United States Court of Appeals
For the First Circuit
No. 05-1743
FERNANDO AGUIAR-CARRASQUILLO,
MARÍA REYES-GARCÍA,
Plaintiffs, Appellants,
v.
HON. JUAN AGOSTO-ALICEA, in his personal capacity and in his
official capacity as PRESIDENT OF THE GOVERNMENT DEVELOPMENT
BANK (GDB); GOVERNMENT DEVELOPMENT BANK OF PUERTO RICO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Francisco R. González, with whom F.R. González Law Office was
on brief, for appellants.
Edwin J. Seda-Fernández, with whom Mariel Y. Haack, Adsuar
Muñiz Goyco & Besosa, P.S.C., Rafael Escalera-Rodríguez, Michelle
Taveira-Tirado, and Reichard & Escalera were on brief, for
appellees.
April 12, 2006
TORRUELLA, Circuit Judge. Plaintiffs-Appellants Fernando
Aguiar-Carrasquillo ("Aguiar") and María Reyes-García ("Reyes")
allege several different causes of action arising from political
discrimination against their employers, defendants Government
Development Bank ("GDB") and Juan Agosto-Alicea ("Agosto").
Plaintiffs are members of the New Progressive Party ("NPP") while
Agosto is a member of the Popular Democratic Party ("PDP") that
came to power in Puerto Rico after its 2000 electoral victory.
On July 15, 2003, defendants filed a motion for summary
judgment. On July 21, 2003, plaintiffs requested a thirty-day
extension to file their opposition to defendants' motion for
summary judgment because they claimed it was essential for their
opposition to depose Alba Caballero ("Caballero").1 The district
court granted plaintiffs' request for an extension until August 21,
2003, but warned that "ABSOLUTELY NO FURTHER EXTENSIONS OF TIME
SHALL BE GRANTED." (emphasis in the original). Nevertheless,
plaintiffs did not timely file their opposition to defendants'
summary judgment motion.
Four months later, on November 25, 2003, defendants filed
a motion requesting that the court deem unopposed their statements
of uncontested material facts and grant summary judgment in their
favor. On December 24, 2003, plaintiffs opposed defendants' motion
1
Caballero was the external investigator hired by the GDB in 2001
to review all appointments and personnel transactions undertaken
between July and December 2000.
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for the admission of their statement of facts as uncontroverted,
and requested a thirty-day extension to file their opposition to
defendants' summary judgment motion. On March 12, 2004, the court
entered its Opinion and Order, accepting defendants' unopposed
statement of facts and granting defendants' unopposed motion for
summary judgment. On March 23, plaintiffs filed a motion for
reconsideration on grounds that defendants had failed to provide
certain "essential documents." On March 25, plaintiffs filed their
first motion requesting that the court order defendants to produce
those documents. Finally, on April 14, 2004, more than one month
after the entry of judgment, plaintiffs filed their opposition to
summary judgment. On March 23, 2005, the district court denied
plaintiffs' motion for reconsideration. Plaintiffs now appeal.
I. Uncontested Facts
Agosto became GDB President on January 2, 2001, at which
time he extended all probationary periods then in effect and
ordered an investigation -- to be conducted by Caballero -- of all
recent appointments, including those of plaintiffs, to determine
whether any violated the applicable law and regulations. Both
plaintiffs allege discriminatory adverse employment actions
resulting from this investigation.
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A. Plaintiff Aguiar
On April 7, 2000, Aguiar was appointed Executive Director
of the Tourism Development Fund, a trust position,2 with a salary
of $77,200. That salary was increased to $82,227 on July 12, 2000.
In August 2000, the GDB Human Resources Office prepared an
announcement for the position of Assistant Director of Private
Finance. The requirements for the position included:
(a) Bachelor's Degree in Accounting or Finance
from an accredited university or college; Six
years of experience in loan analysis and
administration, two of those years in
personnel supervision functions; Bilingual
(Spanish and English); or in its place;
(b) Master's Degree in Accounting or Finance
from an accredited university or college; Five
years of experience in loan analysis and
administration, two of those years in
personnel supervision; Bilingual (Spanish and
English).
Jaime López ("López"), Director of Private Finance at GDB, reviewed
these requirements before the announcement was published, met with
Aguiar to discuss his eligibility for the position, and
subsequently eliminated the education prerequisites and the
requirements for experience in loan analysis and administration.
