
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                               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                                         -2-            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.                                         -6-
