
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT         No. 97-1660                               CELIA SANTIAGO, ET AL.,                               Plaintiffs, Appellants,                                          v.                                 CANON U.S.A., INC.,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dominguez, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                              Cyr, Senior Circuit Judge,                                   ____________________                           Pieras*, Senior District Judge,                                    _____________________                           and DiClerico**, District Judge.                                            ______________                                                                                      ____________________             Alice Net Carlo for appellants.             _______________             Richard H. Silberberg, with whom Robert G. Manson, Dorsey &             _____________________            ________________  ________        Whitney LLP, Jaime E. Toro-Monserrate and McConnell Valdes were on        ___________  ________________________     ________________        brief for appellee.                                                                                      ____________________                                  February 20, 1998                                                                                      ____________________                                    ____________________              *Of the District of Puerto Rico, sitting by designation.              **Of the District of New Hampshire, sitting by designation.                    CYR, Senior Circuit  Judge.     Professional Microfilm,                    CYR, Senior Circuit  Judge.                          _____________________          Inc. ( Professional )  and Celia Santiago, its  president, appeal          from  a district court judgment dismissing their complaint alleg-          ing  that Canon U.S.A.,  Inc. ( Canon )  (i) violated  the Puerto          Rico Dealer Act, P.R. Laws Ann. tit. 10,   278 et seq., by termi-                                                         __ ____          nating its  dealership agreement with  Professional, (ii) contra-          vened Santiago's rights under P.R.  Constitution art. II,   1, by          discriminating against  Professional  on  account  of  Santiago s          gender and, (iii)  inflicted mental anguish  on Santiago and  her          husband, see  P.R. Civil Code Article  1802.  We affirm  the dis-                   ___          trict court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Santiago is  the president  of Professional  Microfilm,          Inc., a San Juan company which has retailed micrographic products          for over  25 years.  She and her  husband are its sole sharehold-          ers.   Since 1984,  Professional has contracted  with Canon  as a          nonexclusive distributor of micrographic products in Puerto Rico.          Santiago took over  its management and operation  from her father          in 1989.  The following  year, Professional entered into a nonex-          clusive  distributorship  agreement with  Canon  relating to  the          Canofile  250, an innovative  optical disk filing  product.  Over          the  next three  years Canon  initiated  various adverse  actions          against Professional and  Santiago, culminating in 1993  with its          designation  of  Systronics,  Inc.  as  its  second  nonexclusive                                          2          Canofile 250 distributor.1                    Professional,  Santiago, and  her  husband filed  their          federal complaint against Canon in  August 1993.  Count 1 alleged          that Canon conducted a "pattern of intentional and discriminatory          conduct impairing the [Canofile 250] dealership" contrary to P.R.          Constitution art. II,    1, which broadly  prohibits gender-based          discrimination.   Count 2 charged that the Systronics designation          constituted an unjustified "impairment" of Professional s  nonex-          clusive Canon distributorship, contrary to the Puerto Rico Dealer          Act.  Count 3 asserted that   abusive conduct and acts of harass-          ment"  by Canon caused  Santiago "mental suffering,  anxiety, an-          guish,  and humiliation,"  contrary to  P.R.  Civil Code  Article          1802.                    After Canon moved to dismiss the complaint, see Fed. R.                                                                ___          Civ. P. 12(b)(6),2 and the parties submitted documents beyond the          pleadings,  the motion was converted to one for summary judgment.                                        ____________________              1The  complaint also alleges that Canon (1) "interfered" with          Professional's "principal retail client" in  order to "discredit"          Professional;   (2)    through   its     representatives,    used          unidentified "derogatory epithets" against Santiago, "denigrating          her dignity as a woman"; (3) deliberately delayed its delivery of          the Canofile  250 to  Professional until  November 1991,  thereby          preventing Professional  from an  earlier entry  into the  retail          market;  (4)  provided  Professional  with  incomplete  technical          information  and  product  enhancements  in connection  with  the          Canofile  250, thereby  "adversely affect[ing]  plaintiff's (sic)          sales  efforts";   (5)   withheld  purchase   orders  placed   by          Professional, and  falsely alleged that Professional  had serious          credit  problems; and  (6)  refused, in  March  1993, to  provide          Professional with 24 Canofile 250s previously ordered.              