Lopez Carrasquillo v. Rubianes

          United States Court of Appeals
                    For the First Circuit


No. 99-2137

                 JUAN A. LOPEZ-CARRASQUILLO,

                    Plaintiff, Appellant,

                              v.

  WANDA RUBIANES, ARCILIO ALVARADO, MARLENE CINTRON and DIANA
ROCA

                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

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


                            Before

                     Selya, Circuit Judge,
               Campbell, Senior Circuit Judge,
                  and Lipez, Circuit Judge.


     Ernesto G. López-Soltero on brief for appellant.
     Gustavo A. Gelpi, Solicitor General of the Commonwealth of
Puerto Rico, Rosa N. Russe-Garcia, Deputy Solicitor General and
Leticia Casalduc-Rabell, Assistant Solicitor General on brief
for appellees.




                       October 23, 2000
            LIPEZ, Circuit Judge.              In a case with a procedural

twist, the district court terminated the plaintiff's claims by

entering summary judgment in favor of three defendants sua

sponte without providing the plaintiff notice and an opportunity

to be heard.           This was impermissible in the circumstances of

this case, and we vacate the judgment dismissing those claims.

However,    we    affirm    the    district     court's   decision   to   grant

summary judgment in favor of a fourth defendant.

                                  I. BACKGROUND

            Beginning in 1986, Juan A. López-Carrasquillo worked

as a migration specialist at the immigration office of the

Puerto Rico Department of Labor in New York.              On April 15, 1993,

this office was merged into the Puerto Rico Federal Affairs

Administration ("FAA").           Arcilio Alvarado was Secretary of the

Puerto Rico Community Affairs Department of the FAA from January

2, 1993 to June 30 of that year, and in that capacity he

supervised López.         That supervisory authority ended on July 1,

1993 when Alvarado became the Associate Director of Regional

Offices    at    the    Puerto    Rico   Federal   Affairs    Administration.

Alvarado's position with the FAA ended on June 6, 1994.

            López is a member of the Popular Democratic Party

("PDP"), and he alleges that his political affiliation was well

known throughout his department at the FAA.                  His father, Juan


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López-Hernandez, was also a prominent member of the PDP, as well

as a delegate to the Puerto Rico House of Representatives for 16

years.        On   November    4,    1992,   the    president   of     the   New

Progressive Party ("NPP"), Pedro Rossello Gonzalez, was elected

governor of Puerto Rico.              López claims that this shift in

political power "established [him] as a primary target of the

newly    named     directors   and    secretary."      López    was   formally

dismissed from his position at the FAA on June 19, 1996.

              On December 10, 1996, he filed a claim pursuant to 42

U.S.C. § 1983 against the FAA and seven government officials,

including Alvarado, Pedro Rossello Gonzalez, Governor of Puerto

Rico, Wanda Rubianes, Director of the FAA, John Sota, Deputy

Director of the FAA, Marlene Cintrón, Director of the New York

City office of the FAA, Diana Roca, Director of the Philadelphia

office of the FAA, and Cesar Almodovar Marchany, Secretary of

Labor.    On September 2, 1998, the district court accepted an

amended complaint by López that added additional facts about

three    of    the    defendants.       In   both    pleadings,       but    more

specifically in the amended complaint, he alleges that the

defendants discriminated against him because of his political

affiliation.         López states that his name was eliminated from

department directories, important documents were removed from

his office, and trash was kept on his desk.             He also claims that


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he was denied keys to an office "of a program that supposedly

was under his responsibility,"           and that he was left out of

important decisions regarding employees under his supervision.

López contends that these incidents constituted attacks on his

self-esteem and caused physical symptoms, including elevated

blood pressure and chest pains.          He further alleges that this

discrimination culminated in the termination of his job.



