USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1867

MIGUEL ANGEL AYALA-GERENA, ET AL.,

Plaintiffs - Appellants,

v.

BRISTOL MYERS-SQUIBB COMPANY,

d/b/a BRISTOL MYERS-SQUIBB, ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_____________________

Jes s Hern ndez-S nchez,

________________________

with whom

Hern ndez S nchez Law

______________________

Firm was on brief for appellants.

____
Carl Schuster, with
_____________
brief for appellees.

whom Schuster Aguil & Santiago

__________________________

was on

____________________

September 5, 1996
____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Plaintiffs-Appellants, former

employees of Squibb Manufacturing, Inc. ("SMI"), their wives, and

their conjugal partnerships, brought action below seeking damages

arising

from the termination of

alleged

violation of their

due to their dismissal

civil rights under

Squibb

Director

Manager

under

the Constitution of the Commonwealth

the last claim

three in favor

Co. ("BMSC")

of

of Corporate

of Puerto

3141-3149; and for breach of

and granted summary

Puerto

judgment on

of Defendants-Appellees, Bristol-Myers

and four

Corporate

1981

and/or race

The United States District Court, District of

Rico, dismissed

the first

42 U.S.C.

of their right to privacy

Rico; defamation under 32 L.P.R.A.

contract.1

They brought

due to their national origin

as Puerto Ricans; violation

of Article II of

their employment.

of its

Security

employees:

("Geraci"),

Security ("Hackett"),

Mark Geraci,

Eugene

Tibur Kerr,

Hackett,

Acting

Plant

Administrator

("Kerr"),

Corporate Security ("Dunne").

and

Bryan

Dunne,

This appeal ensued.

Manager

of

We affirm.

BACKGROUND
BACKGROUND
__________

Reviewing the

most

favorable to

summary judgment materials

Appellants, the

reasonable inferences

nonmovants, and

in their favor,

in the light

drawing all

see, e.g., Alan Corp. v.

___ ____ ___________

Int'l Surplus Lines Ins. Co., 22 F.3d 339, 341 (1st

_____________________________

Cir. 1994),

we

background,

present

thumbnail

sketch

of

the

factual

providing greater detail as the need arises.

____________________

Appellants requested, and

dismissal

of their claim under

1959, 29 L.R.P.A.

146.

the court granted

with prejudice,

Puerto Rico Law

100 of June 30,

-2-

Appellants, all Puerto

of

SMI -- which

Puerto Rico.

Puerto

Rican.

Hackett, Kerr

and 1992

It

is not

Ricans, were regular

a party to

this action

-- in Humacao,

is uncontested that SMI's employees

According

to

Appellants'

employees

are mostly

complaint,

Geraci,

and Dunne of BMSC were sent to Puerto Rico in 1991

in connection

with a security

investigation regarding

missing inventory at SMI and the suspected illegal trafficking of

pharmaceutical

drugs

and

other

Appellants' complaint, Appellees

persecutorial

interest

policy"

in taking

against

control

products.

According

to

developed a "discriminatory and

them

in furtherance

of SMI's

management.

of

BMSC's

Geraci

and

possibly others at BMSC contracted with certain named individuals

to carry on the security investigation, which included conducting

surveillance of

Appellants

and

their

families,

pressuring

Appellants to testify falsely against SMI's management as part of

BMSC's

attempt to gain control over SMI, and using illegal means

to obtain evidence to be used to dismiss Appellants.

Dunne

individually

interviewed

SMI

employees,

Geraci and

including

Appellants, as part of the ongoing security investigation.

about

the date

of

the individual

interviews, Appellants

On or

were

dismissed from their employment at SMI between March and May 1992

without

being

uncontested

except

discrete

for a

told

that no

the reason

one else

translator, that

manner, and

that it

for

their

dismissal.

participated in

the interviews

was Appellants

publicized the details of the interviews.

-3-

It

is

these interviews

took place

in a

that subsequently

DISCUSSION
DISCUSSION
__________

Appellants

raise

four

court's grant of summary judgment:

cut

off;

(ii) their

denied; (iii)

on their

Because the

to

and

(iv)

breach of

first two

the

(i) discovery

of

summary

erroneously

granted on their

judgment

contract claim.

district

was improperly

documents was

summary judgment was erroneously

conspiracy claims;

granted

production

challenges

was

We

involve intertwining facts

improperly

address each.

and the

same

standard of review, we address them together.

A.
A.

Discovery Cut Off & Document Production

Discovery Cut Off & Document Production

Appellants

appeal.

raise

two discovery-related

challenges on

First, invoking Fed. R. Civ. P. 56(f), Appellants argue

that the district

court erred when

it granted summary

judgment

without

affording them

discovery.

the benefit

of conducting

a reasonable

In support thereof, they claim they were diligent in

their pursuit of discovery

but that Appellees refused

with

the district

their

requests

judgment without

Second,

court

acting upon their motions

granted

summary

to compel discovery.

they claim error by the district court's denial of their

February 9,

1994, request

Appellees counter,

the

and

to comply

district

certain documents.

asserting that the record

clearly shows that

court granted

discovery, and

Appellants.

for production of

that

they did

Thus, they

Appellants

not "hide"

ample

time to

conduct

any information

contend that the district court

from

did not

abuse its discretion in denying their document production request

as untimely.

-4-

It

discretion

review

is

well settled

in ruling

on

that

the trial

judge

pre-trial management

has broad

matters, and

we

the district court's denial of discovery for abuse of its

considerable

discretion.

F.3d

259, 267 (1st Cir.

F.2d

625, 628

(1st

See Fusco
___ _____

v. General Motors Corp., 11

____________________

1994); Serrano-P rez v.

_____________

Cir. 1993).

"We will

FMC Corp., 985

_________

intervene in

such

matters only upon a clear showing of manifest injustice, that is,

where the

lower court's

discovery order was

resulted in substantial prejudice to

plainly wrong

the aggrieved party."

v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d

__________________________________________

(1st Cir. 1989).

The same abuse of discretion

to a review of a district

See,
___

22

1203 (1st

Mack
____

179, 186

standard applies

court's denial of a Rule 56(f) motion.

e.g., Resolution Trust Corp.