2Alternatively, Canon  unsuccessfully sought to  transfer the          case to the United States District Court for the Eastern District          of  New  York  pursuant  to the  forum-selection  clause  in  its          dealership agreements.  See 28 U.S.C.   1404(a).                                  ___                                          3          See Fed. R. Civ. P.  12(b), (c).  A magistrate  judge recommended          ___          that summary judgment  be entered for Canon on  all claims, since          the  Canofile 250 contract expressly stated that the Professional          dealership  was to  be "nonexclusive;"  the  parol evidence  rule          barred  extrinsic evidence to  the contrary; and,  therefore, the          designation  of Systronics as  a second Canofile  250 distributor          could have  effected no  wrongful "impairment"  under the  Dealer          Act.                    Plaintiffs objected to  the report and  recommendation,          see P.R.  Local R. 510.2, on  the ground that the  parol evidence          ___          rule does  not apply  to alleged Dealer  Act violations  and that          Canon  made  oral  assurances that  its  Canofile  250 dealership          agreement with  Professional would remain  exclusive.  Plaintiffs          further complained that  the magistrate judge failed  to consider          their gender-discrimination and mental-anguish claims.                    The district court endorsed  the report and recommenda-          tion relating  to the  Dealer Act  claim, citing  our intervening          decision  in  Borschow  Hosp.  &  Med.  Supplies,  Inc.  v. Cesar                        _________________________________________     _____          Castillo,  Inc.,  96  F.3d  10,   16  (1st  Cir.  1996)  (holding          _______________          nonexclusivity provision  in dealership agreement  dispositive of          Dealer  Act claim),  and dismissed the  gender-discrimination and          mental-anguish claims on three grounds.   First, since Canon  had          not  impaired  its dealership relationship with Professional, its          designation  of  Systronics could  not  have been  an  adverse or          discriminatory  act.  Second,  the Puerto Rico  Supreme Court has          yet to recognize a private cause of action for gender discrimina-                                          4          tion under P.R. Constitution art.  II,   1.  Finally,  the  broad          assertions  that Canon  engaged in a  pattern   of discriminatory          conduct,  see supra  note  1,  were not  causally  linked to  its                    ___ _____          decision  to designate Systronics  as a second  Canofile 250 dis-          tributor in Puerto Rico.                    In their motion  for reconsideration, see Fed.  R. Civ.                                                          ___          P.  59(e), plaintiffs  contended, inter  alia,  that even  if our                                            _____  ____          Borschow decision did foreclose a Dealer Act claim, the "pattern"          ________          of discriminatory actions  engaged in by  Canon before and  after          its designation of Systronics as  a second distributor (e.g., use                                                                  ____          of derogatory sexual epithets) constituted discrete "impairments"          sufficient to  serve as  independent bases  for their Dealer  Act          claim.  The district court denied the  motion for reconsideration          on the ground  that the issue  had not been  preserved either  in          plaintiffs   opposition to the dispositive motions filed by Canon          or in their objections to the report and recommendation submitted          by the magistrate judge.  Plaintiffs now appeal from the district          court  order dismissing  their complaint and  from its  denial of          their motion for reconsideration.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Dealer Act Claim          A.   The Dealer Act Claim               ____________________                    Although plaintiffs acknowledge their failure to  raise          in timely fashion    as an independent basis for their Dealer Act          claim     the  contention  that  Canon engaged  in  a pattern  of          discriminatory  conduct  both  before  and  after the  Systronics                                          5          designation, they argue  that their waiver should  be excused be-          cause the magistrate judge expressly recognized such a pattern of          conduct in the  report and recommendation, and the district court          therefore  had an independent  duty to  scrutinize the  record de                                                                         __          novo before adopting  the report and recommendation,  even absent          ____          specific objection under Local Rule 510.2.  We disagree.                    The district court  is under no obligation  to discover          or articulate new legal theories for a party challenging a report          and recommendation  issued by  a  magistrate judge.3   Borden  v.                                                                 ______          Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987)          __________________________________          ( Appellant  was entitled  to a  de novo  review by  the district                                           __ ____          court of the [magistrate s] recommendations to which he objected,          however he was  not entitled to a  de novo review of  an argument                                             __ ____          never raised. )  (citation omitted).   