USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1660

CELIA SANTIAGO, ET AL.,

Plaintiffs, Appellants,

v.

CANON U.S.A., INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

___________________

____________________

Before

Cyr, Senior Circuit Judge,

____________________

Pieras*, Senior District Judge,

_____________________

and DiClerico**, District Judge.

______________

____________________

Alice Net Carlo for appellants.

_______________
Richard H. Silberberg, with whom Robert G. Manson, Dorsey &
_____________________
________________ ________
Whitney LLP, Jaime E. Toro-Monserrate and McConnell Valdes were on
___________ ________________________
________________

brief for appellee.

____________________

February 20, 1998

____________________

____________________

*Of the District of Puerto Rico, sitting by designation.

**Of the District of New Hampshire, sitting by designation.

CYR, Senior Circuit Judge.

CYR, Senior Circuit Judge.
_____________________

Inc. ( Professional )

from

ing

Professional Microfilm,

and Celia Santiago, its

president, appeal

a district court judgment dismissing their complaint alleg-

that Canon U.S.A.,

Inc. ( Canon )

(i) violated

Rico Dealer Act, P.R. Laws Ann. tit. 10,

nating its

dealership agreement with

vened Santiago's rights under P.R.

discriminating against

gender and, (iii)

husband, see
___

278 et seq., by termi__ ____

Professional, (ii) contra-

Constitution art. II,

Professional

on

account

inflicted mental anguish

P.R. Civil Code Article

trict court judgment.

I
I

the Puerto

1802.

of

1, by

Santiago s

on Santiago and

We affirm

her

the dis-

BACKGROUND
BACKGROUND
__________

Santiago is

the president

of Professional

Microfilm,

Inc., a San Juan company which has retailed micrographic products

for over

ers.

25 years.

Since 1984,

She and her

husband are its sole sharehold-

Professional has contracted

with Canon

as a

nonexclusive distributor of micrographic products in Puerto Rico.

Santiago took over

its management and operation

in 1989.

The following

clusive

distributorship

Canofile

the

year, Professional entered into a nonex-

agreement with

250, an innovative

next three

years Canon

against Professional and

designation

of

from her father

Canon

relating to

the

product.

Over

optical disk filing

initiated

various adverse

Santiago, culminating in 1993

Systronics,

Inc.

as

its

second

actions

with its

nonexclusive

Canofile 250 distributor.1

Professional,

Santiago, and

federal complaint against Canon in

her

husband filed

August 1993.

their

Count 1 alleged

that Canon conducted a "pattern of intentional and discriminatory

conduct impairing the [Canofile 250] dealership" contrary to P.R.

Constitution art. II,

discrimination.

1, which broadly

prohibits gender-based

Count 2 charged that the Systronics designation

constituted an unjustified "impairment" of Professional s

nonex-

clusive Canon distributorship, contrary to the Puerto Rico Dealer

Act.

Count 3 asserted that

ment"

by Canon caused

guish,

abusive conduct and acts of harass-

Santiago "mental suffering,

and humiliation,"

contrary to

P.R.

anxiety, an-

Civil Code

Article

1802.

After Canon moved to dismiss the complaint, see Fed. R.

___

Civ. P. 12(b)(6),2 and the parties submitted documents beyond the

pleadings,

the motion was converted to one for summary judgment.

____________________

1The

complaint also alleges that Canon (1) "interfered" with

Professional's "principal retail client" in

Professional;

(2)

through

its

order to "discredit"

representatives,

used

unidentified "derogatory epithets" against Santiago, "denigrating

her dignity as a woman"; (3) deliberately delayed its delivery of

the Canofile

250 to

Professional until

preventing Professional
market;

(4)

information
Canofile
sales

provided
and

Professional, and
credit

earlier entry

Professional

product

250, thereby

efforts";

from an

November 1991,

with

enhancements

(5)

withheld

into the

incomplete

purchase

(6)

refused, in

with

the

plaintiff's (sic)
orders

placed

falsely alleged that Professional

problems; and

retail

technical

in connection

"adversely affect[ing]

thereby

March

by

had serious

1993, to

provide

Professional with 24 Canofile 250s previously ordered.

2Alternatively, Canon

unsuccessfully sought to

transfer the

case to the United States District Court for the Eastern District
of

New

York

pursuant

dealership agreements.

to the

forum-selection

See 28 U.S.C.
___

1404(a).

clause

in

its

See Fed. R. Civ. P.

