poor work performance and they-19-

thus fail to raise the inference that the real reason for Meléndez's termination was age discrimination.

While Meléndez steadfastly claims that he was dismissed b e c a use of his age, it is uncontested that Meléndez -- then 50 years old -- was discharged alongside a fellow salesperson who at the time was 32 years old. Also, Meléndez himself admitted both in his d e p o s i tion and in his opposition to Autogermana's motion for summary judgment that Autog e r m a n a also had to dismiss four other salespersons. There is thus insufficient evidence to draw the inference that impermissible age discrimination was thedeterminative factor in Meléndez's termination. See TorrechHernández, 519 F.3d at 48 (in an ADEA case, plaintiff shoulders the ultimate burden of proving that "his years were the determinative factor in his discharge"). We therefore af f i rm the district court's grant of summary judgment for Defendant Autogermana. B. Denial of Meléndez's post-judgment motions

"As a general matter, a motion for reconsideration may only be granted if the original judgment evidenced a manifest error of law, if there is newly discovered evidence, or in certain other narrow situations. Global Naps, Inc. v. Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir. 2007). We review the district court's denial of a motion for reconsideration for abuse of disc r e tion, id., and will not overturn the court's determination "unless a mi s c a r r i a g e o fj u s t i c e i s i np r o s p e c t o rt h e r e c o r do t h erwise-20-

reveals a manifest abuse of discretion." Rivera v. Riley, 209 F.3d 24, 27 (1st Cir. 2000).

Following the district court's dismissal of his claims at

summ a r y judgment, Meléndez filed two motions for reconsideration

se e k i n grelief from the district court's judgment. After the district court denied these motions, Meléndez filed a third motion, seeking reconsideration of the district court's denial of his first two Rule 59(e) motions. We w i l l address the arguments raised by Meléndez in these motions and review the district court's orders on them, in turn.

In his first motion for reconsideration, Meléndez argued that the court misinterpreted the February memorandum adopting the new sales quota. He claimed that the district court overlooked and misinterpreted his argument tha t Autogermana could not apply the new sales quota in evaluating his sales performance prior to July 2006. He also contended that Autogermana's reliance on his sales performance during the prior eighteen months was simply a pretext, as he received awards for his sales performance during that same eighteen-month period. Secondly, Meléndez urged the court to stay the judgment pending final resolution of a parallel state-court case in which he was seeking relief for an unjust dismissal under Puerto Rico Law 80.

On April 4, 2009, Meléndez filed a second motion for reconsideration which essentially renewed his request for a stay ofWe note that Meléndez's first Rule 59(e) motion was timely filed 10 within ten days of the final judgment. Thus, the appeal period was tolled and began to run anew when the district court denied these motions on April 23, 2009. Meléndez's second motion, however, was filed outside the mandatory ten-day period to file motions for reconsideration. If we viewed Meléndez's April 4th filing as a separate Rule 59(e) motion, we would have to conclude that it was untimely and that thus, the district court lacked jurisdiction to consider it under Rule 59(e). See Fisher v. Kadant, Inc., 589 F.3d 505, 511 (1st Cir. 2009). But because Meléndez's second motion basically informed the court that the Commonwealth's Superior Court h a d issued a judgment in his Law 80 case, and expanded the arguments raised in Meléndez's first timely motion, we find no error in t h e district court's decision to address the arguments raised by Meléndez in this second, supplemental motion. -21- the proceedings pending final resolution of his parallel unjust dismissal case. In this second motion, however, Meléndez 10 explained that the Commonwealth's Superior Court had issued a judgment granting him relief under Law 80. According to Meléndez, although the judgment was s u b ject to appeal and could not yet be considered a final judgment for collateral estoppel purposes under Puerto Rico law, once the judgment became final, it would have preclusive effect in the pr e s e n t ADEA litigation. Meléndez also requested leave to file an English translation of the judgment entered by the Commonwealth's Superior Court in his Law 80 action.