Given  proper notice,  see                                                                        ___          Magistrate's Report, at 10  ("Failure to comply with  [P.R. Local          R.  510.2]  precludes  further  appellate  review."),  a  party s          failure to  assert a  specific objection to  a report  and recom-          mendation irretrievably waives  any right to  review by the  dis-          trict court and the court of appeals.  See Henley Drilling Co. v.                                                 ___ ___________________          McGee,  36  F.3d  143,  150-51  (1st  Cir.  1994);  28  U.S.C.             _____          636(b)(1).  Finally, a Rule  59(e) motion is " aimed at reconsid-                                        ____________________              3There is no  record indication that the magistrate judge was          ever alerted to the legal theory belatedly asserted by plaintiffs          in their  motion for  reconsideration before the  district court.          Instead, the  magistrate judge mentioned a pattern  of conduct by          Canon   merely   as    background   in   describing   plaintiffs           constitutional and  mental-anguish claims.  In  the ensuing legal          analysis,  however,  the  magistrate  judge  neither  stated  nor          implied  an awareness  that  plaintiffs were  claiming that  such          conduct had any bearing on their Dealer Act claim.                                          6          eration, not  initial consideration, "  and  may  not be  used to          argue a  new legal theory." FDIC  v. World Univ., Inc.,  978 F.2d                                      ____     _________________          10,  16 (1st  Cir. 1992)  (citation omitted).4    Accordingly, we          affirm  the summary  judgment ruling  dismissing  the Dealer  Act          claim.          B.   The Gender-Discrimination and Mental-Anguish Claims          B.   The Gender-Discrimination and Mental-Anguish Claims               ___________________________________________________                    Plaintiffs challenge the  summary judgment ruling which          dismissed their  gender-discrimination and  mental-anguish claims          as  merely  incidental   to their Dealer  Act claim.   Plaintiffs          insist  that they  consistently  maintained  throughout the  pro-          ceedings below that all of  Canon s adverse actions    not merely          its Systronics designation    evidenced gender discrimination and          contributed  to their  mental anguish.   See  supra note  1.   As                                                   ___  _____          plaintiffs  view it, even  though Canon retained  the contractual          right to designate Systronics  as a second distributor,  it could          not exercise that or any other right purely for gender-based rea-          sons  without  violating P.R.  Constitution  art.  II,    1,  and          tortiously inflicting mental anguish upon plaintiffs.                    The  magistrate judge and  the district judge converted          the Rule 12(b)(6) motion to a motion for summary judgment without          objection by plaintiffs.   See Fayetteville Investors  v. Commer-                                     ___ ______________________     _______          cial Builders, Inc., 936 F.2d 1462, 1473 (4th Cir. 1991) (conver-          ___________________          sion  challenges waivable);  Jones  v.  Automobile  Ins.  Co.  Of                                       _____      _________________________          Hartford,  917 F.2d  1528, 1533  n.4  (11th   Cir. 1990)  (same);          ________                                        ____________________              4  We note, as well, no plain  error.  See Douglass v. United                                                     ___ ________    ______          Servs.  Auto. Ass'n,  79 F.3d 1415,  1423-24 (5th  Cir. 1996) (en          ___________________          banc).                                           7          Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 390 n.9 (5th Cir.          ______________________    ______          1985) (same).5  Nor do plaintiffs challenge the conversion on ap-          peal, see Brief  for Appellants at 25, 30  (referring to  summary                ___          judgment ); Nieves  v. University of  P.R., 7 F.3d 270,  279 (1st                      ______     ___________________          Cir. 1993) (conversion  waivable on appeal); Wright  v. Holbrook,                                                       ______     ________          794 F.2d 1152, 1156 (6th Cir. 1986) (same).                    The summary judgment  rulings on the gender-discrimina-          tion  and mental-anguish claims  are therefore reviewed  de novo,                                                                   __ ____          with all reasonable  inferences to be  drawn favorably to  plain-          tiffs, the nonmoving parties.  EEOC v. Green, 76 F.3d 19, 23 (1st                                         ____    _____                                        ____________________              5The original  Canon motion  sought to dismiss  the complaint          only for failure to state a claim.  See Fed. R. Civ. P. 12(b)(6).                                              ___          Canon attached  pertinent  dealership  agreements,  see  Shaw  v.                                                              ___  ____          Digital  Equip. Corp.,  82 F.3d  1194, 1219-20  (1st   Cir. 1996)          _____________________          (noting  that  written documents  integral  to  complaint    like          contracts    are not  considered  matters outside  the pleadings           requiring  Rule  12(b)  conversion), and  an  affidavit  relating          exclusively  to  its  alternative  motion for  change  of  venue.          Although the  parties are  entitled to  reasonable  notice of  an          impending conversion, as  well as an opportunity  to  present all          material made pertinent to that motion by  Rule 56,  Fed. R. Civ.          P.  12(b); Berkovitz v. Home Box  Office, Inc., 89 F.3d 24, 29-30                     _________    ______________________          (1st  Cir.  1996),  the   record  clearly  discloses  that  these          plaintiffs   invited  the   conversion.  See   Chaparro-Febus  v.                       _______                     ___   ______________          International  Longshoremen Ass n,  983 F.2d  325, 332  (1st Cir.          _________________________________          1992) (notice  of impending conversion need not  be express).  In          their  two succeeding opposition motions, for example, plaintiffs          attached  Santiago s  sworn  statement,  which  reiterated  their                                _____  _________          assertions that Canon had engaged  in a pattern of discriminatory          conduct  violative of  P.R. Constitution  art. II,    1  and P.R.          Civil Code  Article 1802.   See Fed. R.  Civ. P. 56(e);  David v.                                      ___                          _____          City and County of  Denver, 101 F.3d 1344, 1352 (10th  Cir. 1996)          __________________________          (nonmovants  submission of materials outside the pleadings waives          their  objection to  conversion), cert.  denied, 118  S. Ct.  157                                            _____  ______          (1997);  Grove v.  Mead Sch. Dist.  No. 354, 753  F.2d 1528, 1533                   _____     ________________________          (9th Cir. 1985) (same).  Counting their surreply, plaintiffs  had          more than  two months  to assemble  their Rule  56 proffer.   See                                                                        ___          Rodriguez  v. Fullerton  Tires Corp., 115  F.3d 81,  83 (1st Cir.          _________     ______________________          1997)  (finding  two  months  adequate to  prepare  materials  in          anticipation  of  possible conversion,  or  move  for Rule  56(f)          extension).  See infra note 10.                       ___ _____                                          8          Cir. 1996).  Summary judgment  was in order unless plaintiffs ad-          duced  evidence sufficient to establish each element essential to          their claim  as to  which  they would  have borne  the burden  at          trial.  See Fed. R. Civ. P. 56(e); Celotex Corp. v.  Catrett, 477                  ___                        _____________     _______          U.S. 317, 324 (1986); Nieves, 7 F.3d at 279.                                 ______                    Although  Canon  acknowledges that  the  district court          relied in  error  upon an  inadequate  ground in  dismissing  the          constitutional claim, see  supra Section I, we may  affirm on any                                ___  _____          ground supported by the  record, Levy v. FDIC, 7  F.3d 1054, 1056                                           ____    ____          (1st Cir.  1993).  Even  assuming their constitutional  claim for          gender  discrimination  were cognizable  under Puerto  Rico law,6          plaintiffs  Rule 56  proffer generated no trialworthy issue as to          whether a  gender-based animus motivated  Canon s so-called  pat-          tern  of conduct.                    Summary  judgment  may  be warranted  even  as  to such          elusive  elements as a  defendant s motive or  intent where   the          non-moving  party  rests  merely  upon  conclusory   allegations,          improbable inferences, and  unsupported speculation. " DeNovellis                                                                 __________          v. Shalala,  124 F.3d 298,  306 (1st Cir. 1997)  (citations omit-             _______          ted); see  Pilgrim v.  Trustees of Tufts  College, 118  F.3d 864,                ___  _______     __________________________          870-71 (1st Cir. 1997); Smith  v. Stratus Computer, Inc., 40 F.3d                                  _____     ______________________          11, 13 (1st Cir. 1994); Velazquez v. Chardon, 736  F.2d 831, 833-                                  _________    _______                                        ____________________              6Cf., e.g., Arroyo v. Rattan Specialties, Inc., 117 P.R. Dec.               ___  ____  ______    ________________________          35,  64-65 (1986) (noting  that enunciated  constitutional rights          operate  ex proprio  vigore,  permitting individuals  to sue  for                   __ _______  ______          violations). But see Carlton v. Worcester Ins. Co., 923 F.2d 1, 3                       ___ ___ _______    __________________          (1st Cir. 1991) (party who invokes federal diversity jurisdiction          cannot expect federal court to blaze new trails in state law).                                          9          34 (1st Cir.  1984).  A plaintiff [claiming  discrimination]  may          not prevail  simply by asserting  an inequity and tacking  on the          self-serving conclusion  that the  defendant was  motivated by  a          discriminatory animus.    Coyne v.  City of Somerville, 972  F.2d                                    _____     __________________          440, 444 (1st  Cir. 1992) (quoting Correa-Martinez  v. Arrillaga-                                             _______________     __________          Belendez, 903 F.2d 49, 53 (1st Cir. 1990)).          ________                    The only  smoking  gun  allegation in the  complaint is          that  unidentified  Canon  representatives   uttered  unspecified           derogatory epithets denigrating [Santiago s]  dignity as a woman          and as  a human being.    That bare allegation,  parroted without          elaboration in  a Rule  56 proffer, see  supra note  5, disclosed                                              ___  _____          neither  the  substance and  context  of the  epithets,7  nor the          identity and  capacity  of the  person(s) employing  them.8   See                                                                        ___                                        ____________________              7See Speen v.  Crown Clothing Corp.,  102 F.3d 625,  636 (1st               ___ _____     ____________________          Cir. 1996) (  [I]solated or ambiguous remarks, tending to suggest          animus based on age,  are insufficient, standing alone, to  prove          an employer's discriminatory intent.  ) (citation omitted), cert.                                                                      _____          denied, 117 S. Ct. 2457 (1997); Lehman  v. Prudential Ins. Co. of          ______                          ______     ______________________          Am.,  74  F.3d  323,  329  (1st  Cir.  1996)  (same);  Alexis  v.          ___                                                    ______          McDonald s Restaurants of Mass., Inc., 67 F.3d 341, 348 (1st Cir.          _____________________________________          1995) (suggesting that remarks should be  [v]iewed in context  to          determine if animated by discriminatory intent); see also Woodman                                                           ___ ____ _______          v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir.  1995) (noting             _________________          that proponent must show that hearsay statements  concern matters          within the scope of  [declarant s] agency or employment ) (citing          Fed. R. Evid. 801(d)(2)(D)).              8The identity of the speaker often is crucial to ascertaining          not only intent but any causal connection between the  remark and          the alleged adverse  action directed against the plaintiff.  See,                                                                       ___          e.g.,  Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 616 (1st Cir.          ____   ___________    _______________          1996) (noting that it is  appropriate to discount "stray  remarks          in  the workplace  . .  . ,  statements by  nondecisionmakers, or          statements by decisionmakers unrelated to the  decisional process          itself") (citation omitted); Betkerur  v. Aultman Hosp. Ass n, 78                                       ________     ___________________          F.3d  1079,  1095 (6th  Cir. 1996)  ( [T]he lower  court properly          discounted    the   discriminatory    remarks    .    .   .    by          non-decisionmakers. ).                                          10          Jones v.  Merchants Nat'l Bank &   Trust Co.  of Indianapolis, 42          _____     ___________________________________________________          F.3d 1054, 1059 (7th Cir. 1994) ("'The object of [Fed. R. Civ. P.          56(e)] is not  to replace conclusory allegations of the complaint          or  answer with conclusory allegations of an affidavit. ") (cita-          tion omitted).                    At summary  judgment, the district  court cannot accept          on faith conclusory assessments by claimants that unspecified and          unattributed epithets  were  derogatory   and  denigrating,   let          alone  demonstrated discriminatory intent.  See Pilgrim, 118 F.3d                                                      ___ _______          at 871 (noting  that plaintiff s  [subjective] perception  is not          evidence   of discriminatory intent,  hence  not enough  to with-          stand summary judgment ); Correa-Martinez, 903 F.2d at 53 (noting                                    _______________          that, even at the Rule 12(b)(6) stage, plaintiff may not  rest on          'subjective  characterizations  )  (citation omitted);  see  also                                                                  ___  ____          Douglass v.  United Servs. Auto.  Ass'n, 79 F.3d 1415,  1430 (5th          ________     __________________________          Cir.  1996)  (en banc)  ( It  is  .  .  . well  settled  that  an          employee's  subjective belief that he suffered an adverse employ-          ment action as  a result of discrimination, without  more, is not          enough to survive a summary judgment motion, in the face of proof          showing an adequate nondiscriminatory reason. ).9                    The counterproffer from Canon  makes the uncontroverted          representation  that  Professional  remains its  sole  authorized                                              _______ ___  ____  __________          micrographic products distributor  in Puerto Rico.   Thus, before                                        ____________________              9Nor did  the plaintiffs  proffer competent Rule  56 evidence          supporting  their allegation,  based  on information  and belief,                                                   ___________  ___ ______          that Santiago was  the only woman  heading a Canon  dealership in          the United States.                                           