United States Court of Appeals
For the First Circuit
No. 06-2543
DR. DANIEL AYALA-RODRÍGUEZ; PRISCILLA CARRASQUILLO;
DANELLIS AYALA-CARRASQUILLO; DANNIS AYALA-CARRASQUILLO;
DENNIS AYALA-CARRASQUILLO,
Plaintiffs, Appellants,
v.
DR. JOHNNY RULLÁN, Secretary of the Health Department of
Puerto Rico (HDPR); DR. HERIBERTO PAGÁN-SÁEZ, Executive Director
of the Medical Services Administration (ASEM); DR. EDWIN MIRANDA,
Director of the Emergency Room of the San Juan Medical Center;
DR. VICTOR MEDINA-CRUZ, Director of Medical Services of the
San Juan Medical Center; PUERTO RICO MEDICAL SERVICES
ADMINISTRATION (ASEM),
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Raúl Barrera-Morales, Jesús Hernández-Sánchez, and Hernández
Sánchez Law Firm on brief for appellants.
Rosa Elena Pérez-Agosto, Assistant Solicitor General,
Department of Justice, Salvador J. Antonetti-Stutts, Solicitor
General, Mariana D. Negrón-Vargas, Deputy Solicitor General, and
Maite D. Oronoz-Rodríguez, Deputy Solicitor General, on brief for
appellees.
December 19, 2007
BOUDIN, Chief Judge. Daniel Ayala, a physician
practicing in Puerto Rico, appeals from the dismissal of his law
suit charging that his employment contract was not renewed because
of political discrimination and without due process. The district
court granted summary judgment in favor of the defendants, so the
state of the summary judgment record is of central importance. It
shows the following.
In 1998, Ayala signed a contract with Puerto Rico's
Medical Services Administration ("ASEM") to work for a term of one
year as a doctor in the emergency room at the San Juan Medical
Center. After receiving satisfactory evaluations, Ayala's annual
contract was renewed in 1999, 2000, and 2001. From late 2001,
Ayala was supervised largely by Edwin Miranda, the director of the
Medical Center's emergency room, and (ranking above Miranda) by
Victor Medina, the Medical Center's Director of Medical Services.
In November 2000, a new governor of Puerto Rico
affiliated with the Popular Democratic Party ("PDP") was elected,
replacing a governor who had belonged to the New Progressive Party
("NPP"). Ayala is a declared NPP sympathizer, having been a
candidate for state representative in 1996 and for mayor of the
town of Canovanas in 1999. The new governor took office on January
2, 2001, and in February appointed Johnny Rullan as the Secretary
of Health, whose responsibilities included oversight of ASEM.
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On May 22, 2002, Ayala was informed that ASEM would not
renew his contract when it expired on June 30, 2002. The letter
was signed by Miranda, Medina and Heriberto Pagan--also a doctor
and ASEM's executive director, seemingly the only one who had
authority to renew or not renew Ayala's contract. Although the
letter was deliberately opaque, Ayala was told that the reason was
that he had several times violated emergency room sign-in
procedures by claiming to have worked during shifts for which he
was not present.1
Ayala then brought suit in federal district court against
Miranda, Medina, Pagan and Rullan, seeking damages and injunctive
and declaratory relief. (ASEM was also named but is protected by
the Eleventh Amendment.) Ayala's central claim, based on section
1983 and Puerto Rico law, was that he had been fired because of his
political affiliation with the NPP in violation of his first
amendment rights and without procedural due process. 42 U.S.C. §
1983 (2000); P.R. Laws Ann. tit. 31, § 5141.
In discovery, the defendants turned over various
documents--including hospital attendance records--and supplied
interrogatory answers from Pagan, Miranda and Medina. Ayala took
Miranda's deposition but scheduled and then cancelled depositions
1
The letter mentions ASEM's right to cancel the contract with
30 days' notice for any reason and notes Ayala's retention of
clinical privileges through the end of the contract period. Ayala
remained on the staff until his contract expired.
