Gonzalez-Pina v. Guillermo-Rodriguez

United States Court of Appeals
For the First Circuit

No. 04-1603

ERNESTO GONZÁLEZ-PIÑA,

Plaintiff, Appellant,

v.

JOSÉ GUILLERMO RODRÍGUEZ,
Mayor of the City of Mayagüez; City of Mayagüez,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,
and Carter,* Senior District Judge.

Israel Roldán-González, on brief, for appellant.
Juan Rafael González-Muñoz, with whom González-Muñoz Law
Offices, Glorianna S. Hita-Valiente, Carlos E. López-López and
Llovet Zurinaga & López, PSC, were on brief, for appellees.

May 11, 2005

*
Of the District of Maine, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-appellant Ernesto

González-Piña ("González") brought suit against the Municipality of

Mayagüez and its Mayor, José Guillermo Rodríguez, (collectively

"Defendants"), under 42 U.S.C. § 1983, the First Amendment, the Due

Process Clauses of the Fifth and Fourteenth Amendments, and various

state laws, as a result of political discrimination. González

alleged that after his earlier suit against Defendants and his

subsequent reinstatement, Defendants have consistently denied his

reclassification to a higher position and have given him no

meaningful duties. The district court granted summary judgment for

Defendants, finding that some of González's allegations were barred

by collateral estoppel and that the remaining facts, if credited,

were insufficient to support a prima facie case of political

discrimination. The court also denied González's subsequent motion

for reconsideration on the basis of new evidence. González appeals

both decisions, and after careful review, we affirm.

I. Background

On September 22, 1997, the parties settled González's

initial political discrimination suit in open court. The parties

failed to file written stipulations of their settlement agreement;

thus, the court entered judgment with reference to the terms

stipulated in open court.

The settlement agreement obliged the municipality to pay

González $61,200 in back pay, including benefits, and to appoint

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him to a new career position with a salary "for which he qualifies

which will never be less than $1,400 monthly." In turn, González

agreed to retire upon completion of thirty years of service, which

he estimated to be within two years of the settlement date. The

Municipality subsequently appointed González to a new position as

Executive Officer I with a $1,500 monthly salary.

On February 5, 1998, González petitioned for Defendants

to be held in contempt for failing to comply with the terms of the

settlement agreement. González alleged, in relevant part, that

Defendants refused to appoint him to the position and salary for

which he qualified: Executive Officer VII.

A magistrate judge denied González's motion for contempt

on August 20, 1998. In his Report and Recommendation, the

magistrate judge found that Defendants had substantially complied

with the terms of the settlement agreement by appointing González

to Executive Officer I. González did not object to the Report and

Recommendation, which the district court adopted on September 10,

1998. González-Piña v. Rodríguez, No. 95-1527 (D.P.R. Sept. 11,

1998) ("González-Piña I"). No appeals were taken from that

judgment.

González filed the instant case on August 2, 2001,

alleging § 1983, due process, and state law violations. In a

nutshell, Defendants allegedly (1) failed to appoint him to a

position and salary commensurate with his qualifications, and (2)

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harassed and deprived him of duties and responsibilities. These

actions, González alleged, were done in retaliation for his support

of the Mayor's opponent during the 1994 primaries.

Defendants moved for summary judgment on April 25, 2003.

Shortly thereafter, on May 12 and May 15, Defendants announced two

new witnesses. González filed a motion opposing summary judgment

on May 16, and Defendants replied on May 22. The parties deposed

the new witnesses on July 23, 2003, but neither party raised the

evidence gleaned from these depositions during the pendency of the

summary judgment motion.

On August 7, 2003, the district court issued an Opinion

and Order granting summary judgment for Defendants. First, the

court found that res judicata did not bar González's claims to the

extent that they were based on new conduct occurring after his

return to work. However, González's claims regarding Defendants'

failure to employ him at a higher position -- in alleged violation

of the settlement agreement -- were held barred by collateral

estoppel. This issue had been fully and finally litigated in

González-Piña I, which determined that the Executive Officer I

position, which had a salary greater than $1,400 per month,

complied with the settlement agreement. Moreover, the court found

that equity weighed in favor of collateral estoppel's application,

as González failed to object to the magistrate judge's finding and

the district court's adoption of that finding.

