United States Court of Appeals
For the First Circuit
No. 09-1769
EMMA VELÁZQUEZ RODRÍGUEZ; RICARDO RÍOS,
Plaintiffs, Appellants,
v.
MUNICIPALITY OF SAN JUAN; JORGE SANTINI, Mayor of San Juan, in
his official and personal capacities; ZENAIDA DÍAZ, former
Assistant to the Mayor of San Juan, in her official and personal
capacities; JOHN DOE; JANE DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Leval,* and Thompson,
Circuit Judges.
Carlos M. Sánchez La Costa for appellants.
Ricardo Pascual-Villaronga, with whom Mercado & Soto, PSC was
on brief, for appellee Municipality of San Juan.
Michael Craig McCall, with whom Eliezer Aldarondo-Ortiz and
Aldarondo & López Bras, PSC were on brief, for appellee Jorge
Santini.
Antonio Montalvo Nazario, with whom Ángel A. Valencia-Aponte
was on brief, for appellee Zenaida Díaz.
October 20, 2011
*
Of the Second Circuit, sitting by designation.
THOMPSON, Circuit Judge.
PRELUDE
As Ricardo Ríos tells it, his professional life as a
purchasing officer for the municipality of San Juan became a
nightmare when Jorge Santini became San Juan's mayor in 2001. Ríos
is an ardent supporter of the Popular Democratic Party (PDP).
Santini belongs to a rival political party, the New Progressive
Party (NPP). So does Zenaida Díaz, Ríos's one-time supervisor.
Santini, Díaz, and other NPP operatives there pursued a purely
political vendetta against him, Ríos says, doing things like
diminishing his responsibilities, paying him less than similarly
situated colleagues, taunting him about his colon cancer, and
menacing him with strange comments and gestures – e.g., during a
May 2006 political rally Santini screamed at Ríos, "You are alone
and I am going to cut your head off," and then ran a finger across
his throat, which led Ríos to file a complaint with the police.
Building to a crescendo, Ríos contends that NPP-clique members
falsely accused him of disciplinary infractions as a trumped-up
excuse to fire him in July 2006 for his political leanings and for
his speaking out on matters of public concern (e.g., his telling
others about Santini's sub-par job performance and the frightening
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encounter at the May 2006 rally) – making sure, of course, to rig
the pre-termination hearing to reach a predetermined conclusion.1
As Santini and Díaz tell it, Ríos was a nightmare
employee – a vulgar person who routinely humiliated and terrorized
coworkers and supervisors alike, by word and action. Arrogant and
defiant, Ríos, they say, lied through his teeth about Santini's
shouting and throat-slashing motion at the May 2006 rally. Ríos,
not Santini, was the real villain, they insist. Giving Santini the
middle finger, Ríos yelled, "You are going down." No one bought
Ríos's story, they quickly add, because, after an investigation,
prosecutors found no reason to charge Santini with anything. Ríos
had a record of disciplinary problems as long as the proverbial
arm, but everyone always treated him above-board, all the way
through the pre-termination hearing and firing – or so their
argument goes.
PROCEEDINGS
Convinced that he had been let go because of his PDP
membership and his exercise of free-speech rights, Ríos and his
domestic partner, Emma Velázquez Rodríguez, filed this federal-
court suit under 42 U.S.C. § 1983.2 Having apparently lived
1
A commissioner on the municipality's Commission to Resolve
Complaints and Personnel Affairs ("commission" for short) ran the
hearing.
2
Pertinently, the statute provides that "[e]very person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State . . ., subjects, or causes to be subjected, any
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together since 2000, the two consider themselves married for all
intents and purposes, though no one has officially married them.
No party has made anything of this, and so we follow their lead,
treating her claims as derivative of his and referring to him as if
he were the only plaintiff.
Skipping over non-essentials, Ríos first sued the
municipality, Santini, and two unnamed defendants in April 2007,
alleging that his dismissal offended the First Amendment – a catch-
all covering Count 1's claims of political harassment,
discrimination, and retaliation. He also alleged that his firing
infracted the Fourteenth Amendment – an umbrella encompassing Count
2's procedural-due-process and Count 3's equal-protection claims.
Invoking the district court's supplemental jurisdiction, he also
asserted claims arising under local law in Counts 4 (negligence)
and 5 (retaliatory employment discrimination). He later filed a
notice voluntarily dismissing that complaint without prejudice,
which the district judge noted in June 2007. See Fed. R. Civ. P.
