
USCA1 Opinion

	




          September 22, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No.  95-1407                                JOHN VIRAPEN, ET AL.,                               Plaintiffs, Appellants,                                          v.                            ELI LILLY, S.A., ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________               Jorge Miguel Suro Ballester on brief for appellants.               ___________________________               Carl Schuster and Schuster Aguilo Rivera & Santiago on brief               _____________     _________________________________          for appellees.                                 ____________________                                ____________________                     Per  Curiam.   This appeal stems  from a  suit alleging                    Per  Curiam                    ___________          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.,                                           ___ _______     _______________          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                                                                         __          re San Juan Dupont Plaza Hotel  Fire Litig., 989 F.2d 36, 38 (1st          ___________________________________________          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                    _____          facts de  novo.  Our  standard of review,  however, is much  more                                          3          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                                     ________    _____________________          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                                        ___ ___          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                    ______          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.                                                        ___          611, and the court did not abuse its broad discretion here.  See,                                                                       ___          e.g.,  Bhaya v. Westinghouse Elec.  Corp., 922 F.2d  184, 190 (3d          ____   _____    _________________________          Cir. 1990), cert.  denied, 501 U.S. 1217  (1991) (explaining that                      _____  ______          "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)          ______    __________________          (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,                                          4          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.,                                                                 ___  ____          Cates v. Sears Roebuck &  Co., 928 F.2d 679, 685 (5th  Cir. 1991)          _____    ____________________          (warning  that  rebuttal  evidence  "is  not  to  be  used  as  a          continuation of the case-in-chief"); Pignons S.A. de Mecanique v.                                               _________________________          Polaroid Corp., 701 F.2d 1, 2  (1st Cir. 1983) ("Once a plaintiff          ______________          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                    _____          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                     _______    ____________________          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                                                 ___          _____________          Postal  Serv.  Bd.  of Govs.  v.  Aikens,  460  U.S. 711,  713-14          ____________________________      ______          (1983)); see also  Mesnick v.  General Elec. Co.,  950 F.2d  816,                   ___ ____  _______     _________________          824-25 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).  So it                                  _____ ______          is here.                                          5                    Fourth:   Virapen's  jeremiad that  the district  court                    ______          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,                                                               ___ _______          supra, slip op. at 4.   It supportably found that Virapen did not          _____          establish a case of  employment discrimination under the  Law 100          test.  See id. at 19.  The court similarly found that Virapen did                 ___ ___          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                           ___          clearly erroneous.                    We  need go no further.   The judgment  of the district          court is summarily affirmed.  See 1st Cir. R. 27.1.                                        ___                    Affirmed.                    Affirmed                    ________                                          6