___

12(b), (c).

that summary judgment

the

A magistrate

judge recommended

be entered for Canon on

all claims, since

Canofile 250 contract expressly stated that the Professional

dealership

barred

was to

be "nonexclusive;"

extrinsic evidence to

designation

could have

of Systronics as

effected no

the

parol evidence

rule

the contrary; and,

therefore, the

a second Canofile

250 distributor

wrongful "impairment"

under the

Dealer

Act.

Plaintiffs objected to

see P.R.
___

rule does

Local R. 510.2, on

not apply

the report and

the ground that the

to alleged Dealer

recommendation,

parol evidence

Act violations

and that

Canon

made

oral

agreement with

assurances that

its

Canofile

Professional would remain

further complained that

250 dealership

exclusive.

the magistrate judge failed

Plaintiffs

to consider

their gender-discrimination and mental-anguish claims.

The district court endorsed

tion relating

decision

in

to the

Dealer Act

claim, citing

96

F.3d

nonexclusivity provision

Act claim),

10,

16

(1st

impaired

designation

Cir.

in dealership agreement

and dismissed the

mental-anguish claims on three grounds.

not

our intervening

Borschow Hosp. & Med. Supplies, Inc.

_________________________________________

Castillo, Inc.,
_______________

Dealer

the report and recommenda-

1996)

v. Cesar
_____

(holding

dispositive of

gender-discrimination and

First, since Canon

had

its dealership relationship with Professional, its

of

Systronics could

not

have been

an

adverse or

discriminatory

act.

Second,

the Puerto Rico

Supreme Court has

yet to recognize a private cause of action for gender discrimina-

tion under P.R. Constitution art.

assertions

that Canon

II,

engaged in a

conduct,

see supra
___ _____

note

1,

decision

to designate Systronics

1.

Finally,

pattern

were not

broad

of discriminatory

causally

as a second

the

linked to

its

Canofile 250 dis-

tributor in Puerto Rico.

In their motion

P.

59(e), plaintiffs

for reconsideration, see Fed.

___

contended, inter
_____

alia,
____

that even

R. Civ.

if our

Borschow decision did foreclose a Dealer Act claim, the "pattern"

________

of discriminatory actions

engaged in by

its designation of Systronics as

Canon before and

after

a second distributor (e.g., use

____

of derogatory sexual epithets) constituted discrete "impairments"

sufficient to

claim.

serve as

independent bases

The district court denied the

on the ground

plaintiffs

that the issue

for their Dealer

Act

motion for reconsideration

had not been

preserved either

in

opposition to the dispositive motions filed by Canon

or in their objections to the report and recommendation submitted

by the magistrate judge.

court

order dismissing

Plaintiffs now appeal from the district

their complaint and

from its

denial of

their motion for reconsideration.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Dealer Act Claim

The Dealer Act Claim
____________________

Although plaintiffs acknowledge their failure to

in timely fashion

claim

the

discriminatory

raise

as an independent basis for their Dealer Act

contention

conduct

that

both

Canon engaged

before

and

in

a pattern

after the

of

Systronics

designation, they argue

that their waiver should

be excused be-

cause the magistrate judge expressly recognized such a pattern of

conduct in the

therefore

report and recommendation, and the district court

had an independent

novo before adopting

____

duty to

scrutinize the

the report and recommendation,

specific objection under Local Rule 510.2.

The district court

record de
__

even absent

We disagree.

is under no obligation

to discover

or articulate new legal theories for a party challenging a report

and recommendation

issued by

magistrate judge.3

Borden
______

v.

Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987)
__________________________________

( Appellant

was entitled

to a

de novo
__ ____

review by

the district

court of the [magistrate s] recommendations to which he objected,

however he was

never raised. )

not entitled to a

(citation omitted).

Magistrate's Report, at 10

R.

510.2]

failure to

de novo review of
__ ____

precludes

assert a

further

appellate

any right to

F.3d

143,

150-51

(1st

see
___

[P.R. Local

review."),

specific objection to

trict court and the court of appeals.

36

proper notice,

("Failure to comply with

mendation irretrievably waives

McGee,
_____

Given

an argument

a report

party s

and recom-

review by the

dis-

See Henley Drilling Co. v.

