United States Court of Appeals
For the First Circuit
No. 04-1603
ERNESTO GONZÁLEZ-PIÑA,
Plaintiff, Appellant,
v.
JOSÉ GUILLERMO RODRÍGUEZ,
Mayor of the City of Mayagüez; City of Mayagüez,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella and Howard, Circuit Judges,
and Carter,* Senior District Judge.
Israel Roldán-González, on brief, for appellant.
Juan Rafael González-Muñoz, with whom González-Muñoz Law
Offices, Glorianna S. Hita-Valiente, Carlos E. López-López and
Llovet Zurinaga & López, PSC, were on brief, for appellees.
May 11, 2005
*
Of the District of Maine, sitting by designation.
TORRUELLA, Circuit Judge. Plaintiff-appellant Ernesto
González-Piña ("González") brought suit against the Municipality of
Mayagüez and its Mayor, José Guillermo Rodríguez, (collectively
"Defendants"), under 42 U.S.C. § 1983, the First Amendment, the Due
Process Clauses of the Fifth and Fourteenth Amendments, and various
state laws, as a result of political discrimination. González
alleged that after his earlier suit against Defendants and his
subsequent reinstatement, Defendants have consistently denied his
reclassification to a higher position and have given him no
meaningful duties. The district court granted summary judgment for
Defendants, finding that some of González's allegations were barred
by collateral estoppel and that the remaining facts, if credited,
were insufficient to support a prima facie case of political
discrimination. The court also denied González's subsequent motion
for reconsideration on the basis of new evidence. González appeals
both decisions, and after careful review, we affirm.
I. Background
On September 22, 1997, the parties settled González's
initial political discrimination suit in open court. The parties
failed to file written stipulations of their settlement agreement;
thus, the court entered judgment with reference to the terms
stipulated in open court.
The settlement agreement obliged the municipality to pay
González $61,200 in back pay, including benefits, and to appoint
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him to a new career position with a salary "for which he qualifies
which will never be less than $1,400 monthly." In turn, González
agreed to retire upon completion of thirty years of service, which
he estimated to be within two years of the settlement date. The
Municipality subsequently appointed González to a new position as
Executive Officer I with a $1,500 monthly salary.
On February 5, 1998, González petitioned for Defendants
to be held in contempt for failing to comply with the terms of the
settlement agreement. González alleged, in relevant part, that
Defendants refused to appoint him to the position and salary for
which he qualified: Executive Officer VII.
A magistrate judge denied González's motion for contempt
on August 20, 1998. In his Report and Recommendation, the
magistrate judge found that Defendants had substantially complied
with the terms of the settlement agreement by appointing González
to Executive Officer I. González did not object to the Report and
Recommendation, which the district court adopted on September 10,
1998. González-Piña v. Rodríguez, No. 95-1527 (D.P.R. Sept. 11,
1998) ("González-Piña I"). No appeals were taken from that
judgment.
González filed the instant case on August 2, 2001,
alleging § 1983, due process, and state law violations. In a
nutshell, Defendants allegedly (1) failed to appoint him to a
position and salary commensurate with his qualifications, and (2)
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harassed and deprived him of duties and responsibilities. These
actions, González alleged, were done in retaliation for his support
of the Mayor's opponent during the 1994 primaries.
Defendants moved for summary judgment on April 25, 2003.
Shortly thereafter, on May 12 and May 15, Defendants announced two
new witnesses. González filed a motion opposing summary judgment
on May 16, and Defendants replied on May 22. The parties deposed
the new witnesses on July 23, 2003, but neither party raised the
evidence gleaned from these depositions during the pendency of the
summary judgment motion.
On August 7, 2003, the district court issued an Opinion
and Order granting summary judgment for Defendants. First, the
court found that res judicata did not bar González's claims to the
extent that they were based on new conduct occurring after his
return to work. However, González's claims regarding Defendants'
failure to employ him at a higher position -- in alleged violation
of the settlement agreement -- were held barred by collateral
estoppel. This issue had been fully and finally litigated in
González-Piña I, which determined that the Executive Officer I
position, which had a salary greater than $1,400 per month,
complied with the settlement agreement. Moreover, the court found
that equity weighed in favor of collateral estoppel's application,
as González failed to object to the magistrate judge's finding and
the district court's adoption of that finding.
