Rosaura Building Corp. v. Municipality of Mayaguez , 778 F.3d 55 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1676
ROSAURA BUILDING CORP.,
Plaintiff, Appellant,
v.
MUNICIPALITY OF MAYAGÜEZ, ET AL.,
Defendant, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Torruella, Dyk,* and Thompson,
Circuit Judges.
Israel Roldán-González, for appellant.
Eliezer A. Aldarondo-López, with whom Eliezer A. Aldarondo-
Ortiz, Claudio Aliff-Ortiz and Aldarondo & López-Bras, were on
brief for appellees.
February 4, 2015
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Rosaura Building Corp.
("Rosaura") brought this § 1983 claim based on an alleged
deprivation of its First Amendment constitutional rights by the
Municipality of Mayagüez, Puerto Rico, and its mayor, the Honorable
José G. Rodríguez ("Rodríguez" or the "Mayor"), after Rodríguez
denied the corporation a government contract. Rosaura fails to
allege what protected activity -- if any -- it exercised and was a
substantial motivating factor in bringing about the Mayor's
purported retaliation, essential elements of its cause of action,
and thus we affirm the summary judgment granted in favor of the
Defendants.
I. Background
We review the facts in the light most favorable to the
appellant, the party opposing summary judgment. Agusty-Reyes v.
Dep't of Educ. of P.R., 601 F.3d 45, 48 (1st Cir. 2010).
A. Factual Background
Rosaura is a family-owned corporation whose principal
place of business and sole asset is a commercial property located
at 107 Post Street South in the city of Mayagüez. During the
summer of 2010, several officials from the city-operated Head Start
program ("Head Start" or the "Program"),1 including its director,
1
Head Start programs support the development of low-income
children from birth to age 5 to promote their school readiness.
The programs provide education, health, nutrition, social, and
other services to children and their families. See 42 U.S.C.
§ 9831.
-2-
Ms. Elba I. Falto de Román, and the facilities maintenance
supervisor, examined the property to determine whether it was
suitable for Head Start classrooms. Finding that it was
appropriate for their needs, the city officials recommended the
lease and asked other employees to visit the property, including
the program's sub-director and the city's supervisors for
education, nutrition, and health. These officials also unanimously
recommended the building over several others examined, because it
was the most accessible and it complied with all the needs of the
Program.
Falto de Román met with representatives from Rosaura and
negotiated the terms of the proposed lease. Then, she instructed
them to contact Ms. Ana Martínez to help them with filing a
necessary contract petition form. Martínez forwarded the contract
petition to the Head Start Program Finance Unit, and to officials
in the city's Department of Finance. All of them certified that
the Program and the city had the resources necessary to comply with
the proposed contractual terms. Following the city's usual
bureaucratic process, Martínez sent the contract to the Contracts
Committee, an office directed by the Mayor's brother, which also
recommended that the contract petition be approved. With this
approval, Martínez told representatives from Rosaura that
everything was "ready" for the contract to be executed, and sent
the draft contract to the city's Legal Division. Everything seemed
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to be on track until the Legal Division unexpectedly replied that
there was a problem and the contract could not be signed.
Falto de Román was surprised by the rejection. She
believed that Rosaura's building was the only one available that
complied with the Program's requirements and that Rosaura had made
the best offer during the search process. Moreover, the Program
was time-pressed to open the much-needed additional classrooms.
Shortly thereafter, Falto de Román received a letter from the Mayor
stating that all of the Program's contracts would need to have his
approval -- a departure from prior practice. She acknowledged the
letter in writing and received a note in response from the Mayor
saying "[t]hat lease does not proceed." Falto de Román notified
representatives from Rosaura that the contract had not been
approved by the Mayor. Instead, the Program participants were
placed in provisional centers belonging to an alleged political
supporter of the Mayor.
