Rivera-Cotto v. Rivera

November 8, 1994
                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         

No. 93-2088

                    LUCETTE RIVERA-COTTO,

                    Plaintiff, Appellant,

                              v.

                  RAMON LUIS RIVERA, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                                 

                                         

                            Before

                     Selya, Circuit Judge,
                                                     
                Coffin, Senior Circuit Judge,
                                                        
                  and Stahl, Circuit Judge.
                                                      

                                         

The opinion  of this court issued on October 26,  1994, is amended
as follows:

Page 7, footnote 2,  last cite should read:   O'Connor v. Steeves,
                                                                             
994 F.2d 905, 909-12 (1st Cir.), cert. denied, 114 S. Ct. 634 (1993).
                                                     


                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         

No. 93-2088

                    LUCETTE RIVERA-COTTO,

                    Plaintiff, Appellant,

                              v.

                  RAMON LUIS RIVERA, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                                 

                                         

                            Before

                     Selya, Circuit Judge,
                                                     
                Coffin, Senior Circuit Judge,
                                                        
                  and Stahl, Circuit Judge.
                                                      

                                         

Evelyn Narvaez Ochoa for appellant.
                                
Edgardo Rodriguez  Quilichini, Assistant  Solicitor General,  with
                                         
whom Pedro A. Delgado Hernandez, Solicitor  General, Carlos Lugo Fiol,
                                                                             
Deputy  Solicitor General,  were  on brief  for  appellees Ramon  Luis
Rivera and Jose Garcia-Rivera.
Demetrio  Fernandez was  on  brief for  appellee  Municipality  of
                               
Bayamon.

                                         

                       October 26, 1994
                                         


          STAHL, Circuit Judge.   In this appeal,  plaintiff-
                      STAHL, Circuit Judge.
                                          

appellant  Lucette  Rivera-Cotto ("Rivera-Cotto")  challenges

the district  court's entry of  summary judgment in  favor of

defendants-appellees,  the  municipality  of Bayamon,  Puerto

Rico  ("Bayamon"),  its  Mayor,  Ramon  Luis  Rivera  ("Mayor

Rivera"), and  Bayamon employee Jose  Garcia-Rivera ("Garcia-

Rivera")  on  her   claims  of  political   affiliation-based

discrimination and  discrimination  because of  her  physical

handicap.  For  the reasons  set forth below,  we affirm  the

district court's entry of summary judgment.

                              I.
                                          I.
                                            

              FACTUAL AND PROCEDURAL BACKGROUND
                          FACTUAL AND PROCEDURAL BACKGROUND
                                                           

          We relate the facts in the light most favorable  to

the non-moving party.  See, e.g., Nereida-Gonzalez v. Tirado-
                                                                         

Delgado, 990 F.2d 701, 702 (1st Cir. 1993).  This case arises
                   

from  Rivera-Cotto's  employment  relationship with  Bayamon.

Rivera-Cotto, a partially deaf person who must  use a hearing

aid, first began to work for Bayamon on a temporary basis  in

1969.  By  1971, she  had attained permanent  status and,  in

1980, she became  an Administrative Officer III in  the legal

division.   She remained  in that  position until  early 1986

when the events leading to this litigation began.  

          On  February  6,  1986,   Rivera-Cotto's  immediate

supervisor  asked  her for  some  information  to assist  the

supervisor in  preparation of  budget  documents.   Believing

                             -2-
                                          2


this to be  an attempted  usurpation of  her duties,  Rivera-

Cotto  balked.    A  heated  encounter  ensued  during  which

threatening words  were traded.   This exchange was  one more

episode in  an already troubled relationship.   The following

day, the  supervisor dispatched a memorandum  to Mayor Rivera

reporting the  incident and  requesting that  Rivera-Cotto be

transferred  out of the division.   Mayor Rivera responded by

suspending Rivera-Cotto from employment and salary for thirty

days.1     At  that  time,  however,   Rivera-Cotto  was  not

transferred.

          On July 16,  1986, the Mayor  notified Rivera-Cotto

that,  because of a "need  for [her] services,"  she would be

transferred to the position  of Administrative Officer III at

the  Multiple Activities  Center  for the  Elderly.   Rivera-

Cotto, however,  claims that the transfer  occurred, at least

in part,  because she  had been  incorrectly identified as  a

member of  the opposition Popular  Democratic Party  ("PDP").