In their stead, he established a much lower threshold of
2
Puerto Rico law distinguishes between "career" employees and
"trust" employees. Career employees are permanent and "'may only
be removed from their positions for just cause after due filing of
charges.'" Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 3 n.1
(1st Cir. 2000) (quoting 21 P.R. Laws Ann. § 4554(b)). By
contrast, trust employees "shall be of free selection and removal,"
i.e., removable with or without cause. 3 P.R. Laws Ann. § 1350.
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qualifications for the job -- namely, six years of experience in
analysis and administration of private sector financing, two of
which must have entailed the planning and coordination of financing
services including personnel supervision. Despite the fact that
GDB had classified the position of Assistant Director of Private
Finance as one that categorically required a degree in accounting
or finance, the announcement was published with no such
requirements. Aguiar does not have a degree in accounting or
finance and would not have been eligible for the position if López
had not changed the requirements.
Aguiar applied for the position of Assistant Director of
Private Finance and was appointed, effective September 7, 2000,
subject to the standard six month probationary period. At that
time, Aguiar's qualifications for the position included four years
and eleven months' experience in analysis and administration of
private sector financing, two of which related to planning and
coordination of financing services. When he was certified as
eligible for the position, one additional year of employment
experience -- during which time he served as an administrative
officer -- was counted toward the requirement of six years'
experience in the analysis and administration of private sector
financing, despite the fact that his duties as an administrative
officer did not include those activities.
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The position of Assistant Director of Private Finance was
a permanent career position, with an annual salary of $58,900.
Aguiar continued to occupy the position of Executive Director of
the Tourism Development Fund, for which he received a "differential
compensation" of $23,100 annually. The sum of his salary and the
differential was $82,230, which is the same salary that he had
received as Executive Director of the Tourism Development Fund
prior to his promotion. According to GDB Personnel Regulations, a
differential can only be authorized, with written justification,
when "the geographic location, the extraordinary job conditions or
the extraordinary difficulties regarding recruitment or retention
of personnel in certain positions justify the use of additional
incentives to the ordinary salary." There is no evidence on the
record of a valid justification for the differential.
On June 6, 2001, Agosto notified Aguiar that serious
irregularities had been identified with regard to his appointment
as Assistant Director of Private Finance. These included a) the
impermissible elimination of the educational prerequisite from the
published requirements for the position; b) the fact that Aguiar
did not have the six years' required relevant experience; and c)
the fact that Aguiar simultaneously occupied two positions at GDB.
After an administrative hearing during which Aguiar had the
opportunity to present evidence, his appointment was declared null
and void, and he was reinstated to a previous position --
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Administrative and Finance Officer at the Tourism Development Fund,
effective July 17, 2001.
B. Plaintiff Reyes
Reyes applied for the position of Senior Account
Executive at GDB on August 25, 2000. The requirements of the
position included "two years of experience in financing,
investment, or professional accounting functions," one of which
must have entailed credit analysis or the administration of
financing accounts or investment portfolios. Reyes's resumé did
not initially list any duties related to financial analysis, and
she was asked to submit a new certification. Her new
certification, listing financial analysis responsibilities, was
submitted on September 5, 2000. On that date she was certified as
eligible for the position and appointed to the position of Senior
Account Executive, effective September 7, 2000, subject to a six-
month probationary period.
Reyes was appointed after ten other candidates had
previously been certified as eligible, despite the fact that GDB
Personnel Regulations stipulate that "[t]he eligibles included in
each certification must be the first ten (10) that appear in the
register, willing to accept the appointment under the conditions
stipulated." Reyes's salary was set at $40,000, more than the
minimum salary for the position, despite the fact that GDB
Personnel Regulations provide that "every person will receive as
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salary for their services the minimum rate established for the
class to which their position is assigned." Only where there is
"difficulty in recruitment, extraordinary qualifications of the
candidate, or needs of the service," may an employee be awarded a
salary higher than the minimum. The Director of Human Resources
stated that Reyes had "vast experience" in the field of financial
analysis, despite the fact that her credentials do not appear to
support such an assessment, and Reyes claims that she had
"extraordinary qualifications" because she was bilingual,
organized, met her deadlines, and stayed at a previous post for
seven years.
Reyes's probationary period was extended when Agosto took
office as GDB President, and Caballero found several irregularities
upon review of her appointment. Among them were a) the fact that,
in violation of GDB regulations, Reyes was certified as eligible
for the position after ten other candidates had been certified; and
b) the fact that a higher salary was recommended without a valid
justification. On June 6, 2001, Agosto notified Reyes of the
irregularities, and after an informal hearing at which she had the
opportunity to present evidence, Reyes was terminated, effective
July 17, 2001.
