Of the Southern District of New York, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 07-1659

CHRISTIAN LUPU; AMY LUPU; CONJUGAL PARTNERSHIP LUPU-LUPU,

Plaintiffs, Appellants,

v.

WYNDHAM EL CONQUISTADOR RESORT & GOLDEN DOOR SPA; EL

CONQUISTADOR LUXURY RESORT; INSURANCE COMPANY ABC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch, Circuit Judge,

and Keenan, Senior District Judge. *

Juan M. Frontera-Suau for appellant.

Edwin J. Seda-Fernandez with whom Patricia R. Limeres-Vargas

and Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. were on brief for

appellee.

April 30, 2008
-2-

LYNCH, Circuit Judge. Christian Lupu, whose career has

been in the hotel industry, worked for three years for the Caribe

Hilton Hotel in San Juan, Puerto Rico. He started work at his next

job at the Wyndham El Conquistador Resort in Puerto Rico on

November 29, 2004 as Director of Engineering. Wyndham's written

offer of employment was explicit that he was a probationary

employee during the period starting November 29, 2004 and ending on

February 26, 2005. On February 24, 2005, his superiors informed

him his employment would end at the conclusion of the probationary

period due to inadequacies in his performance. He worked

thereafter at the Waldorf Astoria Hotel in New York.

He (and his wife and their conjugal partnership) filed

suit in federal court in Puerto Rico over the termination of his

employment by the Conquistador. His suit was dismissed. This

appeal concerns only two of the several claims he made, under

diversity jurisdiction, both of which the court disposed of on

defendants' motion for summary judgment. Both are claims of

violations of Puerto Rico statutes: Act No. 115, P.R. Laws Ann.

tit. 29, § 194a, prohibiting retaliation against certain defined

whistleblowers, and Article 1802, P.R. Laws Ann. tit. 31 § 5141,

for negligence. We affirm.
-3-

I.

A. Act No. 115: Prohibiting Retaliation Against

Whistleblowers

The first statute at issue, Act No. 115, P.R. Laws Ann.

tit. 29, § 194a, provides in relevant part:

(a) No employer may discharge, threaten, or

discriminate against an employee regarding the

terms, conditions, compensation, location,

benefits or privileges of the employment

should the employee offer or attempt to offer,

verbally or in writing, any testimony,

expression or information before a

legislative, administrative or judicial forum

in Puerto Rico, when such expressions are not

of a defamatory character nor constitute

disclosure of privileged information

established by law.

(Emphasis added.) The statute also imposes an obligation on the

employee to establish, "through direct or circumstantial evidence,"

a prima facie case that he or she (a) "participated in an activity

protected by §§ 194 et seq." and (b) "was subsequently discharged."

Id. § 194a(c). See generally Hoyos v. Telecorp Commc'ns, Inc., 405

F. Supp. 2d 199, 207 (D.P.R. 2005); Rivera Rodriguez v. Sears

Roebuck de P.R., Inc., 367 F. Supp. 2d 216, 230 (D.P.R. 2005).

The undisputed facts, as the district court held,

demonstrate that plaintiff never participated in an activity

protected by section 194a. That is, he did not "offer or attempt

to offer, verbally or in writing, any testimony, expression or

information before a legislative, administrative or judicial forum

in Puerto Rico." P.R. Laws Ann. tit. 29, § 194a(a).
These alleged irregularities, according to plaintiff, 1

included internal management issues, such as misreporting of time

worked by other employees, as well as perceived violations of

regulations, such as inappropriate maintenance of the hotel's

wastewater treatment plant. 

-4-

At Lupu's deposition, he admitted that he never offered

or attempted to offer any information to the Puerto Rico

governmental authorities listed in the statute; nor had he

threatened to go to such authorities with any report of perceived

irregularities in the operations at the hotel.1

Despite his deposition testimony, Lupu, in an effort to

stave off summary judgment, argued that the statutory requirement

was met by (1) a conversation he had with a supervisor during an

internal meeting and (2) a document Lupu had written and

inadvertently left on the desk of the supervisor. The internal

meeting took place between Lupu and John Paul Oliver, Wyndham's

Area Vice President of Offshore Resorts. Lupu sought out Oliver

for the conversation on February 24, 2005 after he was told his

position was being terminated on February 25. Lupu asserts, and we

take the evidence in his favor for summary judgment purposes, that

he discussed with Oliver his concerns about hotel mismanagement and

lack of proper maintenance that might lead to non-compliance with

government regulations. He does not assert he had discussions with

the entities listed in the statute or told Oliver that he intended

to go to the authorities.
Lupu alleges that several minutes after leaving the 2

meeting with Oliver, he received a phone call from one of his

superiors informing him that his employment was officially

terminated and telling him to stop "going around" to Wyndham's vice

presidents.

