
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1977                                IRIS V. RIVERA-FLORES,                                Plaintiff, Appellant,                                          v.                            PUERTO RICO TELEPHONE COMPANY,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Justo Arenas, U.S. Magistrate Judge]                                          _____________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Harry Anduze Montano for appellant.             ____________________             Edgardo  Colon Arraras, with whom Ina  M. Berlingeri Vincenty and             ______________________            ___________________________        Goldman, Antonetti & Cordova were on brief for appellee.         ____________________________                                                                                      ____________________                                  September 6, 1995                                                                                      ____________________                    CYR,  Circuit Judge.    Iris  Rivera-Flores  ("Rivera")                    CYR,  Circuit Judge.                              _____________          challenges  certain district  court rulings  relating to  various          commonwealth  and  federal claims  against  appellee  Puerto Rico          Telephone  Company ("PRTC"), her  former employer,  for condoning          the harassment she experienced  at work on account of  her visual          handicap, and  for terminating  her employment.    We vacate  the          district court judgment and remand for retrial.                                          I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    Rivera began  working the  night shift  for  PRTC as  a          traffic  operator in 1984.  In  January 1986, PRTC acceded to her          request for reasonable accommodation  of her visual impairment             congenital  cataracts in  both eyes  and secondary  angle closure          glaucoma     by  transferring her  to a  day-shift position  as a          service  representative.    During  her four-month  tenure  as  a          service  representative,  Rivera's  supervisors   and  co-workers          harassed  her  by  making  derogatory remarks  about  her  visual          handicap;  her  supervisors  reported  her  work  performance  as          unsatisfactory; and  in April  1986, she  was  reassigned to  her          former position as a traffic operator on the night shift.                      Rivera's  labor union filed  a successful  grievance in          opposition to her reassignment, and  in November 1988, Rivera was                                        ____________________               1The district court decision  directing judgment as a matter          of law  is reviewed de novo.   Favorito v. Pannell,  27 F.3d 716,                              __ ____    ________    _______          719 (1st Cir. 1994).  The evidence, and all reasonable inferences          therefrom,  are viewed in the  light most favorable  to the party          opposing judgment.  Id.                               ___                                          2          reinstated, with back pay,  as a sales representative on  the day          shift.   Her supervisors  resumed their complaints  that Rivera's          visual  problems  were adversely  affecting her  job performance;          provided her with inadequate on-the-job training; refused to give          her a desk or  work assignments for several weeks;  brushed aside          her repeated  requests  for  reasonable  accommodation  (e.g.,  a          special  magnifying  glass  to facilitate  reading,  and overtime          compensation for  catching up  on a preexisting  three-month work          backlog); and attempted to coerce  her into accepting an unfavor-          able job  evaluation.   Her day-shift supervisors  and co-workers          resumed their  derogatory  comments (e.g.,  calling  her  "little          blind  lady,"  "mentally  retarded,"  "mutant,"  cross-eyed,  and          physically repulsive), and hid or defaced her paperwork.                      In April  1989, Rivera reported to  the State Insurance          Fund  ("Fund"),  and  was diagnosed  with,  and  treated  for, an          emotional and  mental condition  attributable to  the job-related          harassment.2  She  filed suit  in December 1989  against PRTC  in          federal district court, seeking compensatory and  punitive damag-          es, front and back  pay, injunctive relief, prejudgment interest,          and attorney fees.  When Rivera sought to return to  work follow-          ing her discharge from  the Fund in December 1991,  PRTC informed          her  that her position was no longer available because the Puerto          Rico workers'  compensation statute  obligated employers  to hold                                        ____________________               2The physicians treating Rivera  noted wide fluctuations  in          the intraocular pressure  in her  right ("good") eye.   In  April          1990, she underwent surgery on her right eye, which resulted in a          permanent,  partial loss of visual acuity.  Rivera attributed the          increase in intraocular pressure to job-related stress.                                            3          jobs open for only twelve months after the onset of the disabili-                                           _____ ___ _____ __ ___ _________          ty.   See P.R.  Laws Ann.  tit. 11,    7 (1991).   PRTC  sent its          __    ___          formal termination letter to Rivera on December 14, 1992, without          according Rivera a pretermination hearing.                    Thereafter,  Rivera filed her  final amended complaint,          which included two federal claims.  First, she alleged that PRTC,          an  instrumentality  of  the  Commonwealth of  Puerto  Rico,  had          violated  her procedural  due process  rights by  terminating her          employment  without a  pretermination hearing.   See  U.S. Const.                                                           ___          amends.  V, XIV.  Second, she pleaded a Rehabilitation Act claim,          based on her  termination and on PRTC's  negligent condonation of          the discriminatory harassment she experienced at the hands of its          employees.  See 29 U.S.C.   794 (prohibiting discrimination based                      ___          on handicap  by any  program "receiving federal  financial assis-          tance"),    794a  (prescribing equitable  and legal  remedies for          violation); 42 U.S.C.    2000d-7 (waiving State's Eleventh Amend-          ment immunity for damages in actions under Rehabilitation Act).                      Rivera's  claims under  commonwealth  law alleged  that          PRTC  (1) violated  P.R.  