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II. Analysis
A. Noncompliant Brief
As an initial matter, defendants claim that plaintiffs'
brief on appeal to this court fails to comply with the local rules
adopted by this Circuit. Specifically, Local Rule 30(d) stipulates
that "[t]he court will not receive documents not in the English
language unless translations are furnished." 1st Cir. R. 30(d).
Nevertheless, plaintiffs' Appendix contains 57 pages (pp. 335-392)
in Spanish, with no accompanying English translation. In the past,
we have refused to consider materials submitted to the court in any
language other than English, and we continue to do so. See, e.g.,
Ramos-Báez v. Bossolo-López, 240 F.3d 92, 94 (1st Cir. 2001).
However, we do not think the exclusion of these
untranslated materials will have any significant effect on the
strength of plaintiffs' case because most, if not all, of these
appendix pages appear to constitute exhibits to plaintiffs'
opposition to summary judgment. Because the district court granted
defendants' summary judgment motion unopposed, we conclude that
these exhibits were not relevant to decisionmaking below. On
appeal, "[w]e review only the materials actually relied upon below
. . ." United States v. Robinson, 137 F.3d 652, 653 n.1 (1st Cir.
1998). Because these exhibits were not considered below, we cannot
consider them now.
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B. Summary Judgment
Plaintiffs do not challenge the district court's
determination that defendants' motion for summary judgment was
unopposed, or that defendants' factual assertions were
uncontroverted, and thus we do not consider those issues.
Nevertheless, entry of a summary judgment motion as unopposed does
not automatically give rise to a grant of summary judgment.
Instead, "the district court [is] still obliged to consider the
motion on its merits, in light of the record as constituted, in
order to determine whether judgment would be legally appropriate."
Mullen v. St. Paul Fire and Marine Ins. Co., 972 F.2d 446, 452 (1st
Cir. 1992) (citation and internal quotation marks omitted). In
this appeal, plaintiffs contend that the district court's grant of
summary judgment was not legally appropriate.
We review a grant of summary judgment de novo, drawing
all reasonable inferences in favor of the non-moving party.
Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir.
2002). Summary judgment is properly granted if the movant can
demonstrate 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). It is well-settled that "before
granting an unopposed summary judgment motion, the court must
inquire whether the moving party has met its burden to demonstrate
undisputed facts entitling it to summary judgment as a matter of
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law." López v. Corporación Azucarera de Puerto Rico, 938 F.2d
1510, 1517 (1st Cir. 1991) (citation and internal quotation marks
omitted).
In a political discrimination claim under 42 U.S.C.
§ 1983, plaintiffs must demonstrate that defendants deprived them
of federally protected rights while acting under color of state
law. Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005).
They must further establish that they have engaged in
constitutionally protected conduct and that this conduct was a
substantial or motivating factor in the adverse employment action.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). The burden then shifts to defendants to demonstrate
that (i) they would have taken the same action in any event; and
(ii) they would have taken such action for reasons that are not
unconstitutional. Id. at 286-87.
In this inquiry, although we are constrained by the
uncontested facts as accepted by the district court, we "construe
the record in the light most favorable to" the non-moving party.
E.g., Tobin v. Liberty Mut. Ins. Co, 433 F.3d 100, 104 (1st Cir.
2005). There is no doubt that the adverse employment actions in
both cases took place immediately after the administration change
following the PDP victory in the 2000 elections, when defendant
Agosto directed Caballero to conduct an "audit" of all recent
employment actions to evaluate their compliance with GDB Personnel
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Regulations. Plaintiffs claim that Caballero's audit was
"selective" because it only affected NPP members, but this
allegation is entirely unsupported and it is, in any event, not
persuasive. Even if the personnel actions taken during the
relevant period involved NPP members, official review of such
employment decisions does not support a claim of discrimination.
As we have observed,
[i]f uniformly applied personnel practices,
predicated on legitimate reasons, result in
terminations, those terminations are not
unconstitutional because those affiliated with
one political party are disproportionately
impacted. It is in the nature of a change in
administrations that job actions by the new
party in power will have a disparate impact on
members of the outgoing party.
Sánchez-López v. Fuentes-Pujols, 375 F.3d 121, 140 (1st Cir. 2004).