Aggrieved by this situation, Mr. Néstor Pagán-Vélez, one
of the shareholders of Rosaura, asked the Mayor in person about his
rejection of the contract. He claimed in his deposition that the
Mayor responded that he "[would] not sign contracts with [. . .]
with enemies of mine, which is what . . . you already know, which
is what your brother and your nephew are." Pagán-Vélez,
interpreted this as a reference to his brother, Mr. Víctor Pagán-
Vélez, and his niece, Ms. Mignonia Acosta-Pagán. These two had
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been members of the Municipal Legislature of Mayagüez, prior to the
2008 elections, and were ousted by the Mayor after a scuffle within
the local leadership of the Popular Democratic Party ("PDP").2
B. Procedural History
Rosaura brought a civil rights claim for equitable relief
and damages pursuant to 42 U.S.C. § 1983 against the Mayor, in his
official and personal capacities, and the municipal government (the
"Defendants"), alleging initially that it had been retaliated
against because of the political affiliation of its shareholders.3
It argued perfunctorily that the actions taken by the Defendants
were "solely motivated by the plaintiff's political beliefs" since
Rosaura's "shareholders are identified with a faction within the
[PDP] that challenged the leadership of defendant José Guillermo
Rodríguez, within the same political party." It claimed in a
brief, conclusory manner that these actions violated its
constitutional rights under the First, Fifth, and Fourteenth
Amendments. Without further explanation, the complaint requested
2
The Mayor later called Falto de Román and questioned her
communications with the shareholders of Rosaura and her explanation
as to why their contract was not approved. She told him what her
explanation to the shareholders had been: that Rodríguez had
rejected it. The Mayor furiously replied that she had to be loyal
to him. She was then terminated. Falto de Román also sued the
Mayor, and her case remains pending. See Falto de Román v. Mun.
Gov't of Mayagüez, et al., 2014 WL 460865 (D.P.R. Feb. 5, 2014).
3
Víctor Pagán-Vélez and Mignonia Acosta-Pagán are not
shareholders of Rosaura. Nothing in the record suggests that they
are affiliated with the corporation in any way.
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injunctive relief ordering the municipality to sign the lease
contract, prohibiting Defendants from further acts of political
discrimination, and monetary damages.
The Defendants filed a motion to dismiss that was granted
in part as to the municipal government by way of a docket order, on
the grounds that the complaint failed to plead a scintilla of facts
that could lead to liability by the municipal government pursuant
to Monell v. Department of Social Services, 436 U.S. 658, 695-701
(1978). No corresponding judgment was issued with regard to this
docket order.4 Over a year-and-a-half later, Defendants requested
that the district court enter a judgment dismissing the claims
against the Mayor in his personal capacity since there was no
allegation in the complaint against him in his personal capacity,
and he had only been served in his official capacity. The district
court denied the request for dismissal because the Defendants had
also filed a motion for summary judgment on the same day, together
with a memorandum of law in its support, alleging that there is no
cognizable claim for First Amendment retaliation. The district
court opted for considering the summary judgment motion instead.
After reviewing the record, including the motion to
dismiss that had been granted by the docket order, the district
court entered the corresponding judgment dismissing the claims as
4
The parties subsequently consented for the case to be decided by
a magistrate judge. We refer to the magistrate judge and the
district court as the "district court" for simplicity.
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to the municipal government. It agreed that the complaint
contained no allegations against the municipality and stressed that
Rosaura never requested leave to amend the complaint to add
allegations regarding that defendant. It also dismissed the claims
against the Mayor in his personal capacity because he was never
served with process as such. Finally, the district court granted
summary judgment in favor of the Mayor on the claims remaining
against him in his official capacity. Regarding the First
Amendment claim, the district court found that this Court has never
extended the First Amendment anti-retaliation protection of
government contractors, recognized by the Supreme Court in Board of
County Commissioners v. Umbehr, to first-time bidders of government
contracts. 518 U.S. 668, 686 (1996). That is, the Supreme Court
and this Court have not extended the protections recognized by
Umbehr for existing government contractors to parties that do not
have existing contractual relationships with a state actor.
