
USCA1 Opinion

	




          November 19, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2296                              JULIO A . MERCADO-GARCIA,                            MARIA DEL CARMEN AVILA MUGICA,                           AND THEIR MARITAL CONJUGALSHIP,                               Plaintiffs, Appellants,                                          v.                             PONCE FEDERAL BANK, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        O'Scannlain,* and Cyr, Circuit Judges.                                               ______________                                 ____________________            Pia  Gallegos with  whom Harry  Anduze  Montano  was on  brief for            _____________            ______________________        appellants.            Gregory  T.  Usera  with  whom  Goldman  Antonetti  Ferraiuoli   &            __________________              __________________________________        Axtmayer was on brief for appellees.        ________                                 ____________________                                 ____________________        _____________________        *Of the Ninth Circuit, sitting by designation.                    O'SCANNLAIN, Circuit Judge:  In this case involving                     O'SCANNLAIN  _____________           claims  of age and employment discrimination we must resolve            several issues of first impression.                                                   I                    Julio Mercado-Garcia ("Mercado")  was  fifty  years            old  and  had  been  in the employ of the Ponce Federal Bank            ("the Bank") for eleven years when he  was  discharged  from            his  position as Vice President for Human Resources in 1988.             The final  year  of  his  tenure  had  not  apparently  been            pleasant.   Mercado says that his problems began in November            1987 when he refused to accede to his  supervisor's  request            that  he  falsify certain personnel records.  By his refusal            to act in a  manner  he  believed  to  be  illegal,  Mercado            allegedly    precipitated    a   campaign   of   harassment,            intimidation, and discrimination against himself.                    Eventually Mercado was asked, and asked  again,  to            submit   his   resignation.    When  he  refused,  the  Bank            terminated his employment.  A letter from the  Bank  reached            Mercado  on  October  13,  1988,  confirming  his  discharge            effective September 30, 1988.  He alleges, however, that his            ill  treatment  at  the hands of the Bank did not end there,            for the Bank, assertedly without cause,  promptly  cancelled            his VISA card and prematurely called a loan he had taken out            from the Bank.  In addition, says Mercado, the  Bank  failed            to provide him timely notice of his rights to continue under                                                     2           the Bank's  health  and  life  insurance  policies,  thereby            causing him to lose coverage.                    Mercado  filed  his  complaint in this case in July            1989  alleging  violations  of  the  Age  Discrimination  in            Employment  Act, 29 U.S.C.    621-634 ("ADEA"), the Employee            Retirement Income  Security  Act,  29  U.S.C.      1001-1461            ("ERISA"),1  the  Equal Credit Opportunity Act, 15 U.S.C.                 1691-1691f ("ECOA"), and  the  Consolidated  Omnibus  Budget            Reconciliation  Act,  29  U.S.C.    1161-1168, ("COBRA"), as            well as a federal breach  of  contract  claim2  and  pendent            state law causes of action.  In the district court, the Bank            prevailed on all claims, some  by  dismissal  under  Federal            Rule  of  Civil  Procedure  12(b)(6)  and others by grant of            summary judgment.  Mercado timely appealed.                                                     II                    We turn first to Mercado's claim  under  the  ECOA.             Section 701 thereof provides as follows:                    (a)  It  shall be unlawful for any creditor to                discriminate against any applicant, with respect to                any aspect of a credit transaction --                           ______________________          1    On appeal, Mercado has asserted no error  in  connection           with  the  district  court's dismissal of his ERISA claim for           interference with retirement  benefits  in  violation  of  29           U.S.C.   1140.  We therefore deem any such argument waived.           2    The district court had original  jurisdiction  over  the           federal  questions  presented  in  this  case  pursuant to 28           U.S.C.   1331.  See  also  12  U.S.C.     632;  15  U.S.C.                             _________          1691e(f);  29  U.S.C.   1132(e).  This court has jurisdiction           over the final decision of the district court pursuant to  28           U.S.C.   1291.                                                    3                    (1)   on  the  basis of race, color, religion,                national origin, sex  or  marital  status,  or  age                (provided   the   applicant  has  the  capacity  to                contract) . . . .                      15 U.S.C.     1691(a)(1).   Mercado  contends  that  summary            judgment  was  erroneously entered against him on his claims            under this section.  