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 Second, the court held that González's remaining claims

-- harassment and lack of work -- were not supported by sufficient

evidence to establish a prima facie case of political

discrimination in violation of the First, Fifth or Fourteenth

Amendment. In so holding, the court found, inter alia, that (1)

González admitted that he did not request duties or appraise the

Human Resources Director or the Mayor of his lack of duties, (2)

González failed to specify who made comments to him that he was

viewed as a problematic employee and was not to have access to his

employment information, and (3) González failed to link the Mayor

to any of the alleged discriminatory practices. Since González

failed to provide sufficient evidence for the court to infer that

political discrimination was a substantial or motivating factor in

his treatment, the court granted summary judgment for Defendants.

On August 18, 2003, González filed a motion to

reconsider, pursuant to Federal Rules of Civil Procedure 59(e) and

60(b)(2), based on new evidence from the July 23, 2003 deposition

of defense witnesses. A deposition witness, who temporarily served

as González's supervisor, apparently stated that González told her

that he had no assignments and had nothing to do in the office.

The witness also indicated, in a somewhat confused exchange with

counsel, that González had not been assigned tasks between 1999 and

2000, but was assigned tasks in 2000. The court denied the motion

to reconsider on March 31, 2004.

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 González appeals, arguing that the district court erred

in (1) applying res judicata and collateral estoppel, (2)

determining that he failed to establish a prima facie case of

political discrimination, and (3) denying his motion to reconsider

based on new evidence. We address these issues in turn.

II. Analysis

A. Res Judicata and Collateral Estoppel

González first argues that the district court erred in

applying res judicata and collateral estoppel in dismissing his

political discrimination claims. We disagree.

Res judicata is an issue of law over which this court

exercises plenary review. Pérez-Guzmán v. Gracia, 346 F.3d 229,

233 (1st Cir. 2003). Under this doctrine, "a final judgment on the

merits of an action precludes the parties or their privies from

relitigating claims that were raised or could have been raised in

that action." Breneman v. United States ex rel. F.A.A., 381 F.3d

33, 38 (1st Cir. 2004) (citation omitted). Specifically, res

judicata applies when the following exist: "(1) a final judgment on

the merits in an earlier proceeding, (2) sufficient identicality

between the causes of action asserted in the earlier and later

suits, and (3) sufficient identicality between the parties in the

two actions." Id. This doctrine, also known as claim preclusion,

serves the purpose of "reliev[ing] parties of the cost and vexation

of multiple lawsuits, conserv[ing] judicial resources, and . . .

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encourag[ing] reliance on adjudication." Id. (quoting Allen v.

McCurry, 449 U.S. 90, 94 (1980)).

Here, the district court allegedly erred in applying res

judicata because the instant allegations of political

discrimination involve subsequent conduct, and thus lack

"sufficient identicality of causes of action" with the earlier

suit. Specifically, González argues that Defendants' post-

reinstatement harassment and failure to assign work constitute

"[s]ubsequent conduct, [that,] even if it is of the same nature as

the conduct complained of in a prior lawsuit, may give rise to an

entirely separate cause of action." Kilgoar v. Colbert County Bd.

of Educ., 578 F.2d 1033, 1035 (5th Cir. 1978) (internal quotation

omitted). On this point, we agree, and apparently so did the

district court, which found that "González's claim of political

discrimination is not precluded on new conduct occurring after his

return to the Municipality." González-Piña v. Rodríguez, 278 F.

Supp. 2d 195, 201 (D.P.R. 2003). González simply misunderstood the

district court's holding on res judicata, which was correct as a

matter of law. See, e.g., Walsh v. Int'l Longshoremen's Ass'n, AFL

CIO, Local 799, 630 F.2d 864, 873 (1st Cir. 1980) (recognizing that

res judicata did not bar "subsequent conduct [that] was broader and

more farreaching than the conduct which led to the original

complaint").