The district court noted that it was uncontested that
Rosaura never had a contract with the city, an important fact for
the instant appeal as explained below. It concluded that "upon
absence of First Circuit Court precedent recognizing an independent
contractor without prior business relationship to raise First
Amendment claims, and the split among other circuits on the issue,"
it would deny the cause of action. Thus, it dismissed the First
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Amendment claim. It also dismissed the equal protection claim,
though without any analysis. This appeal by Rosaura ensued.
II. Discussion
We review a district court's grant of summary judgment de
novo, drawing all inferences in favor of the non-movant. See
Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451,
456 (1992); Shafmaster v. United States, 707 F.3d 130, 135 (1st
Cir. 2013). Summary judgment shall be granted if "the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). "[C]onclusory allegations, empty rhetoric, unsupported
speculation, or evidence which, in the aggregate, is less than
significantly probative will not suffice to ward off a properly
supported summary judgment motion." Nieves-Romero v. United
States, 715 F.3d 375, 378 (1st Cir. 2013)(quoting Rogan v. City of
Bos., 267 F.3d 24, 27 (1st Cir. 2001)(internal quotation marks
omitted)).
The de novo standard of review does not limit this Court
to the district court's rationale, as we may affirm on "any ground
revealed by the record." Houlton Citizens Coal. v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
A. Dismissal of Claims Against the Municipal Government
In its appeal, Rosaura alleges that the district court
erred in dismissing the claims against the municipal government
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under Monell, after it found that Rosaura failed to plead a
scintilla of facts against that government entity. Rosaura argues
that a claim against the Mayor in this context binds the
municipality as well. In their brief, the Defendants appear to
concede Rosaura's contention based on Surprenant v. Rivas, 424 F.3d
5, 19 (1st Cir. 2005). According to the Defendants, should this
Court reverse the determination on the merits, the Mayor would
still be a defendant in his official capacity, and joining the
municipal government would result in a duplicative claim. Although
this is not the reasoning followed by the district court, it
presents an alternate basis to affirm the dismissal granted as to
the municipal government. We agree.
A suit against a public official in his official capacity
is a suit against the government entity. Suprenant, 424 F.3d at
19; Wood v. Hancock Cnty. Sheriff's Dep't, 354 F.3d 57, 58 n.1 (1st
Cir. 2003). The reason for this rule is that "it is when [the]
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983." Monell, 436 U.S. at
694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986)("[W]here action is directed by those who establish
governmental policy, the municipality is equally responsible
whether that action is to be taken only once or to be taken
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repeatedly."). We have also explained that a municipal government
is liable when it has caused the deprivation of a constitutional
right through an official policy or custom. See Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 181 (1st Cir. 2011). "One
way of establishing a policy or custom is by showing that 'a person
with final policy making authority' caused the supposed
constitutional injury." Id. (quoting Welch v. Ciampa, 542 F.3d
927, 941-42 (1st Cir. 2008)). Liability may be imposed on a
municipality for a single decision by a final policy maker.
Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 770 (1st Cir.
2010).
Mayors in Puerto Rico are the government officials
ultimately responsible for employment decisions of the
municipality. See id. (quoting Rodríguez-García v. Municipality of
Caguas, 495 F.3d 1, 12 (1st Cir. 2007)); Acevedo–García v. Monroig,
351 F.3d 547, 553 n.1 (1st Cir. 2003) (noting that under Puerto
Rico law, mayors of municipalities have the power to appoint and
remove municipal officials and employees, and thus a mayor's
"employment decisions ipso facto constituted the official policy of
the municipality" (internal quotation marks and citation omitted)).
Because Umbehr simply extends employment protections to
contractors, the same analysis applicable to employment decisions
governs in this case. See Umbehr, 518 U.S. at 674.
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In the instant appeal, the Defendants expressly concede
that it was exclusively the Mayor's decision to deny the contract
that caused Rosaura's purported constitutional injury. Based on
the foregoing, the Defendants are correct that there is no
practical effect in dismissing the claims against the municipal
government. Therefore, the district court did not err in granting
the dismissal of the claims against the Municipality of Mayagüez.
