United States Court of Appeals
For the First Circuit
_________________
No. 03-2246
JORGE MERCADO-ALICEA; ANGEL NAZARIO,
Plaintiffs, Appellants,
THE DE FACTO TOURISM EMPLOYEES ASSOCIATION OF POLITICALLY
DISCRIMINATED EMPLOYEES,
Plaintiff,
v.
P.R. TOURISM COMPANY; MILTON SEGARRA, EXECUTIVE DIRECTOR
OF P.R. TOURISM; GUILLERMO CABRET; NELSON CARDONA-MUÑIZ;
JOSE F. FAZ; MARIANO MÉNDEZ-SALCEDO; WILLIAM MÉNDEZ;
ANABEL JAIME,
Defendants, Appellees,
JOSÉ REYES; JOSÉ T. RIVERA; JOHN DOES,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Fusté,* District Judge.
Francisco R. González with whom F.R. Gonzalez Law Office was
on brief for appellants.
Laura Beléndez-Ferrero with whom Ineabelle Santiago-Camacho
and Reichard & Escalera were on brief for appellee Puerto Rico
Tourism.
*
Of the District of Puerto Rico, sitting by designation.
Irene S. Soroeta-Kodesh, Assistant Solicitor General,
Department of Justice, Commonwealth of Puerto Rico, for appellee
Jaime etc.
January 27, 2005
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FUSTE, District Judge. Jorge Mercado (“Mercado”) and
Angel Nazario (“Nazario”) brought an action against defendants, the
Puerto Rico Tourism Company (“PRTC”), Milton Segarra, Nelson
Cardona, José Faz, Mariano Méndez (“M. Méndez”), William Méndez,
and Anabel Jaime, pursuant to 42 U.S.C. § 1983 (2003). Plaintiffs
complained that they were terminated and constructively discharged
because of their political affiliation. The district court granted
summary judgment for defendants upon finding that the plaintiffs
had failed to comply with Local Rule 311.12. The plaintiffs filed
this appeal, challenging whether the district court (1) properly
deemed as admitted defendants’ statement of uncontested facts; and
(2) properly concluded that defendants had not violated Mercado’s
and Nazario’s due process and First Amendment rights. We affirm.
I.
Statement of Facts
A. Mercado
Mercado worked as the Gaming Official Supervisor, a
career position, at the PRTC since 1996. His duties included,
inter alia, visiting casinos to ensure compliance with the Games of
Chance Statute.
On or about December 1999, Mercado visited the Hotel
Ambassador Plaza with a check made to the order of the New
Progressive Party (“NPP”) for the amount of one thousand dollars
($1,000). The check bore the name Carlos Pesquera on the lower
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left-hand side. On the reverse of the check, Mercado wrote the
name of a bank, his name “Georgie Mercado” and the word “tourism.”
M. Méndez, the Ambassador Hotel’s Cage and Collection Manager,
cashed the check.
On February 16, 2001, Mercado requested treatment at the
State Insurance Fund. He thereafter requested medical leave and
license without pay from August 23, 2001, until October 31, 2001.
Mercado returned to work on November 1, 2001. On June 27, 2002,
Mercado was dismissed for violations of Section 12-3 of the PRTC
Human Resources Regulations, which prohibit, in relevant part:
(3) Availing yourself of your job’s duties
and powers, property or public funds to
directly or indirectly benefit from the same,
for family member or any other person,
business or entity, to gain advantages,
benefits or privileges not allowed by the law.
(5) Accepting or soliciting from anyone,
either directly or indirectly for any member
of your family unit, or any other person,
business or entity, asset of any financial
value, including gifts, loans, promises,
favors or services, in exchange of an action
by said official or public employee, being
influenced to favor that or any other person.
(16) Using your official position for
political ends - partisan or for other ends
that are not compatible with public service.
(17) Perform duties or tasks that result in a
conflict of interest with your obligations as
a public employee.
(18) Conduct that is improper or is against
duties, which taint the good name of the
[PRTC] or of the Government of Puerto Rico.
Alicea v. Puerto Rico Tourism Co., 270 F. Supp. 2d 243, 248 (D.P.R.
2003).
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Mercado’s letter of dismissal also stated that his
conduct constituted a violation of the PRTC’s Discipline Manual,
which enumerates the following as violations of the same:
(22) Conduct yourself in such a way that
taints the good name of the Company, either
during or out of regular work hours as a
public employee.
