Ortiz García v. Toledo Fernández

United States Court of Appeals
For the First Circuit

No. 04-1175

SONJI A. ORTIZ GARCÍA,

Plaintiff, Appellant,

v.

FERNANDO TOLEDO FERNÁNDEZ, FRANCISCO APONTE,
CARMEN OLIVER, ALMA HERNÁNDEZ, LUIS RIVERO CUBANO,
all in their official and personal capacities and the Legal
Partnership of the married defendants,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Rafael Sanchez Hernandez was on brief for appellants.
Isabel Rodríguez Casellas with whom Sanchez-Betances & Sifre,
P.S.C. was on brief, for appellees.

April 19, 2005
 Per Curiam. In this political discrimination case,

plaintiff-appellant Sonji A. Ortiz García appeals the district

court’s award of summary judgment in favor of defendants-appellees

Fernando Toledo Fernández, Francisco Aponte, Carmen Oliver, Alma

Hernández and Luis Rivera Cubano. We affirm.

Ortiz asserted a claim that she was subject to working

conditions so unreasonable as "to cause reasonably hardy

individuals to compromise their political beliefs and associations

in favor of the prevailing party." Agosto-De-Feliciano v. Aponte-

Roque, 889 F.2d 1209, 1217 (1st Cir. 1989). She also claimed that

political discrimination led to a denial of a promotion and being

subjected to unwarranted discipline. As best as we can understand,

Ortiz's appeal focuses on the inferior working conditions and

unwarranted discipline claims.1

We recite the relevant facts in the light most favorable

to Ortiz. See Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 4

(1st Cir. 2000). Ortiz is a career employee in the Puerto Rico

Department of Agriculture’s Market Inspection Office, where she

holds the position of Agronomist IV. In that office, agronomists

are specialists in agriculture, specifically land and cattle

1
The appellant's brief was particularly confused, making it
difficult for the court to identify Oritz's appellate claims. We
have read the brief liberally but, to the extent that Oritz sought
to include claims which we have not considered, she has waived
them. See United States v. Zannino,895 F.2d 1, 17 (1st Cir. 1990).

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sciences. Ortiz began working at the Market Inspection Office as

an Agronomist I in 1993, became a career employee there in 1994,

and was promoted to the position of Agronomist IV in 1997. Ortiz

is an active member of Puerto Rico’s New Progressive Party (“NPP”).

In 1998, she left her Agronomist IV position to hold various trust

positions for the NPP, which was in power at the time.

In November 2000, Sila María Calderón, a Popular

Democratic Party (“PDP”) candidate, was elected Governor of Puerto

Rico. Ortiz subsequently resigned from her trust position and was

reinstated to her career position as Agronomist IV in January 2001.

The alleged discrimination began immediately after she was

reinstated. Defendants are all members of the PDP and work either

directly in the Market Inspection Office or at the Department of

Agriculture.

Shortly after her reinstatement as an agronomist, Ortiz

received a letter informing her that she would be required to

prepare statistical reports for the whole office. She wrote three

letters to defendant Toledo (the Secretary of the Department of

Agriculture) to complain about the assignment, arguing that the

report writing would force her to perform the functions of a data

entry clerk. Soon thereafter, some of the report writing was

redistributed to other agronomists.

During the same time period, Ortiz was also told that she

would do field activities only once a week while other agronomists

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had daily field responsibilities. In addition, her decisions were

undercut by lower-ranking office members. And while Ortiz oversaw

certain inspectors, she did not supervise other agronomists. This

responsibility was given to lower-ranking employees.

Soon after Ortiz began work in 2001, another agronomist,

Julia Santa, was reclassified from Agronomist III to Agronomist

Supervisor. When an additional supervisory position became

available, Ortiz applied but another individual was selected.

According to Ortiz, between seven and nine PDP-affiliated

agronomists were reclassified to higher positions when the PDP took

power.2

In May 2002, disciplinary action was taken against Ortiz

for leaving the workplace without authorization and for writing a

false travel order. Ortiz has averred that she left the workplace

to participate in official charitable activities, and she claimed

that the disciplinary action was in contravention of agency

regulations and customary practice.

At the conclusion of discovery, defendants moved for

summary judgment on the political discrimination claims. The

district court awarded summary judgment on two grounds. First, the

court found that there was no genuine issue of material fact as to

whether the deprivations suffered by Ortiz were severe enough to

2
Ortiz has not developed a discriminatory failure-to-promote
claim but presents this evidence to bolster her showing of
discriminatory treatment in her own Agronomist IV position.

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establish an “unreasonably inferior” work environment. Second, the

