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

United States Court of Appeals

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 Offices of Peter John

Porrata, was on brief for appellant.

Eduardo M. Veray-López, with whom 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
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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 district 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

dismissing Meléndez's claim at the summary judgment stage, the

district court found that Meléndez successfully established a prima

facie case of discrimination, but ultimately concluded that

Meléndez failed to 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

Meléndez worked 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 BMW of
 The memorandum stated: 1

There will be a quarterly evaluation in which the

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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, Meléndez received a

performance warning which stated that Meléndez had failed to meet

the used car sales quota of two vehicles. A second memorandum

dated August 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, 2006, 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 meet this threshold would be "subject to immediate

dismissal." Autogermana was to perform quarterly evaluations

beginning on July 7, 2006.1
salesperson'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% of his quota of new cars is subject to

immediate dismissal from his job at the Company. If

meeting [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.

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Shortly after the new sales quota was adopted,

Autogermana discharged Meléndez. 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 and 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 who dismiss 3

employees without just cause." Otero-Burgos v. Inter Am. Univ.,

558 F.3d 1, 7 (1st Cir. 2009). If the employee is discharged

without just cause, he is entitled to severance pay known as a

"'mesada,' which is calculated using a formula provided by the

statute." Id.

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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 prima facie case of

discrimination, but ultimately 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, Meléndez 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

reconsideration in which he explained that the Commonwealth of

Puerto Rico's trial court had issued a judgment granting him relief

under Puerto Rico Law 80. Arguing that once the state-court

judgment became final it would have preclusive effect on the

present ADEA litigation, Meléndez requested a stay of the district

court proceedings and/or judgment. Meléndez also requested leave
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to file an English translation of the state-court judgment. The

district court denied the two motions for reconsideration on

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, challenging 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 judgment

de 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 appropriate "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 of
 The 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 was fired; (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., 585 F.3d 441, 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 intentional
 Meléndez argues that in assessing whether a plaintiff-employee 5

established a prima facie case of discrimination under the ADEA,

this court should not require evidence that the plaintiff's duties

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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 burden of production shifts to the

defendant-employer to produce sufficient competent evidence to

allow a rational fact-finder to conclude that a legitimate nondiscriminatory 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 that the

record evidence would permit a reasonable jury to infer that the

real reason was 'discriminatory animus' based 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 Autogermana admitted it had a continuing need for Meléndez's

services. Autogermana claims, however, that Meléndez has failed 5
were assigned to a person outside the age group protected by the

ADEA (someone under the age 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."

Because 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, regardless of whether the younger person was within the

protected class. See id., at 313.

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to satisfy the second prong of the prima facie case as he was not

meeting the company's legitimate 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 failure 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 employment 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 Autogermana 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 that 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 meeting Autogermana'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 to 2005 for 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 downturn 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 to
 We 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

the evidence regarding Meléndez's sales performance in examining

whether Autogermana's proffered reason for dismissing him was a

pretext masking discrimination.

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his ability to meet Autogermana's legitimate expectations. See 6

Woodman, 51 F.3d at 1092 ("proffer 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 employer's

legitimate expectations); Vélez, 585 F.3d at 448 (legitimate

expectations 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-discriminatory 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 to discharge 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 existed 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

Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008) (employer met its

burden of providing a legitimate, non-discriminatory reason 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 that 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 the employer's justification; he must 'elucidate

specific facts which would enable a jury to find that the reason

given is not only a sham, but a sham intended to cover up the

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).
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Meléndez puts forth several arguments in support of his

claim that Autogermana's stated reason for dismissing him was

pretextual. First, it is Meléndez's theory that Autogermana

improperly evaluated his sales record for the April-June 2006

quarter through the lens of the new sales quota and that this

raises the inference that Autogermana's proffered reason for his

dismissal was pretextual. 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 his dismissal 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 Autogermana,

having issued a memorandum informing employees that a new sales

quota would be put 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 be able to conclude that

Meléndez's dismissal was unjust or wrongful. This, however, is

insufficient for a reasonable trier of fact to conclude that

Autogermana's evaluation of Meléndez's sales performance was a

pretext masking its impermissible discriminatory 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

that [employer's] decision to fire [plaintiff] was 'unfair'

(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 particularly so in light of the

evidence showing Meléndez's overall sub-par performance during the

eighteen months prior to his dismissal.

While Meléndez put forth some evidence to show that he

had a successful record as a salesperson during his ten-year tenure

at Autogermana, the record supports 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 pretext question is not

whether plaintiff "was actually performing below expectations, but

whether [the employer] believed that[]he was"). The evidence
 Before the district court, Meléndez lodged 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 of cars each employee sold.

The district court rejected Meléndez's objection and relied on

these tables in granting summary judgment in Autogermana's favor.

Because Meléndez has not challenged the admissibility of the

statistical evidence on appeal, we need not examine whether the

district court abused its discretion in considering 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").

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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 asks us to disregard the evidence

regarding his inadequate sales performance 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 in
 For 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.

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an employment discrimination case. Mesnick v. Gen. Elec. Co., 950

F.2d 816, 825 (1st Cir. 1991) ("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," is 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 reasons 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 by
 Meléndez specifically points to an incident in which 9

Autogermana's General Manager publicly called him "la vieja" ("the

old lady") because he wore outdated shoes.

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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 downturn 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, Meléndez 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 co-workers 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 the lobby, thereby preventing him from greeting

potential customers.
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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 statements made either by

non-decisionmakers or by decisionmakers 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 comments 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 omitted); 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."). These 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

because 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 deposition and in his opposition to Autogermana's motion for

summary judgment that Autogermana also had to dismiss four other

salespersons. There is thus insufficient evidence to draw the

inference that impermissible age discrimination was the

determinative 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 affirm 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 discretion,

id., and will not overturn the court's determination "unless a

miscarriage of justice is in prospect or the record otherwise
-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

summary judgment, Meléndez filed two motions for reconsideration

seeking relief 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 will 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 that 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 of
 We 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

had issued a judgment in his Law 80 case, and expanded the

arguments raised in Meléndez's first timely motion, we find no

error in the district court's decision to address the arguments

raised by Meléndez in this second, supplemental motion.

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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 subject 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 present 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 Meléndez in his

first and second motions for reconsideration. Finding no manifest

error of law in its prior conclusion that Meléndez was dismissed

for failure to meet Autogermana's legitimate expectations, the

district court denied the requested relief from the judgment. The
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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 which Meléndez relies to support his age discrimination claim

fails to raise the inference that he was dismissed for reasons

other than his sub-par work performance, and Meléndez failed to

point to any newly discovered evidence capable of altering this

conclusion. On reconsideration, Meléndez simply restated his

argument that Autogermana was precluded from evaluating 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 argument, but

that it simply found it insufficient to support the conclusion that

Meléndez was dismissed due to his age. 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 the 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 collateral
 The 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.

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estoppel principles did not apply because the judgment issued by

the Commonwealth's Superior Court was not yet "final and

unappealable" as required under 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 principles would apply under Puerto

Rico law. See Cruz, 204 F.3d at 21 (finding that appellant's

federal suit was 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

the case). We therefore find no abuse of discretion in the
 To the extent that Meléndez's third motion also sought relief 12

from the underlying judgment dismissing his 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 claims.

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").

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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 first and 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 English 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 litigation, 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, we affirm the district court's

grant of summary judgment for Autogermana and affirm the court's

denial of Meléndez's motions for reconsideration.

Affirmed.