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 Neither do we find fault in the court's collateral

estoppel analysis. Collateral estoppel, like res judicata, is an

issue of law which we review de novo. Faigin v. Kelley, 184 F.3d

67, 78 (1st Cir. 1999). To establish collateral estoppel, the

following factors must be met:

(1) an identity of issues (that is, that the
issue sought to be precluded is the same as
that which was involved in the prior
proceeding), (2) actuality of litigation (that
is, that the point was actually litigated in
the earlier proceeding), (3) finality of the
earlier resolution (that is, that the issue
was determined by a valid and binding final
judgment or order), and (4) the centrality of
the adjudication (that is, that the
determination of the issue in the prior
proceeding was essential to the final judgment
or order).

Id. In short, collateral estoppel, also known as issue preclusion,

"'means simply that when a[n] issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again

be litigated between the same parties in any future lawsuit.'"

Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir. 2003) (quoting Ashe

v. Swenson, 397 U.S. 436, 443 (1970)).

In the instant case, the district court correctly

concluded that all of González's claims regarding inadequate pay or

position, as well as any other claim of noncompliance with the

settlement agreement, are precluded by collateral estoppel. As a

result of González's contempt petition, the magistrate judge --

whose findings were adopted by the district court and were not

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appealed -- held that Defendants substantially complied with the

settlement agreement. Specifically, the judge found that the

Executive Officer I position at $1,500 per month salary satisfied

the settlement agreement's terms: a position with a salary "which

will never be less than $1,400 monthly." Since this issue of

ultimate fact has been determined by a valid and final judgment,

the court correctly foreclosed relitigation of this issue and any

of its derivatives under collateral estoppel, even if framed under

a different cause of action.1

We therefore affirm the district court's holding on res

judicata and collateral estoppel.

B. Sufficiency of Evidence

González further argues that the court erred in granting

summary judgment for Defendants due to his failure to establish a

1
We note that the court may have gone too far in barring under
collateral estoppel any evidence of González's failed attempts to
be reclassified to higher positions. While the prior adjudication
on the settlement agreement would preclude claims that the failure
to promote González to a higher position or salary violated the
agreement, it is unclear whether it would preclude a separate claim
of discrimination for, as an example, failure to promote González
to a position for which a less-qualified applicant was hired.
There appears to be no identity of issues in such a case, since the
former pertains to compliance with the settlement agreement, while
the latter pertains to discriminatory promotion practices.
Nonetheless, the contractual nature of the settlement agreement may
have bound González to accept any position that met its minimal
requirements. As the magistrate judge noted, "the stipulated terms
do not specify or require that plaintiff be appointed to a position
in accordance with his academic background and/or experience."
Moreover, since González failed to raise this argument on appeal,
we deem it waived. See, e.g., García-Ayala v. Lederle Parenterals,
Inc., 212 F.3d 638, 645 (1st Cir. 2000).

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prima facie case of political discrimination under the First

Amendment. This argument also fails.

We review grants of summary judgment de novo, viewing all

facts in the light most favorable to the nonmoving party and

granting all reasonable inferences in that party's favor. See,

e.g., Torres v. E.I. Dupont Nemours & Co., 219 F.3d 13, 18 (1st

Cir. 2000). Such judgments will be upheld "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The

nonmoving party "must present definite, competent evidence to rebut

the motion," Mesnik v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991); otherwise, "summary judgment may be appropriate if the

nonmoving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation," Rivera-Cotto

v. Rivera, 38 F.3d 611, 613 (1st Cir. 1994) (internal quotation

omitted). "The mere existence of a scintilla of evidence" in the

nonmoving party's favor is insufficient to defeat summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

It is beyond peradventure that the First Amendment

protects "non-policymaking" public employees from adverse

employment actions based on their political affiliation or opinion.