B. The First Amendment Claim
1. The "Newly Discovered Facts"
There is one other procedural wrinkle that we must iron
out before reaching the merits of Rosaura's First Amendment claim.
One week before oral arguments, Rosaura filed an "Urgent Motion
Informing New Facts That Might Affect This Appeal." In that
motion, Rosaura claimed -- for the first time -- that its
shareholders had just informed its lawyer that they "had a previous
contract with the Municipality of Mayaguez." It further requested
that we consider this as a matter of fact when resolving the case,
or, in the alternative, that we remand the case to the district
court so that it can reconsider its dismissal. Rosaura claims that
this new fact makes Umbehr dispositive of the instant controversy
and that it automatically possesses a cause of action.
In Umbehr, a contractor who was an outspoken critic of a
county board "spoke at the Board's meetings, and wrote critical
letters and editorials in local newspapers regarding the County's
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landfill user rates, the cost of obtaining official documents from
the County, alleged violations by the Board of the Kansas Open
Meetings Act, [and] the County's alleged mismanagement of
taxpayer's money," among other subjects of public interest.
Umbehr, 518 U.S. at 671. The Supreme Court faced the question of
whether this contractor was entitled to First Amendment protection
against retaliation over its contract for hauling trash. Id. at
672-73. The Court held that, based on the similarities between
independent contractors and employees, it was appropriate to follow
the precedents that protected government employees from retaliation
for their public discourse. Id. at 674 ("The similarities between
government employees and government contractors with respect to
this issue are obvious."). After analyzing the justifications
stated by the government defendants, the Umbehr Court concluded
that the government may terminate contracts so long as it does not
do so in retaliation for protected activity, in the same manner
that government employees' claims for retaliation are subject to
the analysis established in Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563 (1968). Id. at 678.
The problem with Umbehr, as applied to the instant case,
is that it expressly rejected answering whether this protection
also extends to first-time bidders for government contracts. Id.
at 685 ("Because Umbehr's suit concerns the termination of a pre-
existing commercial relationship with the government, we need not
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address the possibility of suits by bidders or applicants for new
government contracts who cannot rely on such a relationship.").
Thus, Rosaura would rather be in the same position as the plaintiff
in Umbehr, who had an ongoing contractual relationship.
At first glance, we should not even take this issue into
consideration since Rosaura argues nothing in its motion suggesting
that the contract was in effect at the time of the alleged
retaliation, or that any legal agreement was breached in any way as
a result of the alleged retaliatory conduct. Yet, even assuming
that it was, this motion with newly discovered facts does not help
Rosaura for several reasons. Rosaura filed its complaint on
June 14, 2011. From that moment on, its only legal strategy and
legal theory has been that this Court should extend the protections
recognized to existing contractors in Umbehr, so that first-time
bidders for government contracts like Rosaura are also protected.5
Time and time again we have held that arguments not
advanced before the district court are waived. Emp'r Ins. Co. of
Wausau v. OneBeacon Am. Ins. Co., 744 F.3d 25, 29 (1st Cir. 2014)
("'It is a virtually ironclad rule that a party may not advance for
the first time on appeal either a new argument or an old argument
5
As mentioned, the case law in this Circuit has not extended
Umbehr beyond cases "where [the] government retaliates against a
contractor, or regular provider of services, for the exercise of
rights of political association or expression of political
allegiance." O'Hare Truck Serv., Inc. v. City of Northlake, 518
U.S. 712, 715 (1996); García-González v. Puig-Morales, 761 F.3d 81,
92-93 (1st Cir. 2014).
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that depends on a new factual predicate.'")(citing Cochran v. Quest
Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003)). The only theory
of the case advanced by Rosaura for over three years is that it did
not have an existing contract with the municipal government.