41(a)(1).
In August 2007 Ríos filed a second complaint, which was
identical in all relevant respects to the first. He then amended
citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured . . . ." Puerto Rico is
a "State" and a municipality is a "person" for § 1983 purposes. On
the first point, see Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 n.6 (1st Cir. 2008). On the second, see Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 (1978).
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that complaint in January 2008, adding Díaz as a defendant and a
separate free-speech-retaliation count against all defendants.
That count became Count 2, with the old Count 2 renumbered 3, the
old Count 3 renumbered 4, and so on.
A word about Ríos's pleading style is appropriate. As
pled, the political-retaliation component of Count 1 pivots off his
contention that defendants fired him to retaliate for (a) his
political affiliation and (b) his protected-speech activity.
Allegation (a) is subsumed in Count 1's political-discrimination
claim. Allegation (b) is subsumed in Count 2's free-speech-
retaliation claim. See generally Mercado-Berrios v. Cancel-
Alegría, 611 F.3d 18, 22-26 (1st Cir. 2010) (discussing the
elements of each claim). And that is how we will deal with these
allegations. See generally Alpine Bank v. Hubbell, 555 F.3d 1097,
1107-08 (10th Cir. 2009) (explaining that courts cannot "rely
solely on labels in a complaint" but instead must "probe deeper and
examine the substance") (quoting Minger v. Green, 239 F.3d 793, 799
(6th Cir. 2001)) (internal quotation marks omitted); Minger, 239
F.3d at 799 (stressing that "the label which a plaintiff applies to
a pleading does not determine the nature of the cause of action
which he states") (quoting United States v. Louisville & Nashville
R. Co., 221 F.2d 698, 701 (6th Cir. 1955)) (internal quotation
marks omitted); 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1286, at 748-50, 758 (3d ed. 2004)
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(noting that courts must "make a determined effort to understand
what the pleader is attempting to set forth and to construe the
pleading in his or her favor, whenever the interest of justice so
requires," adding too that "[a] pleading will be judged by the
quality of its substance rather than according to its form or
label") (footnotes omitted).
Now on to the rulings at issue here. After some
discovery, the parties moved for summary judgment – Ríos on the
due-process claim, and Santini, the municipality, and Díaz on the
entire gamut of federal and state claims. The judge denied Ríos's
motion and granted the defendants'. His reasoning ran this way:
Ríos complains about events that happened between January
2001 or so (when Santini became mayor) and July 2006 (when Ríos got
fired), which triggered a statute-of-limitations protest from
Santini and the municipality. A § 1983 claim is a federal claim,
but the limitations period is drawn from state law – here, Puerto
Rico's one-year statute of limitations for personal-injury actions.
See, e.g., Centro Medico del Turabo, Inc. v. Feliciano de Melecio,
406 F.3d 1, 6 (1st Cir. 2005). State-law tolling provisions apply
too (unless they clash with federal interests, which is not the
case here). See, e.g., Rodríguez-García v. Municipality of Caguas,
354 F.3d 91, 100 (1st Cir. 2004). Under Puerto Rico law, the
filing of a lawsuit tolls the limitations period. See, e.g.,
Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 407 (1st Cir. 2009)
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(discussing P.R. Laws Ann. tit. 31, § 5303). If the plaintiff
voluntarily dismisses the suit without prejudice, the limitations
clock resets and "run[s] anew from th[at] date." See Rodríguez-
García, 354 F.3d at 96-97; accord Rodríguez, 570 F.3d at 407.
Also, the earlier suit will toll the limitations period as to a
later-filed suit if the two suits allege "identical" causes of
action. See, e.g., Rodríguez, 570 F.3d at 409. And tolling a
statute of limitations against one defendant tolls it against all
"solidarily liable" defendants – "solidarily liable" is a civil-law
concept that is a close cousin to the common-law doctrine of "joint
and several liability." Tokyo Marine & Fire Ins. Co., v. Pérez &
Cía., de Puerto Rico, Inc., 142 F.3d 1, 4 & n.1 (1st Cir. 1998).
Above and beyond all that, there is the continuing-violations
doctrine, which (to oversimplify slightly) lets one put off suing
until a series of acts by the future defendant "blossoms" into a
wrongful "injury on which suit can be brought." Pérez-Sánchez v.