In an opinion and order issued on April 23, 2009, the district court addressed the arguments raised by Me l é n d e z in his first and second motions for reconsideration. Finding no manifest error of law in its prior conclusion that Meléndez was dismissed for f a i l u r e t o me e t Au t o g e rm a n a ' s l e g i t i m a t e e x p e c t a t i o n s , t he district court denied the requested relief from the judgment. The-22-

district court also denied Meléndez's request for a stay of the judgment pending final resolution of his state-court action.

As we discussed in section III. A., supra, the evidence

on w h i c hMeléndez relies to support his age discrimination claim fails to raise the inference that he was dismissed for reasons other than his sub-p a rwork performance, and Meléndez failed to point to any newly discovered evidence capabl e of altering this conclusion. On reconsideration, M e léndez simply restated his argument that Autogermana was precluded from eval u a t ing his work performance in light of the new sales quota, claiming that the district court misconstrued this argument. The district court, however, explained that it had not overlooked this a r g u m ent, but that it simply found it insufficient to support the conclusion that Meléndez was dismissed due to h i s a g e . We find no error in this conclusion. Because Meléndez failed to point to any manifest error of law in the district court's judgment dismissing his ADEA claim, we find no abuse of discretion in t h e district court's denial of Meléndez's motions for reconsideration.

We also fail to find any abuse of discretion in the district court's refusal to stay the judgment in this case until the Commonwealth courts issued a final and unappealable judgment in Meléndez's parallel state-court action for unjust dismissal under Puerto Rico Law 80. This argument is unavailing as Meléndez himself admitted in his motion for reconsideration that collateralThe parties and the district court assumed that a Rule 59(e) 11 motion was the proper vehicle to request relief from the district court's final judgment on the basis of collateral estoppel. Because we find that Meléndez's collateral estoppel claim fails on the merits, we assume, without deciding, that the issue was properly raised before the district court in Meléndez's Rule 59(e) motions. -23- e s t o p p el principles did not apply because the judgment issued by the Commonwealth's Superior Court was n o t yet "final and unappealable" as required und e r Puerto Rico res judicata and collateral estoppel principles. See R.G. Fin. Corp. v. Vergara- 11 Núñez, 446 F.3d 178, 183 (1st Cir. 2006) (stating that a judgment has preclusive effect under Puerto Rico law only if, among other requirements, the judgment is "final and unappealable"); see also Cruz v. Melecio, 204 F.3d 14, 20 (1st Cir. 2000) ("[A] commonwealth court judgment cannot be accorded preclusive effect until all available appeals have been exhausted (or the time for taking them has expired)."). At the time Meléndez filed his motion for reconsideration, the Commonwealth's courts had not issued a final and unappealable judgment. This defeats any claim that collateral estoppel or claim preclusion pr i n c iples would apply under Puerto Rico la w . S e e Cruz, 204 F.3d at 21 (finding that appellant's federal sui t w a s not foreclosed by res judicata principles where the "commonwealth court's judgment in this case was on appeal at the time the federal district court" issued its decision dismissing
t h e c a s e). We therefore find no abuse of discretion in theTo the exte n t that Meléndez's third motion also sought relief 12 from the underlying judgment dismissing hi s ADEA claim, we find that the district court properly denied the motion as it was filed outside the ten-day period following the entry of the district court's March 18, 2009 judgment dismissing Meléndez's c l aims. Fisher, 589 F.3d at 511 (district court lacks authority to consider a Rule 59(e) motion that is filed outside "the ten-day window that opened following the entry of judgment"). -24- district court's denial of Meléndez's first and second motions for reconsideration.

Finally, we find no abuse of discretion in the district court's denial of Meléndez's request for reconsideration of the court's denial of his fir s t a n d second motions for post-judgment relief. In this third post-judgment motion, Meléndez essentially challenged the district court's refusal to grant him leave to file an Engl i s h translation of the state-court judgment. Because we find no abuse of discretion in the district court's decision that the non-final Law 80 judgment could not have any preclusive effect on the present ADEA l i t i g a t i on, we cannot find any error in the court's decision to deny Meléndez's request to file an English translation of the state-court judgment and order. 12 IV. Conclusion For the reasons stated, w e a ffirm the district court's grant of summary judgment f o r Autogermana and affirm the court's denial of Meléndez's motions for reconsideration.

Affirmed
.