See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 74-76

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(1990); Mercado-Alicea v. P.R. Tourism Co., 396 F.3d 46, 51-52 (1st

Cir. 2005). To establish a prima facie case of political

discrimination, plaintiffs must first show that party affiliation

was a substantial or motivating factor behind an adverse employment

action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977); see also Mercado-Alicea, 396 F.3d at 51. In

political discrimination claims involving changed work conditions,

this court has held that plaintiffs must establish by clear and

convincing evidence that their work situation is "unreasonably

inferior" to the norm, and then persuade, by a preponderance of the

evidence, that political affiliation motivated the adverse

employment action. See Agosto-de-Feliciano v. Aponte-Rogue, 889

F.2d 1209, 1217-20 (1st Cir. 1989) (en banc).2 The burden then

2
Subsequent to Agosto-de-Feliciano, the Supreme Court held that
certain deprivations less harsh than dismissal -- "promotions,
transfers, and recalls after layoffs based on political affiliation
or support [--] are an impermissible infringement on the First
Amendment rights of public employees." Rutan, 497 U.S. at 75. In
so holding, the Court noted that any adverse action against public
employees, no matter how minor, infringes First Amendment rights.
See id. at 76, n.8 ("[T]he First Amendment . . . already protects
state employees not only from patronage dismissals but also from
even an act of retaliation as trivial as failing to hold a birthday
party for a public employee . . . when intended to punish her for
exercising her free speech rights") (internal quotation marks and
citation omitted). Thus, we have questioned whether Rutan
effectively overruled Agosto-de-Feliciano, particularly its so-
called "changeover" defense. See Rodríguez-Pinto v. Tirado-
Delgado, 982 F.2d 34, 42 (1st Cir. 1993) (Torruella, J.,
concurring). Although subsequent First Circuit decisions do not
regard Rutan as necessarily foreclosing the "unreasonably inferior"
standard of Agosto-de-Feliciano, they leave unresolved any conflict
in such standard. See, e.g., Acosta-Orozco v. Rodríguez-de-Rivera,
132 F.3d 97, 101 (1st Cir. 1997); Ortiz García v. Toledo Fernández,

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shifts to the employer, under the "Mt. Healthy defense," to

establish by a preponderance of the evidence that it would have

taken the contested action regardless of the employee's political

affiliation. Mt. Healthy, 429 U.S. at 287.

In the instant case, we recognize that González

identified more specific facts of adverse employment action than

perhaps suggested by the district court. In his deposition,

González indicated (1) that he was given no assignments between his

post-settlement reinstatement in February 1998 and February 2000;

(2) that he had complained to the Finance Director about his lack

of duties and was told that they were tired of his constant

communications; (3) that a Human Resources employee complained

about his constant visits; (4) that a recently vacated position was

eliminated shortly after he submitted his application for that

position; and (5) that he was refused access to his personnel

files. The Mayor, in his deposition, also stated that although

González had approached him about his lack of duties, he had no

time to read employee complaints and act on them because of his

mayoral duties. We find that these facts are specific enough to

amount to more than a "mere scintilla" of evidence. See Liberty

Lobby, 477 U.S. at 252.

-- F.3d --, 2005 WL 894470 at *5, n.4 (1st Cir. Apr. 19, 2005).
Nonetheless, since any such conflict has no impact on our holding,
we save that question for another day.

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 We need not decide, however, whether González established

such "unreasonably inferior" conditions. Since González failed to

show that the adverse employment decisions were motivated by

political animus, this ends our inquiry. We agree with the

district court's finding that González failed to link defendant

Mayor to any of the alleged discriminatory practices. See

González-Piña, 278 F. Supp. 2d at 205. The only assertion

regarding the Mayor personally is that González attempted to speak

with him at a Christmas party and was told that they had nothing to

talk about. Id. at 206. González presents no corroborating

evidence that the alleged events took place or were related to his

lack of political support for the Mayor or the earlier suit, or

were in any other way motivated by political animus. González's

support for a rival mayoral candidate in the primary, even if the

Mayor was aware of such support, is by itself insufficient to

establish political animus. See, e.g., Padilla-García v. Guillermo

Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000) (a showing of political

animus "requires more than merely 'juxtaposing a protected

characteristic -- someone else's politics -- with the fact that

plaintiff was treated unfairly'") (citation omitted).

