Ramos-Santiago v. WHM Carib LLC , 919 F.3d 66 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1507
VÍCTOR RAMOS-SANTIAGO, ET AL.,
Plaintiffs, Appellants,
v.
WHM CARIB, LLC, ET AL.,
Defendants, Appellees,
JEFF WILLENBERG, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Miguel A. Suro Carrasco, with whom Jorge Miguel Suro Ballester
and Suro & Suro were on brief, for appellants.
Shiara L. Diloné Fernández, with whom Carl Schuster, Andrés
C. Gorbea Del Valle, and Schuster Aguiló LLC were on brief, for
appellees.
March 22, 2019
LIPEZ, Circuit Judge. Appellants Víctor Ramos-Santiago
("Ramos-Santiago"), his daughter Maryam Ramos-Meléndez and four
minor grandchildren (hereinafter referred to collectively as
"Ramos-Santiago"), filed this suit under Puerto Rico law, premised
on diversity jurisdiction, against Ramos-Santiago's former
employer and its insurance carrier.1 In the complaint, Ramos-
Santiago alleges unjust dismissal and age discrimination in
employment, and his family asserts derivative tort claims arising
from the alleged age discrimination.2
The district court granted summary judgment for
Defendants3 on Ramos-Santiago's discrimination claim and the
family's derivative tort claims, denied summary judgment on the
unjust dismissal claim, and denied Ramos-Santiago's cross-motion
for summary judgment. Ramos-Santiago then filed a motion for
1
Defendants-Appellees are the operator of Rio Mar resort,
WHM Carib, LLC ("Wyndham Rio Mar"); WHM's insurance carrier,
Continental Insurance Company of New Jersey; and individuals Danny
Williams and Kelli Joseph (collectively, "Wyndham").
2 The tort claims are "wholly derivative [of Ramos-Santiago's
discrimination claim] and, thus, [their] viability is contingent
upon the viability of the underlying employment discrimination
claim." Costa-Urena v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009)
(quotation omitted); accord Marcano-Rivera v. Pueblo Int'l, Inc.,
232 F.3d 245, 258, n.7 (1st Cir. 2000) (citing Santini–Rivera v.
Serv. Air, Inc., 137 P.R. Dec. 1 (1994)). The parties do not
dispute the derivative nature of these claims.
3 Not all the defendants named in the complaint are parties
to the appeal (i.e. Jeff Willenberg and the Conjugal Partnership
Willenberg-Doe, named in the complaint, are not parties to the
appeal).
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reconsideration, which the district court denied. The parties
subsequently settled the unjust dismissal claim.
On appeal, Ramos-Santiago challenges the partial entry
of summary judgment in favor of Defendants, the denial of his
motion for summary judgment, and the denial of his motion for
reconsideration. After careful consideration, we affirm.
I.
We must address a preliminary jurisdictional issue.
Ramos-Santiago filed his notice of appeal after the district
court's entry of partial summary judgment but prior to its entry
of final judgment. Ramos-Santiago's notice of appeal was therefore
premature, and Wyndham has questioned our jurisdiction to
entertain this appeal.
A. The History of the Proceedings
On March 14, 2017, the district court issued an opinion
and order granting partial summary judgment to Wyndham.
Ramos-Santiago filed a motion for reconsideration, which the
district court denied on March 23, 2017. On April 7, 2017, the
court, noting the likelihood of settlement of the unjust dismissal
claim, entered an order, labeled "judgment," closing the case for
"administrative purposes," and stating that the case would be
reopened for a final judgment after the parties settled the
remaining claim.
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On April 28, 2017, Ramos-Santiago advised the court that
the parties had settled the unjust dismissal claim. He also
informed the court of his intent to appeal the court's disposition
of his other claims:
Due to the Judgment [entered April 7] and
in an abundance of caution, the
plaintiffs will file a Notice of Appeal
today, subject to Federal Rule of
Appellate Procedure 4(a)(2).
That same day, Ramos-Santiago filed a notice of appeal. A week
after the notice was filed, on May 3, 2017, the district court
entered a final judgment dismissing all claims with prejudice.