Before  reaching  the  merits  of  this            contention,  we  must  first analyze how the commands of the            ECOA are to be applied, a matter we consider for  the  first            time.                    It  is  apparent  that  the  plain  language of the            statute itself does not resolve a number of  questions  that            are  fundamental  to  its  enforcement  by  the  courts.  In            particular, the statute does not reveal what it is  an  ECOA            plaintiff like Mercado must establish in order to make out a            prima facie case of  unlawful  discrimination  in  a  credit            decision  and  to  withstand a creditor's motion for summary            judgment.                    When faced with a matter of statutory  construction            that  is  of first impression we have looked for guidance to            our construction of other, similar enactments.  See De Jesus                                                            ___ ________           v. Banco Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir.            _______________________________           1990) (looking to precedent regarding  grant  of  attorney's            fees  under  42  U.S.C.     1988  in  interpreting "similar"            attorney's fees provisions of Truth in Lending Act).   Doing            so  in  this  instance,  we  find  in  the  Equal Employment            Opportunity  Act,  42  U.S.C.       2000e-2   ("EEOA"),   an                                                     4           appropriate  model,  and  cases  interpreting  that  statute            instructive.  The EEOA seeks to prohibit  discrimination  in            the  employment  arena much as does the ECOA in the realm of            credit decisions.   Indeed,  the  two  statutes  use  nearly            identical language in seeking to achieve their purposes.  We            therefore approve the district court's  decision  to  follow            the  lead  of other circuits and analyze the ECOA as we have            analyzed the parallel provisions of the EEOA.  See  Bhandari                                                           ___  ________           v. First Nat'l Bank of Commerce, 808 F.2d 1082, 1100-01 (5th            _______________________________           Cir. 1987) (language of ECOA is "closely related" to that of            EEOA  and  "was  intended  to  be  interpreted  similarly");            Williams v. First Fed. Sav. & Loan Ass'n, 554 F. Supp.  447,            ________________________________________           448-49  (N.D.N.Y.  1981)  ("protections afforded by the ECOA            should be applied in the same manner as  those  created  by"            the EEOA), aff'd, 697 F.2d 302 (2d Cir. 1982).                      _____                    Applying  the  settled law regarding discrimination            in employment to Mercado's claim of  age  discrimination  in            the  Bank's  credit  decisions,  it is apparent that Mercado            bore the burden of  pleading  a  prima  facie  case  of  age            discrimination.   See  Texas  Dep't  of Community Affairs v.                              ___  _____________________________________           Burdine, 450 U.S. 248,  252-56  (1981);  Olivera  v.  Nestle            _______                                  ___________________           Puerto  Rico,  Inc.,  922  F.2d  43,  46-47 (1st Cir. 1990).             ___________________           Assuming arguendo that he succeeded in doing so, the  burden                     ________           then  shifted  to  the  Bank "to articulate some legitimate,            nondiscriminatory reason" for the actions of  which  Mercado            complains.  Burdine, 450 U.S. at 253.                         _______                                                    5                    We  think  the  Bank carried this burden.  The Bank            explained  that  the  cancelled  VISA  card  was  a  special            employee  credit  card,  to  which  Mercado  was  no  longer            entitled after his termination.   A  new  non-employee  VISA            card  was  made  available  to  Mercado just two weeks after            cancellation of the employee card.   Similarly,  the  called            loan  had  been  offered to Mercado on favorable terms, as a            special benefit incident to  his  employment  by  the  Bank.             Mercado,  the  Bank  argued,  could not reasonably expect to            continue to be afforded the preferential treatment  reserved            for  Bank employees once he was one no longer.  Furthermore,            it  appears  that  Mercado  had,  upon  learning  that   his            discharge  was imminent, run up substantial checking account            overdrafts and withdrawn large amounts of cash  through  his            employee  VISA  card,  suggesting  that he might be a credit            risk.                        The  Bank  having  come  forward  with   apparently            legitimate,   nondiscriminatory  reasons  for  its  actions,            Mercado, in order to defeat the Bank's  motion  for  summary            judgment,  was  required  to  offer  evidence  sufficient to            demonstrate by a preponderance that these  reasons  were  in            reality a pretext for age discrimination.  Id.; Olivera, 922                                                       ___  _______           F.2d at 47-48.  This he was unable to do.  Mercado failed to            plead  any  verifiable  facts showing that the Bank's credit            decisions were based on his age.  