Public Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (quoting
Morales-Tañon v. Puerto Rico Elec. Power Auth., 524 F.3d 15, 18
(1st Cir. 2008)) (internal quotation marks omitted). One of the
best examples happens to be a hostile-work-environment case "based
on the cumulative effect of individual acts," none of which is
necessarily actionable on its own, that reveals itself over time,
not "discrete discriminatory acts" that occur on a "particular
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day." See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113,
115 (2002).
Applying these principles, the judge concluded that
Ríos's causes of action had to have arisen from events occurring
between April 2006 and April 2007.3 Given this range, only claims
tied to Ríos's May 2006 run-in with Santini and his later firing
survived, the judge ruled. Ríos could not use the continuing-
violation doctrine to get other events in beyond the limitations
period, the judge added – each complained-of act was a separate
actionable wrong. And Ríos's free-speech-retaliation count – which
he unveiled for the first time in his January 2008 amended
complaint – fell because it failed the identicality requirement
when measured against his earlier, voluntarily-dismissed suit.
As for the merits, the judge tossed the political-
discrimination and -harassment claims, finding that Ríos presented
no evidence that Santini (a) knew Ríos's political affiliation, (b)
abused Ríos or encouraged or tolerated Ríos's abuse, or (c) had a
hand in Ríos's firing. And the judge jettisoned the equal-
protection claim because it was just a rehash of the failed First
Amendment claims. The judge then rejected the procedural-due-
process claim, ruling that the summary-judgment record disclosed no
evidence of Santini's meddling with the termination process. Given
3
Because Ríos does not quibble with how the judge reached
that result, we need not get into every single aspect of the
judge's analysis.
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that Santini could not be liable under § 1983, the judge saw no
basis for holding Díaz solidarily liable. The judge also rejected
any suggestion that the January 2008 amended complaint – which
added Díaz as a defendant – related back to the original complaint
and, thus, under Fed. R. Civ. P. 15, cured any statute-of-
limitations problems. And, finally, because Santini could not be
held liable for § 1983 violations, the judge saw no reason for
holding the municipality liable either. So, wrapping up, the judge
denied Ríos's summary-judgment motion on the procedural-due-process
claim, granted the defendants' motions on that and the other
federal-law claims, and dismissed the supplemental state-law claims
without prejudice. He dismissed the unnamed parties from the case
too.
The judge later declined to reconsider his decision,
rejecting (among other things) Ríos's bid to fix a serious problem:
Ignoring the court's local rules,4 Ríos had submitted Spanish-only
versions of two affidavits with his summary-judgment papers. When
he tried to file the required certified English translations with
his motion to reconsider, the judge called the effort too little
and too late.
4
See D.P.R. L.Civ.R. 10(b) (now appearing as D.P.R. L.Civ.R.
5(g)).
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ANALYSIS
Ríos (with his wife) now appeals, presenting a profusion
of issues. After getting rid of several of them up front, we take
on what remains, mindful of the standards of review that apply.
For starters, we review summary judgment de novo, construing the
record and all reasonable inferences drawn from it in the light
most favorable to the nonmoving party. See, e.g., Hernandez-Loring
v. Universidad Metropolitana, 233 F.3d 49, 51 (1st Cir. 2000). Of
course, the ground rules for summary judgment leave "no room for
credibility determinations, no room for the measured weighing of
conflicting evidence such as the trial process entails, no room for
the judge to superimpose his own ideas of probability and
likelihood (no matter how reasonable those ideas may be)" on the
cold pages of the record. Greenburg v. Puerto Rico Mar. Shipping
Auth., 835 F.2d 932, 936 (1st Cir. 1987). Also, that multiple
parties cross-moved for summary judgment on Ríos's procedural-due-
process claim does not affect this protocol in the slightest. See,
e.g., D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co., 640
F.3d 27, 34 (1st Cir. 2011) (explaining that the district judge
must assess each motion separately, drawing inferences against each
moving party in turn, and that we must still exercise de novo
review). Next, we analyze the motion-to-reconsider issue for abuse
of discretion. See, e.g., Ruiz Rivera v. Pfizer Pharm., LLC, 521
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F.3d 76, 81 (1st Cir. 2008). When all is said and done, we affirm
in part, reverse in part, and remand for new proceedings.
Waiver
It should go without saying that we deem waived claims
not made or claims adverted to in a cursory fashion, unaccompanied
by developed argument. See Tejada-Batista v. Morales, 424 F.3d 97,
103 (1st Cir. 2005) (stressing that "[a]n argument not seriously
developed in the opening brief" is lost); see also Grigous v.