___ ___________________

Cir.

1994);

28

U.S.C.

636(b)(1).

Finally, a Rule

59(e) motion is " aimed at reconsid-

____________________

3There is no

record indication that the magistrate judge was

ever alerted to the legal theory belatedly asserted by plaintiffs

in their

motion for

Instead, the
Canon

merely

implied

district court.

magistrate judge mentioned a pattern

as

constitutional and
analysis,

reconsideration before the

background

in

describing

mental-anguish claims.

however,
an awareness

the

magistrate

that

judge

plaintiffs were

In

plaintiffs

the ensuing legal

neither

stated

claiming that

conduct had any bearing on their Dealer Act claim.

of conduct by

nor

such

eration, not

argue a

10,

new legal theory." FDIC

____

16 (1st

affirm

initial consideration, "

Cir. 1992)

the summary

and

may

not be

v. World Univ., Inc.,

_________________

(citation omitted).4

judgment ruling

dismissing

used to

978 F.2d

Accordingly, we

the Dealer

Act

claim.

B.
B.

The Gender-Discrimination and Mental-Anguish Claims

The Gender-Discrimination and Mental-Anguish Claims
___________________________________________________

Plaintiffs challenge the

dismissed their

as

merely

insist

gender-discrimination and

incidental

that they

summary judgment ruling which

to their Dealer

consistently

ceedings below that all of

its Systronics designation

mental-anguish claims

Act claim.

maintained

Plaintiffs

throughout the

Canon s adverse actions

pro-

not merely

evidenced gender discrimination and

contributed

plaintiffs

to their

mental anguish.

view it, even

See
___

supra note
_____

though Canon retained

right to designate Systronics

1.

As

the contractual

as a second distributor,

it could

not exercise that or any other right purely for gender-based rea-

sons

without

violating P.R.

Constitution

art.

II,

1,

and

tortiously inflicting mental anguish upon plaintiffs.

The

magistrate judge and

the district judge converted

the Rule 12(b)(6) motion to a motion for summary judgment without

objection by plaintiffs.

See Fayetteville Investors

___ ______________________

v. Commer_______

cial Builders, Inc., 936 F.2d 1462, 1473 (4th Cir. 1991) (conver___________________

sion

challenges waivable);

Hartford,
________

917 F.2d

____________________

Jones
_____

1528, 1533

n.4

v.

Automobile Ins. Co. Of

_________________________

(11th

Cir. 1990)

(same);

We note, as well, no plain

Servs. Auto. Ass'n,

___________________

79 F.3d 1415,

error.

See Douglass v. United

___ ________
______

1423-24 (5th

Cir. 1996) (en

banc).

Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 390 n.9 (5th Cir.
______________________
______

1985) (same).5

peal, see Brief

___

Nor do plaintiffs challenge the conversion on ap-

for Appellants at 25, 30

(referring to

summary

judgment ); Nieves
______

v. University of P.R., 7 F.3d 270,

___________________

Cir. 1993) (conversion

waivable on appeal); Wright

______

279 (1st

v. Holbrook,
________

794 F.2d 1152, 1156 (6th Cir. 1986) (same).

The summary judgment

tion

rulings on the gender-discrimina-

and mental-anguish claims

with all reasonable

are therefore reviewed

inferences to be

tiffs, the nonmoving parties.

de novo,
__ ____

drawn favorably to

plain-

EEOC v. Green, 76 F.3d 19, 23 (1st

____
_____

____________________

5The original

Canon motion

sought to dismiss

only for failure to state a claim.

Canon attached

pertinent

Digital Equip. Corp.,

_____________________
(noting

that

contracts
requiring
exclusively

written documents
are not

Rule
to

12(b)
its

See Fed. R. Civ. P. 12(b)(6).

___

dealership

82 F.3d

considered

agreements,

1194, 1219-20
integral

to

an

motion for

see
___

(1st

Shaw
____

v.

Cir. 1996)

complaint

matters outside

conversion), and
alternative

the complaint

like

the pleadings

affidavit
change

relating
of

venue.

Although the

parties are

impending conversion, as

entitled to

reasonable

well as an opportunity

material made pertinent to that motion by

P.

notice of
to

an

present all

Rule 56,

Fed. R. Civ.

12(b); Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29-30

_________
______________________

(1st

Cir.

