Virapen v. Eli Lilly, S.A. ( 1995 )

USCA1 Opinion

          September 22, 1995    [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No.  95-1407







                                JOHN VIRAPEN, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



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



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



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



                                Selya, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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               Jorge Miguel Suro Ballester on brief for appellants.
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               Carl Schuster and Schuster Aguilo Rivera & Santiago on brief
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          for appellees.



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                    Per  Curiam.   This appeal stems  from a  suit alleging
Per  Curiam
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          employment discrimination  in violation  of federal  statutes and



          local law.  The  principal plaintiff, John Virapen, who  was born



          in  British Guyana  and is  of Indian  descent, alleges  that his



          employer, Eli  Lilly S.A., a pharmaceutical  firm, discharged him



          from an executive position  because of his skin color,  race, and



          national origin.   The other  plaintiffs are  Virapen's wife  and



          conjugal partnership;  their claims are wholly  derivative of his



          claim, and need not be addressed separately.



                    The  district  court conducted  a four-day  bench trial



          concerning Virapen's  allegations.  The court  thereafter wrote a



          meticulously reasoned opinion in  which it concluded that Virapen



          had failed  to prove his case.   See Virapen v.  Eli Lilly, S.A.,
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          No. 90-1453, slip op. (D.P.R.  March 23, 1995).  Having read  the



          record and carefully considered  the parties' briefs, we find  no



          basis to disturb the  district court's decision.  To  the precise



          contrary, we  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  work product, a reviewing  tribunal should hesitate



          to wax  longiloquent simply to hear its  own words resonate."  In
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          re San Juan Dupont Plaza Hotel  Fire Litig., 989 F.2d 36, 38 (1st
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          Cir.   1993).     Consequently,  we   affirm  the   judgment  for



          substantially  the reasons elucidated  in the opinion  below.  We



          add only a few brief comments.



                    First:   Virapen essentially  asks that we  reweigh the
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          facts de  novo.  Our  standard of review,  however, is much  more





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          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
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          F.2d 148, 152 (1st Cir. 1990).  Findings concerning an employer's



          intent are  subject to review under this standard, and can be set



          aside only for  clear error.  See id. (citing  authorities).  The
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          record,  read objectively,  does not  yield a  conviction that  a



          mistake has been made, and no error     clear or otherwise     is



          discernible.



                    Second:   Virapen's  complaint  that he  was wrongfully
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          denied the opportunity to  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.  Evid.
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          611, and the court did not abuse its broad discretion here.  See,
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          e.g.,  Bhaya v. Westinghouse Elec.  Corp., 922 F.2d  184, 190 (3d
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          Cir. 1990), cert.  denied, 501 U.S. 1217  (1991) (explaining that
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          "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,  447 (10th Cir. 1974)
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          (explaining  that the  determination of  what constitutes  proper



          rebuttal  evidence   lies  within  the  district   court's  sound



          discretion).



                    What is more, Virapen  has not identified any evidence,



          unavailable  to him during the presentation of his case in chief,





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          that the court  precluded him from  presenting after the  defense



          rested.   Nor has he  pointed to any  specific excluded evidence,



          the  need for  which could not       and should not     have been



          anticipated from the outset.   That ends the matter.   See, e.g.,
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          Cates v. Sears Roebuck &  Co., 928 F.2d 679, 685 (5th  Cir. 1991)
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          (warning  that  rebuttal  evidence  "is  not  to  be  used  as  a



          continuation of the case-in-chief"); Pignons S.A. de Mecanique v.
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          Polaroid Corp., 701 F.2d 1, 2  (1st Cir. 1983) ("Once a plaintiff
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          has had  a chance to  prove a fact,  he cannot reopen  the matter



          simply  by stating  that he  wishes to  introduce more  or better



          evidence.").



                    Third:   Virapen's insistence that  the district  court
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          erred in respect to  whether he established a prima facie case of



          employment  discrimination misses the  mark.   Where, as  here, a



          discrimination  case that  rests  on  circumstantial evidence  is



          tried  to  a  conclusion,   "the  burden-shifting  framework  has



          fulfilled  its  function,  and  backtracking   serves  no  useful



          purpose."  Sanchez v. Puerto Rico  Oil Co., 37 F.3d 712, 720 (1st
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          Cir. 1994).  Thus, as we have said, "[t]o focus  on the existence



          of a prima facie case after a discrimination case has  been fully



          tried on  the merits is  to 'unnecessarily  evade[] the  ultimate



          question of discrimination vel non.'"  Id. (quoting United States
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          Postal  Serv.  Bd.  of Govs.  v.  Aikens,  460  U.S. 711,  713-14
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          (1983)); see also  Mesnick v.  General Elec. Co.,  950 F.2d  816,
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          824-25 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).  So it
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          is here.





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                    Fourth:   Virapen's  jeremiad that  the district  court
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          erred  in respect to his local-law claims  is without merit.  The



          district  court analyzed both the  Law 100 claim,  P.R. Laws Ann.



          tit. 29,   146 (1985), and the Law  80 claim, P.R. Laws Ann. tit.



          29,   185(a) (1985),  under the appropriate tests.   See Virapen,
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          supra, slip op. at 4.   It supportably found that Virapen did not
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          establish a case of  employment discrimination under the  Law 100



          test.  See id. at 19.  The court similarly found that Virapen did
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          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
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          clearly erroneous.



                    We  need go no further.   The judgment  of the district



          court is summarily affirmed.  See 1st Cir. R. 27.1.
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                    Affirmed.
Affirmed
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