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for Medina and other key defense witnesses. The defendants took
Ayala's deposition and presented affidavits from witnesses
describing the circumstances of Ayala's attendance violations.
Thereafter defendants moved for summary judgment.
The gist of Ayala's case was that his NPP affiliation was
well known; that the defendants were all PDP supporters; that the
misconduct charges against him were false; and that the defendants
were motivated by political animus. The sole "direct" evidence of
animus was Ayala's own claim--for which no detail or corroboration
was provided--that Miranda had several times confessed to Ayala
that Ayala was being dismissed "since I [Ayala] was blue" on "an
order from above"--blue being the NPP color.
The defendants' evidence was more substantial. Under
hospital procedures, Ayala had to "punch in" with an ID card that
electronically registered his attendance. Miranda and Medina said
in their affidavits that in a January 10, 2002, meeting with Ayala
and another doctor, Alejandro Marmolejo, Marmolejo admitted that in
December 2001 he had punched in for Ayala using Ayala's card when
the latter was not present; that Ayala had not denied this during
the meeting; and that both he and Marmolejo were admonished by
letter dated January 10, 2002, but given a further chance.
Then, on April 19, 2002, according to evidence not
dependent on the defendants' testimony, Ayala's ID card was again
used to show him present on the early morning shift when he was in
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fact not present according to records prepared by Ivan Rosario, the
supervising doctor. An emergency room record keeper, Jesus Rosado,
was alerted to the discrepancy when he received a report from
Ayala, who purported to have served as the supervising doctor on
the same night as Rosario but incorrectly identified the other
physicians on duty for the shift.
Concluding that Ayala's report must be fraudulent, Rosado
alerted Miranda to the situation. Miranda noted that Ayala's card
had been registered at nearly the same time as Marmolejo's, and
withheld Ayala's paycheck for the shift until the matter was
investigated. According to his affidavit, Miranda then interviewed
Ayala and found his explanation wanting. This second violation,
according to Miranda, led eventually to the non-renewal decision by
the three doctors who signed the letter.
In the affidavits, interrogatory answers or depositions
proffered in support of summary judgment, the defendants (apart
from Rullan) denied that they were PDP adherents, said (apart from
Miranda) that they knew little or nothing of Ayala's political
activities, and set forth the facts underlying the misconduct
charges against Ayala--averring that this was the basis for their
decision. Under oath, Miranda flatly denied ever making the
confession claimed by Ayala referring to his "blue" status or
orders from above. Rullan rested simply on the lack of any
evidence of his involvement.
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The district court ruled that Ayala's "conclusory
allegations and proffers" that his contract was not renewed because
he was "blue" were insufficient to establish a prima facie case of
political discrimination. The court said that in any event
defendants demonstrated that they would have dismissed Ayala for
violating hospital attendance procedures. Ayala's due process
claim was dismissed for failure to show any protectable interest in
renewal of his contract.
In Ayala's present appeal, our review is de novo, drawing
all reasonable inferences in favor of the non-moving party.
Villanueva-Mendez v. Nieves-Vazquez, 440 F.3d 11, 15 (1st Cir.
2006). Under the Elrod line of cases, Ayala could not be
terminated, or renewal of his contract refused, for partisan
political reasons;2 partisan motive would not matter if legitimate
reasons would independently have brought about the same result.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
285-87 (1977).
Turning to the individual defendants, Ayala's claim
against Rullan, the Secretary of Health, is the weakest of all.
Ayala has no evidence whatever that Rullan was involved in any of
the actions taken against him. There is no evidence that the
2
Elrod v. Burns, 427 U.S. 347 (1976); see also Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990). That Ayala was an
independent contractor and not an employee would not matter.
Santiago-Negron v. Castro-Davila, 865 F.2d 431, 436 (1st Cir.
1989).
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Secretary of Health is ordinarily involved in renewals of contracts
of individual emergency room doctors, still less that Rullan knew
of Ayala, the dispute about his alleged misconduct, or the decision
not to renew the contract.