1996),

plaintiffs

the

invited
_______

record

the

conversion.

International Longshoremen Ass n,

_________________________________
1992) (notice
their

clearly

discloses
See
___

that

Chaparro-Febus
______________

983 F.2d

325, 332

of impending conversion need not

Santiago s

sworn
_____

statement,
_________

assertions that Canon had engaged

conduct

violative of

Civil Code

(1st Cir.

be express).

which

In

(nonmovants

art. II,

See Fed. R.
___

and P.R.

Civ. P. 56(e);

David v.
_____

Cir. 1996)

submission of materials outside the pleadings waives

objection to

(1997);

their

in a pattern of discriminatory

P.R. Constitution

Article 1802.

reiterated

City and County of Denver, 101 F.3d 1344, 1352 (10th

__________________________

Grove v.
_____

conversion), cert.
_____

denied, 118
______

Mead Sch. Dist. No. 354, 753

________________________

(9th Cir. 1985) (same).

two months

Rodriguez
_________

v. Fullerton Tires Corp., 115

______________________

(finding

anticipation

of

two

S. Ct.

157

F.2d 1528, 1533

Counting their surreply, plaintiffs

more than

1997)

v.

two succeeding opposition motions, for example, plaintiffs

attached

their

these

to assemble

months

their Rule

adequate to

possible conversion,

or

56 proffer.

F.3d 81,
prepare
move

had

See
___

83 (1st Cir.
materials

for Rule

in

56(f)

extension).

See infra note 10.

___ _____

Cir. 1996).

duced

was in order unless plaintiffs ad-

evidence sufficient to establish each element essential to

their claim

trial.

Summary judgment

as to

which

they would

have borne

See Fed. R. Civ. P. 56(e); Celotex Corp. v.

___
_____________

U.S. 317, 324 (1986); Nieves, 7 F.3d at 279.

______

the burden

at

Catrett, 477
_______

Although

relied in

error

Canon

acknowledges that

upon an

inadequate

constitutional claim, see

___

the

ground in

district court

dismissing

supra Section I, we may

_____

affirm on any

ground supported by the

record, Levy v. FDIC, 7

____
____

(1st Cir.

assuming their constitutional

gender

1993).

discrimination

plaintiffs

whether a

tern

Even

Rule 56

were cognizable

the

F.3d 1054, 1056

under Puerto

claim for

Rico law,6

proffer generated no trialworthy issue as to

gender-based animus motivated

Canon s so-called

pat-

of conduct.

Summary

elusive

judgment

elements as a

non-moving

party

may

be warranted

defendant s motive or

rests

improbable inferences, and

merely

upon

even

as

to such

intent where

conclusory

the

allegations,

unsupported speculation. " DeNovellis

__________

v. Shalala,
_______

ted); see
___

124 F.3d 298,

Pilgrim v.
_______

306 (1st Cir. 1997)

(citations omit-

Trustees of Tufts College, 118

__________________________

870-71 (1st Cir. 1997); Smith

_____

F.3d 864,

v. Stratus Computer, Inc., 40 F.3d

______________________

11, 13 (1st Cir. 1994); Velazquez v. Chardon, 736

_________
_______

F.2d 831, 833-

____________________

6Cf., e.g., Arroyo v. Rattan Specialties, Inc., 117 P.R. Dec.

___ ____ ______
________________________
35,

64-65 (1986) (noting

operate

ex proprio
__ _______

that enunciated

vigore,
______

constitutional rights

permitting individuals

to sue

for

violations). But see Carlton v. Worcester Ins. Co., 923 F.2d 1, 3

___ ___ _______
__________________

(1st Cir. 1991) (party who invokes federal diversity jurisdiction

cannot expect federal court to blaze new trails in state law).

34 (1st Cir.

not prevail

1984).

A plaintiff [claiming

simply by asserting

self-serving conclusion

discriminatory animus.

440, 444 (1st

that the

Coyne v.
_____

discrimination]

an inequity and tacking

defendant was

may

on the

motivated by

City of Somerville, 972

__________________

Cir. 1992) (quoting Correa-Martinez

_______________

F.2d

v. Arrillaga__________

Belendez, 903 F.2d 49, 53 (1st Cir. 1990)).