court decided that Ortiz did not provide sufficient evidence to

establish a prima facie case of discriminatory animus.3

We review the grant of summary judgment de novo. See

Figueroa-Serrano, 221 F.3d at 4. To succeed on her work

environment claim, Ortiz has to show, by clear and convincing

evidence, that she was subjected to an unreasonably inferior

environment.4 Agosto-de-Feliciano, 889 F.2d at 1217-20. If that

burden is met, Ortiz has to show that her political affiliation was

a substantial factor in the establishment of the unreasonably

inferior work environment. See id. at 1218-20. If she makes this

prima facie showing, the burden shifts to the defendants to show

that they would have acted in the same way regardless of Oritz's

3
Ortiz also brought a due process claim which the district
court rejected. Ortiz does not develop an argument challenging
this ruling on appeal.
4
We have questioned, without resolving, the extent to which
Agosto-de-Feliciano's "unreasonably inferior work environment"
standard applies after the Supreme Court's decision in Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990). See Acevedo-Garcia
v. Vera-Monroig, 204 F.3d 1, 12 (1st Cir. 2000) ; Nerida-Gonzalez
v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993). But we have
offered a rationale for retaining the "unreasonably inferior rule"
in cases such as this. See Acosta-Orozco v. Rodriguez-de-Rivera,
132 F.3d 97, 101 n.5 (1st Cir. 1997) ("We do not regard [Rutan] as
necessarily foreclosing something like the 'unreasonably inferior'
rule for personnel actions short of demotions or transfers."). In
any event, this case was argued before the district court and this
court on the ground that Agosto-de-Feliciano provides the governing
standard. We will therefore assume arguendo that this standard
applies.

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political affiliation. See Mount Healthy Sch. Dist. v. Doyle, 429

U.S. 274, 286-87 (1977).

Ortiz’s inferior work environment claim falters at the

threshold. To establish her claim, Ortiz must identify evidence

from which a factfinder could conclude that her job is

“unreasonably inferior to the norm for the position.” Agosto-de-

Feliciano, 889 F.2d at 1220. To determine whether an environment

is unreasonably inferior, a factfinder should “canvass the specific

ways in which the plaintiff’s job has changed.” Id.; see also

Rivera-Ruiz v. Gonzalez-Rivera, 983 F.2d 332, 335 (1st Cir. 1993).

Ortiz argues that she was forced to endure an unreasonably inferior

work environment because she lost certain benefits (including a

parking space and personal telephone); was assigned tasks

unsuitable for an Agronomist IV; and received less favorable

treatment than other employees.

Ortiz’s evidence of mistreatment is insufficient to meet

the demanding requirement for an unreasonably inferior work

environment claim. First, in this situation a parking space and a

personal telephone are perquisites. Of the twenty employees at the

Market Inspection Office, four had parking spots, and three had

phones on their desks. Ortiz's job description says nothing to

indicate that she had a right to them or a need for them. The

deprivation of such perquisites ordinarily does not support an

inference of an “unreasonably inferior” work environment.

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See Agosto-de-Feliciano, 889 F.2d at 1219 (“An employee who has

lost merely the ‘perks’ of his position--for example, the best

office or secretary in the agency, unlimited telephone access or

unusually minimal oversight--would not meet the ‘unreasonably

inferior’ standard.”).

Second, there is no evidence of substantially changed

working conditions. Ortiz’s account of her job assignments fits

squarely within the job description of an Agronomist IV. Further,

while Ortiz held the Agronomist IV position before being promoted

to a trust position, she has not presented evidence comparing her

present duties to her duties when she previously held the

position.5 Thus, a factfinder would have no way to know whether

the position she occupies now materially differs from the position

as it existed previously. Moreover, while Ortiz claims that other

agronomists were better treated, she provides little information

about these individuals or their work assignments from which a

meaningful comparison of work environments could be made.6 In

5
Ortiz began her second tour of duty in the Agronomist IV
position when the new administration was installed at the
Department of Agriculture. Because she was not an Agronomist IV
immediately prior to the start of the alleged inferior treatment,
comparison with her circumstances immediately prior to the change
in power is not relevant.
6
Ortiz does not compare her treatment with that of the other
eight employees occupying Agronomist IV positions. Instead, she
relies heavily upon evidence regarding the reclassification of one
employee, Julia Santa (a PDP member), from Agronomist III to
Agronomist Supervisor. But Ortiz does not adduce evidence that
Santa was not qualified for the reclassification or that she was
promoted in an inequitable way. The same holds true for the person

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short, the record is inadequate for a reasonable factfinder to

conclude that Ortiz was subjected to an unreasonably inferior work

environment after her return to the Agronomist IV position.

The unwarranted discipline claim fails for a lack of

competent comparative evidence suggesting political animus.

Cf. Rathbun v. Autozone, Inc., 361 F.3d 61, 76 (1st Cir. 2004)

(explaining that, for Title VII claims, comparative evidence must

"show[] that others similarly situated . . . in all relevant

respects were treated differently" than the individual alleging

discrimination) (quoting Conward v. Cambridge Sc. Comm., 171 F.3d

12, 20 (1st Cir. 1999). Ortiz claimed ten other employees were

accused of absence from the workplace without authorization but

that none were disciplined. She failed, however, to identify them

or provide other information necessary to compare her situation to

theirs, including their party membership. See Kaufmann v. P.R.

Tel. Co., 841 F.2d 1169, 1172 n.5 (1st Cir. 1988). Without this

information, no inference of discriminatory motive can be drawn.

In addition, Ortiz was charged not just with being absent from the

workplace, but also with writing a false travel order. She

presented no evidence disputing this charge. Nor did she provide

evidence that any other employee was similarly accused but was

treated more leniently. The summary judgment record is thus

promoted to the Agronomist Supervisor position that Ortiz applied
for but did not receive.

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insufficient to support the inference that Ortiz was placed in the

disciplinary hearing because of her political affiliation.

Ortiz has failed to establish that she was subjected to

an unreasonably inferior work environment or that the disciplinary

proceeding against her was motivated by political animus. We

therefore affirm the district court’s award of summary judgment.

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