Const. art.  II,    8  (providing  that          "[e]very  person has the right  to the protection  of law against          abusive attacks on h[er] honor, reputation and private  or family          life"), (2)  violated the Commonwealth's statutory  analog to the          Federal Rehabilitation Act, P.R. Laws Ann. tit. 1,   511, and (3)          intentionally or negligently inflicted personal  injury, see P.R.                                                                   ___          Laws  Ann. tit.  31,     5141-5142 (cause  of action  for damages          against employer for injury inflicted by employer and its employ-                                          4          ees).  Rivera demanded jury trial on all claims.                     PRTC moved for summary judgment, asserting, inter alia,                                                                _____ ____          that the  district court lacked subject  matter jurisdiction over          the Rehabilitation  Act claim  because PRTC's receipt  of Federal          Emergency Management Agency ("FEMA") disaster funds could not, as                                                                         __          a matter of law, qualify it as a "program . . . receiving federal          _ ______ __ ___          financial  assistance."   29 U.S.C.    794.   The  district court          disagreed,  rejected  the  jurisdictional  challenge,  and denied          summary  judgment.   Rivera-Flores  v. PRTC,  840  F. Supp.  3, 6                               _____________     ____          (D.P.R. 1993) (Laffitte, J.).                    On the first  day of trial, after  Judge Laffitte unex-          pectedly recused himself, the parties agreed to proceed  with the          jury trial before  a magistrate  judge.  When  Rivera rested  her          case, PRTC moved for judgment as a matter of law on the Rehabili-          tation Act  claim, see Fed.  R. Civ. P.  50(a)(1), on the  ground                             ___          that  Rivera  had  failed to  introduce  evidence  that PRTC  had          "receiv[ed]  federal financial  assistance" in  the form  of FEMA          disaster funds.  Rivera  responded that she did not  proffer such          evidence, because Judge Laffitte's earlier order denying  summary          judgment  to PRTC  conclusively  established that  the court  had          subject  matter jurisdiction  over her  Rehabilitation  Act claim          against PRTC.  In  the alternative, Rivera requested that  she be          permitted to reopen her case to present this evidence.                    The magistrate judge  summarily denied  the request  to          reopen and dismissed the Rehabilitation Act claim, after correct-          ly noting that  a denial  of summary judgment  normally does  not                                          5          settle material  factual disputes upon which  the plaintiff bears          the  ultimate burden of proof.  The  court then decided to retain          supplemental jurisdiction over the three commonwealth claims, see                                                                        ___          28  U.S.C.    1367, but  nevertheless discharged  the  jury after          concluding that Rivera had no independent Seventh Amendment right          to  jury trial on these commonwealth claims in federal court, see                                                                        ___          U.S. Const. amend. VII,  since plaintiffs enjoy no  such parallel          right under the Puerto Rico Constitution.                    Following a bench trial,  the court entered judgment on          Rivera's claim for  negligent infliction  of emotional  distress,          see P.R. Laws Ann. tit. 31,    5141-5142, awarding her $90,000 in          ___          damages.   The three remaining claims were dismissed.  First, the          federal procedural due  process claim was dismissed on the ground          that  Puerto  Rico  law  presumes the  natural  expiration  of an          employee's "property right" in  her employment after one year  of          continuous disability.  Rivera-Flores  v. PRTC, No. 89-1697, 1994                                  _____________     ____          U.S.  Dist. LEXIS, at *30  (D.P.R. June 20,  1994) (citing Carron                                                                     ______          Lamoutte  v. Compania de Turismos, 92 J.T.S. 27, at 9306 (1992)).          ________     ____________________          Second, the  claim asserted under  the commonwealth  constitution          failed for  lack of proof of "reputational  damage."  Id. at *23.                                                                ___          Third, the  handicap discrimination  claim foundered because  the          1992 amendment  to  the  Puerto Rico  statute  which  provides  a          private cause of  action for  damages is not  made applicable  to          pre-1992  causes of  action. Id.  at *30 (interpreting  P.R. Laws                                       ___          Ann. tit. 1,   511).                                            II                                          II                                          6                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Federal Rehabilitation Act Claim          A.   Federal Rehabilitation Act Claim               ________________________________                    Rivera focuses first on  the dismissal of her Rehabili-          tation Act claim because she did not introduce evidence that PRTC          was  a "program .  . .  receiving federal  financial assistance."          She insists that this  question had never been placed  in genuine          dispute by PRTC, that  the pretrial order denying  PRTC's summary          judgment motion  (Laffitte, J.)  had established  this "jurisdic-          tional" fact, and that she was caught off guard by the magistrate          judge's decision to treat Judge Laffitte's pretrial order as non-          dispositive.  In  these circumstances, she suggests,  at the very          least the court  should have  allowed her briefly  to reopen  and          introduce the  "undisputed"  evidence  that  PRTC  received  FEMA          disaster funds.                     Trial court rulings on motions to reopen civil cases to          permit additional evidence are  reviewed for abuse of discretion.          See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,          ___ __________________    ________________________          331  (1971); Hibiscus Assocs., Ltd.  v. Board of  Trustees of the                       ______________________     _________________________          Policemen and Firemen Retirement Sys., 50 F.3d 908, 917-18  (11th          _____________________________________          Cir. 1995);   Joseph v. Terminix  Int'l Co., 17  F.3d 1282,  1285                        ______    ___________________          (10th  Cir. 1994); Bradford Trust Co.  v. Merrill, Lynch, Pierce,                             __________________     _______________________          Fenner  & Smith, Inc., 805 F.2d 49,  52 (2d Cir. 1986); Swartz v.          _____________________                                   ______          New  York Cent.  R.R. Co.,  323  F.2d 713,  714 (7th  Cir. 1963).          _________________________          While the particular criteria that guide a trial court's decision          to  reopen  are necessarily  flexible  and  case-specific, it  is          generally  understood that a trial court abuses its discretion if                                          7          its refusal  to reopen  works  an "injustice"  in the  particular          circumstances.   See Gas Ridge,  Inc. v. Suburban  Agric. Proper-                           ___ ________________    ________________________          ties, Inc., 150 F.2d 363, 366 (5th Cir. 1945).  Among the materi-          __________          al  factors which  should  be assessed  by  the trial  court  are          whether: (1) the evidence sought  to be introduced is  especially          important and  probative; (2) the moving  party's explanation for          failing to introduce the  evidence earlier is bona fide;  and (3)                                                        ____ ____          reopening will cause  no undue prejudice to the  nonmoving party.          See, e.g., Joseph,  17 F.3d at  1285; see generally  6A James  W.          ___  ____  ______                     ___ _________          Moore,  Moore's Federal  Practice   59.04[13],  at 59-33  (2d ed.                  _________________________          1993).               1.   The "New" Evidence               1.   The "New" Evidence                    __________________                    Trial  courts as a rule  act within their discretion in          refusing to reopen a  case where the proffered "new"  evidence is          insufficiently  probative  to  offset the  procedural  disruption          caused by reopening.  See, e.g.,  Joseph, 17 F.3d at 1285 (noting                                ___  ____   ______          that "new" evidence  would have been cumulative); Thomas  v. S.S.                                                            ______     ____          Santa Mercedes,  572 F.2d 1331,  1336 (9th Cir.  1978) (affirming          ______________          denial  of motion  to  reopen  where  "new" evidence  would  have          provided  little additional  probative  force).   In the  instant          case,  however, there can be no question that the proffered "new"          evidence was  critical to  the Rehabilitation  Act claim once  it          became clear  that subject matter jurisdiction  was contested; it          was the only evidence on an essential element of the claim.  See,                  ____                                                 ___          e.g.,  Nathanson v. Medical College  of Pa., 926  F.2d 1368, 1380          ____   _________    _______________________          (3d  Cir. 1991).  Thus,  this factor weighed  heavily in favor of                                          8          allowing the motion to reopen.                2.   Bona Fide Explanation               2.   Bona Fide Explanation                    _____________________                    Trial  courts  likewise  should  consider  whether  the          moving  party  offered a  bona  fide explanation  for  failing to                                    ____  ____          introduce the evidence before  it finally rested its case.   See,                                                                       ___          e.g.,  Bradford Trust Co., 805 F.2d at 52-53 (upholding denial of          ____   __________________          motion to reopen after trial court  repeatedly warned that movant          would need to produce  evidence on "key issue"); Air  Et Chaleur,                                                           ________________          S.A. v. Eliot Janeway, 757 F.2d 489, 495 (2d Cir.  1985) (uphold-          ____    _____________          ing refusal to  reopen where trial  court forewarned movant  that          omitted  evidence  would be  essential).    Moreover, the  courts          recognize that  it may  amount to an  abuse of  discretion for  a          trial  court  to decline  to  reopen in  circumstances  where the          movant  has demonstrated  "reasonably  genuine  surprise."    Id.                                                                        ___          There are at least  four compelling reasons for finding  that the          "good  faith"  factor weighed  heavily in  favor of  allowing the          motion to reopen in the instant case.                    First, the record bears  out the contention that Rivera          refrained  from introducing  the  undisputed evidence  of  PRTC's          receipt  of FEMA funds, not  because she lacked  proof but solely          because  she reasonably  understood  that  the  district  court's          subject  matter jurisdiction had been settled prior to trial.  In                                                        _____ __ _____          the  statement of  uncontested  material  facts accompanying  its          summary judgment  motion, for example, PRTC  admitted receiving a          $9,765 check from FEMA,  dated January 10, 1986,  "while [Rivera]          was working as a  Service Representative," as well as  other FEMA                                          9          payments during 1987, 1989 and 1990.                      Notwithstanding these undisputed facts,  PRTC presented          the  magistrate  judge  with  two alternative  theories  for  its          narrowly focused legal contention  that the district court lacked                           _____ __________          subject  matter "jurisdiction":    (1) FEMA  fund recipients  are          subject to  the  special  anti-discrimination  provisions  of  44          C.F.R.     7.1 to 7.949 (1994), which do not proscribe employment                                                                 __________          discrimination  by  the recipient,  and  therefore  PRTC was  not          subject to the  more comprehensive anti-discrimination provisions          of the Rehabilitation Act; or (2) the FEMA funds must be shown to                                     __          have  been  received during  the same  time  period in  which the          alleged discriminatory acts against the recipient's employee took          place.                       Judge Laffitte had rejected  both these legal  theories          prior to trial:                     [PRTC's]  arguments do  not  carry  the  day.                    