________

The only

that

unidentified

smoking

Canon

gun

allegation in the

representatives

derogatory epithets denigrating [Santiago s]

uttered

complaint is

unspecified

dignity as a woman

and as

a human being.

elaboration in

neither

the

identity and

a Rule

That bare allegation,

56 proffer, see
___

substance and

capacity

context

of the

parroted without

supra note
_____

of the

5, disclosed

epithets,7

person(s) employing

nor the

them.8

See
___

____________________

7See Speen v.
___ _____
Cir. 1996) (

Crown Clothing Corp.,

____________________

are insufficient, standing alone, to

an employer's discriminatory intent.

F.3d

323,

329

(1st

Cir.

prove

) (citation omitted), cert.

_____

denied, 117 S. Ct. 2457 (1997); Lehman

______
______
74

636 (1st

[I]solated or ambiguous remarks, tending to suggest

animus based on age,

Am.,
___

102 F.3d 625,

v. Prudential Ins. Co. of

______________________
1996)

(same);

Alexis
______

v.

McDonald s Restaurants of Mass., Inc., 67 F.3d 341, 348 (1st Cir.

_____________________________________
1995) (suggesting that remarks should be

[v]iewed in context

to

determine if animated by discriminatory intent); see also Woodman

___ ____ _______
v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir.
_________________
that proponent must show that hearsay statements
within the scope of

1995) (noting

concern matters

[declarant s] agency or employment ) (citing

Fed. R. Evid. 801(d)(2)(D)).

8The identity of the speaker often is crucial to ascertaining

not only intent but any causal connection between the
the alleged adverse
e.g.,
____

action directed against the plaintiff.

the workplace

. .

appropriate to discount "stray

. ,

statements by

itself") (citation omitted); Betkerur

________
1079,

discounted

1095 (6th
the

Cir. 1996)

discriminatory

non-decisionmakers. ).

10

remarks

nondecisionmakers, or

statements by decisionmakers unrelated to the

F.3d

See,
___

Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 616 (1st Cir.

___________
_______________

1996) (noting that it is

in

remark and

decisional process

v. Aultman Hosp. Ass n, 78

___________________

( [T]he lower
remarks

court properly
.

by

Jones v.
_____

Merchants Nat'l Bank &

Trust Co. of Indianapolis, 42
___________________________________________________

F.3d 1054, 1059 (7th Cir. 1994) ("'The object of [Fed. R. Civ. P.

56(e)] is not

or

to replace conclusory allegations of the complaint

answer with conclusory allegations of an affidavit. ") (cita-

tion omitted).

At summary

judgment, the district

court cannot accept

on faith conclusory assessments by claimants that unspecified and

unattributed epithets

alone

were

derogatory

and

demonstrated discriminatory intent.

at 871 (noting

evidence

that plaintiff s

denigrating,

See Pilgrim, 118 F.3d

___ _______

[subjective] perception

of discriminatory intent,

hence

let

not enough

is not

to with-

stand summary judgment ); Correa-Martinez, 903 F.2d at 53 (noting

_______________

that, even at the Rule 12(b)(6) stage, plaintiff may not

'subjective

characterizations

Douglass v.
________

United Servs. Auto. Ass'n, 79 F.3d 1415,

__________________________

Cir.

(en banc)

1996)

employee's

( It

is

(citation omitted);

. well

settled

rest on

see
___

also
____

1430 (5th

that

an

subjective belief that he suffered an adverse employ-

ment action as

a result of discrimination, without

more, is not

enough to survive a summary judgment motion, in the face of proof

showing an adequate nondiscriminatory reason. ).9

The counterproffer from Canon

representation

that

Professional

micrographic products distributor

____________________

makes the uncontroverted

remains its
_______ ___

sole
____

in Puerto Rico.

authorized
__________

Thus, before

9Nor did
supporting

the plaintiffs

proffer competent Rule

their allegation,

that Santiago was

based

the only woman

on information
___________

56 evidence

and belief,
___ ______

heading a Canon

dealership in

by Canon could be

attributed to

the United States.

