USCA1 Opinion

September 22, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No.

95-1407

JOHN VIRAPEN, ET AL.,

Plaintiffs, Appellants,

v.

ELI LILLY, S.A., ETC., ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

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Coffin, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

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____________________

Jorge Miguel Suro Ballester on brief for appellants.

___________________________

Carl Schuster and Schuster Aguilo Rivera & Santiago on brief

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_________________________________
for appellees.

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____________________

Per Curiam.
Per Curiam
___________

This appeal stems

employment discrimination

local law.

in

The

of federal

suit alleging

statutes and

principal plaintiff, John Virapen, who

British Guyana

employer, Eli

in violation

from a

and is

of Indian

descent, alleges

Lilly S.A., a pharmaceutical

from an executive position

national origin.

The other

conjugal partnership;

was born

that his

firm, discharged him

because of his skin color,

plaintiffs are

their claims are wholly

race, and

Virapen's wife

and

derivative of his

claim, and need not be addressed separately.

The

district

concerning Virapen's

court conducted

allegations.

meticulously reasoned opinion in

had failed

to prove his case.

No. 90-1453, slip op. (D.P.R.

record and carefully considered

basis to disturb the

contrary, we

a four-day

The court

bench trial

thereafter wrote a

which it concluded that Virapen

See Virapen v.
___ _______

March 23, 1995).

Eli Lilly, S.A.,

_______________

Having read

the parties' briefs, we find

district court's decision.

To

the

no

the precise

regard this as a suitable case in which to put into

practice our stated belief that, when "a trial court has produced

a first-rate

to wax

work product, a reviewing

longiloquent simply to hear its

tribunal should hesitate

own words resonate."

In
__

re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st
___________________________________________

Cir.

1993).

substantially

Consequently,

we

the reasons elucidated

affirm

the

judgment

in the opinion

below.

for

We

add only a few brief comments.

First:
_____

facts de

novo.

Virapen essentially

Our

asks that we

standard of review,

reweigh the

however, is much

more

circumscribed.

Following a bench trial, an appellate tribunal is

not warranted in rejecting the trial court's "findings of fact or

conclusions

drawn therefrom unless, on the

whole of the record,

[the court of appeals] form[s] a strong, unyielding belief that a

mistake

has been made."

Cumpiano v. Banco Santander P.R., 902

________
_____________________

F.2d 148, 152 (1st Cir. 1990).

intent are

subject to review under this standard, and can be set

aside only for

record,

Findings concerning an employer's

clear error.

read objectively,

See id. (citing

___ ___

does not

yield a

mistake has been made, and no error

authorities).

conviction that

clear or otherwise

The

is

discernible.

Second:
______

Virapen's

denied the opportunity to

complaint

that he

was wrongfully

adduce rebuttal evidence rings hollow.

The trial court has the right to exercise reasonable control over

the mode and

manner of

presenting evidence, see

___

Fed. R.

611, and the court did not abuse its broad discretion here.

e.g.,
____

Bhaya v. Westinghouse Elec. Corp., 922 F.2d

_____
_________________________

Cir. 1990), cert.

_____

denied, 501 U.S. 1217

______

Evid.

See,
___

184, 190 (3d

(1991) (explaining that

"a trial judge's decision regarding the scope of rebuttal may not

be

reversed unless there has been a clear abuse of discretion");

Hickok v. G.D. Searle & Co., 496 F.2d 444,

______
__________________

(explaining

rebuttal

that the

evidence

determination of

lies

within

the

447 (10th Cir. 1974)

what constitutes

district

court's

proper

sound

discretion).

What is more, Virapen

unavailable

has not identified any evidence,

to him during the presentation of his case in chief,

that the court

rested.

the

precluded him from

Nor has he

need for

pointed to any

which could not

anticipated from the outset.

presenting after the

defense

specific excluded evidence,

and should not

That ends the matter.

Cates v. Sears Roebuck & Co., 928 F.2d 679, 685 (5th
_____
____________________

have been

See, e.g.,
___ ____

Cir. 1991)

(warning

that

rebuttal

evidence

"is

not

to

be

used

as

continuation of the case-in-chief"); Pignons S.A. de Mecanique v.

_________________________

Polaroid Corp., 701 F.2d 1, 2

______________

has had

simply

a chance to

by stating

(1st Cir. 1983) ("Once a plaintiff

prove a fact,

that he

he cannot reopen

wishes to

the matter

introduce more

or better

evidence.").

Third:
_____

Virapen's insistence that

erred in respect to

employment

tried

to

court

whether he established a prima facie case of

discrimination misses the

discrimination

the district

case that

rests

conclusion,

"the

function,

and

on

mark.

Where, as

here, a

circumstantial evidence

burden-shifting

backtracking

framework

serves

no

is

has

fulfilled

its

useful

purpose."

Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 720 (1st

_______
____________________

Cir. 1994).

Thus, as we have said, "[t]o focus

on the existence

of a prima facie case after a discrimination case has

tried on

the merits is

to 'unnecessarily

question of discrimination vel non.'"

Postal Serv. Bd. of Govs.

____________________________

(1983)); see also

___ ____

Mesnick v.
_______

v.

been fully

evade[] the

ultimate

Id. (quoting United States

___
_____________

Aikens,
______

460

U.S. 711,

General Elec. Co.,

_________________

950 F.2d

824-25 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
_____ ______

is here.

713-14

816,

So it

Fourth:
______

erred

tit. 29,

court analyzed both the

146 (1985), and the Law

185(a) (1985),

supra, slip op. at 4.

_____

establish a case of

test.

jeremiad that

in respect to his local-law claims

district

29,

Virapen's

See id. at 19.

___ ___

the district

court

is without merit.

Law 100 claim,

The

P.R. Laws Ann.

80 claim, P.R. Laws Ann. tit.

under the appropriate tests.

See Virapen,
___ _______

It supportably found that Virapen did not

employment discrimination under the

Law 100

The court similarly found that Virapen did

not establish unjustified dismissal within

the meaning of Law 80

because "[t]he repetitive nature of plaintiff's misconduct . .

constituted 'good cause' as a 'pattern of improper . . . conduct'

under Law 80."

Id. (quoting statute).

___

Those findings are

not

clearly erroneous.

We

need go no further.

court is summarily affirmed.

Affirmed.
Affirmed
________

The judgment

of the district

See 1st Cir. R. 27.1.

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