First, neither  party contests the  fact that                           _______  _____ ________ ___  ____                    after  various hurricanes and  heavy rains in                    Puerto  Rico, PRTC applied for Federal finan-                    cial assistance to receive  reimbursement for                    expenditures paid to repair the damage caused                    by the disasters.  Neither party contests the                                       _______ _____ ________ ___                    fact that  PRTC either was  receiving Federal                    ____                    funding  or was awaiting the receipt of fund-                    ing  throughout the  period  of  the  alleged                    discriminatory conduct.  The Court finds that                                             ___ _____ _____                    in the context of the Rehabilitation  Act, an                    employer "receiving  Federal financial assis-                    tance"  includes  a  qualified applicant  who                    although approved  to  receive the  funds  is                    awaiting  the receipt of them.  Consequently,                    because PRTC was  either receiving or expect-                    ing to receive  Federal financial  assistance                    throughout  the  period  pertinent to  plain-                    tiff's claim,  the Court finds that  PRTC was                                   ___ _____ _____                    "receiving Federal  financial assistance" and                    is subject to the Rehabilitation Act for that                    __ _______                                          10                    period of time.           Rivera-Flores, 840 F. Supp. at 5 (emphasis added).            _____________                    Normally, of  course, the mere denial  of a defendant's          summary judgment motion does not relieve a claimant of the burden          of  introducing evidence at  trial on every  element essential to          her claim, even though  the factual predicate was not  in genuine          dispute at summary  judgment.  However,  Civil Rule 56(d)  estab-          lishes a procedural mechanism whereby a district court can ensure          a more enduring effect for its summary judgment ruling, and, with          the acquiescence of  the parties, narrow  the factual issues  for          trial:                     If on motion under  this rule judgment is not                    entered upon the whole case or for all relief                    asked and a trial  is necessary, the court at                    the hearing of  the motion, by examining  the                    pleadings and the evidence  before it and  by                    interrogating  counsel, shall  if practicable                                            _____  __ ___________                    ascertain what material  facts exist  without                    _________ ____ ________  _____ _____  _______                    substantial  controversy  and  what  material                    ___________  ___________  ___  ____  ________                    facts are actually and  in good faith contro-                    _____ ___ ________ ___  __ ____ _____ _______                    verted.   It shall  thereupon  make an  order                    ______    __ _____  _________  ____ __  _____                    specifying  the  facts  that  appear  without                    __________  ___  _____                    substantial controversy, including the extent                    to which  the amount of damages  or other re-                    lief is  not  in controversy,  and  directing                    such further proceedings in the action as are                    just.  Upon the trial of the action the facts                           ____ ___ _____ __ ___ ______ ___ _____                    so specified shall be deemed established, and                    __ _________ _____ __ ______ ___________                    the trial shall be conducted accordingly.          Fed. R. Civ. P. 56(d) (emphasis added).                      The December 1993 order  entered by Judge Laffitte fits          well within  the spirit, if not  the letter, of Rule  56(d).  Its          language,  see  supra, belies  PRTC's  main  contention that  the                     ___  _____          district court  order did not sufficiently  "specif[y]" the facts                                                       _________          that were "without substantial  controversy."  PRTC counters that                                          11          an order can have no Rule 56(d) effect unless the court expressly          announces its intention  to enter  a Rule 56(d)  order, and  then          "interrogates"  counsel concerning  the  appropriateness of  such          relief.                      On the contrary, the  language of the rule contemplates          merely that  the court,  inter alia, "interrogat[e]  counsel [to]                                   _____ ____          ascertain what  material facts  . .  . are actually  and in  good          faith  controverted . .  . ."   Id.  Rule 56(d)  gives counsel no                                          ___          veto power over the decision to enter such an order.  Although it          is unquestionably advisable for the court to announce its  inten-          tion to  enter such an order, Rule 56(d) does not make it compul-          sory.3   Thus, "interrogation" of counsel is a suggested means of                                                       _           _____          determining facts  not  in  substantial  controversy,  where  the          pleadings and  other  evidence before  the court  leave room  for          doubt.  But it is the substance of the order that matters.                                  _________                    Second, in  our view Rivera's reliance  on the pretrial          order seems justified  in these circumstances since  the fact not          in substantial  "good faith"  controversy did not  pertain exclu-                                        ____________________               3The lone case  cited by PRTC for  its view     Audi Vision,                                                               ____________          Inc.  v. RCA Mfg.  Co., 136  F.2d 621, 625  (2d Cir.  1943)    is          ____     _____________          inapposite.  There  the court reviewed a partial summary judgment          entered on various claims,  but counterclaims remained for trial.          The  appeal was  dismissed as  interlocutory because  the partial          summary  judgment was  not "final."   See Fed. R.  Civ. P. 58(b).                                                ___          The appellate  court simply  recommended that trial  courts alert          the  parties  to the  fact  that  partial summary  judgments  are          subject to  further modification  as required to  avoid "manifest          injustice."    