Gonzáles, 460 F.3d 156, 163 (1st Cir. 2006); Canto v. Concord
Hosp., Inc., 265 F.3d 79, 81-82 (1st Cir. 2001). And we consider
waived arguments "confusingly constructed and lacking in
coherence." United States v. Eirby, 515 F.3d 31, 36 n.4 (1st Cir.
2008). Judges are not mind-readers, so parties must spell out
their issues clearly, highlighting the relevant facts and analyzing
on-point authority. See United States v. Bongiorno, 106 F.3d 1027,
1034 (1st Cir. 1997); see also Rodríguez v. Señor Frog de la Isla,
Inc., 642 F.3d 28, 39 (1st Cir. 2011); Rodríguez-García v. Miranda-
Marín, 610 F.3d 756, 766 n.10 (1st Cir. 2010), cert. denied, 131 S.
Ct. 1016 (2011); Janeiro v. Urological Surgery Prof'l Ass'n, 457
F.3d 130, 143 n.9 (1st Cir. 2006). And they must give us the "raw
materials" (transcripts spring quickly to mind) so that we can do
our work, or they may lose as a consequence. See, e.g., Rodríguez,
642 F.3d at 37 (citing Campos-Orrego v. Rivera, 175 F.3d 89, 93
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(1st Cir. 1999), and Moore v. Murphy, 47 F.3d 8, 10-12 (1st Cir.
1995)).
Ríos's handling of his equal-protection, political-
harassment, and continuing-violation claims falls short of
satisfying these requirements. Sure, he uses some buzzwords and
insists that the judge stumbled in ruling on these claims. But he
provides neither the necessary caselaw nor reasoned analysis to
show that he is right about any of this. He offers no cases on the
equal-protection issue. He gives us one off-point case on the
political-harassment question, but he cites no evidence that
Santini instigated or knowingly tolerated the harassment, and he
makes no effort to show that the harassment was substantial enough
to support a § 1983 claim. He points to a smattering of cases on
the continuing-violation topic and contends that the evidence shows
a series of discriminatory acts, but he does not clearly specify
what this series was. What he has done "is hardly a serious
treatment of . . . complex issue[s]" and is not sufficient to
preserve these points for review, Tayag v. Lahey Clinic Hosp.,
Inc., 632 F.3d 788, 792 (1st Cir. 2011) – certainly not when his
"brief presents a passel" of other issues, United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (per curiam). See also United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (warning that it
is not enough for litigants to mention arguments "in the most
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skeletal way, leaving the court to do counsel's work"). The upshot
is that these claims are waived.
Ríos does no better with his procedural-due-process
claim, for this reason: He did not give us a complete English
translation of the commission proceedings, which we would need to
help decide whether process misfired here. So he loses this aspect
of his appeal. See, e.g., Rodríguez, 642 F.3d at 37; Tejada-
Batista, 424 F.3d at 103.
Similar problems affect Ríos's attempt to undo the
summary-judgment ruling for Díaz. He suggests that Díaz is
solidarily liable, which, again, is a rather complex tolling
concept in Puerto Rico law. See, e.g., Rodríguez, 570 F.3d at 406-
13. But he devotes only a single sentence in his opening brief to
the issue, which simply asserts that he "tolled the statute of
limitations" by suing "parties (including the Municipality)
solidarily liable with Appellee Díaz." He does not explain how
that concept works generally or how it works here. The net result
is that this issue is waived. See, e.g., Town of Norwood v. Fed.
Energy Reg. Comm'n, 202 F.3d 392, 404-05 (1st Cir. 2000)
(emphasizing, yet again, that "developing a sustained argument out
of . . . legal precedents is the job of the appellant, not the
reviewing court").
Finally, Ríos does not challenge the judge's decision
dismissing the unnamed defendants from the suit. Consequently, we
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need say no more about that as well. See, e.g., United States v.
Slade, 980 F.2d 27, 30 n.3 (1st Cir. 1992).
We move along, then, to the non-waived issues.
Summary Judgment
(a) Political Discrimination
The First Amendment shields public employees from
"political" firings, unless, of course, "partisan considerations
are a legitimate requirement for the position in question."
Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 594 (1st Cir.
2011). No one argues that Ríos's ex-job came within that
exception, so we continue on. A plaintiff like Ríos must show that
political affiliation was a substantial or motivating factor in his
ouster. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); Peñalbert-Rosa, 631 F.3d at 594.