____ ______________________

F.3d 1198,

and

v. North Bridge Assoc., Inc.,

_________________________

Cir. 1994);

Price v.
_____

General Motors,
_______________

Corp., 931 F.2d 162, 164 (1st Cir. 1991).

_____

Before

addressing Appellants' arguments, we detail the

pertinent procedural

entries:

history as revealed by

the relevant docket

1.

8/10/92:
_______

Complaint filed.

2.

5/18/93:
_______

Scheduling Order sets discovery deadline

for 10/15/93.

3.

10/18/93: Appellants
________

move

to

extend

discovery.

New deadline set for 11/30/93.

4.

11/15/93: Appellants
________

request document

production

pursuant to Fed. R. Civ. P. 34.

5.

11/18/93: Appellants
________
discovery.

move

again

to

extend

New deadline set for 1/3/94.

Court states this is the last extension.

6.

7.

12/8/93:
_______

Appellants move for status conference to

clarify discovery and to

further extend

discovery by sixty days.

Denied.

12/17/93: Pretrial Conference set for 2/4/93.

________

-5-

8.

1/3/94:
______

Appellants

move

to order

attend oral deposition.

witnesses to

Denied (see 11,

below).
9.

1/10/94:
_______

Appellees

move

for

summary

judgment

(SJ).
10.

1/14/94:
_______

Appellants move for extension

SJ.

Granted.

to oppose

Opposition

due

by

2/20/94.
11.

1/14/94:
_______

Appellants
discovery

move

again

process.

to

clarify

Denied,

citing

failure to comply

with Fed. R.

45(c)

personal

regarding

Civ. P.

service

of

subpoena and noting that it cannot allow

further

disruption

in

the

scheduling

order.
12.

2/2/94:
______

Appellees
order.

submit

proposed

pretrial

13.

2/3/94:
______

Appellants file SJ opposition.

14.

2/4/94:
______

Pretrial

Conference.

parties until 2/10/94

pretrial order.

Court

grants

to prepare

joint

Court denies Appellees'

motion to dismiss.
15.

2/9/94:
______

Appellants move to supplement opposition

to

SJ,

to compel

document production,

and to appoint special process server.

16.

2/10/94:
_______

Pretrial

Conference. Appellants

proposed pretrial order.

submit

Court

grants

pretrial order.
17.

2/17/94:
_______

Appellees

file

response

to

SJ

opposition.
18.

3/11/94:
_______

Court

grants

SJ,

denies

Appellants'

motion to compel document production and

to

appoint

special process

Court enters partial

of Appellees.
claim,

as

server.

judgment in

favor

Appellants' severance pay

ordered

to

be

amended,

remains.
19.

3/21/94:
_______

Appellants move to
to

file

postpone jury

reconsideration

motion for new trial.

20.

3/28/94:

Appellants

move for

motions

trial

and

Granted.

reconsideration of

_______

21.

3/29/94:
_______

grant of SJ.

Denied (see 22, below).

Appellants

move

for

additional

discovery.
22.

6/5/95:
______

Court

denies

Appellants'

reconsideration,
motion

to

complaint, and

motion

grants

strike

third

Appellees'

amended

denies Appellants' leave

to file a fourth amended complaint.

-6-

for

We turn

Rule

56(f) "looms

respond

to

first to

Appellants' reliance on

large" when

an opponent's

incomplete discovery,

a party

summary

Rule 56(f).

claims an

judgment

inability to

motion because

Resolution Trust Corp., 22 F.3d

_______________________

given that it is "intended

to safeguard against judges

the

too hastily,"

summary judgment

certainly

district

axe

courts

id.
___

should construe

at 1203.

Rule

no

bite or that

. . that [it] has

its prophylaxis extends

to litigants who act lackadaisically; use

of

the rule

several

not

only requires

benchmarks

meeting

, but

also

requires due diligence

both in
____

pursuing

discovery

summary

judgment

initiative

before
______

the

surfaces

and in
___

at 1202,

swinging

While

56(f) motions

generously, we have noted that

[t]his does not mean .

of

pursuing an

extension of time

thereafter.

In

other

words, Rule 56(f) is designed to minister

to the vigilant, not to those who slumber
upon perceptible rights.

Id.
___

at 1203 (emphasis

must invoke

added).

Rule 56(f) within

We

have also held

a reasonable

receipt of a motion for summary judgment.

With

this rubric

invocation of Rule 56(f)

First,

the record

opposition

shows

additional

that Appellants

to summary judgment

incomplete discovery.

extension

of

mind, we

time following

the

Id. at 1204.
___

find that

is misplaced for at least

court of their inability to

to

in

that a party

Appellants'

two reasons.

filed their

original

without previously informing the

properly oppose summary judgment due

In fact,

Appellants never

the discovery

deadline

sought an

before filing

-7-

their

opposition.2

Moreover,

supplemental4 oppositions

silent

as to their inability

incomplete

district

to

discovery.

court

about

both

Appellants' original3

summary judgment

to oppose summary

The first

outstanding

are

deafeningly

judgment due to

time Appellants

discovery

and

was

informed the

during

the

February 4, 1994, and

after

having

February 10, 1994,

already

filed their

pre-trial conferences,

opposition

and supplemental

opposition respectively.

Second,

we

are

hard-pressed to

conclude

that

this

record supports a finding that Appellants exercised due diligence

or were

otherwise "vigilant" before Appellees

______

judgment on January 10, 1994.

extensions,

moved for summary

After requesting and receiving two

discovery concluded

on

January 3,

1994 --

almost

____________________

2
the

While they did file

on January 14, 1994, a motion

to clarify

discovery process, they did not mention in that motion their

need for additional discovery in order to properly oppose summary

judgment.
failure

The district
to comply

court denied their motion,

with

the Federal

Rules

noting their

of Civil

Procedure

regarding service and the ample time they had for discovery.

Appellants'

Appellees'

ten-page

arguments

in

opposition addressed
favor of

summary

the

judgment,

merits

of

attached

various depositions

and suggested that, if the

court "[had] any

doubt" about the truth

as revealed by the attached

it

hearing

could

schedule

or

grant

Appellants to address in greater detail

outrageous conclusions."
advanced

additional

time

for

each of the "defendants'

Docket No. 50, p.

for not responding to

depositions,

each of the

9.

The

only basis

arguments was "time

restrictions."