It did  not require  that  trial courts  alert the          parties when their pretrial orders result in a partial "adjudica-          tion" of less than all material factual issues.  Id.                                                            ___                                          12          sively to  the  merits of  her  claim.   Unlike  the three  other          elements  of 29  U.S.C.    794, "receipt  of federal  funds" also          directly implicates the district court's subject matter jurisdic-                                                   _______ ______ _________          tion over a Rehabilitation  Act claim.  See Bentley  v. Cleveland          ____                                    ___ _______     _________          Cty. Bd. of  Cty. Comm'rs, 41 F.3d 600, 603-04  (10th Cir. 1994).          _________________________          Contested factual  matters relating  to a court's  subject matter          jurisdiction  are properly  determined  on  pretrial  motions  to          dismiss, see  Fed. R. Civ.  P. 12(b)(1);  Bell v. Hood,  327 U.S.                   ___                              ____    ____          678,  682  (1946)  (court  must assure  its  jurisdiction  before          reaching merits of  claim), and even where  the claim is  set for          jury  trial,  the court  has  great  latitude to  direct  limited          discovery and to make  such factual findings as are  necessary to          determine  its subject matter jurisdiction.   See Land v. Dollar,                                                        ___ ____    ______          330 U.S. 731, 735  (1947); see also Fed. R. Civ. P. 12(b)(1).  We                                     ___ ____          need  express no  opinion concerning  whether the  Rehabilitation          Act's jurisdictional  element might properly be  adjudicated on a          Rule 12(b)(1) motion.4  Rather, we note merely that  Rivera in no          sense  acted unreasonably in  treating Judge  Laffitte's pretrial          order  as determinative  of  the jurisdictional  findings therein          contained.                                          ____________________               4Rehabilitation Act  claims have been dismissed  for lack of          subject matter jurisdiction prior  to trial.  See, e.g.,  Foss v.                                      _____  __ _____   ___  ____   ____          City of Chicago, 640 F. Supp. 1088, 1090 (N.D. Ill. 1986)  (find-          _______________          ing  that defendant  was not a  "program . .  . receiving Federal          financial assistance"), aff'd, 817  F.2d 34 (7th Cir. 1987).  But                                  _____                                 ___          cf. Careau Group v. United Farm Workers, 940 F.2d 1291, 1293 (9th          ___ ____________    ___________________          Cir. 1991)  (noting that,  "where jurisdiction is  so intertwined          with  the merits that its  resolution depends on  a resolution of          the  merits, `the trial court should employ the standard applica-          ble to a motion for summary judgment'") (citation omitted).                                           13                    Third, the  record indicates that PRTC  may have engen-          dered further  confusion concerning the intended  import of Judge          Laffitte's pretrial  order.  In  the pretrial order,  PRTC repre-          sented that  Rivera's prima  facie case  required proof of  three                                                                      _____          elements, omitting any reference to the fourth     the "jurisdic-                                                  ______          tional"  element.  See Pretrial Order,  at 13.5  PRTC also repre-                             ___          sented  that  it  "[wa]s not  a  recipient  of federal  financial          assistance  within  the  meaning of  [the  Rehabilitation  Act]."                      ______  ___  _______ __   ___  ______________  ___          Arguably at least, this connoted that PRTC continued to challenge          Judge  Laffitte's legal  rulings interpreting  the Rehabilitation                            _____  _______          Act, but  that it accepted the fact that proof of receipt of FEMA          funds no longer  remained in bona fide dispute  for trial.  Thus,          Rivera presented a bona fide explanation for failing to introduce          her evidence before resting at trial.               3.   Undue Prejudice               3.   Undue Prejudice                    _______________                    The third  factor meriting  consideration by  the trial          court was the degree to which an order allowing  Rivera to reopen          would  prejudice PRTC.    See, e.g.,  Joseph,  17 F.3d  at  1285.                                    ___  ____   ______          First,  we note that the  motion to reopen  was filed immediately          after Rivera rested  her case,  upon learning that  PRTC did  not                               ___          share her understanding of Judge Laffitte's pretrial order.   Cf.                                                                        ___          id. at 1284  (upholding denial  of motion to  reopen, and  noting          ___          logistical  unfairness  to  defendant in  allowing  plaintiff  to          present  new  evidence  after  defendant had  rested  its  case).                                  _____  _________                                        ____________________               5In her  jury instruction  requests, Rivera  likewise listed          three Rehabilitation Act claim  elements, omitting mention of the          "jurisdictional element."                                            14          Presumably, the documentary evidence demonstrating PRTC's receipt          of FEMA funds, including a cancelled check attached as an exhibit          to PRTC's  own Rule 56  statement of  undisputed material  facts,          constituted the only "new"  evidence to be introduced.   Unlike a          reopening  to permit  extended  testimony, cf.  Hibiscus Assocs.,                                                     ___  _________________          Ltd.,  50 F.3d  at  918 (denying  motion  to reopen,  for  expert          ____          testimony, where evidence was  type that could be  proved without          extensive  expert testimony),  the introduction  of such  readily          obtainable documentary  evidence could have entailed  but minimal          delay.  Cf. Capital Marine Supply, Inc. v. M/V Roland Thomas, 719                  ___ ___________________________    _________________          F.2d  104,  107 (5th  Cir. 1983)  (finding  no abuse  in granting          motion  to reopen "where the missing testimony can be made avail-          able without undue delay").                      