In the absence of any evidence of political motivation,

González cannot meet his burden to show a prima facie case of

political discrimination. We therefore affirm on this issue.

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C. New Evidence

After the district court entered summary judgment for

Defendants, González filed an unsuccessful Rule 60(b) Motion for

Relief from Judgment based on "newly discovered evidence." Fed. R.

Civ. P. 60(b). Since we find no abuse of discretion by the

district court, we affirm.

"[R]elief under Rule 60(b) is extraordinary in nature

and . . . motions invoking that rule should be granted sparingly."

Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002). We

will not overturn denials of such motions unless "a miscarriage of

justice is in prospect or the record otherwise reveals a manifest

abuse of discretion." Ruiz-Rivera v. Riley, 209 F.3d 24, 27 (1st

Cir. 2002); see also Appeal of Sun Pipe Line Co., 831 F.2d 22, 25

(1st Cir. 1987) ("We have repeatedly held that, once the ball has

ended, the district court has substantial discretion in deciding

whether to strike up the band again in order to allow the losing

party to argue new material or a new theory.").

Rule 60(b) provides that a "court may relieve a party

. . . from a final judgment, order, or proceeding" based on, inter

alia, "newly discovered evidence which by due diligence could not

have been discovered in time . . . ." Fed. R. Civ. P. 60(b)(2).

Under this rule, a party moving for relief from summary judgment

must persuade the district court that it meets all of the following

Mitchell requirements: "(1) the evidence has been discovered since

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the trial; (2) the evidence could not by due diligence have been

discovered earlier by the movant; (3) the evidence is not merely

cumulative or impeaching; and (4) the evidence is of such a nature

that it would probably change the result were a new trial to be

granted." U.S. Steel v. M. DeMatteo Const. Co., 315 F.3d 43, 52

(1st Cir. 2002) (citing Mitchell v. United States, 141 F.3d 8, 18

(1st Cir. 1998). Although the movant in the instant case seeks

relief from summary judgment rather than a trial, the "standard for

relief under Rule 60(b)(2) is equally applicable to evidence

discovered after a summary judgment." U.S. Steel, 315 F.3d at 52

n.9.

Here, the fact that the depositions and the evidence

discovered therein were taken fourteen days prior to summary

judgment quickly disposes of this issue: it fails the first

Mitchell requirement that the evidence be discovered after the

district court's entry of summary judgement. See also U.S. Steel,

315 F.3d at 52 (finding that a party is not entitled to relief

under Rule 60(b)(2) where it possessed records containing evidence

prior to the summary judgment hearing but failed to review them).

This requirement is closely related to the second Mitchell

requirement of due diligence. "[A] party who seeks relief from a

judgment based on newly discovered evidence must, at the very

least, offer a convincing explanation as to why he could not have

proffered the crucial evidence at an earlier stage of the

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proceedings." Karak, 288 F.3d at 19-20. We find no convincing

explanation in this case. González was aware of the deposition's

contents by July 23, 2003, and also knew that a summary judgment

motion has been pending against him for several months. Yet for

fourteen days, he failed to bring evidence gleaned from the

depositions to the court's attention, and instead prepared for jury

selection that was to begin on August 8, 2003.

González nonetheless attempts to salvage his failure to

satisfy Mitchell by proffering an equitable argument: that the

depositions were agreed upon by both parties. We find no case law

providing for such an exemption, and could conceive of no

compelling reason to do so now. "Equity, after all, ministers to

the vigilant, not those who slumber upon their rights." Sandstrom

v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990). Although the

parties' agreement to the deposition might have given González

cause to believe that the summary judgment would not be acted upon,

he nonetheless possessed the information and could have informed

the court.

Since González failed to meet his burden of proving the

first and second Mitchell criteria, we find no abuse of discretion

in the district court's denial of his Rule 60(b)(2) motion.

The district court's judgments are affirmed.

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