While Appellants

do state

that the records finally

of the

taken to [sic] co-defendants .

record", Appellants do

they are unable to oppose summary

discovery; indeed,
[these

records]

they state that

clearly

supplemental opposition

received from Appellees are "incomplete

according to the depositions

[which] are part

in their

reveal

Docket No. 51, p. 2.

-8-

not argue

. .

that

judgment because of incomplete

"although incomplete
the

discriminatory

. .

animus."

eighteen months after Appellants

filed their complaint on August

10, 1992, and almost eight months after the court's May 18, 1993,

scheduling

document

order.

Appellants

production

did

until November

received their first extension5

not

12,

serve

1994,

a request

for

after they

had

and only two weeks prior

to the

end of the new discovery period set for November 30, 1994.

Furthermore, Appellants failed

pursuant

objections

letters,

to

Local

to

Rule

311.11 to

their document

to meet with

discuss

request --

as

Appellees

Appellees'

timely

set forth

in two

dated November 24, 1993, and December 15, 1993 -- prior

to the conclusion

of discovery on

January 3,

1994.

See
___

Local

Rule 311.11.

in a good

Pursuant to this Rule, parties are required to meet

faith effort to eliminate disputes regarding discovery

prior to filing any discovery-related

motion or objection.

The

Rule also provides that, unless relieved by agreement or by order

of the court upon good cause

days

shown, counsel must meet within ten

of service of a letter requesting a Rule 311.11 conference,

and that Appellants

for arranging

record clearly

-- as the movants -- bore the responsibility

a conference.

See
___

Local Rule 311.11.

shows that Appellants

Rule or carry their burden thereunder.

that

the parties' Local Rule

February 1, 1994 --

____________________

failed to comply

Here, the

with the

Not only is it undisputed

311.11 meeting was

more than two months after

not held until

Appellees' first

In their first

motion for extension, dated October 11,

Appellants represented
completed the

to the court

interrogatories but

that neither party

that both parties

1993,

had yet

had worked

diligently in the matter.

-9-

timely objection and more than one month after Appellees'

letter

December

which expressly

27,

1993 --

invited Appellants'

but there

is

counsel to

absolutely no

second

meet on

evidence of

timely notification to the court or of good cause for the failure

to meet earlier or to timely advise the court.

Moreover,

summary judgment,

after

Appellees

Appellants never

filed

their

motion

filed for another

for

discovery

extension prior to filing their opposition to summary judgment on

_____

February 3, 1994.

As noted

above, it was not until the February

4 and February 10 pre-trial conferences

the district court of Appellees'

almost one

that Appellants informed

failure to produce documents --

month after the second-extended

discovery period had

concluded and the day after Appellants had filed their opposition

to summary judgment.

Attempting nonetheless

to invoke the benefits

56(f), Appellants argue that

in order to trigger Rule

nonmoving

submit

party

preferably in

need

only

writing, of

an

their need for

equivalent

of Rule

56(f) the

statement,

additional discovery.

See, e.g., St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d
___ ____ _________
________________________________

1309, 1313-14 (3d Cir. 1994); Wichita Falls Office Assoc. v. Banc
___________________________
____

One Corp., et al.,

__________________

denied, 508 U.S.

______

978 F.2d

910 (1993).

915, 919

Relying

(5th

Cir. 1992),

on these two cases,

cert.
_____

they

insist that they triggered Rule 56(f), because "through the whole

procedure

court

of the case [they] presented in writing and before the

more than

materials

plausible

existed which were

basis to

believe that

essential to their

-10-

discoverable

case and would

raise

truthworthy issues."

Appellants here, the

56(f)

Appellants' Brief,

parties in those cases

extensions after
_____

the

opposing party

p. 24.

Unlike

both requested Rule

filed a

motion for

summary judgment, specified that discovery had not concluded, and

identified the

the issues

the

outstanding items

raised.

More

facts in those cases

which would be

importantly, unlike the

indicated that the

dispositive to

instant case,

nonmovants had not

been dilatory in obtaining discovery.

See St. Surin, 21 F.3d at

___ _________

1315 (concluding that nonmovant should

not suffer from a failure

of proof caused by his accommodation of the movant's requests for

delay); Wichita Falls, 978 F.2d

______________

at 919 (finding

that nonmovant

was not dilatory because it reasonably awaited outcome of pending

negotiations).

Appellants'

this

In

list of

any

event,

the allegedly

oppose

remain

unpersuaded

numerous times

by

they brought

matter to the court's attention; in fact, their list belies

that they so informed the court.

claim,

we

Appellants'

summary

discovery matters.

For example, contrary to their

two-paragraph request

judgment

makes

Similarly,

no

for

reference

an

extension to

whatsoever

to

while Appellants claim that their

opposition to Appellee's motion for summary judgment "state[d] to

the Court the situation about the documents and

information that

defendants were refusing to provide," Appellants' Brief, p. 23, a

review of their opposition reveals no such statement.

In

light of

the

two extensions

granted, the

latter

stating that this was the final extension, Appellants' failure to

comply with

Local Rule

311.11, and

what

appears to

us as

an

overall lack of due diligence, we find no abuse of discretion

by

-11-

the district court.

did the

Contrary to Appellants' assertion, in no way

district court

grant summary judgment

"without [their]

benefit

to [sic] a reasonable

court was

motion

never put

given

that

Appellees' failure

in the

discovery."

position of

Appellants

Indeed, the district

granting a

only informed

the

to produce discovery after

_____

discovery, after Appellants' oppositions

_____

Rule 56(f)

court

about

the conclusion of

to summary judgment had

been filed, and on the eve of the pre-trial stage.

For

discretion

obvious

reasons,

motion to

remind Appellants that Local

the

in

also

find

no

abuse

of

by the district court when it denied what was clearly

Appellants' untimely

court from

we

compel document production.

We

Rule 311.11 expressly prohibits the

entertaining any motion relating

to discovery unless

moving party -- here, Appellants -- first advised the court,

writing, that the parties

have been unable

to resolve their

differences or

reach an

required conference,

to

confer or

Local Rule

or that counsel for

delayed the

311.11.

notification

Appellants

agreement after counsel

was

The

on

during the

good cause.

first time Appellants

9,

1994.