 II. DISMISSAL OF CLAIMS AGAINST ROCA, RUBIANES, AND CINTRÓN

          To   explain   the    error    in    the   court's   dismissal     of

López's claims against Diana Roca, Wanda Rubianes, and Marlene

Cintrón, we must recount the procedural posture of this case at

the time of the court's ruling.          On June 2, 1997, the district

court dismissed the claims against the FAA on Eleventh Amendment

grounds, finding that the FAA was "an arm of the government" of

Puerto Rico.      In the same order, the court also dismissed

Lopez's claims against all of the individual defendants except

Alvarado because liability under § 1983 cannot rest on a theory

of   respondeat   superior. 1     López       then   sought    to   amend   his

complaint pursuant to Fed. R. Civ. P. 15(a), alleging additional



      1Although the court dismissed the case against all but one
of the defendants, only three of the seven defendants--the FAA,
the Governor of Puerto Rico, and Cesar Almodovar-Marchany--filed
the motion to dismiss.

                                   -5-
acts   by   Alvarado      and   three    of    the     previously   dismissed

government officials--Rubianes, Cintrón, and Roca.                  The court

initially denied the motion to amend the complaint, and López

moved for reconsideration.

               While this motion was pending, Alvarado, the sole

remaining defendant, moved for summary judgment on the basis of

the original complaint.         Before acting on the summary judgment

motion, the district court allowed the amended complaint against

Alvarado, Rubianes, Cintrón and Roca.                The court then granted

summary judgement in favor of Alvarado, first on the basis of

the original complaint, and then, upon reconsideration, on the

basis of the amended complaint as well.                The court also entered

judgment against López, asserting that there were no longer any

defendants remaining in the case.             That statement was incorrect

because of the court's decision to allow López to file his

amended complaint.

            The amended complaint identified Rubianes, Cintrón and

Roca (as well as Alvarado) as defendants and it added to the

allegations of the original complaint.                  The district court's

allowance of this amended complaint reinstated López's claims

against the three previously dismissed defendants.                  With these

defendants back in the case, the district court could not enter

a   judgment    against   López   on    the    basis    of   granting   summary


                                       -6-
judgment to Alvarado without disposing of the claims it had

allowed in the amended pleading against Rubianes, Cintrón, and

Roca.      See   6   Wright,   Miller     &   Kane,      Federal   Practice   and

Procedure § 1476, 556-57 (1990) (noting that once an amended

pleading is filed it "supercedes the pleading it modifies" and

that "any subsequent motion . . . should be directed at the

amended pleading").

            Moreover,       before   disposing      of    claims    against   the

reinstated defendants, the court had to provide López with

notice and an opportunity to be heard.                  See Futura Development

of Puerto Rico, Inc. v. Estado Libre Asociado de Puerto Rico,

144 F.3d 7, 14 (1st Cir. 1998) (sua sponte dismissal requires

notice and opportunity to be heard); see also Rogan v. Menino,

175 F.3d 75, 79 (1st Cir. 1999) (sua sponte summary judgment

requires    notice    and    opportunity      to   be    heard).     The   notice

requirement could not be ignored simply because the district

court had previously dismissed the claims against Rubianes,

Cintrón, and Roca in the original complaint.                       See Reese v.

Sparks, 760 F.2d 64, 66 (3d Cir. 1985) (error for district court

to grant sua sponte summary judgment on the amended complaint

without notice, notwithstanding that the court had previously

granted    summary     judgment      on     the    basis    of     the   original




                                      -7-
complaint);2 accord Reflectone, Inc. v.   Farrand Optical Co.,

Inc., 862 F.2d 841, 845 (11th Cir. 1989); United States Dev.

Corp. v. People's Fed. Sav. & Loan Ass'n, 873 F.2d 731, 735 (4th

Cir. 1989).

