

                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 95-2060

                       NIMIA M. RAMOS,

                    Plaintiff, Appellant,

                             v.

                  MANUEL LUJAN, II, ET AL.,

                   Defendants, Appellees.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Justo Arenas, U.S. Magistrate Judge]

                                        

                           Before

                    Selya, Circuit Judge,
                 Cyr, Senior Circuit Judge,
                  and Lynch, Circuit Judge.

                                        

Nimia M. Ramos Beauchamp on brief pro se.
Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del
Rio, Assistant United States Attorney, on brief for appellees.

                                        

                        July 16, 1997
                                        

          Per Curiam.   Appellant  Ramos-Beauchamp  ("Ramos")

brought this  suit against  various officials  of her  former

employer,                      the                         Department                                    of the Interior, National Park Service

(collectively "DOI"), alleging discrimination on the basis of

her                gender                       and ethnicity (Hispanic).  Ramos claimed that while

she was  employed as a  park ranger, she  was subjected to  a

discriminator                        ily hostile work environment, disparate treatment

in               the                   assignment of equipment, training, responsibilities and

discipline; and a retaliatory constructive discharge.   Ramos

initially                      submitted                               her                                   complaints to the DOI's office of equal

opportunity                        ("OEO").  The OEO found no support for most of the

charges, but did find disparate treatment in (1) a thirty-day

disciplinary                         suspension of Ramos's law enforcement commission,

and                (2)                    the                        provision of certain equipment.  The DOI undertook

remedial action; Ramos proceeded to district court. 

          Following a five-day bench trial, which was held by

consent                    of                       the parties before a magistrate judge, judgment was

entered for the defendant on all claims.  The court's factual

findings and  legal conclusions are  set forth  in a  26-page

opinion.

          Ramos                            timely                                   appealed, but failed to provide a trial

transcript.  Unable  thus to review the issues, including  an

evidentiary question which initially appeared substantial, we

directed Ramos to provide  the transcript or face  dismissal.

Citing  a  change   in  her   financial  circumstances,   she

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successfully  sought  an  extension  of  time,  and  obtained

permission                       from                           the                               district court to proceed in forma pauperis

with                 production                            of                              the                                  transcript at government expense.  After

further delays, the transcript was transmitted to this court.

          Ramos assigns as  error the court's exclusion  from

evidence of an  "administrative deposition" given by  another

Hispanic female  park  ranger, Mirta  Maltes.   The  excluded

"deposition," or sworn statement,  was taken in a  one-on-one

question                     and                        answer                               session conducted by the DOI's internal OEO

investigator.  

          Exclusion of  this  evidence, Ramos  contends,  was

contrary to the parties' "binding" joint pretrial memorandum,

as incorporated into the court's final case management order.

The final order twice referenced Maltes's statement.   Maltes

was listed, first,  as a witness for Ramos "by  deposition." 

Maltes's "sworn statement"  also was listed as a DOI  exhibit

which, by the terms of the order, was "received in evidence."

          Nonetheless, at trial  the DOI objected when  Ramos

proffered                      the                         Maltes                                statement during her case in chief.  After

some  wrangling, the  statement  was excluded  from  evidence

because, the magistrate held, it was hearsay and inadmissible

under any exception to the hearsay rule, including the  open-

ended exception in Fed. R. Evid. 804(b)(5).

          We need  not definitively  resolve the  evidentiary

question, however, since a close reading of the record  shows

                             -3-

that  regardless  of  whether  the  statement  was   properly

admissible                       or                         inadmissible, its exclusion did not prejudicially

affect Ramos's  "substantial rights," or  the outcome of  the

trial.  Lubanski v. Coleco Industries, Inc., 929 F.2d 42,  45

(1st Cir. 1991); see  also United States v. Legarda, 17  F.3d

496, 498 (1st  Cir.) (holding that an erroneous exclusion  of

evidence requires reversal only if it has a "substantial  and

injurious effect or influence" on the verdict), cert. denied,

513 U.S. 820 (1994).  

          The primary value of Maltes's statement was that it

corroborated  Ramos's  allegations  of  disparities  in   the

assignment of equipment, training, and responsibilities.  The

very same facts, however, were placed in evidence by  Ramos's

testimony.                                               Moreover, the disparities were not challenged, but

were conceded by  the DOI's witnesses.   The DOI's  witnesses

explained the uneven assignments as due to non-discriminatory

factors.  Their explanations were accepted as credible by the

magistrate.                                                 Thus,                              the                                  outcome of the trial on these claims was

not  affected  by   the  exclusion  of  Maltes's   statement,

encompassing as it did little more than conceded facts. 

          As to  Ramos's  other  claims,  Maltes's  statement

contained no substantial supporting proof.  Maltes swore that

she had no  personal knowledge of  the facts surrounding  the

disciplinary                         suspension of Ramos's law enforcement commission.

The statement offered only one marginal fact in corroboration

                             -4-

of Ramos's  retaliation  claim (that  Ramos had  presented  a

doctor's                     note                          to                            excuse                                   an absence).1  And Maltes flatly denied

knowledge  of  any disparities  in  overtime  pay  and  shift

assignments.  Finally, while Maltes's statement  conclusorily

characterized                         the atmosphere at work as "male chauvinist," she

also denied suffering any employment disadvantage due to  her

gender,                    thus                         providing no factual support for Ramos's claim of

a     discriminatorily     hostile     work     environment. 

          Ramos's                              other assignments of error, as we understand

them,2 fare no better.  We apprehend no error in the standard

used by  the court  to assess the  claim of "abusive  working

environment;" perceive no  prejudice in  the court's  alleged

misstatement                         of                           Maltes's                                    employment title; find no abuse in the

court's                    evaluation of the credibility of the witnesses; and no

basis for  the argument that the  court denied a "release  of

pertinent information in  agency files."  To the extent  that

Ramos                  means                        to                          challenge                                    the weight of the evidence, we observe

   1The statement recites Maltes's "belief" that Ramos had
encountered retaliation, but there is no recitation of a
factual basis for the "belief."  And, although Maltes stated
that she, too, feared retaliation, the only reason suggested
for her fear is that on one occasion she felt threatened by a
supervisor's "personal" animosity toward her. 

   2Although the transcript has been available for several
months, Ramos has not moved to supplement her brief with
record references.  

                             -5-

that this  was not  a "close" case.   There  is ample  record

evidence to support the court's factual findings.

          Affirmed.

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