Rodriguez-Guzman v. Garcia ( 1996 )

USCA1 Opinion

          May 8, 1996





                            United States Court of Appeals

                                For the First Circuit

                                 ____________________





          No. 95-2090



                           HECTOR RODRIGUEZ-GUZMAN, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                           HON. VYDIA GARCIA, ETC., ET AL.,



                                Defendants, Appellees.

                                 ____________________





                                     ERRATA SHEET





               The opinion of this  court dated April 25, 1996,  is amended

          as follows:



               Page 2,  second paragraph, line  7, add the  following after

          "relocation":   "procedures  were  administered in  a politically

          discriminatory manner."

































































          April 26, 1996        [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________





          No. 95-2090



                           HECTOR RODRIGUEZ-GUZMAN, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                           HON. VYDIA GARCIA, ETC., ET AL.,



                                Defendants, Appellees.

                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                 [Hon. Jaime Pieras, II, Senior U.S. District Judge]
__________________________

                                 ____________________





                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ____________________



               Raul Barrera  Morales with whom Jesus  Hernandez Sanchez was
_____________________           ________________________

          on brief for appellants.

               Graciela J. Belaval for appellees.
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                                 ____________________





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               Per  curiam.   Plaintiffs  are  61 former  employees  of the
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          Puerto  Rico Housing  and  Urban Renewal  Corporation (CRUV)  who



          primarily claim  that they were dismissed  from public employment



          based on their political affiliation, in violation of their First



          Amendment rights.1   The district court  granted summary judgment



          for  the defendants,  concluding that  the plaintiffs  had relied



          "solely  on conclusory arguments and unsubstantiated allegations"



          and thus had failed to establish  a prima facie case of political



          discharge.    We  agree  that the  plaintiffs  have  not  offered



          competent evidence to rebut defendants'  motion, and consequently



          affirm.



               We see  no need  to revisit  the facts ably  set out  by the



          district  court.  Guzman v. Garcia, 901 F.Supp. 45 (D.P.R. 1995).
______    ______



          For the sake of context, we note only that the claims concern the



          relocation of employees who had been working for CRUV at the time



          the Legislature decided to  dissolve the agency.   CRUV employees



          were ensured  priority in hiring elsewhere  in the Commonwealth,2


____________________



               1 The complaint asserts  a host of other unlawful  bases for

          defendants' actions, including age discrimination and retaliation

          for  participation in  labor protests.   Plaintiffs also  claim a

          deprivation  of due  process  in the  termination procedures  and

          allege a conspiracy in violation of 42 U.S.C.   1985.

               The age  discrimination, due  process and conspiracy  claims

          are mentioned in the  brief without discussion, and there  is not

          even  a reference to any other basis  for recovery.  We have long

          held that  issues addressed  in a  perfunctory manner  are deemed

          waived, see, e.g., United States v. Zannino, 895 F.2d 1, 17  (1st
___  ____  _____________    _______

          Cir.  1990), and that principle  operates in all  its force here.

          We  therefore  have  considered  only the  claim  of  politically

          motivated discharge.



               2 Contrary  to  plaintiffs,  we  do not  read  the  relevant

          authorities -- Law 55 and Executive Order 1991-63 -- to guarantee

          employment,  but rather  to guarantee  relocation assistance  and



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          and  this  case  centers  on  plaintiffs'  allegations  that  the



          relocation   procedures  were   administered  in   a  politically



          discriminatory manner.



               Nor is it necessary  to engage in a lengthy  dissertation on



          the inadequacies of plaintiffs' showing.  Indeed, their appellate



          argument  comprises  less than  six  pages,  and its  centerpiece



          consists of two types  of evidence: first, hiring  statistics for



          the  Commonwealth government overall in 1991 and 1992 and for the



          Housing   Department  in   particular,   and,  second,   reported



          statements from several non-defendants  expressing discriminatory



          animus  toward  members of  the  New  Progressive Party  ("NPP").