(61) Performing services or financial
relationships with individuals or entities who
are considered to be a conflict of interest
with your duties as a public employee.
(62) Performing tasks, activities or duties
that entail conflicts of interest against your
duties as a public employee.
(66) Embezzlement or undue use of funds,
assets or services of the [PRTC].
Id.
The letter additionally stated that Mercado could appeal
the decision before the Office of the Examiner of the PRTC within
fifteen days, but Mercado failed to do so.
Mercado did not avail himself of several opportunities to
appeal his dismissal in an administrative hearing.
B. Nazario
Nazario started working at the PRTC on August 4, 1999, as
Director of Information Systems, a Career Civil Service position.
On April 14, 2000, former governor Pedro Rosselló issued Executive
Order OE-2000-19, which established that Directors of Computer
Information Systems at government agencies should be designated by
the nominating authority and that such a position would be a trust
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position.1 On February 20, 2001, the PRTC named Daniela González
(“González”) as Principal Officer of Information Systems. Nazario
was ordered to report to González. On March 9, 2002, Nazario
requested and received a transfer with a pay increase to the
Municipality of San Juan, effective April 15, 2001.
II.
Analysis
The plaintiffs now challenge the district court’s entry
of summary judgment on their due process and political
discrimination claims. The plaintiffs argue that the district
court erred in concluding that they had failed to comply with Local
Rule 311.12, which requires that they file their own statement of
facts when opposing a summary judgment motion. Plaintiffs also
argue that the district court improperly dismissed their first
amendment and due process claims on the merits.
In reviewing the application of Local Rule 311.12, we
recognize that “[d]istrict courts enjoy broad latitude in
administering local rules.” Air Line Pilots Assoc. v. Precision
Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994). We review
a court’s granting of summary judgment de novo. Euromodas, Inc. v.
Zanella, Ltd., 368 F.3d 11, 16 (1st Cir. 2004); Podiatrist Ass’n,
Inc. v. La Cruz Azul de P.R., Inc., 332 F.3d 6, 13 (1st Cir. 2003).
1
Trust employees may be discharged at will and without cause.
See Correa Martínez v. Arrillaga Beléndez, 903 F.2d 49, 52 n.2 (1st
Cir. 1990).
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A. Local Rule 311.12
According to Local Rule 311.12, a party who moves for
summary judgment must submit “a separate, short, and concise
statement of the material facts as to which the moving party
contends there is no genuine issue to be tried and the basis of
such contention as to each material fact.” D.P.R.R. 311.12.2 The
opposing party must then file a statement “of the material facts as
to which it is contended that there exists a genuine issue to be
tried.” Id. Failure to file such a statement will result in the
court deeming admitted the movant’s statement. Id. (movant’s
statement will be “deemed admitted unless controverted by the
statement required to be served by the opposing party.”).
As we have previously declared, “[w]e have consistently
upheld the enforcement of [the District Court of Puerto Rico’s
local rule], noting repeatedly that ‘parties ignore [it] at their
peril’ and that ‘failure to present a statement of disputed facts,
embroidered with specific citations to the record, justifies the
court’s deeming the facts presented in the movant’s statement of
undisputed facts admitted.’” Cosme-Rosado v. Serrano-Rodríguez,
360 F.3d 42, 45 (1st Cir. 2004) (quoting Ruiz Rivera v. Riley, 209
F.3d 24, 28 (1st Cir. 2000)).
2
The District of Puerto Rico amended its local rules in
September of 2003. Because the summary judgment motions in this
case were adjudicated prior thereto, we refer throughout to the
pre-amended version.
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The plaintiffs argue that the district court erred when
it deemed defendant’s facts admitted because of plaintiffs’ failure
to comply with Local Rule 311.12. Plaintiffs argue that defendants
themselves failed to refer to the record in their statement of
facts.
The district court correctly ascertained that the
plaintiffs’ statement of facts failed to adhere to Local Rule
311.12. Instead of filing a statement of contested facts,
plaintiffs filed their own uncontested facts lacking any references
to the record that might aid the court in making its decision.