We evaluate each plaintiff's allegations in turn.
Plantiff Aguiar claims that he was reinstated to his
previous position because of political discrimination. However,
Aguiar is not certain that defendant Agosto was even aware of his
political affiliation. In fact, his only specific allegation as to
the knowledge of any government official of his political
affiliation is that former GDB Vice President Zaida Marrero knew of
his political leanings when she hired him for a position with the
Municipal Collection Revenue Center (CRIM) several years earlier,
before her retirement in 1997. Thus, Aguiar has not demonstrated
that political discrimination was a substantial or motivating
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factor in his reinstatement to his previous career position. Even
if, arguendo, he had made such a showing, defendants have alleged
facts in support of their Mt. Healthy claim that Aguiar's
appointment violated GDB Personnel Regulations, and thus that they
would have removed him from the position of Assistant Director of
Private Finance regardless of his political affiliation because,
among other reasons, he was not qualified for the position.
Although Aguiar now claims that the administrative hearing that
gave rise to his removal from his position was "pro forma, a sham
and a subterfuge," this allegation is conclusory and devoid of any
substantiation. As we have repeatedly intoned, "we do not consider
conclusory allegations, improbable inferences, and unsupported
speculation." Emmanuel v. Int'l Bhd. of Teamsters, Local Union No.
25, 426 F.3d 416, 419 (1st Cir. 2005) (citation and internal
quotation marks omitted). Aguiar offers nothing more.
Plaintiff Reyes claims that she was terminated because of
her political affiliation. However, she admits that she never told
anyone at GDB about her political affiliation, claiming only that
people "must have known" because of her "relationship" with Aguiar
and the fact that she had been employed under the previous
administration. Reyes does not elaborate as to the nature of this
relationship with her co-plaintiff and so we have no basis upon
which to evaluate that argument. Further, we do not find
persuasive her claim that the simple fact of her employment prior
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to the 2000 election would have been sufficient to put her co-
workers and employers on notice of her political inclinations. As
plaintiffs point out, they "need not produce direct evidence of
discriminatory treatment (a so-called 'smoking gun') to establish
a prima facie case of politically discriminatory demotion [or
termination]." Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d 97,
101-02 (1st Cir. 1997). Nevertheless, more is required than
Reyes's bare allegations in this case. We find that she has not
discharged her burden to demonstrate that her political affiliation
was a substantial or motivating factor for her termination.
However, even if she had made a prima facie case for political
discrimination, defendants have presented a legitimate, non-
discriminatory explanation for her termination -- namely, that her
appointment violated GDB Personnel Regulations.
In addition to their First Amendment claims, both
plaintiffs allege violations of their Fourteenth Amendment right to
due process. Specifically, Aguiar and Reyes claim deprivation of
their property interests in employment without a meaningful
hearing. Defendants respond, consistent with the district court's
opinion, that because plaintiffs' appointments were made in
violation of GDB Personnel Regulations, plaintiffs had no property
interests in their positions and thus were not entitled to
Fourteenth Amendment protection. The district court correctly
disposed of these claims.
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It is clear that the Fourteenth Amendment guarantees an
informal pre-termination hearing to those with a property interest
in their employment. See Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542 (1985). Such property rights are created by
"existing rules or understandings that stem from an independent
source such as state law." Id. at 538. We have long recognized
that "public employees hired for career positions in violation of
the Puerto Rico Personnel Act, or agency regulations promulgated
thereunder, may not claim property rights to continued expectations
of employment because their career appointments are null and void
ab initio." Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1173
(1st Cir. 1988). Because we find that both plaintiffs' positions
were secured in violation of GDB Personnel Regulations, we affirm
summary judgment as to their Fourteenth Amendment claims without
evaluating the adequacy of their pre-termination hearings.3
C. Motion for Reconsideration
Plaintiffs claim that the district court erred by denying
their motion for reconsideration of its judgment granting
defendants' unopposed motion for summary judgment. Plaintiffs'
argument is based on three subsections of Rule 60(b) of the Federal
Rules of Civil Procedure. Subsection (1) provides for relief from
3
Defendant Agosto also raises qualified immunity as an
affirmative defense, but we need not reach this issue because we
find that neither plaintiff has made a prima facie case under 42
U.S.C. § 1983.
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judgment in the case of "mistake, inadvertence, surprise, or
excusable neglect." Fed. R. Civ. P. 60(b)(1). Subsection (3)
provides for relief from judgment where there is "fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party." Fed. R. Civ. P. 60(b)
(3). Subsection (6) provides for relief for "any other reason
justifying relief from the operation of the judgment." Fed. R.