If he does, then the burden shifts to the defendants to show that
they would have made the same decision regardless of his political
ties – a defense familiarly known as the Mt. Healthy defense.
Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 74 (1st Cir.
2000) (discussing Mt. Healthy, 429 U.S. at 287).
Ríos insists that the defendants drummed him out of
municipal service because of his PDP affiliation. Despite what the
district judge thought, Santini knew about Ríos's PDP membership,
Ríos says – a point driven home by Santini's ranting at Ríos during
the May 2006 political rally that "[y]ou are alone and I am going
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to cut your head off" (something others besides Ríos testified they
heard and saw too). Ríos was a politically isolated target under
Santini, Ríos quickly adds – that was the gist of Santini's
harangue. And, the argument continues, hot on the heels of this
nasty affair, Santini and the NPP got Ríos fired to retaliate for
his not being an NPPer.
Not so fast, the defendants say. Santini did not know
Ríos, did not know his party affiliation, and did not say or do
what Ríos claims he said and did at the May 2006 political event.
And assuming solely for summary-judgment purposes that Santini
hollered at Ríos, "You are alone and I am going to cut your head
off," and then, on top of that, made a throat-slashing motion with
his finger, Santini and the municipality contend that none of this
had anything to do with politics. At worst, what Santini
supposedly said and did, they insist, simply amounted to a threat
to physically assault Ríos.
We are not persuaded. Consider the context. Viewing the
record and all reasonable inferences drawn from it in the light
most flattering to Ríos, we see that some of Ríos's higher-ups knew
he was a PDP member. His co-workers knew too. The political
atmosphere there was highly partisan. And Ríos was on the wrong
side. Special aide Díaz drove that point home, calling him the
"isolated Popular" (recall that the first "P" in PDP stands for
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"Popular"). Not to be outdone, executive officer Miguel Orta
called him that "fucking Popular."5
Fast-forward to the May 2006 political rally. A
tumultuous clash between the NPP-controlled legislature and the
PDP-governor in Puerto Rico led to a government shutdown. Rallying
to the NPP's cause, Santini held an all-night vigil near the
governor's mansion. A good crowd showed up. Politicians were
milling about. Partisanship was in the air, clearly. Santini
spotted Ríos. And then he allegedly made the you're-alone and I'm-
gonna-cut-your-head-off comments. Given the group at the scene, a
rational finder of fact could infer, quite easily, that Santini was
not saying that Ríos was simply hanging out alone at the rally.
Actually, Santini's you're-alone statement is eerily similar to
Díaz's politically-charged gibe about Ríos's being the "isolated
Popular" at work. From all this, a rational factfinder could infer
that Santini knew Ríos and Ríos's politics, which were on the outs
with the ruling NPP. As if more were needed, another witness to
the jeers Santini directed at Ríos at the rally also heard Santini
tell his escort that "he," meaning Ríos, is "thick-headed, like
limited here in his capacity" – which certainly suggests that
Santini knew Ríos. And a level-headed factfinder could deduce from
5
These incidents apparently fall outside the limitations
period. But they can be used as "background evidence" to support
Ríos's timely claims. See, e.g., Tobin v. Liberty Mut. Ins. Co.,
553 F.3d 121, 142 (1st Cir. 2009) (citing, with another case,
Morgan, 536 U.S. at 113).
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this set of events that Santini wanted Ríos gone from his office –
that is the plainly-inferable message behind Santini's I'm-gonna-
cut-your-head-off tirade, i.e., that Santini was bent on
eliminating Ríos's job with the municipality as an act of political
payback.
This brings us to the multifaceted question of whether
political affiliation was a substantial or motivating factor behind
Ríos's firing and if so whether Santini participated in that
decision. See, e.g., Ocasio-Hernández v. Fortuño-Burset, 640 F.3d
1, 13-14 (1st Cir. 2011); Peñalbert-Rosa, 631 F.3d at 594-95.
Interpreting the record favorably to Ríos, we answer yes to the
first part, given the facts and inferences that we just noted – not
the least of which is Santini's administration's putting the
termination process into high gear a mere two days after Santini's
menacing outburst at Ríos. See Peñalbert-Rosa, 631 F.3d at 594
(noting that "[w]hile there may have been some reason independent
of political party for the firing, the opposite inference may be
drawn from," among other things, "the timing of the discharge").6
6
Santini and the municipality cite a handful of cases that
they say show how insufficient Santini's statements are when it
comes to proving political discrimination. See, e.g., Nieves-
Luciano v. Hernández-Torres, 397 F.3d 1, 6 n.7 (1st Cir. 2005);
Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23, 38-39 (1st Cir.