11          the alleged  pattern of conduct  by Canon could be  attributed to          gender  discrimination, one rationally would need to question not          only  why Canon  retained Professional  as its  sole  Puerto Rico          dealer in  micrographic  products, and  one  of two  Puerto  Rico          dealers in  Canon optical disk  filing products, but also  why it          entered into the  October 1990 Canofile 250  dealership agreement          with Santiago  in the  first place.   In  our judgment, based  on                         __ ___  _____ _____          these conflicting proffers the trier  of fact could not find that          the  facially  nondiscriminatory  conduct  engaged  in  by  Canon               ________  _________________          actually was motivated by gender discrimination except by resort-                                                          ______ __ _______          ing to rank speculation.10          ___ __ ____ ___________                    Finally, the Rule 56 proffer on the mental-anguish tort          claim  under  P.R.  Civil  Code  Article  1802 fares  no  better.          Plaintiffs  were required to establish that in   some appreciable          measure the[ir] health,  welfare and happiness . .  . were really          affected,   Ruiz-Rodriguez v. Colberg-Comas, 882 F.2d 15, 17 (1st                      ______________    _____________                                        ____________________              10Plaintiffs further contend that the district court erred in          denying  them  an  opportunity   to  undertake  discovery  before          granting summary judgment.  We review only for manifest  abuse of          discretion.   See Mills v. State  of Maine, 118 F.3d  37, 50 (1st                        ___ _____    _______________          Cir. 1997).  We find  none.  First, plaintiffs neither filed  the          motion  for  continuance nor  the  supporting  affidavit required          under Rule  56(f).  See Springfield Terminal  Ry. Co. v. Canadian                              ___ _____________________________    ________          Pac.  Ltd., __ F.3d __, __ (1st  Cir. 1997) [No. 97-1783, 1997 WL          __________          775553,  at *7  (1st Cir.  Dec. 22,  1997)] ( Rule  56(f) of  the          Federal Rules  of   Civil  Procedure  specifically calls  upon  a          litigant who  feels prejudiced  by too  precipitate a demand  for          summary  judgment  to file  a  timely  affidavit with  the  court          asserting the  need for  further  discovery.   As we  have  held,          failure to  resort to such first aid  will ordinarily bar belated          aid. ).   Second, notwithstanding  plaintiffs  plain  waiver, the          crucial  deficiencies in  their Rule  56 proffer  simply are  not          attributable to  a need  for further discovery,  especially since          plaintiffs  presumably knew  which Canon  representatives uttered          sex-based epithets, as well as their substance and context.                                          12          Cir. 1989) (quoting  Moa v. Commonwealth, 100  P.R.R. 572, 585-86                               ___    ____________          (1972)), and they experienced   deep moral suffering and anguish,          and [not merely] a passing  affliction,   de Jesus v. Eastern Air                                                    ________    ___________          Lines,  Inc.,  708  F.  Supp.  470,  472  (D.P.R.  1989)  (citing          ____________          Hernandez v. Fournier, 80 D.P.R. 94, 104 (1957)).  These showings          _________    ________          turn  upon an evaluation  of: (1) the  severity of the pain  suf-          fered;  (2) its  duration;  and  (3)  its  mental  consequences.           Lopez-Nieves v.  Marrero-Vergel, 939  F. Supp.  124, 126  (D.P.R.          ____________     ______________          1996).11                    Plaintiffs offered only their conclusory assertion that          Santiago and her husband  have been exposed to  mental suffering,          anxiety, anguish and humiliation,  with no independent corrobora-          tion, cf.  Cruz v. Molina,  788 F.  Supp. 122, 129  (D.P.R. 1992)                ___  ____    ______          (court sitting as  trier of fact rejected  plaintiff s uncorrobo-          rated testimony of mental anguish,  where he was not a physician,          nor  had he  consulted a  physician); supra  note 11.   Moreover,                                                _____          since  any emotional  injury  to  plaintiffs presumably  resulted          primarily  from the  alleged use of  sex-based epithets  by Canon           representatives,  and  plaintiffs offered no  competent evidence          as to the substance of  the epithets, a rational factfinder would          have no  evidentiary basis  for determining  whether the  alleged          remarks were  likely to have  caused Santiago or her  husband the          type of  deep moral suffering and anguish  required under Article                                        ____________________              11Since plaintiffs cited no cases defining the mental-anguish          standard, and  filed no reply brief  challenging Canon s citation          to  these district  court  decisions, we  simply assume,  without          deciding,  that  the  cited  decisions  describe  the  applicable          commonwealth standard.                                            13          1802.  See DeNovellis, 124 F.3d at 306 (nonmovant cannot   rest[]                 ___ __________          merely upon  conclusory allegations,  improbable inferences,  and          unsupported speculation. ") (citation omitted).                    Affirmed.                    Affirmed.                    ________                                          14