Plaintiffs also filed “Commentaries to Defendants’ Uncontested
Facts,” in which plaintiffs make reference to testimonies that are
not in evidence. Plaintiffs further made numerous conclusory
allegations and assertions of fact for which they offered no
support. District courts are not required to ferret through sloppy
records in search of evidence supporting a party’s case. See
Morales v. A.C. Orssleff’s EFTF, 246 F.3d 32, 35 (1st Cir. 2001)
(“[I]n his submission to the district court, plaintiff made only a
general reference to [a witness’s] testimony without pinpointing
where in that 89-page deposition support for that reference could
be found. This is precisely the situation that Local Rule 311.12
seeks to avoid.”). Additionally, contrary to plaintiffs’
allegations, defendants’ statement of facts contained references to
the record, making plaintiffs’ argument devoid of any merit.
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Therefore, the facts pleaded by defendants were properly
deemed admitted according with Local Rule 311.12. See D.P.R.R.
311.12.
B. First Amendment
The First Amendment protects non-policymaking public
employees from adverse employment actions based on their political
opinions. See Padilla-García v. Guillermo Rodríguez, 212 F.3d 69,
74 (1st Cir. 2000); see also Rutan v. Republican Party of Ill., 497
U.S. 62, 75-76 (1990). We employ a two-part, burden-shifting
analysis to evaluate claims of political discrimination. See Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Padilla-García, 212 F.3d at 74. To establish a prima-facie
case, a plaintiff must show that party affiliation was a
substantial or motivating factor behind a challenged employment
action. See Padilla-García, 212 F.3d at 74. “[A] plaintiff may
not prevail simply by asserting an inequity and tacking on the
self-serving conclusion that the defendant was motivated by a
discriminatory animus.” Correa-Martínez v. Arrillaga-Beléndez, 903
F.2d 49, 53 (1st Cir. 1990). Assuming proof of unlawful
discrimination, the burden then shifts to the defendant, who must
establish, by a preponderance of the evidence, that he would have
taken the same action regardless of the plaintiff’s political
beliefs. Id.; see Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23,
30 (1st Cir. 2004).
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In other words, an employer “still prevails by showing
that it would have reached the same decision in the absence of the
protected conduct.” Id. (citing Crawford-El v. Britton, 523 U.S.
574, 593 (1998)). Thus, “even if a plaintiff meets his or her
initial burden of showing that political affiliation was a
motivating factor for an employment decision, that is insufficient
to establish discrimination as a matter of law because the
plaintiff’s case at that point does not ‘distinguish[ ] between a
result caused by a constitutional violation and one not so
caused.’” Id. (citing Mt. Healthy, 429 U.S. at 286). We have
noted that adopting “a view of causation that focuses solely on
whether protected conduct played a part in an employment decision
. . . would put an ‘employee in a better position as a result of
the exercise of constitutionally protected conduct than he would
have occupied [otherwise].’” Id. (quoting Mt. Healthy, 429 U.S. at
285). “However, if a plaintiff does not produce evidence
sufficient to allow a reasonable inference that political
discrimination was a substantial or motivating factor in the
challenged employment action, we need not analyze defendant’s Mt.
Healthy defense.” Vázquez-Valentín, 358 F.3d at 30.
We now review Mercado’s and Nazario’s claims.
1. Jorge Mercado
Mercado argues that the district court erred when it
dismissed his claim because it was uncontested that his supervisors
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were aware that he was a member of the opposite political party.
“[S]tatements of political affiliation--unaccompanied by any
specific factual information to support [the] claim and unrelated
to any employment action taken by [defendant] against
[plaintiff]–[are] patently insufficient to establish an act of
political discrimination.” López Carrasquillo v. Rubianes, 230
F.3d 409, 414 (1st Cir. 2000). Here, there is no evidence on the
record showing that Mercado’s dismissal was the result of his
political affiliation. Instead, the evidence suggests that Mercado
was dismissed for cashing a check made out to a third party, in
violation of the PRTC Human Resources Regulations.
Although the record indicates that Mercado was an NPP
member, Mercado failed to proffer evidence of any specific
discriminatory conduct which proves that his political patronage
was a substantial or motivating factor in the alleged adverse
employment decisions taken against him. Failure to proffer such
evidence warranted dismissal of his First Amendment claim. See
Vázquez-Valentín, 385 F.3d at 38 (stating that “[e]ven if a jury
could reasonably infer that defendants knew that plaintiff was a
member of the NPP, that still is insufficient. Proving that her
political affiliation was a substantial or motivating factor in the
adverse decision requires more than ‘[m]erely juxtaposing a
protected characteristic–someone else’s politics–with the fact that
the plaintiff was treated unfairly.’”) (quoting Correa-Martínez,
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903 F.2d at 58). Thus, the district court correctly dismissed
Mercado’s First Amendment claim.