Miranda's alleged statement that the decision to
terminate Ayala came "from above" does not indicate which senior
official supposedly played a role in the process. Since Miranda
flatly denies ever making the statement, examining him at trial--
even if the jury disbelieved his denial that the statement had been
made--could not allow a rational jury to conclude that Rullan was
the specific person in the hierarchy who for political reasons
supposedly instigated the non-renewal.
In his deposition, Ayala repeatedly described the alleged
"order from above" without indicating that the person concerned had
been named. In his affidavit he again made no claim that Miranda
made an explicit identification but insisted that the non-renewal
decision "had come from the 'higher top,' meaning the Secretary of
the Health Department of Puerto Rico."
If the affidavit means that Miranda identified the order
as coming from the Secretary, this would effectively alter Ayala's
deposition testimony in his favor; we have said before that such
maneuvers are inherently unpersuasive unless a reasonable
explanation for the charge is given. Cf. Colantuoni v. Alfred
Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). Further,
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the affidavit is suspiciously imprecise; it does not even now say
that Rullan was identified by Miranda nor does it point to other
evidence for Ayala's claim of Rullan's involvement.
The burden of showing that Rullan participated in the
decision lay squarely upon Ayala. That Rullan headed the
department does not make him liable merely on that account; there
is no respondeat superior liability under section 1983. Rizzo v.
Goode, 423 U.S. 362, 375-77 (1976). Ayala could have taken
Rullan's deposition, interrogated him under oath, and sought to use
any admissions against him. But Ayala failed to do so, and on this
record has no colorable claim against Rullan.
By contrast, Pagan did sign the non-renewal letter to
Ayala and, although Miranda and Medina signed the letter as well,
Pagan seemingly had the final authority to decide on renewal. But
Ayala does not assert that Miranda--assuming he made the "order
from above" statement--was referring to Pagan; Ayala instead
argues, but with no evidence, that the statement referred to
Rullan. In any event, there is no evidence admissible against
Pagan that he acted from a discriminatory motive, nor did Ayala
take Pagan's deposition to uncover any evidence against him.
Miranda's alleged statement, if made, would be admissible
against Miranda as an admission (of what is another question); but
it is hearsay as against anyone else and it is not clear that it
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would be admissible against Pagan.3 And, even if it were
admissible against Pagan, no proof exists that the conclusory
statement "since I was blue" is a quotation from Pagan or rests on
anything that Pagan said to Miranda. As Miranda denies making the
statement, its meaning could not be illuminated by cross-
examination.
Had Pagan endorsed groundless action against Ayala, this
might contribute to an inference of discriminatory intent if it
were coupled with some proof of animus, such as the affirmative
threats or hostile remarks that are common in political
discrimination cases, e.g. Rodriguez-Marin v. Rivera-Gonzalez, 438
F.3d 72, 78 (1st Cir. 2006). But Pagan made no such threats and
his actions followed an investigation of Ayala by Miranda and
Medina which, mistaken or not in its conclusions, certainly looked
(and still looks) inculpatory. Pagan did not need to make out a
Mt. Healthy defense: it is enough that there is no reasonable
inference that he acted out of discriminatory intent and therefore
no case against him. Correa-Martinez v. Arrillaga-Belendez, 903
F.2d 49, 56-58 (1st Cir. 1990).
Medina is in the same position as Pagan save that he
seemingly lacked authority to refuse to renew the contract. He
3
To make the statement admissible against others, Ayala would
probably have to show by independent evidence that the three were
conspirators and that the statement was made in furtherance of the
conspiracy. Fed. R. Evid. 801(d)(2)(E). It is unclear how he
could do either without bootstrapping, let alone both.
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made no admission himself; and even if Miranda's "order from above"
statement was made and was admissible against anyone other than
Miranda, Ayala does not claim that Medina was the person referred
to in the statement or that Medina said anything about "blue."