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Second, the court held that González's remaining claims
-- harassment and lack of work -- were not supported by sufficient
evidence to establish a prima facie case of political
discrimination in violation of the First, Fifth or Fourteenth
Amendment. In so holding, the court found, inter alia, that (1)
González admitted that he did not request duties or appraise the
Human Resources Director or the Mayor of his lack of duties, (2)
González failed to specify who made comments to him that he was
viewed as a problematic employee and was not to have access to his
employment information, and (3) González failed to link the Mayor
to any of the alleged discriminatory practices. Since González
failed to provide sufficient evidence for the court to infer that
political discrimination was a substantial or motivating factor in
his treatment, the court granted summary judgment for Defendants.
On August 18, 2003, González filed a motion to
reconsider, pursuant to Federal Rules of Civil Procedure 59(e) and
60(b)(2), based on new evidence from the July 23, 2003 deposition
of defense witnesses. A deposition witness, who temporarily served
as González's supervisor, apparently stated that González told her
that he had no assignments and had nothing to do in the office.
The witness also indicated, in a somewhat confused exchange with
counsel, that González had not been assigned tasks between 1999 and
2000, but was assigned tasks in 2000. The court denied the motion
to reconsider on March 31, 2004.
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González appeals, arguing that the district court erred
in (1) applying res judicata and collateral estoppel, (2)
determining that he failed to establish a prima facie case of
political discrimination, and (3) denying his motion to reconsider
based on new evidence. We address these issues in turn.
II. Analysis
A. Res Judicata and Collateral Estoppel
González first argues that the district court erred in
applying res judicata and collateral estoppel in dismissing his
political discrimination claims. We disagree.
Res judicata is an issue of law over which this court
exercises plenary review. Pérez-Guzmán v. Gracia, 346 F.3d 229,
233 (1st Cir. 2003). Under this doctrine, "a final judgment on the
merits of an action precludes the parties or their privies from
relitigating claims that were raised or could have been raised in
that action." Breneman v. United States ex rel. F.A.A., 381 F.3d
33, 38 (1st Cir. 2004) (citation omitted). Specifically, res
judicata applies when the following exist: "(1) a final judgment on
the merits in an earlier proceeding, (2) sufficient identicality
between the causes of action asserted in the earlier and later
suits, and (3) sufficient identicality between the parties in the
two actions." Id. This doctrine, also known as claim preclusion,
serves the purpose of "reliev[ing] parties of the cost and vexation
of multiple lawsuits, conserv[ing] judicial resources, and . . .
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encourag[ing] reliance on adjudication." Id. (quoting Allen v.
McCurry, 449 U.S. 90, 94 (1980)).
Here, the district court allegedly erred in applying res
judicata because the instant allegations of political
discrimination involve subsequent conduct, and thus lack
"sufficient identicality of causes of action" with the earlier
suit. Specifically, González argues that Defendants' post-
reinstatement harassment and failure to assign work constitute
"[s]ubsequent conduct, [that,] even if it is of the same nature as
the conduct complained of in a prior lawsuit, may give rise to an
entirely separate cause of action." Kilgoar v. Colbert County Bd.
of Educ., 578 F.2d 1033, 1035 (5th Cir. 1978) (internal quotation
omitted). On this point, we agree, and apparently so did the
district court, which found that "González's claim of political
discrimination is not precluded on new conduct occurring after his
return to the Municipality." González-Piña v. Rodríguez, 278 F.
Supp. 2d 195, 201 (D.P.R. 2003). González simply misunderstood the
district court's holding on res judicata, which was correct as a
matter of law. See, e.g., Walsh v. Int'l Longshoremen's Ass'n, AFL
CIO, Local 799, 630 F.2d 864, 873 (1st Cir. 1980) (recognizing that
res judicata did not bar "subsequent conduct [that] was broader and
more farreaching than the conduct which led to the original
complaint").
