United States Court of Appeals
For the First Circuit
No. 04-1628
DOMINGO GUZMÁN-RUÍZ, ET AL.,
Plaintiffs, Appellants,
v.
FRANKIE HERNÁNDEZ-COLÓN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Arturo Luciano Delgado for appellants.
Luis Villares Sarmiento with whom Sánchez-Betances, Sifre,
Muñoz-Noya & Rivera, P.S.C. was on brief for appellees Hernandez-
Colon and Maldonado-Arrigoitia.
Gary H. Montilla with whom Roberto Márquez-Sánchez was on
brief for Arecibo.
April 27, 2005
COFFIN, Senior Circuit Judge. This is an appeal from a
summary judgment in favor of Puerto Rico defendant municipality,
Arecibo, its mayor and its director of human resources, in a
political discharge suit brought by fourteen employees. Plaintiffs
are members of the New Progressive Party (NPP) and the individual
defendants are members of the Popular Democratic Party (PDP), which
was restored to power after the election of 2000. The newly
elected mayor, Frankie Hernández-Colón, allegedly facing a
formidable municipal financial crisis, instigated the termination
of many employees, including the plaintiffs.
Plaintiffs' complaint, seeking both injunctive relief and
damages, invoked 42 U.S.C. §§ 1983, 1985(3), and other federal
causes of action, as well as several Commonwealth provisions.
Defendants submitted motions for dismissal and summary judgment
supported by statements of municipal officers evidencing not only
financial stringency but also implementation of a seniority-based
layoff plan devised in contemplation of such an emergency by the
prior mayor, an NPP member. The district court accepted the
recommendations of a magistrate judge that summary judgment be
granted in favor of the defendants.
After reviewing the evidentiary state of the record in search
of material issues of fact and noting a series of procedural
defaults, we affirm the rulings of the district court rejecting
belated requests for discovery and concluding that the record is
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bereft of any evidence of political animus motivating the
discharges. We review the former ruling for abuse of discretion,
Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 5 n.2 (1st Cir. 2003),
and the latter de novo, Rodriguez v. American Int'l Ins. Co. of
Puerto Rico, 402 F.3d 45, 46 (1st Cir. 2005).
We first consider plaintiffs' complaint, which the district
court generously characterized as establishing a prima facie case
of discrimination. The complaint described plaintiffs as NPP
"activists," who served as NPP officers and delegates on election
day in 2000 and assisted at rallies and meetings during the
campaign. Their political beliefs were alleged, in conclusory
terms, to be known by defendants. The fourteen plaintiffs were
described as holding the following positions: carpenter (2),
janitor (2), driver (2), clerk (3), secretary (2), coordinator,
receptionist, and worker.
These allegations may very well describe plaintiffs' jobs as
protected from politically motivated dismissal, see, e.g., Padilla-
García v. Guillermo Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000)
(non-policymaking employees are protected from employment decisions
based on political affiliation), but job terminations are not
unconstitutional solely "because those affiliated with one
political party are disproportionately impacted," Sanchez-Lopez v.
Fuentes-Pujols, 375 F.3d 121, 140 (1st Cir. 2004).
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In Acevedo-Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993),
plaintiffs were described as playing prominent roles in "publicly
and vocally supporting" a former mayor. Even so, we acknowledged
that, "[s]tanding alone, even the circumstantial evidence that some
plaintiffs were especially conspicuous targets for discriminatory
employment action by defendants would give us serious pause." And,
even more recently, in Gonzalez de Blasini v. Family Dep't, 377
F.3d 81, 85-86 (1st Cir. 2004), we affirmed dismissal of a
complaint, concluding that even though plaintiff was alleged to be
a well known supporter of the NPP, had held a trust position under
the previous NPP administration, and defendant had expressed
interest in giving her position to a PDP member, this fell short of
evidence that defendant knew of plaintiff's affiliation. See also
Cosme-Rosado v. Serrano-Rodríguez, 360 F.3d 42, 48 (1st Cir. 2004)
(statement of PDP mayor of intent to rid town of NPP activists
insufficient to generate genuine issue of material fact); Figueroa-
Serrano v. Ramos-Alverio, 221 F.3d 1, 8 (1st Cir. 2000) (similar).
