Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1997

JOVITA MENÉNDEZ; LEANDRO MENÉNDEZ; and

CONJUGAL PARTNERSHIP MENÉNDEZ-MENÉNDEZ,

Plaintiffs, Appellants,

v.

SCOTIABANK OF PUERTO RICO, INC.; THE BANK OF NOVA SCOTIA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

____________________

Enrique A. Báez-Godínez and Law Office of Enrique A. BáezGodínez on brief for appellants.

Luis F. Antonetti-Zequeira, Javier G. Vázquez-Segarra and

Goldman Antonetti & Córdova, P.S.C. on brief for appellees.

June 14, 2005
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Per Curiam. In June 2001, Jovita Menendez, an account

manager at Scotiabank of Puerto Rico, applied for a posted job as

senior account manager. On June 22, the job went instead to

Francisco Vazquez, whose rank (branch manager) was higher than that

of Menendez and just below senior account manager. Vazquez was a

male aged 35; Menendez was then 54 years old.

On the same day as the decision to promote Vazquez,

Menendez wrote to the head of Scotiabank, claiming that age and

gender discrimination had deprived her of the post. In October

2001, Menendez left Scotiabank on sick leave and then applied for

disability. On July 12, 2002, Menendez filed an age and gender

discrimination charge with the EEOC, which issued her a "right-tosue" letter that same day.

Menendez brought suit in federal court on October 1,

2002, against Scotiabank and its parent company (collectively

“Scotiabank”), alleging violations of Title VII and the ADEA, as

well as Puerto Rico's anti-discrimination law. 42 U.S.C. §§ 2000e

to 2000e-17 (2000); 29 U.S.C. §§ 621-634 (2000); 29 P.R. Laws Ann.

§§ 146-155 (2001). The centerpiece of the complaint was the

failure to promote, but the complaint also alleged various

grievances from earlier years (inadequate supplies, a failure at an

early point to raise her job classification, her increased work

load).
1See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d); see also

National Railroad Passenger Co. v. Morgan, 536 U.S. 101, 110-14

(2002) (under Title VII, "discrete discriminatory acts are not

actionable if time-barred, even when they are related to acts

alleged in timely filed charges"); American Airlines, Inc. v.

Cardoza-Rodriguez, 133 F.3d 111, 122 (1st Cir. 1998) (ADEA); id. at

124-25 (Puerto Rico's "Law 100").

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In addition to defending the choice to promote Vazquez

rather than Menendez, Scotiabank sought summary judgment on statute

of limitations grounds. It asserted that the filing for the

federal claims had to be made within 300 days of the violation and

for the local claims within 365 days; Menendez had in fact waited

385 days.1 Menendez replied that the violations were systemic and

serial and that, as to those claims, genuine issues of material

fact precluded summary judgment.

On May 27, 2004, the district court granted summary

judgment for Scotiabank in a detailed 21-page decision. After an

unsuccessful Rule 59 motion for reconsideration, Fed. R. Civ. P.

59(e), Menendez brought this appeal, arguing in substance that four

discriminatory acts occurring after June 2001 precluded summary

judgment. Our review of the grant of summary judgment is de novo.

Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005).

First, Menendez says that Nestor Vale, one of Menendez'

supervisors, began after June 2001 to address Menendez as “Doña

Jovita.” “Doña,” says Menendez, is a term used to denote respect

for “elderly individuals” and was used by Vale in a “cynical and

contemptuous” manner. It is almost impossible to find any evidence
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supplied by Menendez as to when these statements were made or in

what context but, in any event, they are not enough to rescue her

claim.

Menendez does not say that these remarks were themselves

violations of any anti-discrimination laws, and they were not

identified in her complaint. Whether or not they are evidence of

motive bearing on the failure to promote does not matter: Menendez’

own letter to Scotiabank’s CEO shows that she was on immediate

notice of the alleged discriminatory motive. Nor do such remarks

turn a specific employment action occurring at an earlier time into

a serial or systemic violation.

Second, Menendez says that when she went on sick leave

and applied for disability, her work was taken over for the time

being--Puerto Rico law protected for 12 months Menendez’ right to

return to her position--by another employee, Liza Nieves. Nieves,

says Menendez, was a younger woman with a higher job classification

and salary. Menendez nowhere in her brief explains just why she

thinks this helps her case.

Possibly Menendez infers that Nieves’ temporary handling

of the work shows that all along Menendez’ job should have enjoyed

the higher rank and salary. But the brief does not say this and

the inference is pretty lame as applied to a temporary assumption

of duties; during strikes, for example, management employees often

take over lower-level jobs. Even a stronger inference would at
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best be evidence as to the prior failure-to-promote charge--and so

of no help on the limitations issue.

Third, Menendez claims that, unlike other employees, she

was given inadequate office equipment and work space. The district

court found that any deprivations occurred in 1999 or 2000, well

before the failure to promote. Menendez points to no specific

event occurring after the later date. Nor does she explain how

these events bolster her claim of a pattern of either age or gender

discrimination, given the lack of any indication that other women

or older employees suffered in the same way.

Fourth, Menendez says that she was denied her “VIP bonus”

for the fiscal year ending on October 31, 2001. Menendez says that

it was ordinary practice to pro-rate the bonus for employees on

medical leave. The company says that Menendez was not entitled to

a bonus, because she was not an active employee at year’s end and

had not gotten an evaluation for the year. The written bonus

policy, submitted by Scotiabank, does list both requirements and

says nothing about pro-rating bonuses.

In any event, if intended by Menendez to suggest a

discriminatory motive for the failure to promote, this bonus

incident does not extend the statute for the known failure to

promote. And, if intended as a separate actionable act of

discrimination, Menendez points to no substantial evidence that the

decision as to the bonus was based upon age or gender; nor did she
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include the incident as a discriminatory act in either her EEOC

claim or her court complaint.

Affirmed.