2004), vacated and remanded on other grounds, 546 U.S. 1163 (2006);
Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 3-4, 7-8 (1st Cir.
2000). Their effort fails, however. The statements deemed
inadequate there – a mayor's saying that he wanted to "clean
house," Vázquez-Valentín, 385 F.3d at 38, or "clean the house of
NPP employees," Nieves-Luciano, 397 F.3d at 3, or "most NPP
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We answer yes to the second part too, though it is a close call.
Puerto Rico law gives mayors like Santini the ultimate
authority over municipal hiring and firing decisions. See P.R.
Laws Ann. tit. 21, § 4109(o). Hoping to avoid the rather obvious
implications of this, Santini makes much of the fact that he had
delegated to others the power to formulate charges against and to
dismiss municipal employees. Done way back in 2002 (well before
Ríos lost his job), these delegations were on the up-and-up,
Santini quickly adds. See id. § 4109(x) (discussing the mayor's
right to delegate certain "powers, functions and duties that are
conferred by this subtitle"). And those on the receiving end of
Santini's delegations, Maritza Aguilar Jusino and Jorge Colomer
Montes, filed affidavits saying that they neither consulted with
nor took instructions from him concerning Ríos's termination.
But Santini testified at his deposition that he did not
"normally participate" in the termination "process." "Normally"
does not mean "always," of course. See Walker v. Exeter Region
Coop. Sch. Dist., 284 F.3d 42, 45 (1st Cir. 2002). And, giving all
reasonable factual inferences to Ríos, Santini's statement leaves
employees," Figueroa-Serrano, 221 F.3d at 4 – were too
"generalized" to satisfy plaintiffs' summary-judgment burden.
Nieves-Luciano, 397 F.3d at 6 n.7 (citing Figueroa-Serrano, 221
F.3d at 8). Taking all of the particulars detailed above in the
light most sympathetic to Ríos – e.g., Santini's person-specific
threat to Ríos, tinged with the promise of political reprisal and
sparked by an intense anti-PDP atmosphere at work and at the rally
– we do not think that that is a problem here.
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open the possibility that he did participate in Ríos's firing – an
inference that stands out in bold relief, given that Santini does
not point us to any place in the massive summary-judgment record
where he personally denied participating in Ríos's dismissal.
Also, to the extent that this justifiable inference butts up
against Aguilar's and Colomer's affidavits, that simply shows that
a triable issue of fact exists as to Santini's participation.7
See, e.g., Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 206 (1st
Cir. 2006).
We summarize concisely. As we have said many times,
"[s]ummary judgment is not a substitute for the trial of disputed
factual issues." Walgren v. Howes, 482 F.2d 95, 98 (1st Cir. 1973)
(quoting 10 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2712, at 379 (1971)) (internal quotation
marks omitted). And eyeing the record here in the light most
agreeable to Ríos, we see a genuine dispute about material facts –
i.e., an actual controversy over facts that might affect the case's
outcome under the governing law. See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Consequently, we reverse
the grant of summary-judgment on the political-discrimination
claim.
7
Neither Santini nor the municipality advances a Mt. Healthy
defense here, and we see no reason to say anything more on that
subject.
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(b) Free-Speech Retaliation
Ríos also faults the judge for concluding that Puerto
Rico's tolling laws did not save the free-speech-retaliation count,
which first appeared in the January 2008 amended complaint.
Captioned "Violation of Free Speech Guaranteed by the First
Amendment," Count 2 of the January 2008 amended complaint alleged
that Ríos "denounced the death threat" from Santini and criticized
Santini's policies – speech that involved "matters of public
concern," overshadowed any "countervailing governmental interest in
promoting the efficient performance of public service," and was a
"motivating factor" in his termination. To Ríos's way of thinking,
a constellation of non-time-barred events reflected in his April
2007 complaint "clearly" points to a kindred "free speech claim."
And that, he says, makes the April 2007 complaint and the January
2008 amended complaint functionally identical for tolling purposes,
despite what the judge held. Ríos has a point, and it is a winning
point too.