In  fact,  she  is a  member  of  the  New Progressive  Party

("NPP"), the party in power in Bayamon.  While working at the

Elderly  Center,  Rivera-Cotto  claimed  that  co-workers and

supervisors subjected  her to various forms  of ill-treatment

including changed  duties, denial of lunch,  denial of office

supplies, unfair disciplinary warnings, and isolation.  

                    
                                

1.  Rivera-Cotto does not claim that either the suspension or
loss of pay violated her constitutional rights.

                             -3-
                                          3


          Meanwhile, Rivera-Cotto appealed both  the transfer

and the earlier  suspension to  the Board of  Appeals of  the

Personnel Administration System ("JASAP").  JASAP reduced the

suspension  to  ten  days  and ordered  the  municipality  to

reassign  Rivera-Cotto to  her former  position at  the legal

division.  JASAP  found that  the facts did  not support  the

claim   that  personnel   needs  necessitated   her  original

transfer.  Bayamon's appeals were ultimately unsuccessful and

Rivera-Cotto has since returned to the legal division.

          In  1988, Rivera-Cotto commenced the present action

in  which she  sued appellees  pursuant to  42 U.S.C.    1983

alleging  violations  of  her  constitutional  and  statutory

rights.      Specifically,  Rivera-Cotto   alleged   she  was

transferred  and  subjected  to  other  forms  of  harassment

because of her political affiliation.  She also  claimed that

she was  subjected to discrimination because  of her handicap

and  sought   damages  flowing  from   defendants'  acts   of

discrimination as well as injunctive relief.  

          The district court  granted defendant's motion  for

summary judgment.  Judgment  was entered against Rivera-Cotto

and her complaint was dismissed.  This appeal followed.

                             II.
                                         II.
                                            

                          DISCUSSION
                                      DISCUSSION
                                                

          On   appeal,   Rivera-Cotto  makes   the  following

arguments:    (1)  the   district  court  erred  in  granting

                             -4-
                                          4


defendants'  motion  for  summary  judgment as  to  both  the

political  discrimination and  physical handicap  claims; and

(2) the district court erred in finding that Mayor Rivera and

Garcia-Rivera were  entitled  to  the  defense  of  qualified

immunity.   After reciting the summary  judgment standard, we
                        

first discuss the political  discrimination argument and then

the physical handicap  claim.  Because  we find that  Rivera-

Cotto  has  failed  to   satisfy  her  burden  under  summary

judgment, we do not reach the question of qualified immunity.

A.  Standard of Review
                                  

          We review  a  district  court's  grant  of  summary

judgment  de  novo,  reading  the  record  in  a  light  most
                              

favorable  to  the non-moving  party.   See,  e.g.,  Woods v.
                                                                      

Friction Materials, Inc.,  30 F.3d 255, 259  (1st Cir. 1994).
                                    

When  presented with  a motion  for summary  judgment, courts

should "pierce the boilerplate of the pleadings and assay the

parties'  proof  in  order  to  determine  whether  trial  is

actually required."  Wynne  v. Tufts Univ. Sch. of  Medicine,
                                                                        

976  F.2d 791, 794 (1st Cir. 1992),  cert. denied, 113 S. Ct.
                                                             

1845  (1993).    Summary   judgment  is  rendered  when  "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).  A "material" fact is

                             -5-
                                          5


one  "that might  affect the  outcome of  the suit  under the

governing  law."  Anderson  v. Liberty Lobby,  Inc., 477 U.S.
                                                               

242, 248 (1986).  "If the evidence is merely colorable, or is

not   significantly  probative,   summary  judgment   may  be

granted."    Id. at  249-50.   "Even  in cases  where elusive
                            

concepts  such as  motive  or intent  are  at issue,  summary

judgment  may be  appropriate  if the  nonmoving party  rests

merely  upon  conclusory allegations,  improbable inferences,

and unsupported speculation."  Medina-Munoz v.  R.J. Reynolds
                                                                         

Tobacco  Co.,  896  F.2d  5,  8  (1st  Cir.  1990).    "Brash
                        

conjecture, coupled with earnest hope that something concrete

will eventually materialize, is insufficient to block summary

judgment."  Dow v. United  Bhd. of Carpenters, 1 F.3d  56, 58
                                                         

(1st Cir. 1993).