February 10,

the

respondent has refused

conference without

February

have held

See
___

provided written

The court

1994, pre-trial

informed

conference

that, had they timely filed a written motion to compel, the court

could

have

inspection

objections.

requested

of

them

As the

the

to

documents

assess

the

and

made

an

in

legitimacy

of

Appellees'

district court correctly noted in

-12-

camera

its order

denying

Appellants'

post-summary

judgment

motion

requesting

additional discovery and a new trial, Appellants waited more than

one

month

elapsed to

Appellants'

after

the

second extended

properly request

claim that

essentially irrelevant

an order

Appellees

discovery

deadline

from the district

were "hiding"

had

court.

information is

against the backdrop of their own lack of

diligence as evidenced by

meeting and their untimely

the lateness of the Local

Rule 311.11

motion to compel document production.

In sum, based on our review

abuse

of the record, we find

no

of discretion by the district court with respect to either

of Appellants'

claimed errors;

indeed, in light

of Appellants'

lack of diligence and failure to follow the rules, we do not even

find

hint

discretion.

of

too readily

tent

is, we think,

187.

Where, as

other

abuse

of

the

into the

district court's

a recipe for

here, the

disaster."

district

discovery, "it was certainly

way."

district

court's

broad

As we have stated before, "[s]ticking the appellate

nose

further

any

Id.
___

scope-of-discovery

Mack,
____

871 F.2d at

court could

have allowed

free to call

the shot the

None of Appellants' arguments, including those

not addressed, persuade us that this record warrants a disruptive

"nosey" appearance.

B.
B.

Summary Judgment
Summary Judgment

1.
1.

The Standard
The Standard

We afford plenary review

on Appellants' claims.

to the entry of

summary judgment

See, e.g., Perkins v. Brigham & Women's

___ ____ _______
__________________

-13-

Hospital, 78 F.3d 747, 748 (1st Cir. 1996); Smith v. F.W. Morse &
________
_____
____________

Co., 76 F.3d 413, 428

__

(1st Cir. 1996).

The function

of summary

judgment is "to pierce the boilerplate of the pleadings and assay

the

parties'

proof in

actually required."

791, 794 (1st

order

Cir. 1992),

if the nisi prius roll

___________

and if,

flattering

to

viewing

the

determine

cert. denied, 507

____________

of

the summary

trial

U.S. 1030

a court may grant

discloses no genuine

the

entire

nonmovant,

record

is

R. Civ. P. 56 (c).

judgment

axe,"

in

(1993).

summary judgment

issue of

the proponent

entitlement to judgment as a matter of law."

748; see Fed.

___

whether

Wynne v. Tufts Univ. Sch. of Med., 976 F.2d

_____
_________________________

"The criteria are familiar:

fact

to

the

material

light

demonstrates

most

its

Perkins, 78 F.3d at
_______

In order to survive the "swing

Mack,
____

871

F.2d

at

181,

the

nonmoving

finder

party

must produce

evidence

which a

reasonable

of fact, under the appropriate proof burden, could base a

verdict for it; if

motion

that party cannot produce such

must be granted.

317, 323 (1986);

(1986).

between

the

See
___

Liberty Lobby, 477

_____________

existence

parties

will

of some
____

not

for summary

when

(emphasis in

coupled

definite will

with

U.S. 242,

alleged factual

defeat

an

otherwise

judgment; the requirement

there be no genuine issue of material

_______
________

at 247-48

evidence, the

Celotex Corp. v. Catrett, 477 U.S.

____________
_______

Anderson v.
________

"The mere

supported motion

even

on

original).

fact."

dispute

properly

is that

Anderson, 477 U.S.

________

"[S]peculation

effervescent optimism

materialize further down the

249

and surmise,

that

something

line, are impuissant

in

the face of

a properly documented

summary judgment motion."

-14-

Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st
_____
_________________________________

Cir. 1996).

such

"Moreover, '[e]ven in cases

as motive or

appropriate if

allegations,

intent are at issue,

the nonmoving party rests

improbable

inferences,

where elusive concepts

summary judgment may be

merely upon conclusory

and

unsupported

speculation.'"

Goldman v.
_______

First Nat'l Bank of Boston,

__________________________

985 F.2d

1113, 1116 (1st Cir. 1993) (quoting Medina-Mu oz v. R.J. Reynolds

____________
_____________

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).

___________

Based

upon

our

independent

review

of

the

summary

judgment materials, we note as an initial matter that Appellants'

challenge

on appeal is augmented by its failure, as the district

court noted,

Appellees'

to present a

thorough and

well-documented

motion

Appellants' failure

facts

resulted

statement

311.12;

of

for

to provide a separate

in the

district

uncontested facts

see also
_________

specific opposition

Stepanischen
____________

court's

as

summary

to

judgment.

statement of disputed

taking of

admitted.

See
___

Appellees'

Local Rule

v. Merchants Despatch Transp.

____________________________

Corp., 722 F.2d 922, 930 n.2 (1st Cir. 1983).

____

also

properly

disregarded

factual allegations.

These missteps below

on appeal, making their

it otherwise might

Appellants'

The district court

numerous

accompany Appellants

challenge more of an uphill

have been.

That

said, we

their claims in turn.

2.
2.

The Section 1981 Claim

The Section 1981 Claim

The Law
The Law

-15-

unsupported

battle than

address each

of

In

must prove

issue

is

against

order to

prevail under

purposeful employment

whether

the

the

under

a plaintiff

discrimination:

the ultimate

intentionally

discriminated

defendant

plaintiff,

Section 1981,

the

by-now familiar

analytical

framework used in disparate treatment cases under Title VII.

Patterson
_________

Absent

v. McLean
______

direct

discrimination,

Credit Union, 491

_____________

evidence

the

McDonnell Douglas Co.

_____________________

of

race

burden-shifting

v. Green,
_____

U.S.

and/or

framework

411 U.S.

164, 186

national

(1989).

origin

established

792, 802-05

See
___

in

(1973),

comes into play.

See St. Mary's Honor Center v.

___ _______________________

502, 505-07, (1993);

Hicks, 509 U.S.

_____

Patterson v. McLean Credit Union, 491 U.S.

_________
____________________

164, 109 (1989); Goldman, 985 F.2d at 1116-17.