Puerto Rico's identicality requirement has three
essentials: the causes of action must seek the same type of
relief, "be based on the same substantive claims," and, generally
speaking, "be asserted against the same defendants in the same
capacities." Rodríguez-García, 354 F.3d at 98. Ríos asked for the
same basic type of relief in both complaints. And both complaints
allege the same basic substantive free-speech-retaliation claims
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too. True, the April 2007 complaint is not emblazoned with the
phrase "free speech" count like the January 2008 amended complaint.
But one can readily infer free-speech-retaliation claims from the
facts pled in the April 2007 complaint. There, Ríos discussed
Santini's bizarre acts at the May 2006 political rally, explained
how he complained to the police about them, stressed how the
municipality gave notice of its intent to fire him days later, and,
finally, accused the defendants of punishing him for making
statements "protected under the First Amendment." Also, Ríos
alleged that he exercised his free-speech rights to speak out on
other matters of public concern, "including, but not limited to,"
Santini's shoddy work as mayor, particularly when it came to
keeping the city clean, adding that the defendants retaliated
against him for doing just that. All of this parallels what he
alleged in the January 2008 amended complaint. As for the
identicality-of-parties requirement, Ríos pressed these claims
against the municipality and Santini in both complaints, and he
sued Santini in the same capacities in both suits – which put them
on notice of his claims and allows us to check off this last
factor. See id. at 100.
The bottom line is that the judge erred in scrapping
Count 2 of the January 2008 amended complaint on lack-of-
identicality grounds. But because we may affirm summary judgment
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on any basis supported in the record, see, e.g., Pure Distrib.,
Inc. v. Baker, 285 F.3d 150, 156 (1st Cir. 2002), we soldier on.
As a fallback, Santini and the municipality contend here
– as they did below – that the undisputed facts entitle them to
judgment as a matter of law on the free-speech-retaliation claim.
To establish free-speech retaliation, a plaintiff like Ríos must
show that he spoke as a citizen on a matter of public concern, that
his interest in speaking outweighed the government's interest, as
his employer, in promoting the efficiency of the public services it
provides (an inquiry known as Pickering balancing, see Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968)), and that his speech was a
"'substantial or motivating factor'" in his firing. See, e.g.,
Foote v. Town of Bedford, 642 F.3d 80, 82-83 (1st Cir. 2011)
(quoting Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007)); see
also Díaz-Bigio v. Santini, 652 F.3d 45, 51-52 (1st Cir. 2011).
Santini and the municipality argue like this: (a) Ríos presented
zero evidence that Santini had anything to do with the firing,
which is a reprise of the delegation point. (b) Ríos also could not
show that Santini knew that Ríos had criticized his sanitation
policies. And (c) Ríos could therefore not show that his speech
played a substantial or motivating role in his dismissal.8 This
argument fails.
8
Neither Santini nor the municipality crafts any argument
bearing on the Pickering-balancing requirement, and we see no
reason to delve into that matter.
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We have already explained why their delegation argument
falters. True, they are spot-on in saying that the record does not
show that Santini heard about Ríos's trash-collection carping.9
But that does not matter. After all, the core of Ríos's free-
speech-retaliation claim has two parts, as everyone seems to agree:
his sanitation critique and his reporting Santini's threat to the
police. Interestingly, Santini and the municipality intimated
below that Santini did not know what Ríos had said to the police.
But the summary-judgment record contains evidence supporting
Santini's knowledge of what Ríos had told the authorities – e.g.,
a witness to the Santini/Ríos incident said that a prosecutor had
interviewed him with Santini's lawyers present; and Santini himself
admitted that he knew Ríos had filed a complaint, that he had
directed an attorney to look into the matter, and that he had been
briefed on the situation too. Ultimately, this evidence undoes the
line of reasoning that they pursue here.
Perhaps sensing their vulnerability on this issue,
Santini and the municipality attack Ríos's account on several
fronts. But their complaints basically go to Ríos's credibility,
and credibility is best resolved at trial rather than at the
summary-judgment stage. See, e.g., Sensing v. Outback Steakhouse
9
Ríos testified at his deposition that Díaz was there when he
grumbled publically about Santini's not keeping San Juan clean.
That, however, is too slim a reed to support any suggestion that
Santini knew about this particular beef, and Ríos gives us no real
basis to conclude otherwise.