B.  Political Discrimination Claim
                                              

          As noted above, the district court  granted summary

judgment  on  Rivera-Cotto's political  discrimination claim.

Applying our decision in Agosto-de-Feliciano v. Aponte-Roque,
                                                                        

889 F.2d 1209 (1st  Cir. 1989) (en banc), the court held that

Rivera-Cotto had failed to establish, by clear and convincing

evidence,  that  defendants'  actions   resulted  in  a  work

situation  that  was  "unreasonably  inferior" to  the  norm.

Rivera-Cotto  disputes  the  court's  interpretation  of  the

evidence.  We agree with the result below but come to it by a

different route.

                             -6-
                                          6


          In  political  discrimination  cases, a  plaintiff-

employee who  has  held a  non-policymaking  government  job2

avoids summary judgment by pointing to evidence in the record

which, if credited,  would permit a  rational fact finder  to

conclude that  the challenged  personnel action occurred  and

stemmed  from  a  politically  based  discriminatory  animus.

Nereida-Gonzalez,  990 F.2d  at 706.   The  fact  finder must
                            

reasonably be able to infer that political  affiliation was a

"substantial"  or "motivating"  factor behind  the challenged

action.   Acevedo-Diaz  v. Aponte,  1 F.3d  62, 66  (1st Cir.
                                             

1993);  Aviles-Martinez v. Monroig,  963 F.2d 2,  5 (1st Cir.
                                              

1992); Agosto-de-Feliciano, 889 F.2d  at 1220.  Without more,
                                      

a nonmoving plaintiff-employee's unsupported  and speculative

assertions regarding  political  discrimination will  not  be

enough to survive  summary judgment.   Cf.  Nereida-Gonzalez,
                                                                        

990 F.2d at 706  (discriminatory animus found where statement

by defendants, though controverted, that plaintiff's demotion

was due to party affiliation combined with other evidence led

to reasonable conclusion that  plaintiff was a member  of the

opposition   party,  defendants   had  engaged   in  a   sham

reorganization,  and other  personnel  actions only  affected

                    
                                

2.  Defendants  do  not  contend  that  Rivera-Cotto  held  a
confidential  or  policymaking  position  for  which partisan
political   affiliation  might   have   been   a   legitimate
requirement.   See  Branti  v. Finkel,  445 U.S.  507, 517-18
                                                 
(1980); O'Connor v. Steeves, 994 F.2d 905, 909-12 (1st Cir.),
                                       
114 S. Ct. 634 (1993).

                             -7-
                                          7


members  of  plaintiff's party);  Rodriguez-Pinto  v. Tirado-
                                                                         

Delgado,  982 F.2d 34,  40 (1st Cir.  1993) (allegations, not
                   

conclusively rebutted,  that plaintiff was a  known member of

the  NPP,  that  plaintiff's  prior position  was  filled  by

members  of the PDP, and that everyone who was demoted during

reorganization  was a  NPP  member,  sufficient to  establish

political affiliation discrimination).  

          Rivera-Cotta has not  sustained her burden. In  her

sworn  statement, Rivera-Cotto  asserts  that the  defendants

believed  that she  was  a member  of  the PDP  when  she was

actually a  member of  the NPP.   Our  review of  the record,

however,   reveals  no   other  evidence   to   support  this

allegation.  More importantly, there is no other evidence  to

support the  allegation that defendants' wrongly  held belief

was  the motivating  factor behind  Rivera-Cotto's transfer.3

In fact, Rivera-Cotto's assertions about political motivation

contradict her  own interpretation  of the events  leading to

the transfer.   Rivera-Cotto  repeatedly points to  the JASAP

report as support  for her contention  that the transfer  was

not pursuant  to  the "need  for  [her] services,"  as  Mayor

Rivera originally  suggested, but rather flowed  from Rivera-

                    
                                

3.  Whether  an  employee's  discharge  arises  out  of  "the
government employer's belief, wrongly held, that the employee
was  in league  with the  opposition party"  gives rise  to a
constitutional claim is an open question.  Correa-Martinez v.
                                                                      
Arrillaga-Belendez, 903 F.2d 49, 57 n.7 (1st Cir. 1990).  The
                              
question  is similarly open  in the context  of a politically
motivated transfer.  We need not reach the issue here.  