_______

Under

first

must

established

make

the McDonnell Douglas

__________________

prima facie
____________

by proving:

protected class; (ii)

satisfactorily;

(iii)

(i)

framework,

showing

of

that plaintiff

plaintiff

discrimination,

that plaintiff is

that plaintiff

a member

performed his

or her

was discharged;

of a

job

and (iv)

that plaintiff's position remained open and was eventually filled

by

persons with

Center,
______

plaintiff's qualifications.

509 U.S. at 506.

St. Mary's Honor

_________________

A plaintiff's successful production of

prima facie case creates a presumption of discrimination.

___________

Id.
___

Upon

such

a showing,

the burden

of

production shifts

to the

defendant in order to show a legitimate, nondiscriminatory reason

for

plaintiff's

termination.

successful, the plaintiff must

is

merely

pretextual

Id.
___

If

the

defendant

is

then show that defendant's reason

and

that

defendant

intentionally

-16-

discriminated against him or her.

Id. at 507.

In the context of

___

a summary

judgment proceeding,

legitimate,

once the employer

nondiscriminatory basis

decision, the

plaintiff must

for its

offer direct or

sufficient to show that the employer's decision

or her

e.g.,
____

37

was wrongfully based

on race

articulates a

adverse employment

indirect evidence

to discharge him

or national

origin.

See
___

Pages-Cahue v. Iberia Airlines of Spain, 82 F.3d 533, 536___________

________________________

(1st

Cir.

1996)

(involving

age

discrimination

claim)

(collecting cases).

The

into play

McDonnell Douglas
_________________

where there is

In cases involving direct

burden of persuasion

framework, however,

no direct evidence

only comes

of discrimination.

evidence of discriminatory motive, the

shifts from the

employee to the

employer,

who must then

same

affirmatively prove

decision

even

if

it

characteristic into account.

Co.,Inc., 76 F.3d
________

While

that it would

had

See
___

not

taken

have made

the

e.g., Smith v.
____ _____

413, 421 (1st Cir. 1996)

the

protected

F.W. Morse &

_____________

(citations omitted).

we have held that "[d]irect evidence is evidence which, in

and of itself, shows a discriminatory animus," see, e.g., Jackson

___ ____ _______

v. Harvard Univ., 900 F.2d 464,

______________

467 (1st Cir. 1990),

it is not

always clear what constitutes direct evidence, see Smith, 76 F.3d

___ _____

at 421;

id. at
___

(noting

that the

obscures the fact

431 (Bownes,

Senior Circuit Judge,

majority reference

that this

to "smoking

Circuit has yet

concurring)

gun" evidence

to clearly

what constitutes direct evidence of gender discrimination).

define

-17-

As far as the instant case is concerned, however, we do

know that, at a

remarks

in

minimum, direct evidence does not

the

nondecisionmakers

to

the

decisional

workplace,

particularly

include stray

those

made

by

or statements made by decisionmakers unrelated

process

itself.

See
___

Price Waterhouse v.
_________________

Hopkins, 490 U.S. 228, 251-52 (1989) (plurality op.); id. at 277_______
___

78 (O'Connor, J., concurring); Smith, 76

_____

opinion).

remarks

While

do

not

perhaps probative

satisfy

lack

the

necessary

discriminatory remark

Smith,
_____

76

F.3d

at

link

discrimination,

burden

that it

stray

proving

Price Waterhouse, 490 U.S. at

________________

between

the

(suggesting

stray remarks

alleged

and the adverse employment

421

of

In our view, such

employment discrimination based on

by the employer

of

plaintiff's

discrimination by direct evidence.

277 (O'Connor, J. concurring).

F.3d at 433 (concurring

speaker's

decision.

that direct

evidence

Cf.
__

of

gender would be "an admission

explicitly took

actual or

anticipated

pregnancy into account in reaching an employment decision").

With

the

whether Appellants

legal framework

outlined,

can avoid the "swing of

see

the summary judgment

Mack, 871
____

grant

of summary judgment against the employee will be upheld if

record

is

devoid

181, mindful

turn to

axe,"

the

F.2d at

we

of

adequate

that a

direct

district court's

or

circumstantial

evidence of the employer's discriminatory intent.

Analysis
Analysis

In

Appellants'

the

instant

contention

case,

that

they

-18-

the

district

proved

by

court

rejected

direct

evidence

Appellees' discriminatory animus in terminating their employment.

It

focused on two remarks, disregarding others on the basis that

they were

court's

not

steps

substantiated.

and

will

substantiated remarks.6

focus

We, too,

only

follow

on

the

the

two

district

properly

The summary judgment materials show that

the two remarks upon which Appellants rely were made

the date of Appellants' respective dismissals.

on or about

The first remark

pointed to was allegedly made by Hackett, in which he stated that

the company had

expense

a "black mafia

of the company."

[which was] getting rich

Deposition of Serrano,

at the

p. 125, lines

21-23.

The second was allegedly made by both Hackett and Geraci,

in which they

stated that Serrano, as a

get another opportunity to

work for a North American

Serrano were to be fired by SMI.

As

we

understand

essentially claim that the

Puerto Rican, may never

company if

Id. at 86, lines 13-21.

___

Appellants'

arguments,

references to a "black mafia"

they

and to

their being Puerto Rican are "smoking gun" evidence of Appellees'

discriminatory animus in terminating

to be

their employment.

so, Appellants must demonstrate that

For this

"black mafia" refers

____________________

We decline Appellants' request to take into consideration the

sworn statements submitted with their motion for reconsideration.

Not

only were

materials,
evidence

they not

but Appellants
could not

part of
have

the original

summary judgment

not demonstrated

have been timely

provided with

why this

new

the summary

judgment materials.

See
___

Roche v. John Hancock Mutual Life Ins.

_____
______________________________

Co., 81 F.3d 249, 253 (1st Cir. 1996) ("Put bluntly, 'motions for
___
summary judgment must be decided on the record
on

a litigant's

reveal.'")

visions

(quoting

of

what

Maldonado-Denis
_______________

the

facts

as it stands, not
might

some

day

v. Castillo-Rodr guez,
__________________

23

F.3d 576, 581 (1st Cir. 1994)).

-19-

to

Appellants'

racial

or

ethnic

background

and

that

these

references were made in connection with the decisional process.

We turn first to the

meaning of "black mafia."