In  the final  analysis, therefore,  all  three central          factors weighed overwhelmingly in favor of reopening, whereas the          summary ruling below afforded no apposite rationale for declining          to reopen.   For these  reasons, we conclude that  the refusal to          reopen, resulting  in dismissal of the  Rehabilitation Act claim,          constituted an abuse of discretion.            B.   Discharge of Jury          B.   Discharge of Jury               _________________                    Following  dismissal of  the Rehabilitation  Act claim,          the  district court  discharged  the jury,  over Rivera's  timely          objection,  and assumed the  role of factfinder,  on the mistaken          theory that Rivera had no right to jury trial on her commonwealth          claims.   Puerto Rico litigants do have  a right to jury trial on          their  commonwealth claims  in federal  district court  where the                                          15          court  decides,  as it  did  here, to  exercise  its supplemental          jurisdiction.  See  28 U.S.C.     119, 451; Fed.  R. Civ. P.  1 &                         ___          38(a).  The  fact that  the Puerto Rico  constitution confers  no          parallel  right  to jury  trial on  such  claims is  immaterial.           Thus,  the  three  commonwealth  claims must  be  reinstated  and          remanded for jury trial as well.                     Although  in  the normal  course  we  would proceed  no          further, the  district court  eventually dismissed  several other          claims  on legal  grounds presently  challenged on  appeal.   The          aborted  jury  trial in  this case  lasted  several weeks,  and a          retrial necessarily would entail a further expenditure of consid-          erable judicial resources.  In the interests of judicial economy,          therefore, we briefly discuss the dispositive legal issues likely          to recur on remand.6            C.   Due Process Claim          C.   Due Process Claim               _________________                    The district  court dismissed a federal  claim alleging          that  PRTC violated  Rivera's due  process  rights by  failing to          accord  her a pretermination hearing.  See U.S. Const. amends. V,                                                 ___          XIV;  Cleveland Bd. of Educ.  v. Loudermill, 470  U.S. 532 (1985)                ______________________     __________          (holding that  state may not  discharge public employee,  who has          property right in employment position, without benefit of preter-          mination  hearing).   The  process  "due" Rivera  is  governed by          federal law; her property right  is defined by commonwealth  law.          See Kauffman v. PRTC, 841 F.2d 1169, 1173 (1st Cir. 1988).            ___ ________    ____                                        ____________________               6Of  course, our  vacation  of the  district court  judgment          moots  Rivera's  appellate  challenges  to  the  district court's          findings.                                          16                    The  Puerto Rico workers' compensation statute includes          what  the district  court  described as  a "caducity"  provision:          employers need  hold a disabled  worker's position open  for only          twelve months, after  which they are  not obligated to  reinstate          the worker.   See P.R.  Laws. Ann. tit.  11,    7.  The  district                        ___          court  ruled that Rivera no longer  had a "property right" in her          position  as service  representative  because  more  than  twelve          months had  elapsed between  the time her  job-related disability          began (April 1989) and the time she sought to resume her position          in  December 1991.  We think its  ruling is based on an erroneous          construction of commonwealth law.                    The Puerto  Rico Supreme  Court has delineated  the ap-          plicable standards.   See, e.g., Carron  Lamoutte v. Compania  de                                ___  ____  ________________    ____________          Turismo del Estado Libre  Asociado de Puerto Rico, 92  J.T.S. 27,          _________________________________________________          at 9603 (1992).  A public employee who once acquires a cognizable          "property right" in  her employment position,  and who suffers  a          work-related injury  or  accident and  reports  to the  Fund  for          treatment, has an absolute right to reinstatement to her position          once she is discharged  from the Fund (i.e., from  medical treat-          ment), provided  she seeks reinstatement within  twelve months of                 ________  ___ _____ _____________ ______  ______ ______ __          her injury or  accident.  Id. at 9607.7   If the employee remains          ___ ______ __  ________   ___                                        ____________________               7PRTC urges affirmance on  an alternate ground not presented                                                              ___          to  the district court;  viz., Rivera's  "property right"  in her          position,  unlike that  of PRTC's  managerial employees,  was not          defined by  the commonwealth  statute, Personnel Act,  P.R. Laws.          Ann.  tit. 3,    1301  et seq. (defining  "merit principle" posi-                                 __ ____          tions),  but  only  under  the  collective  bargaining  agreement          between PRTC and  her union.   Mercado Vega v.  Martinez, 692  F.                                         ____________     ________          Supp.  36 (D.P.R. 1988).   PRTC therefore suggests  that the "due          process" cases cited by Rivera are inapposite.  We do not agree.                                          17          under treatment for more than twelve months, however, the employ-                              ____          er acquires the right to dismiss her on the ground that she is no          longer physically  or mentally  capable of performing  her former          work.   Id. at 9608.  Thus,  it is merely the employee's absolute                  ___          right not to be  terminated on account of her  disability, rather          than  her property  interest  in her  employment position,  which          lapses   under  the  one-year  workers'  compensation  "caducity"          provision.                        Once the Commonwealth confers  a "property interest" in          employment, it  cannot take the position away  without abiding by          the dictates of procedural due process.   Id. at 9608-09.  Twelve                                                    ___          months after an employee's accident or injury an employer wishing          to discharge a disabled employee must notify her of its intention          not to keep her position open for reinstatement.  