Rosaura cannot change this simply because a new theory now fits it
better. Genereux v. Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014)
("[W]hen a litigant commits to a theory of the case and sticks to
that theory past the point of no return, he cannot thereafter
switch to a different theory simply because it seems more
attractive at the time.").
Furthermore, the procedure followed by Rosaura to inform
us of the new fact and obtain its request was incorrect. Appellate
review concentrates on considering the factual record presented in
the trial courts. See, e.g., Fed. R. App. P. 10(a) (defining the
record on appeal as comprising the evidence introduced in the trial
court). This is true of evidence that was available during trial.
However, when evidence is discovered after the case has been
adjudicated by a district court, it is to be introduced into the
record through Federal Rule of Civil Procedure 60(b)(2), which
outlines the procedure for vacating a judgment to address "newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial. . . ." See Fed.
R. Civ. P. 60(b)(2). For those reasons, in Puerto Rico v. SS Zoe
Colocotroni, we held that parties litigating before this Court
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should file a motion under Rule 60(b) to vacate a judgment directly
with the district court, without seeking prior leave from the Court
of Appeals. 601 F.2d 39, 41 (1st Cir. 1979). The district courts
are required "to review any such motions expeditiously, within a
few days of their filing. . . ." Id. at 42. Where the district
court considers a motion to have merit, it issues a memorandum so
that the movant may petition this Court to remand the case to the
district court for the judgment to be vacated. Id.; see also
United States v. 6 Fox St., 480 F.3d 38, 46 (1st Cir. 2007).
Otherwise, a litigant may not request on appeal that this Court
remand a case to a district court for it to consider an argument
that the litigant waived before that court. Toscano v. Chandris,
S.A., 934 F.2d 383, 386-87 (1st Cir. 1991) (holding that a litigant
must follow Colocotroni in such scenarios).
In any event, Rosaura's attempt is likely doomed because
Rule 60(c)(1) requires that motions for newly discovered evidence
pursuant to Rule 60(b)(2) be brought before the district court
"within a reasonable time" and "no more than a year after the entry
of the judgment." Fed. R. Civ. P. 60(c)(1). The judgment in this
case was entered by the district court on April 30, 2013, but the
urgent motion informing the newly discovered fact was not filed
with us by Rosaura until July 21, 2014. Therefore, because Rosaura
failed to meet the one-year limitations period available under Rule
60(b)(2), it could only have been entitled to relief from judgment
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under Rule 60(b)(6), which allows a court to relieve a party from
a judgment for "any other reason that justifies relief." Fed. R.
Civ. P. 60(c)(6). Yet, this Court's precedents disallow a movant
from using this subsection to avoid the limitations period imposed
in clauses one through three, including Rule 60(b)(2) for newly
discovered evidence. See Cotto v. United States, 993 F.2d 274, 278
(1st Cir. 1993) (explaining that "clause (6) is designed as a
catchall, and a motion thereunder is only appropriate when none of
the first five subsections pertain."). Thus, Rosaura cannot force
its motion into clause six. Simon v. Navon, 116 F.3d 1, 5 (1st
Cir. 1997) (pointing out that "were Rule 60(b)(6) to allow a second
out-of-time bite at the same apple, the stringent finality-
enforcing limitation period of [Rule] 60(b)(1)-(3) would be
eviscerated."). Moreover, Rosaura failed to show "'extraordinary
circumstances' suggesting [it] is faultless in the delay." Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 393
(1993).
For these reasons, we deny the motion and move on to the
merits.
2. The Merits of the First Amendment Retaliation Claim
Rosaura requests that we reverse the district court's
grant of summary judgment, arguing the district court erred in
concluding that, because this Circuit has not recognized a cause of
action for First Amendment retaliation against first-time
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contractors, no such cause of action exists. Rosaura invites us to
extend these protections to potential contractors whose business is
denied, basing its plea on Oscar Renda Contracting, Inc. v. City of
Lubbock, 463 F.3d 378 (5th Cir. 2006). In that case, the Fifth
Circuit held that having prior contractual relationships is not a
requirement for First Amendment protection of independent
contractors, since this protection is analogous to the protections
recognized to employees, which also extend to hiring decisions on
applicants for employment with the government, pursuant to Rutan v.