As

an

initial matter, we note that the record sheds little light on its

meaning, and does not demonstrate that it has anything to do with

Appellants' racial

during oral

he

it

references to

referred to,

In fact, when pressed

argument, counsel for Appellants

"gathered"

opposition

or ethnic background.7

referred to

"black mafia"

to

summary

Puerto

as Appellant

Ricans.

pointed to

judgment

simply stated that

suggest

The very

by Appellants

that

Serrano testified in

"black

few

in their

mafia"

his deposition,

members of SMI's management "who were getting rich at the expense

of the company, at [BMSC's] expense"; indeed, Serrano's testimony

that the "['black mafia'] was made up by

to undercut

Appellants' claim

them as members

of a "black

all the managers" seems

that Appellees were

mafia."

Id.
___

referring to

at 125, lines

23-24.

Based

on the record,

were referring

we are hard-pressed

to Appellants with a

to conclude Appellees

discriminatory animus based

on their race or national origin.

____________________

In this regard, we note that use of the adjective "black" does

not necessarily refer to skin color.

describe,

among

characters.
Ed.,

pp.

"criminal
Mafia,"

See
___

other

things,

sinister

or

evil

actions

or

Merriam Webster's Collegiate Dictionary, Tenth

________________________________________

118-20 (1993).

"Mafia"

organization" or
id.
___

It has been widely used to

at 699.

"a group

is

defined as
of people

Taken together,

"black"

a particular

likened to

the

could arguably

describe the collective skin color of the members of the criminal

organization

or

the

group's

illegal,

illicit

activities in a similar vein to "black market."

-20-

or clandestine

While

we could end the inquiry here, we note that even

assuming that the

term "black mafia" was

charged, neither of these statements

of discrimination.

While

at

423 (noting

(citing

district

cases),

temporal

time

-- that

frame

between

suspicious, see Smith, 76

___ _____

proximity as

Appellants

court noted

constitutes direct evidence

the close

interviews and the dismissals is

racially or ethnically

have

they

factor); id.
___

not demonstrated

were terminated

--

the

F.3d

at

432

as

the

because of

their

race

or

decisionmakers

national

who

made the

decisional process.

BMSC,

not

SMI,

origin

or

comments

Indeed, Hackett

and

it

that

is

the

in

speakers

were

connection with

the

and Geraci are employees of

uncontested

that Appellants

were

employees of SMI at the time of their dismissals.

Even assuming, as Appellants

Geraci

ordered

Appellants'

their

Human

employment does

failure

alleged

SMI's

remarks

to

provide

were made

decisional

process.

improbable

inferences

suffice.

See Goldman,
___ _______

Resources

not assist

985

Director

in

connection

on

unsupported

F.2d

to

support

with the

conclusory

speculation

at 1116.

and

terminate

Appellants, because

specific factual

Resting

and

allege, that Hackett

that

of

the

employment

allegations,

does

In other

not

words,

Appellants

have

failed

to show

necessary link between the

to

terminate

particularly

did

what

we

consider

to be

the

speakers' statements and the decision

Appellants'

employment.

reinforced by the

not mention their race

Our

conclusion

is

uncontested fact that Appellants

or national origin

as a factor when

-21-

asked

why they

thought

their employment

had been

terminated:

some

admitted that

they had

no knowledge

of the

reason while

others offered the non-discriminatory reason that their dismissal

was connected to the ongoing security investigation.8

For

the foregoing reasons,

record to consider these

we find no

reason on this

alleged statements to be anything

more

than "stray remarks" which fail to

satisfy Appellants' burden of

production of direct evidence.

merely add this:

what seems to drive

is

We

contrary to

Appellants' argument, the mere fact

possible, indeed

probable,

that there

was some

that it

connection

between Appellants' dismissal and the security investigation does

not render Appellants' termination ipso facto discriminatory.

__________

Because

we

conclude that

Appellants

have failed

to

demonstrate discriminatory animus by direct evidence, we consider

next whether Appellants

This analysis is,

satisfy the

can do

for Appellants, painfully

first and third

protected class

so through a

prongs, as

as Puerto Ricans

prima facie
___________

quick:

they are

and they were

While

case.

they

members of

all terminated,

they have not proven that they performed their jobs adequately or

that

persons

positions;

with

their

indeed, they

appellate brief.

qualifications

do

In light

not even

of their

filled

argue

as much

failure to

their

job

in

their

prove a

prima
_____

____________________

It

is also uncontested that Appellants were

the decision to terminate their

give

this

presence

fact

much

weight

at that actual moment

not present when

employment was made.

considering

that

is more likely

than the rule.

-22-

an

We do

not

employee's

to be an anomaly

facie case, we do not need to proceed further with the

_____

McDonnell
_________

Douglas analysis.
_______

In light

burden of

of Appellants' failure to

proving that

the basis of

carry the ultimate

Appellees discriminated against

their race or national origin, we

of summary judgment,

and, particularly,

pausing only

to add this:

the plethora of allegations

them on

affirm the grant

The

foregoing

unclothed by any

specific factual record evidence,

claims of

suggest to us that Appellants'

discrimination based on

race and national

but mere "unsupported conclusions . .

sprout[ed] as

easily as

College,
_______

imaginative litigant's

The Dartmouth Review v. Dartmouth

____________________
_________

889 F.2d 13, 16 (1st Cir.

tarring defendants'

. [which plausibly] . .

crabgrass in an

(or lawyer's) word processor."

origin are

1989) (noting that "to avoid

reputation unfairly and to prevent potential

abuses, we have consistently required plaintiffs to outline facts

sufficient

to

convey

specific

instances

of

unlawful

discrimination.").

2.
2.

The Defamation Claim

The Defamation Claim

Appellants claim damages from defamation based on

four

incidents:

(i)

alleged public

Appellees that Appellants were

and intraoffice

accusations by

thieves; (ii) newspaper

articles

which discussed, among other matters, the irregularities in SMI's

inventory;

(iii)

the

interviews

questioned while

a third party,

(iv)

labeling

statements

mafia."

The

district

in

Appellants

a translator, was

Appellants

court

which

as members

thoroughly

-23-

were

present; and

of

"black

reviewed Appellants'

arguments in support of

the

four instances

their claim, concluding that in

Appellants --

for a

variety of

failed to meet their burden of proving defamation.