Thus, in Carron                                                                     ______          Lamoutte,  id., where  the  plaintiff-employee  had exceeded  the          ________   ___          twelve-month, post-injury  grace period,  the employer  was still          obligated  to provide advance notice of dismissal and an informal                                        ____________________               State  statutory law is  not the  sole source  of "property"                                                 ____          interests in employment.  See Board  of Regents v. Roth, 408 U.S.                                    ___ _________________    ____          564, 577 (1972) (property interests are created "from an indepen-          dent source such as state law") (emphasis added).  For procedural                      ____ __ _____ ___          due  process  purposes, it  is  well settled  that  an employee's          "property  right" in  her  job may  be  established by  contract.                                                              __  ________          Perry v.  Sindermann, 408  U.S. 593, 601-02  (1972) (noting  that          _____     __________          "'property' interests  subject to procedural due  process protec-          tion  are not  limited  by a  few  rigid, technical  forms  [but]          [r]ather, 'property' denotes a broad range of  interests that are          secured 'by existing rules or understandings,'" including express          or implied contracts) (citations  omitted).  Even the case  cited          by  PRTC so  recognized. See  Mercado Vega,  692 F.  Supp. at  42                                   ___  ____________          (noting that either the Personnel Act  or a collective bargaining                       ______                    __ _ __________ __________          agreement  may give  rise  to a  "property interest"  which would          _________          entitle plaintiff to  "some kind of hearing" consistent  with the          dictates of procedural due process).                                           18          pretermination hearing, at which she would be given the  opportu-          nity to establish, inter  alia, that (i) she  had not been  under                             _____  ____          post-injury  treatment for more than twelve  months;8 or (ii) she          was no longer suffering a disability which would prevent her from          returning to her former position.   Id.; see also  Laborde-Garcia                                              ___  ___ ____  ______________          v. PRTC,  993 F.2d 265,  267-68 (1st  Cir. 1993).   Further,  the             ____          employer is  required to  review the employee's  medical records,          and, after  the pretermination  hearing, to make  express factual          findings on both these  factors.  Carron Lamoutte, 92  J.T.S. 27,                      ____                  _______________          at  9610.   Accordingly, the district  court erred  in dismissing          Rivera's due process  claim on  the ground  that her  right to  a          pretermination hearing lapsed automatically in April 1990.                                        _____________          D.   Commonwealth Constitutional Claim          D.   Commonwealth Constitutional Claim               _________________________________                    Rivera also  challenges the dismissal of  her claim for          damages under P.R.  Const. art. II,    1, 8.   Section 1 provides          that "[t]he dignity of the human being is inviolable."  Section 8          provides  that "[e]very person has the right to the protection of          law against  abusive attacks on  his honor, reputation  or family          life."9   Rivera  essentially argues that  the evidence  that her                                        ____________________               8The  other case relied on by the district court in dismiss-          ing the  due process  claim is  not to the  contrary.   In Torres                                                                     ______          Gonzalez v. Star Kist Caribe, Inc., 94 J.T.S. 5 (1994), the court          ________    ______________________          simply  held  that the  12-month  term during  which  an employee          retains an absolute right to reinstatement is not tolled by those          temporary discharges  from medical  treatment which  simply allow          the employee to return to  work for a brief period of  time.  The          Gonzalez  decision did  not  involve the  procedural due  process          ________          argument settled earlier in Carron Lamoutte.                                       _______________               9The rights  safeguarded by these provisions  of the common-          wealth constitution operate, ex proprio vigore, to make violators                                       __ _______ ______          amenable to tort-damage  awards.  See  Arroyo v. Rattan  Special-                                            ___  ______    ________________                                          19          co-workers  harassed and  insulted her  was sufficient  to demon-          strate affronts to her  "dignity" as a human being,  in violation          of her Section 1 rights.                      The  problem with  Rivera's contention  is fundamental:          at  no point  prior  to this  appeal has  she  alleged that  PRTC          violated Section 1.  In her amended complaint she stated that the          court had jurisdiction over "all claims arising out of violations          to  Section 8, Article II of the Constitution of the Commonwealth              _________          of Puerto Rico." (Emphasis added.)  In the pretrial order, Rivera          did  not  alter this  designation,  even  when PRTC  specifically          characterized it  as a Section 8  claim.  Thus, it  is clear that          the  district court simply dismissed the Section 8 claim for lack          of  proof, making no mention of any  Section 1 claim.10  Finally,          on appeal Rivera does not appear to contest that she failed, as a          matter of law, to prove her Section 8 claim since her co-worker's          insults,  based  primarily on  her  physical  handicap, were  not          probative of damage to her reputation or honor.11          E.   Handicap Discrimination Claim          E.   Handicap Discrimination Claim               _____________________________                    Finally, Rivera challenges the dismissal of her common-          wealth  claim  based  on  handicap discrimination  under  Law  53          (codified at P.R. Laws Ann. tit. 1,   511 (1992)).                                          ____________________          ties, 17 O.T.S. 43, 72 (1986).            ____               10Nor did Rivera file  a motion for reconsideration alerting          the court to her Section 1 claim.               11We express no opinion on whether  Rivera should be allowed          on remand to  amend her pleadings to permit a  Section 1 claim to          be tried  to the  jury.   See Fed.  R. Civ.  P. 15  (amendment of                                    ___          pleadings).                                            20                    In 1959,  the Puerto  Rico Legislature enacted  Law 100          (codified at  P.R. Laws  Ann. tit.  29,     146, 147, 147a,  148,          149), which prohibited  employment discrimination  based on  age,          gender, race, color, social or national origin, social condition,          or  religion, and permitted  persons who  were subjected  to such          discrimination to  bring tort claims  for damages.   However, Law          100 made no mention of employment  discrimination based on physi-          cal or mental handicap.  In 1985, the Legislature enacted Law 44,          which prohibited all public or private institutions from engaging          in  handicap discrimination  in employment,  but limited  the en-          forcement of  the prohibition to  executive branch agencies.   In          1992,  the Legislature enacted Law 53 (codified at P.R. Laws Ann.          tit. 1,    511 (1992)),  which for the  first time provided  that          handicap  discrimination claimants  would have  the  same private          remedies  as claimants under Law 100, including a right of action          for  damages.   The  district court  held,  however, that  Law 53          contained no provision permitting victims of handicap discrimina-          tion to sue for damages until 1992, that PRTC's alleged discrimi-          natory actions antedated the 1992 amendment, and that section 511          could not be applied retroactively to Rivera's claim.                      In Puerto Rico, statutes generally are presumed to have          prospective  effect  only, unless  the  statute  expressly or  by          inescapable inference demonstrates a contrary legislative intent.          See  P.R. Laws. Ann. tit. 31,    3 (no retroactive application of          ___          statutes  absent express retroactivity provision); Velez Rebroyas                                                             ______________          v.  Secretary of Justice, 115  D.P.R. 533 (1984),  15 O.T.S. 700,              ____________________                                          21          712 (1984); accord  Landgraf v. USI Film Prods.,  114 S. Ct. 1483                      ______  ________    _______________          (1994)   (finding that 1990  Civil Rights Act  amendments did not          overcome the presumption of  nonretroactivity).  Rivera points to          no language in  Law 53  which would overcome  the presumption  of          nonretroactivity, nor  have  we found  any  evidence of  such  an          intent in the legislative history.12                     Rivera argues instead that  we should follow the analo-          gous  reasoning of  courts which  have held  that the  1987 Civil          Rights Restoration  Act is  retroactive.   See, e.g.,  Lussier v.                                                     ___  ____   _______          Dugger, 904 F.2d 661,  665-65 (11th Cir. 1990); Ayers  v. Allain,          ______                                          _____     ______          893 F.2d 732, 754-56  (5th Cir.), withdrawn and vacated  on other                                            _________ ___ _______  __ _____          grounds, 914  F.2d  676  (1990).   These  cases  are  inapposite,          _______          however, because that statute  expressly provided that the amend-                                         _________          ments were intended to overturn intervening United States Supreme          Court  decisions,  so  as  to comport  with  Congress's  original          intent.  Law 53 does not suggest in any way  that the Legislature          intended  in 1959  that victims  of handicap  discrimination were          protected by  Law 100,  nor that  it intended in  1985 that  such          victims  would have a private  cause of action  for damages under          Law 44.   Thus, Law 53 is  inapposite to the explicit "clarifica-                                                       ________          tion" in the 1987 Restoration Act.           Finally,      Rivera          contends  that even if Law  53 is not  retroactive, handicap dis-          crimination claimants still had  a vehicle for recovering compen-          satory  damages before  August 1992.   While  Law 44,  enacted in                                        ____________________               12Law 53 establishes an effective date of August 30, 1992, a          provision  which would seem  superfluous were Law  53 intended to          have retroactive effect to then-pending actions.                                          22          1985, did not make  handicap discrimination an injury redressable          in a private  action for damages, the  statute clearly designated          this  type of  discriminatory  conduct a  "culpable  act," and  a          "culpable act" resulting in injury can serve as the predicate for          a suit  for damages under P.R.  Laws Ann. tit. 31,     5141-5142.          Even  if Rivera's  reasoning were  arguable, the matter  is moot.          Her claim under    5141-5142  was not dismissed by the  court; it                                            ___ _________          formed the legal basis for the $90,000 damages award.  On remand,          that claim too must be presented to the jury.13                     The district court judgment is vacated and the case  is                    The district court judgment is vacated and the case  is                    _______________________________________________________          remanded for further proceedings consistent with this opinion.          remanded for further proceedings consistent with this opinion.          _____________________________________________________________                                        ____________________               13We  note a proviso which must  be addressed on remand.  It          is not entirely clear that the application of Law 53 to  Rivera's          complaint would be fully retroactive in effect.  Law 53 expressly          provided that it would  take effect on August  30, 1992.   PRTC's          last  alleged act  of discrimination  against Rivera  occurred on          December 14, 1992, when  it sent its final letter  of termination          to Rivera.  Thus, if the date of Rivera's formal termination were          fixed on that date, damages attributable to the termination might          be actionable under Law 44.                                            23