Subsequently, on May 11, 2017, the court issued a new, lengthy
memorandum and order, again denying Ramos-Santiago's motion for
reconsideration and modifying and superseding the court's previous
order. See Ramos-Santiago v. WHM Carib, LLC, No. CV 14-1087 (SEC),
2017 WL 2062857, at *7 (D.P.R. May 11, 2017) (stating additional
reasons for the failure of Ramos-Santiago's "pretext" argument).
Ramos-Santiago did not appeal from either the final judgment or
the superseding order.
B. Rule 4(a)(2) and Ramos-Santiago's Appeal
As a general rule, appeals may only be taken from "final
decisions of the district courts." 28 U.S.C. § 1291. In this
case, Ramos-Santiago's notice of appeal, which was filed after the
district court granted partial summary judgment to the Defendants
and closed the case for "administrative purposes" but before it
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entered a final judgment, see Lehman v. Revolution Portfolio LLC,
166 F.3d 389, 392 (1st Cir. 1999) (endorsing view that an
administrative closing is not a "final adjudication"), was
premature. See 28 U.S.C. § 1291. However, Federal Rule of
Appellate Procedure 4(a)(2) ("Rule 4(a)(2)") creates an exception
to the general rule for premature notices that "relate forward" to
the district court's entry of final judgment. Clausen v. Sea-3,
Inc., 21 F.3d 1181, 1185 (1st Cir. 1994); see Fed. R. App. P.
4(a)(2). Rule 4(a)(2) provides that a notice of appeal filed
"after the court announces a decision or order -- but before the
entry of the judgment or order -- is treated as filed on the date
of and after the entry." Fed. R. App. P. 4(a)(2). A decision or
order for purposes of the Rule is one that "ends the litigation on
the merits and leaves nothing more for the court to do but execute
the judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 867 (1994) (quoting Catlin v. United States, 324 U.S.
229 233 (1945)).
We have recognized Rule 4(a)(2)'s applicability to "a
premature notice of appeal of a decision disposing of some but not
all claims," such as a grant of partial summary judgment, if "the
decision would have been appealable if immediately followed by
certification pursuant to [Federal] Rule [of Civil Procedure]
54(b)." Barrett ex rel. Estate of Barrett v. United States, 462
F.3d 28, 34 (1st Cir. 2006) (citations ommited); accord Clausen,
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21 F.3d at 1186.4 This inquiry is a "hypothetical one" -- would
the district court's decision "have been appealable immediately by
virtue of Rule 54(b)[?]" Barrett, 462 F.3d at 35 (internal
quotations omitted). For purposes of this inquiry, it is
inconsequential whether Rule 54(b) certification was actually
sought. See id.Applying these principles to this case, we find that
Rule 4(a)(2) applies. The district court's March 14, 2017 opinion
and order granting partial summary judgment in favor of Wyndham
ended the litigation of Ramos-Santiago's discrimination claim and
derivative tort claims on the merits on that date, leaving nothing
for the court to do as to those claims but execute judgment. If
Ramos-Santiago had sought certification of final judgment on those
claims pursuant to Rule 54(b), his motion could have been granted.
See Fed. R. Civ. P. 54(b). His notice of appeal, filed on April
28, 2017, therefore "related forward" to the district court's entry
of final judgment on May 3, 2017, such that we treat the notice of
appeal as if it was filed after that entry of judgment. We
accordingly have jurisdiction and proceed to the merits of the
appeal.
4 Federal Rule of Civil Procedure 54(b) provides that "[w]hen
an action presents more than one claim for relief [such as the
discrimination and unjust dismissal claims in this case] . . . the
court may direct entry of a final judgment as to one or more, but
fewer than all, claims . . . if the court expressly determines
that there is no just reason for delay." Fed. R. Civ. P. 54(b).
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II.
Summary judgment is proper when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a); Conjugal
P'ship Acevedo-Príncipe v. United States, 768 F.3d 51, 54 (1st
Cir. 2014). In an appeal from a district court's grant of summary
judgment, our review is de novo, and we view the facts in the light
most favorable to the non-moving party -- in this case Ramos-
Santiago. Del Valle-Santana v. Servicios Legales de P.R., Inc.,
804 F.3d 127, 129 (1st Cir. 2015). Although the basic facts, set
forth below, are undisputed, Ramos-Santiago argues that the
district court failed to view those facts in the light most
favorable to him.