Republican Party of Ill., 497 U.S. 62, 79 (1990); see Oscar Renda,
463 F.3d at 380, 385.
On the other hand, the Defendants ask us to follow Barry
v. Moran, 661 F.3d 696, 706 (1st Cir. 2011) (dismissing a political
discrimination claim premised on personal, not political
association). Defendants argue that Barry requires evidence that
the association being retaliated against is political in nature and
constitutionally protected, rather than simply personal. Also,
they claim that pursuant to Correa-Martínez v. Arrillaga-Beléndez,
903 F.2d 49 (1st Cir. 1990), a plaintiff's relationship with
someone with whom the defendants had political difference does not
rise to engaging in constitutionally protected activity. In the
instant appeal, as Defendants explain, Rosaura's claim, rather than
being premised on retaliation resulting from its engagement in
protected activity, is framed upon the relationship of a third
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party that is not a plaintiff –- Rosaura's shareholders –- with
relatives of theirs, an association that is not political in
nature. Thus, there is no factual basis to support that Rosaura,
or even its shareholders, engaged in constitutionally protected
activity regarding matters of public interest, or that such
constitutionally protected activity was the driving cause of the
alleged retaliatory response. We agree with the Defendants.
In its complaint, Rosaura pleaded a few perfunctory,
conclusory statements that initially seemed to align its claim with
a plain political discrimination case, by alleging briefly that the
actions of the Defendants were motivated by Rosaura's political
beliefs, that the its shareholder's political beliefs were known to
the Defendants, and that the shareholders of Rosaura are identified
with a faction within the PDP that challenged the Mayor in the
past. Yet, there are no further allegations regarding those
statements elsewhere in the record. Rosaura changed the story from
that point on, and has stated repeatedly that the retaliation was
caused by the relationship between the shareholders and their
relatives, not because of the political affiliation of its
shareholders. From that point on, Rosaura pleaded, argued, opposed
the motion for summary judgment, and appealed framing its case
exclusively as a political retaliation case that depended squarely
on Umbehr. Rosaura thereby abandoned the possibility of bringing
this as a discrimination claim, while instead expressly advancing
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a retaliation cause of action. "[T]he settled appellate rule [is]
that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived." In re
Plaza Resort at Palmas, Inc., 741 F.3d 269, 277 (1st Cir.
2014)(alteration in original)(citing United States v. Zannino, 895
F.2d 1, 17 (1st Cir.1990)). In its brief, Rosaura does not even
mention those conclusory allegations it had included in its
complaint.
Rosaura's allegations pertaining to the Mayor's conduct
are also limited to him not signing the lease in retaliation for
his prior dispute with the brother and niece of one of Rosaura's
shareholder. Accordingly, we examine the instant appeal as a First
Amendment retaliation case based on that non-political association
on which Rosaura premised its case.
Although political discrimination and retaliation cases
are intrinsically similar, and, in certain circumstances, courts
evaluate the evidence in the same manner, the two causes of action
are quite distinct. Mercado-Berríos v. Cancel-Alegría, 611 F.3d
18, 22 (1st Cir. 2010). Under political discrimination cases,
"government officials are forbidden from taking adverse action
against public employees on the basis of political affiliation or
belief." Mercado-Berríos, 611 F.3d at 22 (citing Welch, 542 F.3d
at 938); Rutan, 497 U.S. at 64 (1990).
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Retaliation cases, on the other hand, "'call[] for a
different, though related, inquiry' when a public employee's
speech, rather than her political affiliation or belief, is at
issue." Mercado-Berríos, 611 F.3d at 22 (quoting O'Hare Truck, 518
U.S. at 719). Thus, in analyzing this as a retaliation case, we
apply the balancing test established in Pickering. See O'Hare
Truck, 518 U.S. at 719.