While he  recited  alleged            incidents  of age discrimination by the Bank against himself                                                     6           and others, he  did  not  present  any  facts  showing  such            discrimination  in the calling of his loan and the temporary            invalidation of his VISA  card.   Conclusory  assertions  or            mere  allegations,  in  lieu  of  documented  facts,  cannot            withstand a summary judgment motion.   Sheinkopf  v.  Stone,                                                   ____________________           927 F.2d 1259, 1262 (1st Cir. 1991).                      Mercado's  showing  raised  no  genuine issue as to            whether the Bank's  articulated  reasons  for  limiting  his            credit were merely pretextual.  The district court therefore            correctly granted summary judgment against Mercado  on  this            claim.   See  Ramos v. Roche Products, Inc., 936 F.2d 43, 47                     ___  _____________________________           (1st Cir.) (where there is no direct evidence that  unlawful            discrimination   was   a  motivating  factor  in  employer's            decision,  defendant  need  only  articulate   a   plausible            nondiscriminatory  reason  therefor  to  meet  its burden in            showing the absence of discriminatory intent), cert. denied,                                                           ____________           112  S. Ct. 379 (1991); Villanueva v. Wellesley College, 930                                    _______________________________           F.2d  124,  127-28  (1st  Cir.)  (plaintiff  must  introduce            evidence  sufficient  to  raise  a  reasonable  inference of            discriminatory intent to  defeat  summary  judgment),  cert.                                                                   _____           denied, 112 S. Ct. 181 (1991).             ______                                                  III                    Mercado  next  attempts  to establish that the Bank            breached  his   loan   agreement   by   calling   his   loan                                                     7           prematurely.3   His  task  is  complicated  by the fact that            there is a written document evidencing the loan agreement --            a  promissory  note  signed by Mercado -- that provides that            the loan is due on demand.  In the district  court,  Mercado            sought to introduce parol evidence to show an oral agreement            that the loan term  was  in  fact  five  years.   The  Bank,            perhaps  contrary  to  its interest, responded by presenting            extrinsic evidence that the loan was for a one year term.                      In any event, we are convinced that the demand note            is   conclusive  of  this  issue.   The  extrinsic  evidence            presented by the parties is of no relevance  because  Puerto            Rico's  parol evidence rule, P.R. Laws Ann. tit. 32, App. IV            R. 69 (1983), requires us to ignore such evidence "when  the            agreement  .  .  .  is  clear  and unambiguous."  Catullo v.                                                              __________           Metzner, 834 F.2d 1075, 1079 (1st Cir.  1987).   Rule  69(B)            _______           reads in pertinent part:                      When  in an oral or written agreement . . .                     all the terms and  conditions  constituting                     the true and final intention of the parties                     have been included, such agreement shall be                     deemed  as  complete,  and therefore, there                     can  be  between  the  parties  .  .  .  no                     evidence  extrinsic  to the contents of the                     same, except in the following cases:                                ______________________          3    Civil claims involving a United States corporation  that           arise  out of a banking transaction in a dependent or insular           possession  of  the  United  States  are  placed  within  the           original  jurisdiction  of the district courts by 12 U.S.C.             632.  Puerto Rico is a dependent possession for  purposes  of           this  statute.   Conjugal  Soc'y  Composed of Juvenal Rosa v.                            ____________________________________________          Chicago Title Ins. Co., 646 F.2d 688,  689  (1st  Cir.  1981)           ______________________          (per curiam).                                                    8                         (1) Where a mistake or imperfection of                     the  agreement  is  put  in  issue  by  the                     pleadings;                                              (2)  Where   the   validity   of   the                     agreement is the fact in dispute.                                        This  rule  does not exclude other evidence                     of  the  circumstances  under   which   the                     agreement  was  made or to which is related                     such as the situation of the subject matter                     of  the  instrument or that of the parties,                     or to establish illegality or fraud.                               P.R. Laws Ann. tit. 32, App. IV R. 69(B).                    Mercado does not allege in his  pleadings  that  the           demand  note  contained  any mistakes or imperfections, and he           admits  signing  the  note.   