In 1987, Ramos-Santiago began working at the Rio Mar
resort ("Rio Mar") in Río Grande, Puerto Rico. In 2004, he became
the resort's golf tournament coordinator. In 2007, Rio Mar was
acquired by defendant-appellee WHM Carib, LLC ("Wyndham Rio Mar"),
and Ramos-Santiago became its employee. At this time, Ramos-
Santiago also had a second job, known to Wyndham Rio Mar, as a
tournament coordinator for the Professional Golfers' Association
("PGA"). In that capacity, Ramos-Santiago coordinated golf
tournaments throughout Puerto Rico, earning a coordination fee for
each tournament. The fee was typically paid by the host of the
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tournament, such as the country club at which the tournament was
being held.
In 2012, pursuant to his affiliation with the PGA,
Ramos-Santiago coordinated a golf tournament for the College of
Engineers and Land Surveyors of Puerto Rico ("CELS"). The
tournament was held at another resort, Palmas del Mar. Ramos-
Santiago was paid three hundred dollars for his services as PGA
coordinator by a check issued by the Palmas del Mar Athletic Club.
A year later, in 2013, CELS held its annual convention
at Rio Mar. The convention included a wide array of activities,
including a golf tournament. Ramos-Santiago again coordinated the
tournament, this time in his capacity as golf tournament
coordinator for Wyndham Rio Mar. CELS provided a $3,000 prize
purse to be distributed to professional golfers participating in
the tournament. Ramos-Santiago, citing delays in distribution of
the prize money after the tournament at Palmas del Mar, asked CELS
to make the $3,000 prize check payable to him so that he could
efficiently distribute the money to the athletes.
On the day before the tournament, a representative of
CELS brought the $3,000 check in Ramos-Santiago's name to the Rio
Mar and gave the check to another employee of the hotel. That
employee notified Wyndham Rio Mar's comptroller, Hector Aponte, of
the check received in Ramos-Santiago's name. Aponte made a
photocopy of the check before returning it to the other employee,
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who then gave the check to Ramos-Santiago. Ramos-Santiago then
cashed the check, paid $2,700 to the tournament winners, and
retained three hundred dollars as a personal coordination fee.
Ramos-Santiago did not inform anyone at CELS or Wyndham Rio Mar
that he would be keeping $300 of the prize money for himself.
The next day, Aponte; Jeff Willenberg, Ramos-Santiago's
supervisor and the resort's director; and Johanna Vargas, the human
resources manager for the resort, met to discuss the check. Called
to the meeting, Ramos-Santiago explained that he had arranged for
the $3,000 check to be made in his name to avoid delays in
distribution of the prize money and that he had paid himself $300
because that was the amount that he had been paid by CELS in 2012.
Following this meeting, Willenberg contacted CELS and learned that
Ramos-Santiago had arranged with CELS that he would distribute the
prize money following the tournament but had never discussed
deducting a personal fee. As a result of this conversation, Ramos-
Santiago was suspended pending the conclusion of an investigation
into the incident.
At the conclusion of the investigation, Willenberg, who
believed Ramos-Santiago had acted with innocent intentions,
recommended that Ramos-Santiago be issued a written warning and
that his suspension remain in place. Vargas disagreed and
recommended that Ramos-Santiago be terminated, as did Kelli
Joseph, Wyndham's Regional Human Resources Director, who viewed
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Ramos-Santiago's actions as "gross misconduct." Ultimately, Danny
Williams, Rio Mar's General Director, made the decision to
terminate Ramos-Santiago. On August 15, 2013, Ramos-Santiago was
terminated from his position. He was sixty years old and had no
prior disciplinary record.
III.
Ramos-Santiago's discrimination claim is based on the
Puerto Rico Anti-Discrimination Act ("Law 100"),5 which provides,
inter alia, a cause of action for persons who suffer employment
discrimination due to their age. P.R. Laws Ann. tit. 29, § 146;
Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17,
27 (1st Cir. 1998). Law 100, while similar to federal employment
law in various respects, has a distinctive burden shifting scheme.
See Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir.
2001); see also Alvarez-Fonseca, 152 F.3d at 27 n.8 (comparing the
5 Among other changes, the Puerto Rico Labor Transformation
and Flexibility Act, Law No. 4 of February 26, 2017 ("Labor Reform
Act"), eliminated Law 100's presumption that all unjust dismissals
are discriminatory. See Labor Reform Act, 2017 P.R. Laws 66(amending Article 3 of Law 100). The district court applied pre-
enactment law to the parties' summary judgment motions, reasoning
that whether the amendment had retroactive effect was unclear but
that, because the pre-enactment law benefited Ramos-Santiago,
"dismissal under [the new] standard, of course, would also be
warranted." Ramos-Santiago v. WHM Carib, LLC, Civ. No. 14-
1087(SEC), 2017 WL 1025784, at *4 (D.P.R. Mar. 14, 2017). On
appeal, neither party has objected to the district court's
application of pre-enactment law. For the purposes of this
decision, we assume without deciding that pre-enactment law
applies to Law 100 actions pending before the enactment of the
Labor Reform Act.
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different schemes). Under Law 100, once a plaintiff makes out a
prima facie case of discrimination, "the employee enjoys a
presumption that he or she has been the victim of discrimination;
and . . . the burden of production and persuasion then shifts to
the employer to rebut this presumption." Garcia-Garcia v. Costco
Wholesale Corp., 878 F.3d 411, 423 (1st Cir. 2017); accord Baralt,
251 F.3d at 16. An employer may rebut the presumption of
discrimination by presenting evidence demonstrating that "the
existence of discrimination [as a factor in the dismissal] was
less probable than its nonexistence." Baralt, 251 F.3d at 18(citation omitted). If an employer meets this burden, the burden
of persuasion returns to the plaintiff who must show that a
reasonable jury could conclude, by a preponderance of the evidence,
that "the defendant . . . violated Law 100 because the dismissal
was motivated by discriminatory animus instead of or in addition
to [any] legitimate reasons for dismissal." Alvarez-Fonseca, 152
F.3d at 28.6
6
This burden-shifting framework differs from the McDonnell
Douglas framework that applies to claims under the Age
Discrimination in Employment Act ("ADEA"), the federal law
equivalent of Law 100 for the issue of age discrimination. Under
the McDonnell Douglas framework, once the plaintiff establishes a
prima facie case, the defendant then must produce a
nondiscriminatory reason for its actions. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This burden is
one of production, not of persuasion. Id. Thus, unlike under the
Law 100 framework, the burden of persuasion never shifts to the
defendant-employer under McDonnell Douglas. Id. at 142-43. In
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Here, the district court assumed, for the purposes of
summary judgment, that Ramos-Santiago met his initial burden of
stating a prima facie case of age discrimination. See Ramos-
Santiago v. WHM Carib, LLC, Civ. No. 14-1087(SEC), 2017 WL 1025784,
at *7 (D.P.R. Mar. 14, 2017). The court then asked whether Wyndham
had overcome the presumption of age discrimination by establishing
that a reasonable jury could find, by a preponderance of the
evidence, that Ramos-Santiago's discharge was not motivated, in
whole or in part, by discriminatory animus. Id. The court found
that Wyndham had easily carried this burden "by pointing to the
undisputed facts that triggered Ramos-Santiago's termination."
Id. Finally, the court concluded that Ramos-Santiago had failed
to satisfy his ultimate burden of showing that a reasonable jury
could conclude, by a preponderance of the evidence, that age-
related discriminatory animus played a role in Ramos-Santiago's
dismissal, and granted summary judgment in favor of Wyndham. Id.On appeal, Ramos-Santiago contends he has presented
sufficient evidence to establish that he is entitled to judgment
in his favor as a matter of law or, in the alternative, that he
has raised sufficient disputed issues of material fact that the
either case, however, if the defendant fulfills its burden, the
plaintiff has the ultimate burden of persuasion. Id. at 143.
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existence of discriminatory age animus is a question that should
be put to a jury. Responding to these claims, we summarily reject
Ramos-Santiago's claim that he was entitled to summary judgment on
his age discrimination claim and turn to the remaining issue --
whether the district court properly entered summary judgment for
Wyndham on their motion.