2. Angel Nazario
In order to show adverse employment action, a
prerequisite to his political discrimination claim, Nazario must
prove that he was constructively discharged as a result of
González’ appointment as Principal Officer of Information Systems,
and the resulting changes to Nazario’s duties. To prove that he
was constructively discharged, a plaintiff must show that the new
“working conditions imposed by the employer had become so onerous,
abusive, or unpleasant that a reasonable person in the employee’s
position would have felt compelled to resign.” Suarez v. Pueblo
Intern., Inc., 229 F.3d 49, 54 (1st Cir. 2000); see also Aviles-
Martínez, 963 F.3d at 6 (citing Calhoun v. Acme Cleveland Corp.,
798 F.2d 559, 561 (1st Cir. 1986)).
Nazario argued that requiring him to respond to a new
supervisor made him feel humiliated, and that defendants’ actions
constituted an attempt to force him out of the PRTC because of his
political affiliation. Such conclusory allegations are
insufficient to establish the prima facie case of constructive
discharge. To show that the work conditions forced him to resign,
a plaintiff must show that “the employer’s challenged actions
result in a work situation ‘unreasonably inferior’ to the norm for
the position.” Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,
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1218 (1st Cir. 1989); see also Vega v. Kodak Caribbean, Ltd., 3
F.3d 476, 480 (1st Cir. 1993) (constructive discharge occurs when
“working conditions [are] so intolerable[ ] that a reasonable
person would feel compelled to forsake his job rather than to
submit to looming indignities”). Further, Nazario fails to proffer
any evidence suggesting that the new work conditions were inferior
to the norm or that requiring him to respond to a superior was a
result of political animus. We, therefore, conclude that the
district court properly dismissed Nazario’s First Amendment claim.
C. Due Process
The Due Process Clause of the Fourteenth Amendment
guarantees public employees who have a property interest in
continued employment the right to at least an informal hearing
before they are discharged. González-De-Blasini v. Family Dept.,
377 F.3d 81, 86 (1st Cir. 2004); Santana v. Calderón, 342 F.3d 18,
23 (1st Cir. 2003); Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173
(1st Cir. 1988); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985). In order to establish a procedural due process
claim under § 1983, “Plaintiffs must allege they have a property
interest as defined by state law and, second, that the defendants,
acting under color of state law, deprived [them] of that property
interest without constitutionally adequate process.” PFZ Props.,
Inc. v. Rodríguez, 928 F.2d 28, 30 (1st Cir. 1991); see Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982). “Under Puerto Rico
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law, career employees have a property interest in their continued
employment.” González-De-Blasini, 377 F.3d at 86; Kaufman v. P.R.
Tel. Co., 841 F.2d 1169, (1st Cir. 1989); 3 L.P.R.A. § 1336(4); 21
L.P.R.A. § 4560.
1. Jorge Mercado
As a career employee, Mercado had a property interest in
his position, which vested him with a pre-termination hearing prior
to dismissal. Loudermill, 470 U.S. 532, 546; see also O’Neill v.
Baker, 210 F.3d 41, 48 (1st Cir. 2000). The record here indicates
that defendants granted Mercado a due process hearing, but he
failed to attend. Defendants rescheduled the hearing several times,
but Mercado repeatedly failed to appear. Defendants then allowed
Mercado to object to the dismissal in writing. Mercado seemed to
argue that his due process rights were violated when the hearing
was cancelled after he failed to appear on three separate
occasions.
The district court correctly found that defendants did
not violate Mercado’s due process rights when his inability to
present his side of the story was due to his failure to
participate.
2. Angel Nazario
As we previously explained, Nazario voluntarily quit his
career position at PRTC when he requested a transfer to the
Municipality of San Juan. Thus, as the district court stated,
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Nazario voluntarily gave up his property interest in his career
position and does not have a due process right to a hearing.
For the reasons set forth above, the district court’s
judgment is affirmed.
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