Rodriguez-Machado v. Shinseki

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Published. [12-1430]

Case: 12-1430

Document: 00116459831

Page: 1

Date Filed: 11/21/2012

Entry ID: 5692168

United States Court of Appeals
For the First Circuit

No. 12-1430
LAURA RODRÍGUEZ-MACHADO,
Plaintiff, Appellant,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Elaine Rodríguez-Frank on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.

November 21, 2012

Case: 12-1430

Document: 00116459831

Per Curiam.

Page: 2

"appellate

sufficient

cause

to

Entry ID: 5692168

This case provides an important reminder to

lawyers and litigants alike:
important

Date Filed: 11/21/2012

rules,
dismiss

substantial "noncompliance" with
in

and

[an]

of

itself,

appeal."

constitutes

Reyes-García

v.

Rodríguez & Del Valle, Inc., 82 F.3d 11, 14-15 (1st Cir. 1996).
Plaintiff wants us to reverse a grant of summary judgment
to

her

former

retaliation,

and

employer
hostile

in

this

work

suit

for

environment

discrimination,
under

the

Age

Discrimination in Employment Act ("ADEA," for short), see 29 U.S.C.
§ 621 et seq., making a single, incredibly broad argument – that
the district judge slipped by premising dismissal on disputed
facts.

Now, obviously, busy appellate judges depend on counsel to

help bring issues into sharp focus, see Reyes-García, 82 F.3d 1314, and that certainly holds true in a case like this, given how
complex federal employment discrimination law is, see generally
Rodríguez v. Mun. of San Juan, 659 F.3d 168, 176 (1st Cir. 2011)
(discussing how not to brief complex issues).
appellate rules of procedure come in:

That is where the

They provide the means by

which we "gain[] the information that [we] require[] to set the
issues in context and pass upon them."
14.

Reyes-García, 82 F.3d at

So, naturally, "[w]hen a party seeking appellate review fails

to comply with the rules in one or more substantial respects, its
failure thwarts this effort and deprives [us] of the basic tools
that [we] need to carry out this task."

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Id.

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Document: 00116459831

Page: 3

Date Filed: 11/21/2012

Entry ID: 5692168

Unfortunately, plaintiff's briefs are textbook examples
of how not to litigate a case on appeal, infracting some important
procedural

rules.

Again,

claims

of

age

discrimination,

retaliation, and hostile work environment are often, as here,
factually complicated and legally intricate. See, e.g., VelazquezOrtiz

v.

Vilsak,

657

F.3d

64,

73-76

(1st

Cir.

2011)

(discrimination); Gómez-Pérez v. Potter, 553 U.S. 474, 479-82
(2008)

and

Mariani-Colón

v.

Dep't

of

Homeland

Sec.

ex

rel.

Chertoff, 511 F.3d 216, 223-24 (1st Cir. 2007) (retaliation);
Colón-Fontánez v. Mun. of San Juan, 660 F.3d 17, 44-45 (1st Cir.
2011) (hostile work environment).

Yet plaintiff's opening brief

offers no specific record cites to support her version of the
facts, which, again, she alleges are in dispute.
P. 28(a)(7).1
things:

Cf. Fed. R. App.

Essentially, she is asking us to do one of two

accept what she says as gospel or mine the record

ourselves to confirm the truth of her story – and there is no
reason for us to do either.

See Reyes-García, 82 F.3d at 14.

Shockingly still, plaintiff's principal brief provides neither the
necessary caselaw nor reasoned analysis to support her theories:
She mentions a few ADEA cases, but only in the context of setting
out the accepted summary judgment standard – amazingly, she spends
no time describing the legal contours of an ADEA claim.

1

Cf. Fed.

That rule provides that an appellant's brief "must contain
. . . a statement of facts relevant to the issues submitted for
review with appropriate references to the record . . . ."
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Case: 12-1430

R.

Document: 00116459831

App.

P.

28(a)(9).2

Page: 4

Also,

she

Date Filed: 11/21/2012

makes

no

Entry ID: 5692168

retaliation-based

argument whatsoever in the argument section of her opening brief,
though she does toss around retaliation buzzwords in her fact
section.

As for the hostile work environment issue, while she

quotes a case saying that a court must "distinguish between the
ordinary, if occasionally unpleasant, vicissitudes of the workplace
and actual harassment," Noviello v. City of Boston, 398 F.3d 76, 92
(1st Cir. 2005), she does not explain how the harassment here was
severe or pervasive enough to be actionable, see Colón-Fontánez,
660 F.3d at 44 (discussing what supports a hostile work environment
claim).

And despite the fact that defendant's responsive brief

clued her in to some of these problems, plaintiff's reply brief is
not really any better than her first:
smattering

of

record

cites

there,

but

She does serve up a
not

enough

to

make

a

difference – too late and too little, we say; and, incredibly, she
cites no caselaw at all.

What she has done is not the type of

serious effort that allows us to decide difficult questions, see,
e.g., Rodríguez, 659 F.3d at 176 (relying on Tayag v. Lahey Clinic
Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011)), and doing her work
for her is not an option, since that would divert precious judgetime from other litigants who could have their cases resolved

2

That proviso holds that an appellant's brief "must contain"
an "argument" section, laying out (among other things) "appellant's
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies
. . . ."
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Case: 12-1430

Document: 00116459831

Page: 5

Date Filed: 11/21/2012

Entry ID: 5692168

thoughtfully and expeditiously because they followed the rules.
See generally United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (per curiam) (colorfully explaining how "[j]udges are not
like pigs, hunting for truffles" in the record).
To wrap up:

Plaintiff's lackluster way offends some

major appellate procedural rules and controlling caselaw.

Being

human, lawyers of course will not always dot every "i" and cross
every "t" in trying to live up to their obligations under the
rules.

Reyes-García, 82 F.3d at 15.

And "occasional" mistakes –

minor "infringements of the rules that neither create unfairness to
one's adversary nor impair the court's ability to comprehend and
scrutinize

a

party's"

papers

Draconian consequences."

–

Id.

typically

"will

not

warrant

But "major" breaches call for

"severe decrees," and the violations here are certainly major,
given

that

they

intelligently."

cripple

"any

attempt

to

review

the

issues

Id.

Consequently, for the reasons batted around above, we
dismiss plaintiff's appeal with prejudice, as the caselaw permits
in situations like this.

Id. at 16; see also In re Simply Media,

Inc., 566 F.3d 234, 236 (1st Cir. 2009) (per curiam).
So Ordered.

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