Here, we assume, as the district court did, that
Ramos-Santiago has made out a prima facie case of age
discrimination. We also agree with the district court that Wyndham
overcame the presumption of age discrimination by demonstrating
that no reasonable jury could conclude that the existence of age
discrimination, as a factor in Wyndham's decision to terminate
Ramos-Santiago, was more probable than its nonexistence. See
Baralt, 251 F.3d at 18.
Wyndham stated that the reason for the dismissal of
Ramos-Santiago was "that Ramos-Santiago took $300 without
authorization." The undisputed facts presented by the parties
align with Wyndham's stated rationale. Ramos-Santiago arranged
that the CELS prize check be written in his name without approval
from Wyndham, cashed the check, and then appropriated three hundred
dollars without first discussing a personal fee with Wyndham or
CELS. Wyndham began its investigation of Ramos-Santiago only after
the resort's comptroller, Aponte, learned of the prize check in
Ramos-Santiago's name. Ramos-Santiago was suspended when the
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resort's director, Willenberg, learned that Ramos-Santiago had
taken three hundred dollars of the CELS tournament prize money for
himself without authorization. Three of the four persons involved
in the decision to dismiss Ramos-Santiago -- Vargas, the HR manager
for the resort, Joseph, Wyndham's regional HR director, and
Williams, Wyndham's General Director -- recommended dismissal,
each citing disciplinary issues. No reasonable jury could
conclude, based on these undisputed facts, that Wyndham has not
met its burden of production and persuasion that discipline was
the reason for Ramos-Santiago's termination from employment and
age discrimination was not a factor in that decision.
With Wyndham having satisfied its burden, Ramos-Santiago
had to present enough evidence for a reasonable factfinder to
conclude that his "dismissal was motivated by discriminatory
animus instead of or in addition to [Wyndham's stated] reasons for
dismissal." See Alvarez-Fonseca, 152 F.3d at 28. In an attempt
to meet this ultimate burden, Ramos-Santiago argues that the
investigation initiated by Aponte and Willenberg became a pretext
for age discrimination by the "real discriminators" -- "Williams,
Joseph [although Joseph did not know Ramos-Santiago's age], and
probably Vargas" -- who each determined that Ramos-Santiago should
be dismissed. Ramos-Santiago, however, sets forth no evidence
that Williams, Joseph, or Vargas (or any other person) considered
his age or harbored any age-related animus against him. Indeed,
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Ramos-Santiago concedes that he does not recall Vargas, Joseph,
Williams, or anyone else at Rio Mar making discriminatory comments
about his age -- or even making any comments about age at all.
Ramos-Santiago also attempts to show discriminatory
motive by arguing he was treated more unfavorably than a younger
employee, Willenberg, for a similar disciplinary issue.7 Although
differential treatment may yield an inference of discriminatory
animus, see Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 451
(1st Cir. 2009), here, Wyndham's more lenient treatment of
Willenberg cannot be the basis for an inference of age
discrimination because Willenberg was not "similarly situated [to
Ramos-Santiago] in material respects." Perkins v. Brigham &
Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996); see Velez, 585
F.3d at 450 (applying "similarly situated" standard in Law 100
case). Willenberg accepted $150 of CELS prize money because he
participated in the CELS golf tournament as an athlete, having
taken a day off from work to do so. Although it is true that
Aponte advised Willenberg not to accept a fee for appearing in the
tournament, Aponte also testified that he "was not against
[Willenberg] collecting his prize money."
7
In his brief before the district court, Ramos-Santiago
claimed another younger employee was also treated differently from
him despite having a disciplinary record. On appeal, he does not
mention this other younger employee. Thus, we deemed waived any
argument based on this alleged fact. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
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Moreover, Willenberg's above-the-table acceptance of
award money, even if not permitted, is still dissimilar to the
conduct of Ramos-Santiago, who deducted an unauthorized personal
fee from the CELS prize purse after arranging that CELS's check be
written to himself. Ramos-Santiago's appropriation of a personal
fee is different in kind from Willenberg's acceptance of prize
money because it was undisclosed and because it decreased the funds
available to the tournament participants.