The First Amendment guarantees the "public interest in
having free and unhindered debate on matters of public importance."
Pickering, 391 U.S. at 573. The government is forbidden from
imposing burdens on persons that discourage or punish them from
exercising protected constitutional rights. See Ramírez v.
Arlequín, 477 F.3d 19, 22 (1st Cir. 2006). A government employee
should not suffer reprisal from a government official for engaging
in protected speech because of the possible chilling effect against
the free exercise of constitutional rights. Mercado-Berríos, 611
F.3d at 25; see also Hartman v. Moore, 547 U.S. 250, 256 (2006).
We have also held that, as a general matter, "claims of retaliation
for the exercise of First Amendment rights are cognizable under
§ 1983." Centro Médico del Turabo, 406 F.3d at 9 (citing Powell v.
Alexander, 391 F.3d 1, 16 (1st Cir. 2004)). As explained, Umbehr
extended the First Amendment protections of public employee rights
to private contractors. 518 U.S. at 673.
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In these circumstances, to prevail on a § 1983 claim of
retaliation for First Amendment activity, a plaintiff must show:
(1) that his conduct was constitutionally protected, and (2) that
this conduct was a substantial factor or a motivating factor for
the defendant's retaliatory decision. Pierce, 741 F.3d at 302-03;
Centro Médico del Turabo, 406 F.3d at 10; Powell, 391 F.3d at 17(quoting Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). The Supreme Court has also outlined what a
plaintiff must show in order to establish that its specific conduct
was constitutionally protected under the first prong. There are
two particular requirements that must be met. First, a public
employee must establish that she was speaking "as a citizen on a
matter of public concern." Díaz-Bigio v. Santini, 652 F.3d 45, 51
(1st Cir. 2011) (citing Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). If plaintiff's speech is not on a matter of public
concern, there is no First Amendment cause of action. Id. Second,
the First Amendment protection of the speech must outweigh the
government's interest as an employer. Id. (citing Rivera-Jiménez
v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)).
Additionally, in order to meet the motivation prong, a
plaintiff must produce "sufficient direct or circumstantial
evidence" that his constitutionally protected conduct was the
driving factor that caused the retaliation. Id. The plaintiff's
burden in establishing motivation "is more substantial than the
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burden of producing prima facie evidence in, for example, the first
stage of a Title VII discrimination case." Id. at n.3 (citing
Guilloty Pérez v. Pierluisi, 339 F.3d 43, 56 n.11 (1st Cir. 2003)).
The pleading standard for these elements of the cause of
action are also well-defined in our case law. The First Amendment
does not create a constitutional revision process for every
government employment decision. See Rojas-Velázquez v. Figueroa-
Sancha, 676 F.3d 206, 210 (1st Cir. 2012). Therefore, it is vital
for any claim to clearly present the protected activity on which it
is premised. Id. at 211 ("[T]he appellant has not averred that the
defendants' misperception regarding his political loyalty (or lack
thereof) was based on his membership in the PDP, his support for
PDP candidates, his advocacy of pro-PDP policies, or any other
protected activity."). More importantly for the instant appeal,
retaliation for relationships other than those which are political
in nature may be "undeserved" punishment, but are nonetheless not
protected by the First Amendment. Id. ("This may be an undeserved
penalty, but discrimination based on non-political association does
not implicate the First Amendment.").
In Correa-Martínez v. Arrillaga-Beléndez, we affirmed the
dismissal of a First Amendment claim brought by a government
employee alleging that his forced resignation was the result of his
close relationship with another employee with whom the defendants
had personal and political differences. 903 F.2d 49, 57-59 (1st
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Cir. 1990) (overruled on other grounds by Educadores
Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68 (1st Cir.