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Neither do we find fault in the court's collateral
estoppel analysis. Collateral estoppel, like res judicata, is an
issue of law which we review de novo. Faigin v. Kelley, 184 F.3d
67, 78 (1st Cir. 1999). To establish collateral estoppel, the
following factors must be met:
(1) an identity of issues (that is, that the
issue sought to be precluded is the same as
that which was involved in the prior
proceeding), (2) actuality of litigation (that
is, that the point was actually litigated in
the earlier proceeding), (3) finality of the
earlier resolution (that is, that the issue
was determined by a valid and binding final
judgment or order), and (4) the centrality of
the adjudication (that is, that the
determination of the issue in the prior
proceeding was essential to the final judgment
or order).
Id. In short, collateral estoppel, also known as issue preclusion,
"'means simply that when a[n] issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit.'"
Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir. 2003) (quoting Ashe
v. Swenson, 397 U.S. 436, 443 (1970)).
In the instant case, the district court correctly
concluded that all of González's claims regarding inadequate pay or
position, as well as any other claim of noncompliance with the
settlement agreement, are precluded by collateral estoppel. As a
result of González's contempt petition, the magistrate judge --
whose findings were adopted by the district court and were not
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appealed -- held that Defendants substantially complied with the
settlement agreement. Specifically, the judge found that the
Executive Officer I position at $1,500 per month salary satisfied
the settlement agreement's terms: a position with a salary "which
will never be less than $1,400 monthly." Since this issue of
ultimate fact has been determined by a valid and final judgment,
the court correctly foreclosed relitigation of this issue and any
of its derivatives under collateral estoppel, even if framed under
a different cause of action.1
We therefore affirm the district court's holding on res
judicata and collateral estoppel.
B. Sufficiency of Evidence
González further argues that the court erred in granting
summary judgment for Defendants due to his failure to establish a
1
We note that the court may have gone too far in barring under
collateral estoppel any evidence of González's failed attempts to
be reclassified to higher positions. While the prior adjudication
on the settlement agreement would preclude claims that the failure
to promote González to a higher position or salary violated the
agreement, it is unclear whether it would preclude a separate claim
of discrimination for, as an example, failure to promote González
to a position for which a less-qualified applicant was hired.
There appears to be no identity of issues in such a case, since the
former pertains to compliance with the settlement agreement, while
the latter pertains to discriminatory promotion practices.
Nonetheless, the contractual nature of the settlement agreement may
have bound González to accept any position that met its minimal
requirements. As the magistrate judge noted, "the stipulated terms
do not specify or require that plaintiff be appointed to a position
in accordance with his academic background and/or experience."
Moreover, since González failed to raise this argument on appeal,
we deem it waived. See, e.g., García-Ayala v. Lederle Parenterals,
Inc., 212 F.3d 638, 645 (1st Cir. 2000).
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prima facie case of political discrimination under the First
Amendment. This argument also fails.
We review grants of summary judgment de novo, viewing all
facts in the light most favorable to the nonmoving party and
granting all reasonable inferences in that party's favor. See,
e.g., Torres v. E.I. Dupont Nemours & Co., 219 F.3d 13, 18 (1st
Cir. 2000). Such judgments will be upheld "if 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). The
nonmoving party "must present definite, competent evidence to rebut
the motion," Mesnik v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991); otherwise, "summary judgment may be appropriate if the
nonmoving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation," Rivera-Cotto
v. Rivera, 38 F.3d 611, 613 (1st Cir. 1994) (internal quotation
omitted). "The mere existence of a scintilla of evidence" in the
nonmoving party's favor is insufficient to defeat summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
It is beyond peradventure that the First Amendment
protects "non-policymaking" public employees from adverse
employment actions based on their political affiliation or opinion.