Ramos-Santiago additionally points to the absorption of
his former job duties8 by younger employees, which he suggests is
evidence that Wyndham's stated reason for his dismissal was
pretextual because it shows that Wyndham had a continuing need for
his job services. Cf. Soto-Feliciano v. Villa Cofresi Hotels,
Inc., 779 F.3d 19, 24 (1st Cir. 2015) (continuing need for job
services may be demonstrated by evidence that the former employee's
job functions were absorbed by other employees). It is undisputed
that the job duties previously assigned to Ramos-Santiago were
distributed to three younger employees -- the golf operations
manager of the resort (early 40s), the resort director Willenberg
(45-47), and the Pro Shop manager (30s) -- after Ramos-Santiago's
8 These job duties included working with and meeting with the
athletes, preparing food and beverages for meetings with clients,
finalizing a list of tournament competitors, organizing athletic
equipment, coordinating parking, and setting up for golf
tournaments.
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termination. It is unclear from the record whether the employees
that replaced Ramos-Santiago continued to carry on their other
duties while performing some of Ramos-Santiago's former duties or
whether they were reassigned to perform his former role
exclusively. See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 846
(1st Cir. 1993) ("A discharged employee is not replaced when
another employee is assigned to perform the plaintiff's duties in
addition to other duties.") (quotations omitted). Given their
roles at the resort (the resort director among them), the former
seems more likely.
Regardless, Ramos-Santiago's suggestion that this
redistribution of duties supports an inference of pretext is
misplaced. Wyndham has never argued that Ramos-Santiago's
dismissal was the result of a lay-off or that his functions had
become unnecessary. Indeed, Wyndham has asserted consistently
that Ramos-Santiago was fired because of misconduct. It is
therefore unsurprising that his functions were redistributed after
his dismissal, and evidence of a continuing need for Ramos-
Santiago's job services is of limited relevance. Cf. id. at 842(explaining the varying considerations in age discrimination
context, "depending upon whether or not the plaintiff was dismissed
as part of a reduction in force.").
Finally, Ramos-Santiago relies on the circumstances of
his dismissal. He points out that Willenberg, believing Ramos-
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Santiago had acted in good faith, recommended against Ramos-
Santiago's termination, and only Vargas and Joseph recommended in
favor of his dismissal. Even assuming Willenberg's view was
accurate -- Ramos-Santiago acted in good faith -- this fact is
probative only of the unjustness of Ramos-Santiago's dismissal --
not age discrimination. See Baralt, 251 F.3d at 19. ("Plaintiffs'
efforts to counter [Defendant's] evidence of a genuine
investigation with proof that they did little or nothing wrong
shores up their claim for unjust dismissal, but . . . is not on
its own probative of age discrimination.").
He further argues that he did not violate his contract
and that his termination was therefore unjustified. In the
alternative, he argues that, even if he did violate his contract,
his violation was not sufficiently grave to justify a first-offense
dismissal under Puerto Rican law. Furthermore, he argues, Wyndham
conceded knowledge that Ramos-Santiago worked for the PGA at the
same time that he worked for Wyndham. However, these points as
well go to whether Ramos-Santiago's dismissal was unjustified.
Ramos-Santiago's evidence of unjust dismissal, without further
direct or circumstantial evidence of age discrimination, is not
sufficiently probative to permit a reasonable jury to find that
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age discrimination motivated Wyndham's dismissal of Ramos-Santiago
instead of or in addition to the stated disciplinary rationale.9
IV.
For the reasons set forth above, we affirm the district
court's entry of partial summary judgment in favor of Appellees,
as well as its denial of Appellants' motions for summary judgment
and reconsideration.
Affirmed.
9 Ramos-Santiago makes no argument on appeal in support of
his motion for reconsideration other than to reiterate that the
district court erroneously applied summary judgment law. There is
some question as to the source of Ramos-Santiago's appeal -- the
district court's initial denial of the motion or the superseding
order issued after the notice of appeal. Regardless of which order
is under our review, our review is for abuse of discretion. Palmer
v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). Having
concluded that summary judgment was properly entered, we find that
the district court did not abuse its discretion in denying Ramos-
Santiago's motion for reconsideration.
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