Civ. P. 60(b)(6). We review a district court's disposition of a
60(b) motion for abuse of discretion. Lepore v. Vidockler, 792
F.2d 272, 274 (1st Cir. 1986).
It is fundamental that Rule 60(b) "provides for
extraordinary relief, [and] a motion thereunder may be granted only
under exceptional circumstances." Id. Plaintiffs allege that
extraordinary relief is warranted in this case because defendants
willfully and intentionally misled plaintiffs to believe that the
deposition transcripts and other documents they requested would be
promptly provided. They maintain that defendants' dilatory tactics
in this regard prevented them from timely filing their opposition
to summary judgment.
Plaintiffs first claim that the district court erred by
denying their motion for reconsideration on grounds of "excusable
neglect," within the meaning of Rule 60(b)(1). Discussing similar
language found elsewhere in the Federal Rules of Civil Procedure,
the Supreme Court has acknowledged that "excusable neglect" is a
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fairly flexible concept that encompasses "inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the
party's control." Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.,
507 U.S. 380, 388 (1993). Plaintiffs only address one of these
factors, contending that the delay was not within their control
because neither Caballero nor defense counsel provided certain
"essential" documents, despite repeated requests. By contrast, the
district court found that plaintiffs did have a significant measure
of control over –- and ability to minimize -- the delay. In an
order dated August 26, 2003, the district judge allowed an
additional fifteen days for plaintiffs to take Caballero's
deposition because they had been previously unable to do so. The
order stipulated that "[i]f an impasse occurs, parties shall
request the intervention of the Court, and should there be any
other conflict regarding her deposition, Plaintiffs are therefore
allowed to present a petition for sanctions." In its order denying
plaintiffs' Amended Motion for Reconsideration, the district court
found that plaintiffs "were provided an exceptional amount of time
to either file their opposition or to request the Court's
intervention." Nevertheless, despite allegedly ongoing
difficulties, plaintiffs filed no motion requesting the court's
intervention until March 23, 2004, more than six months after the
district court instructed plaintiffs to invoke its assistance in
the event of difficulty or delay, and fully eight months after
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defendants' initial motion for summary judgment. Having exercised
no diligence to meet the filing deadlines established by the
district court, plaintiffs cannot now claim excusable neglect under
Rule 60(b)(1) on grounds that the delay was outside of their
control.
Plaintiffs next argue that the district court should have
granted their motion for reconsideration because "[f]ailure to
disclose or produce materials requested in discovery can constitute
'misconduct' within the purview of [Rule 60(b)(3)]." Anderson v.
Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988). However, we have
made clear that "not every instance of nondisclosure merits the
same judicial response." Id. at 923. In Anderson, we established
a clear standard, such that
in motions for a new trial under the
misconduct prong of Rule 60(b)(3), the movant
must show the opponent's misconduct by clear
and convincing evidence. Next, the moving
party must show that the misconduct
substantially interfered with its ability
fully and fairly to prepare for, and proceed
at, trial. . . . The burden can also be met
by presumption or inference, if the movant can
successfully demonstrate that the misconduct
was knowing or deliberate.
Id. at 926. In this case, plaintiffs have clearly not met their
Anderson burden. Even if we assume, arguendo, that they have shown
defendants' misconduct by "clear and convincing evidence,"
plaintiffs have not even attempted to show either that the
misconduct "substantially interfered" with their ability to respond
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to the summary judgment motion or that such misconduct was "knowing
or deliberate."
Finally, plaintiffs maintain that they are entitled to
relief under Rule 60(b)(6). In order for a party to qualify for
subsection (6), there must be a showing of "extraordinary
circumstances suggesting that the party is faultless in the delay."
Pioneer, 507 U.S. at 393 (internal quotation marks omitted). In
essence, the district court found that plaintiffs were not
faultless because they had "more than reasonable time" to file
their opposition to summary judgment, and because, despite the
court's explicit instructions as to proper procedure in the event
of stonewalling from defendants, plaintiffs failed to comply. In
short, the district court did not consider plaintiffs' situation to
be a unique one where, as is required under Rule 60(b)(6),
"principles of equity mandate relief." Jinks v. AlliedSignal,
Inc., 250 F.3d 381, 387 (2001). We find no abuse of discretion.
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment against plaintiffs.
Affirmed.
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