11

the alleged

gender

only

pattern of conduct

discrimination, one rationally would need to question not

why Canon

dealer in

retained Professional

micrographic

products, and

as its

one

sole

of two

Puerto Rico

Puerto

Rico

dealers in

Canon optical disk

entered into the

with Santiago

filing products, but also

October 1990 Canofile 250

in the
__ ___

first place.
_____ _____

these conflicting proffers the trier

the

facially
________

nondiscriminatory
_________________

In

why it

dealership agreement

our judgment, based

on

of fact could not find that

conduct

engaged

in

by

Canon

actually was motivated by gender discrimination except by resort______ __ _______

ing to rank speculation.10

___ __ ____ ___________

Finally, the Rule 56 proffer on the mental-anguish tort

claim

under

Plaintiffs

P.R.

Civil

Article

1802 fares

were required to establish that in

measure the[ir] health,

affected,

Code

no

better.

some appreciable

welfare and happiness . .

. were really

Ruiz-Rodriguez v. Colberg-Comas, 882 F.2d 15, 17 (1st

______________
_____________

____________________

10Plaintiffs further contend that the district court erred in

denying

them

an

opportunity

granting summary judgment.

discretion.

motion

continuance nor

for

56(f).

none.

at *7

litigant who

of

the

asserting the
failure to
aid. ).
crucial

supporting

Dec. 22,

Civil

Procedure

to file

need for

timely

further

deficiencies in
a need

affidavit with

plaintiffs

plain

56 proffer

which Canon

for

the

court

have

held,

waiver, the

simply are

not

especially since

representatives uttered

sex-based epithets, as well as their substance and context.

12

will ordinarily bar belated

for further discovery,

presumably knew

As we

the

upon

precipitate a demand

discovery.

their Rule

56(f) of

specifically calls

by too

Second, notwithstanding

plaintiffs

the

affidavit required

1997)] ( Rule

resort to such first aid

attributable to

37, 50 (1st

Cir. 1997) [No. 97-1783, 1997 WL

feels prejudiced

judgment

abuse of

See Springfield Terminal Ry. Co. v. Canadian

___ _____________________________
________

(1st Cir.

Federal Rules

before

First, plaintiffs neither filed

Pac. Ltd., __ F.3d __, __ (1st

__________

summary

discovery

See Mills v. State of Maine, 118 F.3d

___ _____
_______________
We find

775553,

undertake

We review only for manifest

Cir. 1997).

under Rule

to

Cir. 1989) (quoting

Moa v. Commonwealth, 100

___
____________

(1972)), and they experienced

and [not merely] a passing

Lines, Inc.,
____________

708

F.

deep moral suffering and anguish,

affliction,

Supp.

P.R.R. 572, 585-86

470,

de Jesus v. Eastern Air

________
___________

472

(D.P.R.

Hernandez v. Fournier, 80 D.P.R. 94, 104 (1957)).

_________
________

turn

fered;

upon an evaluation

(2) its

Lopez-Nieves v.

duration;

of: (1) the

and

(3)

Marrero-Vergel, 939

1989)

(citing

These showings

severity of the pain

its

mental

F. Supp.

suf-

consequences.

124, 126

(D.P.R.

____________

______________

1996).11

Plaintiffs offered only their conclusory assertion that

Santiago and her husband

have been exposed to

anxiety, anguish and humiliation,

tion, cf.
___

Cruz v. Molina,
____
______

(court sitting as

with no independent corrobora-

788 F.

Supp. 122, 129

trier of fact rejected

rated testimony of mental anguish,

nor

since

had he

consulted a

any emotional

primarily

from the

representatives,

to

where he was not a physician,

as to the substance of

note 11.

plaintiffs presumably

alleged use of

and

(D.P.R. 1992)

plaintiff s uncorrobo-

physician); supra
_____

injury

mental suffering,

sex-based epithets

plaintiffs offered no

Moreover,

resulted

by Canon

competent evidence

the epithets, a rational factfinder would

have no

evidentiary basis

remarks were

type of

for determining

likely to have

whether the

caused Santiago or her

deep moral suffering and anguish

alleged

husband the

required under Article

____________________

11Since plaintiffs cited no cases defining the mental-anguish

standard, and
to

filed no reply brief

these district

deciding,

that

court

the

cited

challenging Canon s citation

decisions, we
decisions

commonwealth standard.

13

simply assume,
describe

the

without

applicable

1802.

See DeNovellis, 124 F.3d at 306 (nonmovant cannot

___ __________

merely upon

conclusory allegations,

improbable inferences,

unsupported speculation. ") (citation omitted).

Affirmed.
Affirmed.
________

rest[]

and

14