"Under Puerto

that

Rico

law, a

reasons --

We agree.

defamation claim

requires

the plaintiff prove: (1) that the information is false, (2)

that plaintiff

suffered real damages,

private figure

plaintiff, that

Mojica Escobar
_______________

v.

Roca, 926
____

(citations omitted);

148,

each of

153 (D.P.R.

see also
________

1996)

and (3) in the

the publication was

F.

Supp.

Pages v.
_____

(noting that

30,

case of a

negligent."

33 (D.P.R.

Feingold, 928
________

negligence in

1996)

F. Supp.

defamation

cases is applied as

interpreted under Section 1802 of

Code,

5141); Garib Baz n v. Clavell, 94 J.T.S. 36,

___________
_______

31 L.P.R.A.

the Civil

p. 11677 (1994).

requires

false.

For

both libel and

that plaintiff

See 32 L.P.R.A.
___

prove

that the

3142 (defining

3143 (defining slander); see also

_________

at 34; Villanueva v.
__________

slander, Puerto Rico

law

alleged defamation

is

libel); 32 L.P.R.A.

Mojica Escobar, 926

______________

Hern ndez Class, 91 J.T.S. 58,

_______________

F. Supp.

pp. 8696-97

(1991).

Here,

respect

what undercuts Appellants' defamation claim with

to the first three instances is their failure to present

a single shred of competent evidence, as distinguished from their

conclusory assertions,

any

of

the

alleged

which tends

to establish the

defamatory statements.

falsity of

Because

of this

failure to carry their burden of proof as to the falsity of those

three statements, Appellants' defamation claim for both libel and

slander

based on

the first

three instances

necessarily fails.

-24-

See Mojica Escobar, 926 F. Supp. at 34 (granting summary judgment

___ ______________

based on plaintiff's

failure to carry burden

of offending publications).

Appellants have

burden

of

Based on our review of

utterly failed

presenting

of proving falsity

definite,

the record,

to carry their

summary judgment

competent

to

evidence

rebut

Appellees' motion

establish

for summary

the existence

of

regarding the falsity of

Appellees

irrelevant

as

a genuine,

have failed

material triable

truth of the

Appellants

have

essential element of their claim.

do

they

the alleged statements.

do not assert the

here

judgment:

issue

fact that

alleged statements is

failed

Cf. id.
___ ___

The

to

to

establish

an

In light of this,

we

not need to address the remaining elements in connection with

the first three instances.

As to the fourth instance, regarding the "black mafia,"

the district court correctly dismissed this statement as proof of

defamation

in

light

of

(i)

Appellants'

failure

to

provide

affidavits or deposition testimony supporting this allegation and

(ii)

the

fact

that,

while Appellant

Serrano

testified

that

Appellee Hackett

not

referred to a "black mafia,"

the reference was

made in connection to Appellants but, as discussed above, in

reference to SMI's management.

carried

Because we

do not

their burden

as to

need to address

the remaining

address their argument challenging

whether Appellants

elements, we

do not

the district court's grant of

qualified immunity relating to the interviews in which Appellants

were

questioned.

See Porto
___ _____

v. Bentley Puerto Rico, Inc., 92

___________________________

-25-

J.T.S.

175,

10248

intracorporate
_____

also

(1992)

(adopting

communication is equivalent

recognizing qualified immunity).

assuming that Appellants had

defamatory

majority

rule

that

to publication while

We only add

this:

Even

submitted evidence that the alleged

statements were false,

summary judgment

the

materials and

based upon our

Appellants'

review of the

arguments we

would

nonetheless conclude that their defamation claim fails and, thus,

would affirm the district court's grant of summary judgment.

Finally, Appellants also allege that the district court

erred because there was sufficient evidence of a conspiracy under

Puerto Rico law on the part of

Appellees "to falsely accuse them

of being thieves and drug dealers."

see also
_________

People v.
______

According to

See 33 L.P.R.A.
___

Arreche Holdun,
______________

114

P.R. Dec.

Appellants, the BMSC officials

4523(2)9;

99 (1988).

named as defendants

in the action below came to Puerto Rico "with the task of framing

and fabricating evidence

could control key

to dismiss SMI

positions."

to their March 28,

officials so that

For support, Appellants

BMSC

point us

1994, motion requesting additional discovery.

As an initial matter, we note that Appellants neither included in

their

complaint a

cause of

action for

conspiracy nor

____________________

This section provides, in pertinent part:

If two or more
(2)

persons conspire . . .

to

falsely

or

maliciously

accuse

another

person

of

any

or

to

be charged

or

attempt

that another

to

crime,

did the

arrested for
punished

any crime;

. . .

by imprisonment

. .

shall be
. ,

or a

fine . . . .

L.P.R.A. T.33

4523(2).

-26-

district court

aside,

explicitly address

we decline to consider

conspiracy.

Possible waiver

their March 28,

1994, motion for

the simple reason that this was not part

record.

What

is more, based

on our own

of the summary judgment

review of the

summary

judgment

materials,

Appellants'

against

we

find

no

record

evidence

to

support

naked assertion that Appellees framed false evidence

Appellants.

summary judgment

and a "mafia"

While

their

supplemental

opposition

includes documents with references

and to the

stealing of inventory

does not prove there was a conspiracy.

to

to a "gang"

from SMI,

this

We need not consider this

argument further.

3.
3.

The Invasion of Privacy Claim

The Invasion of Privacy Claim

Appellants

also

seek

damages

based

on

Appellees'

alleged violation of their right to privacy under the Puerto Rico

Constitution, claiming

photographed without

blacklist"

which

that they were followed,

their permission and put

has hindered

their

efforts

telephoned, and

on an "industrial

at securing

new

employment.

A claim for invasion of privacy is actionable under

Sections 1 and

8 of Article II of the

which,

respectively, provide

being

is inviolable" and that

the

protection

of law

that "[t]he

against

abusive attacks

or family life."

1,

Mojica Escobar,
______________

see generally,
_____________

L pez-Pacheco
_____________

v.

dignity of

"[e]very person has

reputation and private

8;

Puerto Rico Constitution,

United States,
______________

P.R.

926

627 F.

the right to

on

his honor,

Const. art II,

F. Supp.

Supp.

(D.P.R. 1986), aff'd, 815 F.2d 692 (1st Cir. 1987).