2004)). There, we reasoned that the plaintiff's allegations in
that case did not explain how the defendants discriminated against
him based on his political beliefs or advocacy of ideas regarding
matters of public interest. Id. at 57. We further reasoned, "he
asserts only that defendants had 'personal and political
differences' with an unrelated individual [. . .] and discriminated
against him (plaintiff) because of his 'close association' with
[said individual]." Id. Such personal relationships with someone
with whom defendants have political differences do not rise to the
level of protected activity guaranteed by the Constitution. See
id. ("[I]n constitutional terms, freedom of association is not to
be defined unreservedly. Entry into the constitutional orbit
requires more than a mere relationship."). That is, "the First
Amendment does not protect against all deprivations arising out of
an act of association unless the act itself –- say, joining a
church or political party, speaking out on matters of public
interest, advocacy of reform –- falls within the scope of
[protected] activities." Id. Therefore, when a constitutional
claim rests upon the political beliefs of third parties being the
cause of the adverse action without more, a plaintiff fails to
establish that its protected activity is the motivating factor
behind defendant's actions.
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Here, Rosaura acknowledged that there would be material
facts in controversy requiring reversing the dismissal granted by
the district court, only if we decide that it had a valid cause of
action for retaliation under Umbehr. Yet, Rosaura failed to argue
what protected conduct, if any, it engaged in that was a motivating
factor in the Mayor's retaliation. Rosaura also failed to allege
that its association to the relatives of one of its shareholders
was political in nature, or related to other matters of public
concern.
We note that here there is a particularly attenuated
relationship between Rosaura and the parties exercising First
Amendment rights (Rosaura alleged that it was denied a contract
because its shareholders are related to parties exercising First
Amendment rights), and there is no allegation that the denial of
the contract to Rosaura was designed to or would have any material
effect on the exercise of First Amendment rights by the relatives
of shareholders. For those reasons, Rosaura failed to establish a
colorable claim for First Amendment retaliation.
C. The Equal Protection Claim
Rosaura claims, in the alternative, that the lease
contract was ultimately granted to a political supporter of the
Mayor, without submission for his written approval, as the Mayor
required of Rosaura's contract at the eleventh hour. Thus, it
claims that this action violated its equal protection rights. In
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support of the purported unequal treatment, Rosaura simply
contends, without details, that the favored contractor's property
was sub-standard and did not meet Head Start requirements. Rosaura
points us without much guidance to Clark v. Boscher, which held
that "[a] plausible equal protection violation is established when
a plaintiff shows by his or her well-pleaded facts that she was
treated differently from 'others similarly situated . . . based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.'" 514 F.3d 107,
114 (1st Cir. 2008). Even assuming that these allegations are
sufficient, which we do not since we have held that Rosaura failed
to establish that it exercised constitutional rights, this also is
wrong on the merits.
As stated before, an equal protection claim requires
"proof that (1) the person, compared with others similarly
situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person." Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir.
2013). Rosaura has failed to show any of these impermissible
considerations.
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Defendants correctly reply that Rosaura's equal
protection claim fails because it is a mere restatement of its
First Amendment claim and based on the same facts. See Uphoff
Figueroa v. Alejandro, 597 F.3d 423, 426 (1st Cir. 2010)
("Political discrimination and retaliation claims under the First
Amendment cannot be restated as claims under the Equal Protection
Clause"); Prisma Zona Exploratoria, 310 F.3d at 8 ("To the extent
that this claim pretends to be anything more than a restatement of
the failed First Amendment claim, it too is undeveloped and
abandoned.").
Rosaura has also failed to make an argument as to how it
was similarly situated to the favored contractor. It simply states
without explanation that this competitor was awarded the contract
based on political favoritism, even though its facilities were
allegedly not as suitable for the municipal government's use.
Rosaura points to nothing in the summary-judgment record that might
shed light on the "similarly situated" prong of the equal
protection analysis, or that it belongs to a protected category.
Accordingly, Rosaura's equal protection claim also fails.
III. Conclusion
For the reasons foregoing we hold that Rosaura failed to
state a First Amendment retaliation cause of action, and failed to
state an equal protection claim. Therefore, we need not address at
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this time whether Umbehr protections extend to first time
government contractors. The district court's judgment is affirmed.
AFFIRMED.
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