                             -8-
                                          8


Cotto's  altercation with  her  superior.   Thus, by  Rivera-

Cotto's   proffered  reading   of  the   record,  defendants'

motivation  for the  transfer was  substantially disciplinary

rather than political.4

            Because Rivera-Cotto has failed  to go the  first

step in  establishing her  constitutional claim, we  need not

proceed  farther.5  We find  that the district court properly

granted summary judgment.

C.  Physical Handicap Claim
                                       

          Although the district court did not address Rivera-

Cotto's  handicap claim,  we hold  that summary  judgment was

properly granted.

          Rivera-Cotto   fails   to   offer   any   developed

argumentation on this point.  She simply refers us to Section

504  of the  Rehabilitation  Act, 29  U.S.C.    794,  and  to

                    
                                

4.  We  note  that at  one point  in  her memorandum  to this
court, Rivera-Cotto argues that the transfer was "due to [her
perceived political  affiliation] and all  the reasons herein
mentioned."   The  point  remains that  Rivera-Cotto has  not
argued, and the  record will  not support, a  claim that  her
political  affiliation  was  the  substantial  or  motivating
factor  behind the  transfer or  any other  ill-treatment she
suffered.

5.  This  case especially  underscores  a principle  we  have
noted  before:  "In  the  absence  of  a  cognizable  federal
question,   a  federal  court  cannot  intrude  upon  another
sovereign's civil  service system and declare  itself a court
of last  resort to  hear personnel  appeals addressed  to the
wisdom, or even the good faith, of staffing decisions reached
by  government  actors."   Correa-Martinez  903  F.2d at  58.
                                                      
Rivera-Cotto  has challenged,  successfully, the  validity of
her transfer under applicable local law.  

                             -9-
                                          9


several cases without  elaboration.  She  makes no effort  to

recite  the well-developed doctrine in this area or to relate

the law to the single piece  of evidence on which she relies.

          At oral argument, counsel for Rivera-Cotto conceded

that  there is only one  factual allegation on  the record to

support her  claim. A  routing sheet from  the municipality's

finance  department,  dated   October  30,   1990,  bears   a

handwritten note that reads:   "Waiting for quotation.   Call

the deaf  woman."  Upon  review of the  record, we also  note

that,  in  a  deposition,  Rivera-Cotto  reported disparaging

remarks made by Mayor  Rivera and Rivera-Cotto's  supervisor.

Both remarks referred to her hearing imparity.  Otherwise, we

find  the record  contains only  conclusory statements  about

alleged discrimination.

          Rivera-Cotto has failed to  sustain her burden.  To

forestall   summary   judgment,   we   require    more   than

"unsubstantiated   conclusions,   backed   only  by   a   few

uncoordinated evidentiary fragments."   Wynne v. Tufts  Univ.
                                                                         

Sch.  of Medicine, 976 F.2d  791, 795 (1st  Cir. 1992), cert.
                                                                         

denied,  113 S. Ct. 1845 (1993).  Yet, that is precisely what
                  

Rivera-Cotto  presents here.   She  alleges various  forms of

ill-treatment flowing from defendants'  discriminatory animus

based on her handicap.   To bolster her claim, she  offers no

more than  what we  have described  above.  Further,  Rivera-

                             -10-
                                          10


Cotto's specific allegation that defendants were motivated by

handicap discrimination  in  transferring her  is,  as  noted

above, contradicted by her own interpretation of the transfer

as disciplinary rather than discriminatory.  Accordingly, the

district  court  properly  granted summary  judgment  on this

claim.                       III.
                                         III.
                                             

                          CONCLUSION
                                      CONCLUSION
                                                

          For the  reasons stated above, the  decision of the

district court is

          Affirmed.
                      Affirmed.
                               

                             -11-
                                          11