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of Fla., LLC, 575 F.3d 145, 163 (1st Cir. 2009); Velázquez-García
v. Horizon Lines of P.R., Inc., 473 F.3d 11, 17-18 (1st Cir. 2007);
Walgren, 482 F.2d at 98. For summary-judgment purposes, the judge
had to assume "the credibility of [Ríos's] evidence as forecast,"
Greenburg, 835 F.2d at 936 (quoting Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979)) (internal quotation marks
omitted); accord Hernandez-Loring, 233 F.3d at 51, and he erred by
not doing that.
With these arguments out of the way, Santini and the
municipality's position on the free-speech-retaliation claim
collapses. And so we reverse the judge's grant of summary judgment
on this claim too. See Pure Distrib., Inc., 285 F.3d at 158.
(c) Relation Back
Turning back to Díaz, Ríos's Rule-15(c) argument – that
the January 2008 complaint adding Díaz related back to the original
complaint and so got him around any limitations obstacles – is a
non-starter. To satisfy the rule, Ríos had to show (among other
things) that Díaz "should have known that the action would have
been against [her], but for a mistake [on Ríos's part] concerning
the proper party's [Díaz's] identity." Fed. R. Civ. P.
15(c)(1)(C)(ii); see also Krupski v. Costa Crociere S.p.A., 130 S.
Ct. 2485, 2493-99 (2010) (discussing in meticulous detail how the
rule works). Ríos has not explained what mistake he made on the
proper-party front, nor has he explained how Díaz should have known
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that he would have sued her in the first place but for his
unidentified mistake – again, Díaz was Ríos's supervisor, and he
certainly knew her role in the alleged harassment. Cf. Krupski,
130 S. Ct. at 2494-96. He has not met his burden and so can find
no refuge under the rule.
(d) Municipal Liability
Ríos has shown that a reasonable jury could find a loss
of First Amendment rights premised on political discrimination and
free-speech retaliation. But not every loss of a constitutional
right triggers municipal liability under § 1983. See, e.g.,
Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (discussing,
among other cases, Monell, 436 U.S. at 691, 692). Quite the
contrary. Liability only attaches where the municipality causes
the deprivation through "an official policy or custom." Welch v.
Ciampa, 542 F.3d 927, 941 (1st Cir. 2008). One way of establishing
a policy or custom is by showing that "a person with final
policymaking authority" caused the supposed constitutional injury.
Id. at 941, 942 (adding that municipal liability may turn on a
single illegal act by an official possessing final policymaking
authority over the relevant subject matter).
Like other mayors in Puerto Rico, Santini has final
policymaking authority for municipal employment generally. See
Rodríguez-García, 610 F.3d at 770. Again, the record shows that
trialworthy issues exist concerning Santini's role in depriving
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Ríos of his right to be free from unconstitutional political
discrimination and free-speech retaliation – which means the record
supports municipal liability on these two theories of
constitutional injury too. See id. And to that extent, summary
judgment for the municipality was inappropriate.
Reconsideration
Ríos's contends that the judge erred by not accepting
late-filed English translations of two Spanish-language affidavits
that he had submitted with his motion for reconsideration. Citing
Fed. R. Civ. P. 60(b)(1), he chalks up his untimely filing of the
required English versions to a "mistake due to inadvertence." But
he has not convinced us that his mistake comes within the class of
mistakes the rule exists to fix, and we see nothing indicating that
the judge abused his considerable discretion in ruling as he did.
See Ruiz Rivera, 521 F.3d at 81.
Local-Law Claims
One loose ends remains. Having rejected Ríos's federal-
law claims, the judge opted to relinquish jurisdiction over the
supplemental local-law claims without deciding whether they are
tenable. Our vacating the dismissal of two federal-law theories
(political discrimination and free-speech retaliation) against
Santini and the municipality erases the basis for that ruling.
Consequently, we vacate the order forsaking jurisdiction over the
local-law claims against these two defendants as well, see, e.g.,
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Ríos-Colón v. Toledo-Dávila, 641 F.3d 1, 5 (1st Cir. 2011), though
the judge can reassess this aspect of the case on remand, see,
e.g., 28 U.S.C. § 1367(c)(1), (2), and (4); Pejepscot Indus. Park,
Inc. v. Maine Cent. R.R. Co., 215 F.3d 195, 206 (1st Cir. 2000).
FINALE
Our decision leads us to affirm the judge in every
respect except this: we vacate the grant of summary judgment for
Santini and the municipality on the political-discrimination and
free-speech-retaliation claims, and we vacate the dismissal of the
state-law claims against them too.
Affirmed in part, vacated in part, and remanded for
further proceedings consistent with this opinion. Costs to Díaz
only.
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