He  argues,  however,  that  his           proffered   evidence  as  to  the  actual  term  of  the  note           constitutes "other evidence of the circumstances  under  which           the  agreement  was made," and is, as such, admissible.  We do           not agree.   Consideration  of  "other  evidence"  is  neither           necessary  nor  permissible  if  it is offered to contradict a           clear term of a written agreement.  In this case,  as  to  the           term  of  the  loan, the promissory note can "be understood in           one  sense  alone,  without  leaving  any  room   for   doubt,           controversies  or  difference of interpretation, . . . without           necessitating  for  [its]  understanding  any   reasoning   or           illustration  susceptible to challenge."  Catullo, 834 F.2d at                                                     _______          1079 (quoting Heirs of Ramirez v. Superior  Court,  81  P.R.R.                         ___________________________________          347,  351  (1959)).  We are therefore bound to look no further           than the note itself.  Its repayment provisions  could  hardly           be clearer or less ambiguous:  the loan is due upon the demand                                                     9          of  the  Bank.   The  plain  terms  of  the  parties'  written           agreement  cannot  be  contradicted  with parol evidence.  The           district court thus properly entered summary judgment for  the           Bank  on this issue, since the agreement itself was conclusive           as to all material questions of fact.                                                  IV                    Mercado contends that the district  court  erred  in           granting  summary  judgment  against  him  on his COBRA claim.            Under the COBRA amendments to ERISA,  a  plan  participant  or           beneficiary  must,  on leaving his employer, be advised by the           plan administrator that he may continue his ERISA  health  and           life  insurance  coverage  if  he  is  willing  to  assume the           payments.  29 U.S.C.   1166.  Mercado alleged  that  the  Bank           failed  to inform him timely of his right to elect to continue           his benefits and that because of this failure  he  missed  the           deadline for electing continued insurance coverage.                      The  district  court  correctly  found  that Mercado           raised no genuine issue of fact as to  whether  the  Bank  had           caused  his failure to make the necessary election.  The Bank,           as the ERISA plan administrator,  asserted  that  it  notified           Mercado on two separate occasions of his election rights.  The           first notice was sent by first class mail within fourteen days           of  Mercado's  termination  in  compliance  with  29  U.S.C.                                                       10          1166(c).  Mercado denies ever receiving the letter.4   In  any           case,  after Mercado complained to the Bank, the Bank sent him           the relevant forms  and  a  copy  of  its  earlier  letter  by           certified mail.  Mercado admits that he received this letter.                    Under COBRA, Mercado had sixty days from the date he           received the notice conveyed by this certified letter to elect           continued  insurance  coverage.   29  U.S.C.   1165(1)(C)(ii).            See Communications Workers of America, Dist. One,  AFL-CIO  v.           ______________________________________________________________          NYNEX  Corp.,  898  F.2d  887, 888-89 (2d Cir. 1990).  Mercado           ____________          admits failing to make the necessary election within this time           period,  and does not explain how the Bank's conduct prevented           him from doing so.  The Bank was  therefore  properly  granted           summary judgment on this claim.                                                  V                    Finally,  Mercado  asserts  that  the district court           erred in dismissing his ADEA claim.                      A statutory prerequisite to a civil action  alleging           age  discrimination  in  employment  is the filing of a timely           complaint with the  Equal  Employment  Opportunity  Commission           ("EEOC").    29   U.S.C.     626(d).   A  charge  of  unlawful           discrimination must be filed with the EEOC within 300 days  of           ______________________          4    Because we decide this issue on other grounds,  we  need           not  address  the  widely  accepted  presumption that Mercado           would have received  the  properly  addressed,  stamped,  and           mailed  letter  in a timely fashion.  See, e.g., Federal Ins.                                                 ___  ____  ____________          Co. v. Summers, 403 F.2d 971, 975 (1st Cir.  1968)  (applying           ______________          Massachusetts law).                                                    11          the  allegedly  discriminatory act in states that have enacted           employment discrimination laws, and within 180 days in  states           having  no  such  laws.  29 U.S.C.    626(d)(1) & (2), 633(b).            See Kale v. Combined Ins. Co., 861 F.2d  746,  750  (1st  Cir.           ___ _________________________          1988).  While Puerto Rico appears to have laws of the required           type, we do not here decide whether for purposes of 29  U.S.C.              633(b)  Puerto  Rico  is  a  "state"  such that the 300-day           limitations period applies.  