We note our doubt concerning whether plaintiffs had truly set
forth a prima facie case to emphasize that it is at best not a
strong one. Their task under the burden-shifting analysis
applicable to political discrimination cases was to show that their
constitutionally protected conduct was a substantial or motivating
factor for the adverse employment decision. See, e.g., Padilla-
García, 212 F.3d at 74 (citing Mt. Healthy City Sch. Dist. Bd. of
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Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Assuming their skimpy
showing met this standard, the allegations nonetheless lack any
specific information that could bulwark a case for rejecting the
genuineness of defendants' response that they "would have taken the
same action regardless of the plaintiff's political beliefs," id.
(referring to "the Mt. Healthy defense").
This sets the stage for the critical assessment of defendants'
proffered justification. After considerable jousting by the
parties over service of process and plans for discovery, the court
set the date of May 7, 2003 for a status conference. A few days
before that date, defendants filed a motion for summary judgment
with a Statement of Uncontested Material Facts and a motion to
dismiss. Unaccountably, plaintiffs' counsel did not attend the May
7 conference.
This was only the beginning of missed cues. Plaintiffs
responded on May 14 to the motion for summary judgment only by
requesting an extension of time beyond the customary ten day limit
to June 11 to oppose the motions. That date passed without any
effort to secure a further extension, or to conduct discovery, and
without any statement of opposition or opposing statement of
material facts, as required by local rules. Accordingly, on July
14, the court referred the case to the magistrate judge for a
report and recommendation, which was to be considered "unopposed."
Under the applicable local rule, facts in a statement of material
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facts, if supported by record citations, are deemed admitted unless
properly controverted. See D.P.R. R. 56(e).
Three weeks later, on August 8, plaintiffs' counsel filed a
motion for reconsideration of the order of reference. We have
looked in vain for any support for such a motion except an appeal
for sheer mercy. Counsel averred that it was "foreseeable that
plaintiffs would need additional time [beyond June 11] to conclude
the discovery" but did not explain why preventive anticipatory
action was not attempted. Counsel had "coordinated" the tentative
deposition of defendant Mayor Hernández but "the undersigner
calendar [sic] during the months of June and July of 2003 prevented
to do so." Finally, the request: "Plaintiffs deserve an
opportunity to conduct further discovery . . . . It was our
mistake not to request an additional extension of time to oppose
said motion."
Counsel perhaps deserves high marks for candor, but to ask us
to find that the district court abused its discretion in refusing
to grant this motion is to ask us to use this sad case to make very
bad law. Counsel for Arecibo appropriately calls our attention to
Justice Harlan's thought in Link v. Wabash Railroad Co.: "[K]eeping
this suit alive merely because plaintiff should not be penalized
for the omissions of his own attorney would be visiting the sins of
plaintiff's lawyer upon the defendant." 370 U.S. 626, 634 n.10
(1962) (emphasis in original). Now, if ever, are the teachings of
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such cases as Resolution Trust Corp. v. North Bridge Assocs., 22
F.3d 1198 (1st Cir. 1994), pertinent. There, we called attention
to the safety valve of Fed. R. Civ. P. 56(f), which gives a party
with an authentic need the opportunity to buy more time to mount an
opposition to summary judgment. Id. at 1203. But we emphasized
that invoking the rule required "due diligence both in pursuing
discovery before the summary judgment initiative surfaces and in
pursuing an extension of time thereafter." Id. In addition to due
diligence, we added:
When, as is often the case, the reason [for a requested
extension] relates to incomplete discovery, the party's
explanation must take a special form: it should show good
cause for the failure to have discovered the facts
sooner; it should set forth a plausible basis for
believing that specified facts, susceptible of collection
within a reasonable time frame, probably exist; and it
should indicate how the emergent facts, if adduced, will
influence the outcome of the pending summary judgment
motion.
Id.