         López had no such notice here.   Rubianes, Cintrón and

Roca never filed a motion to dismiss or a motion for summary

judgment once the amended complaint was permitted.   The district

court provided no notice to López that it was considering sua

sponte dismissal or summary judgment.     Instead, the district

court granted summary judgment to Alvarado on the basis of his

pending motion and then simply asserted that the rest of the

case had also been terminated, ignoring the fact that Rubianes,


    2  Reese v. Sparks, 760 F.2d 64 (3d Cir. 1985), a       case
relied upon by López, is arguably distinguishable on two
grounds, but neither difference is significant for our purposes.
First, the trial court in Reese expressly vacated a previous
grant of summary judgment at the same time that it allowed the
amended complaint. See id. at 65. Here, the district court did
not expressly vacate its decision to dismiss the claims against
Rubianes, Cintrón and Roca.     We see no significance in that
distinction. Whatever the status of that earlier dismissal, the
court's decision to allow an amended complaint that specifically
named Rubianes, Cintrón and Roca as defendants had the
unmistakable effect of reinstating a set of claims against
previously dismissed defendants.    Second, the court noted in
Reese that the amended complaint differed materially from the
first complaint because it averred additional facts and
articulated a new legal theory.     See Reese, 760 F.2d at 66.
López's amended complaint adds allegations but it is not
materially different from his original complaint.      We see no
significance in that distinction. López was entitled to notice
because the court had reinstated a set of claims against the
three defendants.

                              -8-
Cintrón and Roca were reinstated as defendants because of the

amended complaint it had allowed.             Under these circumstances,

entering judgment in favor of these defendants was an error.

            III. SUMMARY JUDGMENT IN FAVOR OF ALVARADO

           The district court entered summary judgment in favor

of Alvarado on the basis of the statute of limitations.                   In

ruling upon a motion for reconsideration, the court stated that

the additional facts pleaded by López in his amended complaint

did not change this disposition.           We review the district court's

ruling de novo.      See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609

(1st Cir. 1994).

           Summary judgment is appropriate when "there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law."             Fed. R. Civ. P.

56(c); see also Sheinkopf v. Stone, 927 F.2d 1259, 1261 (1st

Cir. 1991).      As the party opposing the motion, López must set

forth facts to demonstrate that a genuine issue exists for

trial.    See Fed. R. Civ. P. 56(e); Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).             He has the burden

of producing "specific facts, in suitable evidentiary form" to

counter    the   evidence    Alvarado      has    presented.     Morris   v.

Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.

1994).      López   cannot    rely    upon       "conclusory   allegations,


                                     -9-
improbable inferences, and unsupported speculation" regarding

Alvarado’s allegedly discriminatory acts.                            Id.     If the facts,

taken in the light most favorable to López, do not create a

genuine issue of material fact regarding his ability to make out

a    claim   of    political         discrimination,           summary       judgment     was

proper, and we must affirm.                       See Mack v.        Great     Atlantic     &

Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).

             On appeal, López argues that the district court erred

in     finding     his       claim        time-barred       under      the     statute     of

limitations.       He contends further that the district court should

have    found     the    existence         of    a     continuing     violation     in    the

discriminatory conduct he attributes to Alvarado.                            We agree that

the    district     court       properly          entered      summary       judgment     for

Alvarado, but we affirm for reasons different than those relied

upon by the district court.                      See Medina-Munoz, 896 F.2d at 7

(stating     that        a    court        of     appeals      may    affirm       on    "any

independently       sufficient            ground"       when   reviewing       a   district

court’s grant of summary judgment).

             The    statute          of    limitations         inquiry       assumes     that

Alvarado committed an act or engaged in a course of conduct that

could be the basis for a claim of political discrimination.                                If

Alvarado committed no such predicate act or acts, there is no

need to consider whether López’s complaint was timely filed or,


                                                -10-
in the alternative, whether the conduct constituted a continuing

violation such that López could still recover for some incidents

otherwise barred by the statute of limitations.                   Having reviewed

the summary judgment record in vain for evidence that Alvarado

committed a discriminatory act, we conclude that López has not

met his burden of demonstrating the existence of a genuine issue

of material fact on this essential point.

             In support of his motion for summary judgment, Alvarado

presented evidence, properly substantiated, to refute López’s

allegations of his discriminatory conduct.                    In his affidavit,

Alvarado states, "I did not conspire or meet with anyone in

order to set up a plan which will lead to plaintiff’s eventual

dismissal."        He also states that he did not participate in the

decision to dismiss López from his position at the FAA in 1996.

Because     Alvarado       properly     supported     his   motion    for   summary

judgment,      López       had    to    demonstrate     the    existence      of    a

trialworthy issue regarding discriminatory conduct by Alvarado.