See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 74-76
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(1990); Mercado-Alicea v. P.R. Tourism Co., 396 F.3d 46, 51-52 (1st
Cir. 2005). To establish a prima facie case of political
discrimination, plaintiffs must first show that party affiliation
was a substantial or motivating factor behind an adverse employment
action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977); see also Mercado-Alicea, 396 F.3d at 51. In
political discrimination claims involving changed work conditions,
this court has held that plaintiffs must establish by clear and
convincing evidence that their work situation is "unreasonably
inferior" to the norm, and then persuade, by a preponderance of the
evidence, that political affiliation motivated the adverse
employment action. See Agosto-de-Feliciano v. Aponte-Rogue, 889
F.2d 1209, 1217-20 (1st Cir. 1989) (en banc).2 The burden then
2
Subsequent to Agosto-de-Feliciano, the Supreme Court held that
certain deprivations less harsh than dismissal -- "promotions,
transfers, and recalls after layoffs based on political affiliation
or support [--] are an impermissible infringement on the First
Amendment rights of public employees." Rutan, 497 U.S. at 75. In
so holding, the Court noted that any adverse action against public
employees, no matter how minor, infringes First Amendment rights.
See id. at 76, n.8 ("[T]he First Amendment . . . already protects
state employees not only from patronage dismissals but also from
even an act of retaliation as trivial as failing to hold a birthday
party for a public employee . . . when intended to punish her for
exercising her free speech rights") (internal quotation marks and
citation omitted). Thus, we have questioned whether Rutan
effectively overruled Agosto-de-Feliciano, particularly its so-
called "changeover" defense. See Rodríguez-Pinto v. Tirado-
Delgado, 982 F.2d 34, 42 (1st Cir. 1993) (Torruella, J.,
concurring). Although subsequent First Circuit decisions do not
regard Rutan as necessarily foreclosing the "unreasonably inferior"
standard of Agosto-de-Feliciano, they leave unresolved any conflict
in such standard. See, e.g., Acosta-Orozco v. Rodríguez-de-Rivera,
132 F.3d 97, 101 (1st Cir. 1997); Ortiz García v. Toledo Fernández,
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shifts to the employer, under the "Mt. Healthy defense," to
establish by a preponderance of the evidence that it would have
taken the contested action regardless of the employee's political
affiliation. Mt. Healthy, 429 U.S. at 287.
In the instant case, we recognize that González
identified more specific facts of adverse employment action than
perhaps suggested by the district court. In his deposition,
González indicated (1) that he was given no assignments between his
post-settlement reinstatement in February 1998 and February 2000;
(2) that he had complained to the Finance Director about his lack
of duties and was told that they were tired of his constant
communications; (3) that a Human Resources employee complained
about his constant visits; (4) that a recently vacated position was
eliminated shortly after he submitted his application for that
position; and (5) that he was refused access to his personnel
files. The Mayor, in his deposition, also stated that although
González had approached him about his lack of duties, he had no
time to read employee complaints and act on them because of his
mayoral duties. We find that these facts are specific enough to
amount to more than a "mere scintilla" of evidence. See Liberty
Lobby, 477 U.S. at 252.
-- F.3d --, 2005 WL 894470 at *5, n.4 (1st Cir. Apr. 19, 2005).
Nonetheless, since any such conflict has no impact on our holding,
we save that question for another day.
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We need not decide, however, whether González established
such "unreasonably inferior" conditions. Since González failed to
show that the adverse employment decisions were motivated by
political animus, this ends our inquiry. We agree with the
district court's finding that González failed to link defendant
Mayor to any of the alleged discriminatory practices. See
González-Piña, 278 F. Supp. 2d at 205. The only assertion
regarding the Mayor personally is that González attempted to speak
with him at a Christmas party and was told that they had nothing to
talk about. Id. at 206. González presents no corroborating
evidence that the alleged events took place or were related to his
lack of political support for the Mayor or the earlier suit, or
were in any other way motivated by political animus. González's
support for a rival mayoral candidate in the primary, even if the
Mayor was aware of such support, is by itself insufficient to
establish political animus. See, e.g., Padilla-García v. Guillermo
Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000) (a showing of political
animus "requires more than merely 'juxtaposing a protected
characteristic -- someone else's politics -- with the fact that
plaintiff was treated unfairly'") (citation omitted).