In this case, there was no diligence exercised during the
three months of May, June, and July after the motion for summary
judgment surfaced. And not only was no good cause shown for
failure to have discovered facts sooner, but there was no
indication of plausibly hoped for "specified facts" and the
feasibility of their timely collection. We therefore have no
alternative but to conclude that the district court did not abuse
its discretion in refusing to reconsider and grant belated
discovery. The magistrate judge therefore properly considered the
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defendants' statement of uncontested material facts as unopposed
and, consequently, conceded to be true.
Thus guided, the magistrate judge first noted the sworn
statement of Arecibo's Finance Director stating that as of the
beginning of Mayor Hernández's administration in 2001 Arecibo had
a deficit of twelve million dollars. The statement asserted that
because of this extreme situation, and after considering other
options such as personnel relocation and reduction of working
hours, "the only option available to prevent a collapse of the
Municipal economy was to implement layoff of personnel."
The report went on to consider the sworn statement of the
municipality's Human Resources Director, referring to letters of
dismissal (copies of which were included) informing employees of
their impending dismissal, due to the economic crisis, under a
dismissal plan based on seniority. Each letter notified the
recipient of his right to appeal the dismissal to the Appeals Board
of the Personnel System.
Finally, the magistrate judge found no evidence of pretext
concealing a discriminatory animus. He then, apparently having
given every favorable inference to the allegations in the
complaint, recommended that summary judgment issue for defendants.
Plaintiffs made timely objections to this report and
recommendation, which are really a replay of the plea for
discovery made in the motion for reconsideration. They consist of
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two types of allegations. The first is a criticism of both the
financial deficit information and the procedures followed in
implementing the layoff plan. For example, the assertion is made
that defendants' "fact" concerning financial crisis "can be easily
questioned" by reviewing municipal financial statements and the
"totality of the personnel actions." The demand is for
unidentified more "reliable" documents than the affidavits of the
Finance Director and the Human Resources Director.
The second set of allegations consists of categorical
assertions lacking in any specificity, such as: "certain employees"
have been excluded from dismissal and allowed to continue working;
new personnel have been hired; "big spending" has taken place; all
municipal appointed directors have received substantial pay
increases. Plaintiffs assert that, if discovery is allowed, all
this will be proven.
What all this comes down to is an outline of areas of hopeful
inquiry, something that plaintiffs could have articulated and
pursued months earlier. Ultimately, we come to the judgment of the
district court when it adopted and approved the Report and
Recommendation of the magistrate judge, granting summary judgment
for defendants and dismissing all claims. Its key finding was that
"[t]he record is void of evidence supporting allegations of
political discrimination." While plaintiffs assert that the court
placed an improper burden on them to show pretext affirmatively, we
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think the state of the record is such that there is no basis for a
rational jury to conclude other than that plaintiffs' terminations
were the result of "uniformly applied personnel practices[]
predicated on legitimate reasons," Sanchez-Lopez, 375 F.3d at 140.
There are two remaining arguments of plaintiffs that claim our
attention. On October 31, 2003, they filed an "Informative Motion
and Request of Judicial Knowledge," asking the court to take
judicial notice "for all legal purposes" of another case involving
some two hundred dismissed employees in which plaintiffs had filed
a motion for summary judgment before another judge. We note first
that plaintiffs did not make this argument to the magistrate, and
it is therefore waived. See Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Moreover, plaintiffs made no attempt to specify what "adjudicable
facts" met the requirements of Federal Rule of Evidence 201. Not
only do pleadings, parties, issues, and facts differ in different
cases, but plaintiffs cannot sidestep their neglect to offer
evidence in this case by asking the court to rule on the basis of
the record in another case. Finally, the district court's ruling
in the other case – finding that the seniority plan used by
defendants "could not, as a matter of law, have formed the legal
basis for Plaintiffs' dismissal" – did not occur until March 2004,
some four months after the Informative Motion was made and on the
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same day that the district court in this case signed its order.
Refusal to take judicial notice was amply justified.
A final contention is that the district court improperly
dismissed plaintiffs' claims based on Act No. 382 of May 11, 1950,
29 P.R. Laws Ann. §§ 136-139. This argument dwindles in the face
of the municipality's assertion, not denied by plaintiffs, that the
provision was repealed by Act 121 of September 13, 1997, before any
events relating to this case took place.
Affirmed.
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