In this case, whichever  deadline           controls,  Mercado failed to file a timely complaint.  Mercado           was terminated no later than October 13,  1988,  the  date  he           received  the  Bank's letter confirming his discharge.  He did           not file a claim with the Puerto Rico Anti-Discrimination Unit           and  the  EEOC until November 8, 1989, well beyond the maximum           limitations period on ADEA claims.                      Mercado nonetheless argues that  equitable  estoppel           or  equitable  tolling  should  save  his  claim.   We are not           persuaded.  "Equitable estoppel occurs where  an  employee  is           aware of his ADEA rights but does not make a timely filing due           to his reasonable reliance on  his  employer's  misleading  or           confusing  conduct."  Kale, 861 F.2d at 752.  Mercado suggests                                 ____          that the Bank's offer to consider settlement, or  its  alleged           requests  that  he  refrain  from filing an age discrimination           complaint,  constituted  misleading  conduct  that  adequately           excuses  his  failure to meet the statutory deadlines.  We are           constrained to believe, however, that  it  is  something  less           than  "reasonable"  for  a  party  contemplating litigation to                                                     12          allow itself to miss filing deadlines in "reliance" upon  such           cajolery  from  the opposing party.  See Dillman v. Combustion                                                ___ _____________________          Eng'g, Inc., 784 F.2d 57, 61 (2d  Cir.  1986)  (employer  must           ___________          misrepresent the limitations period or lull the plaintiff into           believing commencing litigation is not  necessary);  Naton  v.                                                                _________          Bank  of  California,  649  F.2d  691,  696  (9th  Cir.  1981)           ____________________          (defendant must have improper purpose or actual  knowledge  of           its   deceptive   conduct   before  estoppel  will  toll  time           limitations).                      "Equitable tolling . . . casts a wider net."   Kale,                                                                    ____          861  F.2d at 752.  Tolling is appropriate where a plaintiff is           "excusably ignorant" of his  rights.   Ignorance  of  an  ADEA           filing  deadline may be "excusable" where it "is caused either           by misconduct of an employer or by failure of that employer to           conspicuously  post the informational EEOC notices required by           the ADEA . . . ."  Id.; see Torres v. Superintendent of Police                              ___  ___ __________________________________          of  Puerto  Rico,  893 F.2d 404, 407-08 (1st Cir. 1990).  Even           ________________          then, however, tolling ends once "the employee receives actual           notice of his statutory rights or retains an attorney."  Kale,                                                                    ____          861 F.2d at 752.                      Here, Mercado had actual knowledge of his  right  to           file  with  the  EEOC during the entire period in which filing           might have been sufficient to permit a later ADEA action.   In           his  position  as  human  resources  manager,  he  himself had           counseled the Bank in matters relating to age  discrimination.                                                      13          In  addition, he was represented by counsel from November 1988           on regarding this very suit.                     We are satisfied that neither equitable tolling  nor           equitable estoppel is implicated on these facts.  The district           court therefore correctly dismissed Mercado's ADEA claim.5                                                   VI                    Once the court dismissed some of the federal  claims           and  resolved  the others before trial by summary judgment, it           had the discretion also to dismiss the pendent  state  claims.            28  U.S.C.    1367(c)(3).  Mercado's arguments to the contrary           are without merit.                    Affirmed.                    ________                    ______________________          5    Mercado further argues that the district court erred  in           disposing  of his claimed entitlement to equitable tolling or           estoppel under Federal  Rule  of  Civil  Procedure  12(b)(6).            According  to  Mercado, the court considered evidence outside           the pleadings, and thus should have treated the Bank's motion           to  dismiss  as a motion for summary judgment.  We affirm the           district court's dismissal because Mercado wholly  failed  to           plead  facts showing actively misleading or deceptive conduct           by the Bank that  might  permit  him  to  rely  on  equitable           tolling  or  estoppel.  A fortiori, Mercado failed "to make a           showing sufficient  to  establish  the  existence"  of  facts           entitling  him  to relief under either of these doctrines, so           that summary judgment would have been granted against him  in           any  case.   Celotex  Corp.  v.  Catrett,  477  U.S. 317, 322                        ___________________________          (1986).                                                     14