_____

-27-

the human

1224,

at 34-35;

1227-29

The district

court

granted

summary

failure to provide

Appellants

judgment

on the

basis

any evidence that their

do not explicitly appeal this

court's decision.

of

Appellants'

privacy was invaded.

aspect of the district

Waiver aside, we nonetheless note that, based

upon our independent review of the record, we affirm the district

court's

grant

of

summary judgment

for

the

very

same reason

enunciated by the district court.

4.
4.

Breach of the Employment Contract

Breach of the Employment Contract

Appellants

argue on

appeal

that

the district

court

erred in dismissing their claim that BMSC violated the employment

contract

comply

SMI

between SMI

and Appellants

inasmuch as

BMSC did

not

with provisions in the Employee's

Manual when it ordered

to terminate Appellants' employment.

See Santiago v. Kodak

___ ________
_____

Caribbean,
_________

92

J.T.S. 11,

manuals describing

9164

(1992)

(holding that

rights and privileges constitute

employment contract and that

employee

part of the

dismissals in violation thereof are

unjustified).10

The

court dismissed

their claim

on the

grounds that

Appellants had failed to join an indispensable party, SMI,

____________________

whose

10
was

Relying on Santiago, Appellants contend

________
unjustified

listed

because (i)

violations

and

(ii)

they did

that their dismissal

not

BMSC ordered

violation of the established procedures.

violate any
their

of the

dismissal

in

They also contend that

BMSC violated its "Involuntary Termination Plan Policy" according

to which any officer
as a

result of

or employee dismissed up to

the merger

would

be paid

December 1992,

a certain

severance

amount.

-28-

joinder

would

destroy

the

court's

diversity

jurisdiction.11

Although Appellants argued that SMI was not indispensable because

SMI officers acted at

noted

the direction of BMSC, the

district court

that their claim was inherently based on the fact that SMI

officers breached the employment contract when terminating

their

employment.

that,

because

was

Citing

Fed. R.

Civ. P. 19(b),

it concluded

SMI officers were thus actors in the alleged breach, SMI

an indispensable party.

Noting its earlier factual finding,

set forth in its decision granting partial summary judgment, that

SMI is

a separate

that SMI and

court

entity from BMSC

Appellants are

concluded that

lacking diversity

district

SMI's

both citizens of

joinder would

jurisdiction.

court also

noted

and that it

Puerto Rico,

result in

In reaching its

that Appellants

was undisputed

the

the court

decision, the

could always

their breach of contract claim in the Commonwealth courts.

bring

Appellants

erred in concluding

argue on

without citation to case

that

principal place

of

BMSC

is

business

court

jurisdiction in

Fed. R. Civ.

P. 19.

Apart

a subsidiary under BMSC's "complete

Delaware

in New

York,

otherwise challenge or explain the error of

earlier factual

the district

providing only one short paragraph

law or to

from reiterating that SMI is

and

that

that there was no diversity

only the briefest of manners,

control"

appeal

finding based on the

corporation with

Appellants

do

its

not

the district court's

summary judgment materials

____________________

11

Having previously dismissed the federal claims,

court noted

that its

jurisdiction over the

the district

breach of

contract

claim was based on the diversity of the parties' citizenship.

-29-

that

SMI

is

a separate

superficial manner,

company

from BMSC.

In

Appellants merely reiterate that

a similarly

SMI is not

an indispensable party because the injury and damages were caused

by

BMSC,

district

providing no

court erred

adequate

basis for

in concluding

concluding

that SMI,

an actor

why the

in the

alleged breach, was an indispensable party.

The weakness of Appellants'

find waiver.

See
___

arguments here leads us to

e.g., McCoy v. Massachusetts Inst. of Techn.,

____ _____
______________________________

950

F.2d

13, 23

failed to

forward

(1st Cir.

1991)

(finding waiver

meet affirmative responsibility of

in

an effort

to present

some

putting "best foot

legal theory

support [its] claim"), cert. denied, 504 U.S. 910

____________

States
______

v. Zannino, 895 F.2d

_______

"issues

some

adverted to

effort at

U.S.

perfunctory manner,

failure to

1082

error thereunder, we see no

19's indispensable

(enumerating

equity and

unaccompanied by

Indeed,

Rule

waived."),

in

19, let

light

see
___

be considered

good conscience courts should

Fed. R.

Civ. P.

to determine

of

alone claim

reason why we should embark

party analysis,

factors to

(1992); United
______

are deemed

(1990).

even mention

that will

Cir.) (reiterating that

developed argumentation,

cert. denied, 494

_____________

Appellants'

in a

1, 17 (1st

where party

on Rule

19(b)

whether in

proceed without absent

party when joinder

also,
____

134-138

Pujol v.
_____

(1st

would deprive the court of jurisdiction); see

___

Shearson/American Express, Inc., 877

________________________________

Cir.

1989)

(discussing

analysis), and explore arguments on their

-30-

F.2d 132,

indispensable

party

behalf, see McCoy, 950

___ _____

F.2d at 22 ("Overburdened

trial judges cannot be expected

to be

mind readers.").

We

agree

with the

Appellants' claim is

alleged

breach:

dismissal,

dismissal

it

that SMI

while

was SMI

district

court

that inherent

officers were the

BMSC may

have

"ordered"

Appellants'

with the

provisions set forth in the Employee Manual.

In light

undisputed facts that SMI (i) is

legal entity from BMSC

time of their

did

the

not comply

of this and the two

officers that

actors in

in

a separate

and (ii) was Appellants' employer

dismissal, we conclude

at the

that Appellants' cause

of

action for severance pay could not be brought against BMSC as any

claim arising

under the employment

contract between

Appellants

and SMI should have been brought against SMI.

Furthermore, while

Appellants may not have their day in federal

court, they are not

_______

--

contrary

court:

by

to their

assertions --

Because the applicable statute

Appellants' filing of their

L.P.R.A.

based

5303,

of the

of their

day in

of limitations was tolled

action in federal

Appellants will

on breach

deprived

be able to

court, see 31
___

file their

employment contract,

as well

claims

as other

claims, in the Commonwealth court.

CONCLUSION
CONCLUSION
__________

Without

dismissals

or

the

commenting on

manner

the

in which

propriety

they

were

of

Appellants'

dismissed, the

district court's decision is affirmed for the foregoing reasons.

affirmed
________

-31-