See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d

47,   50    (1st    Cir.    1997)      (stating,     with   respect   to    summary

judgment, "the nonmovant must identify properly substantiated

facts      sufficient      to    establish      a   trialworthy    issue").        In

attempting to meet this burden, López may not rest on the "mere

allegations or denials of his pleading."                    Borschow Hospital &


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Med. Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10, 14 (1st

Cir. 1996) (quoting Barbour v. Dynamics Research Corp., 63 F.3d

32, 36 (1st Cir. 1995)).    Rather, he must "point to evidence in

the record that would 'permit a rational factfinder to conclude

that the challenged personnel action occurred and stemmed from

a politically based discriminatory animus.'"        Padilla-Garcia v.

Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000) (quoting

Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994)).

           In response to Alvarado's motion for summary judgment,

López offered only a personal affidavit and two pages from the

transcript of Alvarado's deposition.           Because the deposition

excerpt is in Spanish, and López did not provide an English

translation, we decline to consider it as part of the record on

summary judgment.     See 1st Cir. R. 30(d); see also Gonzalez-

Morales v. Hernandez-Arencibia, 221 F.3d 45, 50 n.4 (1st Cir.

2000)   (finding   appellants   had   waived   arguments   premised   on

documents for which they had not provided translations).3

           In his affidavit, López references the "Opposition to

Motion for Summary Judgment" filed with the district court and

avers that "it is correct in all its parts to the best of my

knowledge."    This statement is insufficient as a proffer of


    3 We note that some of the documents submitted by Alvarado
to support his motion for summary judgment are also in Spanish,
and we decline to consider these as well.

                                 -12-
evidence because affidavits submitted in opposition to a motion

for summary judgment must be based on the affiant’s personal

knowledge.       See Fed. R. Civ. P. 56(e);                see also Carmona v.

Toledo, 215 F.3d 124, 131 (1 st Cir. 2000) (noting that such

affidavits must be made on personal knowledge and set forth

facts that would be admissible in evidence).                           Moreover, the

pleading to which he refers contains only legal arguments, with

the    exception    of    one    quasi-factual         allegation      that     states,

"Defendant      Arcilio        Alvarado    actively      discriminated          against

plaintiff       [sic]    he     was   responsible        for     taking       away   his

responsibilities         for    transferring       him    and    was    the    one   who

clearly    identified          plaintiff    as     a    member    of    the     Popular

Democratic Party."        This assertion merely repeats the conclusory

allegations in the complaint and does not establish a genuine

issue of material fact regarding whether Alvarado treated López

differently because he was a member of the PDP. See Santiago-

Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st

Cir.    2000)    ("To     the    extent     that       affidavits      submitted      in

opposition to a motion for summary judgment merely reiterate

allegations made in the complaint, without providing specific

factual information made on the basis of personal knowledge,

they are insufficient.").




                                          -13-
            Finally, the only other evidence of discrimination that

might be gleaned from this record is a single line in López's

affidavit, where he states, "Mr. Alvarado in many occasions made

reference to my political affiliation."                          This assertion about

statements       of    political       affiliation      -    unaccompanied         by    any

specific     factual         information       to     support       this    claim,       and

unrelated to any employment action taken by Alvarado against

López   -   is    patently         insufficient       to     establish      an     act    of

political discrimination.               See, e.g., Figueroa-Serrana v. Ramos-

Alverio,    221       F.3d   1,    8   (1st    Cir.   2000)       (affirming       summary

judgment for defendants where the only evidence offered by

plaintiffs was a sworn statement that a defendant "voiced his

intention" to rid the workplace of employees with plaintiffs'

political affiliation); Dartmouth Review v. Dartmouth College,

889 F.2d 13, 16 (1st Cir. 1989) (stating, "we have consistently

required    plaintiffs         to      outline    facts      sufficient      to    convey

specific     instances        of       unlawful     discrimination")             (emphasis

added).

            In    short,      López      has   failed       to    offer    any    properly

substantiated evidence indicating that an act by Alvarado is

cognizable as a claim of political discrimination.                         Accordingly,

we need not reach the issue of whether a lawsuit filed to

recover for such an act would be barred by the statute of


                                           -14-
limitations.   Because López has not met his burden of opposing

the motion for summary judgment, the court properly entered

judgment for Alvarado.

         Affirmed in part, vacated in part, and remanded for

proceedings consistent with this opinion.




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