Lupu makes a secondary argument that Oliver may have 3

thought that Lupu was going to report the hotel to the authorities

and it is that perception that is important under Act 115, not

-5-

The document involved is one which Lupu unintentionally

left on Oliver's desk after the February 24, 2005 meeting, entitled

"Questions to Discuss With Attorney." Lupu says he had intended to

seek advice from an attorney with the list of questions, which

covered what rights Lupu would have if he went to the authorities

and discussed whether he could file a complaint against the hotel

without that affecting his employment opportunities. Lupu agrees

Oliver handed the document back to him when Lupu realized he left

the document behind and returned for it.

Lupu argues there are contested facts precluding summary

judgment as to (1) whether his employment was actually terminated

before or after his meeting with Oliver and (2) whether Oliver 2

read the "Questions to Discuss With Attorney" before Oliver handed

the document back. These disputes, which go to causation, are not

material. Even assuming these two facts were resolved in Lupu's

favor, he still has not put forward evidence that he "offered or

attempted to offer" testimony or information to a "legislative,

administrative or judicial forum in Puerto Rico," as required by

the statute.3
whether Lupu actually did go or attempt to go to the authorities.

He cites a Puerto Rico Supreme Court case, Irizarry v. Johnson &

Johnson Consumer Products Co. (P.R.), 150 D.P.R. 155 (2000), but an

English version is unavailable in the bound volumes of the court's

reporter and the plaintiff has not provided a translation as

required by this court's rules. See 1st Cir. Loc. R. 30(d). He

may not use the case to support his proposition. See Hoyos v.

Telecorp Commc'ns, Inc., 488 F.3d 1, 6 n.4 (1st Cir. 2007). 

-6-

Indeed, his argument stretches the statutory language

well beyond any fair reading. The district court was correct to

reject it.

B. Article 1802: Negligence

Lupu's claim for negligence is one of fraudulent

inducement by the hotel to entice him to work for it, never

intending to employ him past his probationary employment date. He

makes his claim under Article 1802, P.R. Laws Ann. tit. 31, § 5141,

which provides in part that a "person who by an act or omission

causes damage to another through fault or negligence shall be

obliged to repair the damage so done." He alleges that the Puerto

Rico Supreme Court recognized an implied private right of action

for damages claims in employment actions under Article 1802 in

Montalvo v. Ceramic Enterprises, 7 P.R. Offic. Trans. 773 (1978).

Puerto Rico law expressly provides for probationary

periods of employment under P.R. Laws Ann., tit. 29, § 185h. These

periods exempt employers from the requirements of Puerto Rico Law

80, id. § 185a, a statute ordinarily requiring that a discharge be

for just cause. We will bypass the question of whether, in light
-7-

of these two statutes, a claim can lie under Puerto Rico law for

negligence for inducement into a probationary job.

On the undisputed facts, Lupu cannot make out a factually

supportable claim, and we need not address the hypothetical outer

reaches of the statute. The district court found it was undisputed

that defendants regarded Lupu's work as unsatisfactory; there are

documents in evidence supporting this. The court noted and

rejected Lupu's argument that fraudulent intent by the hotel in

hiring him for a probationary job is shown by the fact that the

accounting office had not budgeted Lupu's position for the coming

year. That allegation, even if true, is entirely consistent with

the explanation that he was terminated for unsatisfactory

performance. Even if the hotel also decided it did not need the

position, that does not show the three-month probationary job offer

to Lupu was a sham when it was offered. Much less does it show

that it was a sham intended to lure Lupu away from another job. In

fact, there is no evidence of luring at all. Lupu concedes that

the responsibilities in his prior job at the Caribe Hilton were

considerably diminished and that the offer from defendants was an

attractive alternative to his limited opportunities with the Hilton

organization. There is no evidence of any false statement by

defendants in the course of offering him the probationary job. He

was offered a probationary job and that is what he received. 

We have considered Lupu's other arguments against summary

judgment; they are without merit.
-8-

Affirmed.