There is again no evidence admissible against Medina of
discriminatory animus.4
Miranda is the only defendant against whom Ayala has any
useful evidence--but evidence consisting entirely of an alleged
admission by Miranda for which Ayala is the only witness. There is
good reason, quite apart from Miranda's flat denial, to doubt that
the admission was ever made. Ayala suggests no reason why Miranda
would have made such admission, and offers few specifics about the
circumstances (e.g., dates of the statements). A review of Ayala's
deposition testimony on other issues gives the impression that he
would not make a very believable witness.
Credibility issues are for the jury, Velazquez-Garcia v.
Horizon Lines of P.R., Inc, 473 F.3d 11, 17-18 (1st Cir. 2007), so
a court's skepticism of Ayala's statement would not itself
ordinarily be the basis for granting summary judgment. But the
words Ayala attributes to Miranda are not an admission that Miranda
4
Discriminatory animus cannot be based merely on adherence to
an opposing political party. Marrero-Gutierrez v. Molina, 491 F.3d
1, 9-10 (1st Cir. 2007). Further, Ayala presented no persuasive
evidence that Pagan and Medina are PDP supporters. When asked how
he came to know that Pagan and Medina were PDP members, Ayala
claimed to know "what party one is from" based on generalizations
about clothing and "joyful expressions" the day after elections.
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acted out of political animus. Rather, the alleged admission is
that someone else ordered the non-renewal of the contract based on
an improper political motivation. This is not without more a basis
to impose liability on Miranda.
On the present record, Miranda has a rational explanation
for the non-renewal, namely, evidence that Ayala was disobeying
sign-in requirements even after having been warned and given a
second chance. A succession of affiants, several disinterested,
proved that incidents occurred creating a basis for this belief.
Documentary evidence supports this testimony. No rational jury
could doubt that such incidents occurred, even if Ayala could argue
that faulty records or mistaken inferences were to blame.
Accordingly, to hold Miranda liable one would have to
find that he was party to some kind of conspiracy in which on
orders from above the incidents were misinterpreted or exaggerated,
multiple witnesses suborned, documentary evidence fabricated, and
Miranda himself coerced or induced to take part in a plot. There
is no concrete proof of any such an imposture, nor any indication
of how it was accomplished, what role Miranda played, or why he
would have been willing to become a party to it. On this record,
the notion is little more than fantasy.
We cannot find, and Ayala has not offered, any precedent
for a trial in such circumstances. Typically, in political
discrimination cases, proof is offered of actual animus (e.g.,
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specific threats of political retaliation by the defendant or
allies) and a lack of objective support for the action taken. For
a jury to find either element on the present record would not
merely be impermissible jury speculation but speculation in the
teeth of much contrary evidence.
Summary judgment is not a trial but rather a projection
of the evidence that would be offered at trial. Trials are held in
civil cases only where there is enough evidence to permit a jury to
decide the case in favor of the party bearing the burden of proof
on the central issue: here, a supposed conspiracy to dismiss Ayala
because of his political beliefs. Ayala has assembled no such
evidence; indeed, by failing to depose anyone who might have given
the alleged order, he has scarcely tried.
Ayala's procedural due process claim requires almost no
discussion. Ayala's contract was not terminated; rather, he
retained his privileges until it expired on June 30, 2002, and it
was then not renewed. Procedural rights would attach under the due
process clause only if Ayala had some kind of property interest in
its renewal. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
538 (1985). If so, he might have been entitled to some kind of
informal hearing incident to the decision not to renew the
contract.
An ordinary "at will" employment contract creates no
protectable expectation of continued employment, Cummings v. S.
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Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993), and Ayala's
termination of his annual contract is no different. Ayala's
contract with ASEM clearly contained a clause reserving to ASEM
"the right to cancel this contract at any time, with at least
thirty days advance notification." Ayala was in fact given
slightly more than 30 days' notice of non-renewal. There was no
denial of due process.
Affirmed.
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