In the absence of any evidence of political motivation,
González cannot meet his burden to show a prima facie case of
political discrimination. We therefore affirm on this issue.
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C. New Evidence
After the district court entered summary judgment for
Defendants, González filed an unsuccessful Rule 60(b) Motion for
Relief from Judgment based on "newly discovered evidence." Fed. R.
Civ. P. 60(b). Since we find no abuse of discretion by the
district court, we affirm.
"[R]elief under Rule 60(b) is extraordinary in nature
and . . . motions invoking that rule should be granted sparingly."
Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002). We
will not overturn denials of such motions unless "a miscarriage of
justice is in prospect or the record otherwise reveals a manifest
abuse of discretion." Ruiz-Rivera v. Riley, 209 F.3d 24, 27 (1st
Cir. 2002); see also Appeal of Sun Pipe Line Co., 831 F.2d 22, 25
(1st Cir. 1987) ("We have repeatedly held that, once the ball has
ended, the district court has substantial discretion in deciding
whether to strike up the band again in order to allow the losing
party to argue new material or a new theory.").
Rule 60(b) provides that a "court may relieve a party
. . . from a final judgment, order, or proceeding" based on, inter
alia, "newly discovered evidence which by due diligence could not
have been discovered in time . . . ." Fed. R. Civ. P. 60(b)(2).
Under this rule, a party moving for relief from summary judgment
must persuade the district court that it meets all of the following
Mitchell requirements: "(1) the evidence has been discovered since
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the trial; (2) the evidence could not by due diligence have been
discovered earlier by the movant; (3) the evidence is not merely
cumulative or impeaching; and (4) the evidence is of such a nature
that it would probably change the result were a new trial to be
granted." U.S. Steel v. M. DeMatteo Const. Co., 315 F.3d 43, 52
(1st Cir. 2002) (citing Mitchell v. United States, 141 F.3d 8, 18
(1st Cir. 1998). Although the movant in the instant case seeks
relief from summary judgment rather than a trial, the "standard for
relief under Rule 60(b)(2) is equally applicable to evidence
discovered after a summary judgment." U.S. Steel, 315 F.3d at 52
n.9.
Here, the fact that the depositions and the evidence
discovered therein were taken fourteen days prior to summary
judgment quickly disposes of this issue: it fails the first
Mitchell requirement that the evidence be discovered after the
district court's entry of summary judgement. See also U.S. Steel,
315 F.3d at 52 (finding that a party is not entitled to relief
under Rule 60(b)(2) where it possessed records containing evidence
prior to the summary judgment hearing but failed to review them).
This requirement is closely related to the second Mitchell
requirement of due diligence. "[A] party who seeks relief from a
judgment based on newly discovered evidence must, at the very
least, offer a convincing explanation as to why he could not have
proffered the crucial evidence at an earlier stage of the
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proceedings." Karak, 288 F.3d at 19-20. We find no convincing
explanation in this case. González was aware of the deposition's
contents by July 23, 2003, and also knew that a summary judgment
motion has been pending against him for several months. Yet for
fourteen days, he failed to bring evidence gleaned from the
depositions to the court's attention, and instead prepared for jury
selection that was to begin on August 8, 2003.
González nonetheless attempts to salvage his failure to
satisfy Mitchell by proffering an equitable argument: that the
depositions were agreed upon by both parties. We find no case law
providing for such an exemption, and could conceive of no
compelling reason to do so now. "Equity, after all, ministers to
the vigilant, not those who slumber upon their rights." Sandstrom
v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990). Although the
parties' agreement to the deposition might have given González
cause to believe that the summary judgment would not be acted upon,
he nonetheless possessed the information and could have informed
the court.
Since González failed to meet his burden of proving the
first and second Mitchell criteria, we find no abuse of discretion
in the district court's denial of his Rule 60(b)(2) motion.
The district court's judgments are affirmed.
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