          Neither  the  statistics nor  the  quoted  comments --  seemingly



          hearsay  and thus  inadmissible at  trial --  provide evidentiary



          support for plaintiffs' assertion  that they were not transferred



          because of their political beliefs.3



               We have looked  carefully at  the statements  filed by  each



          plaintiff as part of an Appendix to their Motion in Opposition to



          Defendants' Motion to Dismiss.  These statements contain a jumble



          of allegations, many  of which have nothing to do  with the claim



          of  discriminatory implementation  of the  relocation procedures.




____________________



          priority in hiring during the year after CRUV's closing.



               3 Although plaintiffs emphasize the defendants' antipathy to

          the New Progressive Party, only 40 of them are NPP  members.  Six

          are  members  of  the Puerto  Rico  Independence  Party,  six are

          members  of  the Popular  Democratic  Party  ("PDP") who  do  not

          support the incumbent PDP governor, and nine do not identify with

          any  party.   Plaintiffs  therefore  necessarily  claim that  the

          discrimination is  not against  any particular party  but against

          all those who do not share the defendants' political perspective.



                                         -4-

























          Several of the statements directly belie such a claim,  asserting



          that  job  offers   were  made  but  withdrawn   because  of  the



          plaintiffs' participation in this  litigation.  Regardless of the



          lawfulness  of such retaliatory conduct,  it is not  the basis of



          the claim raised to us.4



               Some plaintiffs similarly  attribute discrimination  against



          them  to their  participation in  labor protests.   Some  make no



          specific reference  to the process following  CRUV's dissolution,



          and instead  refer to continuous employment  discrimination since



          the  Popular  Democratic Party  (PDP) took  power  in 1985.   One



          plaintiff who  identifies  himself as  non-political,  stated  "I



          don't know" in  completing a  portion of the  standard form  that



          began "I was discriminated because . . . ."  Another acknowledges



          that she was offered a job, but complains  that the procedure was



          rushed  and irregular.  Yet another states that he was reinstated



          in  the  same   position  and  salary   after  eight  months   of



          unemployment, which appears to  be within the one-year relocation



          period  prescribed by Law 55,  the statute dissolving  CRUV.  And



          another  states that he was offered relocation but did not accept



          the  new  position  because  "I consider  it  a  degradation  and



          demotion."




____________________



               4  In their  Opposition  to Defendants'  Motion for  Summary

          Judgment, plaintiffs did  not dispute defendants'  statement that

          many  known NPP  followers had  been hired during  the relocation

          process,  responding instead:  "The Trustee  Office discriminated

          against former CRUV's employees for their exercising of the right

          to  file  this  case,  which  is  violation  of plaintiffs  First

          Amendment  protected rights."  As  noted earlier,  however,  this

          claim is not raised on appeal.



                                         -5-

























               In  addition,  plaintiffs  fail  to  respond  to  statistics



          offered  by the defendants to  show that many  NPPs -- presumably



          including  some of the plaintiffs  -- were relocated.   Of CRUV's
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          421 regular employees, plaintiffs claim that 65 percent -- 275 --



          were NPPs.   Of the 87  employees who initially lost  their jobs,



          about  40 were  NPPs.   Fifty-two of  those left  unemployed were



          relocated  within  one  year,   including  all  but  20   of  the



          plaintiffs.5  In other words, only  20 of the 61 plaintiffs (plus



          15  non-plaintiffs) were not placed  in new jobs  within the one-



          year relocation period.  These numbers, showing that only a small



          percentage of CRUV's NPP employees were not relocated, do not add



          up to proof of discrimination based on political affiliation.



               In concluding  that plaintiffs  have  failed to  demonstrate



          that  the district court  erred in granting  summary judgment for



          defendants,  we do not discount the possibility that some of them



          suffered from  politically based employment discrimination.   The



          history of  politics in  Puerto Rico makes  plausible plaintiffs'



          allegations that PDP members  expressed antipathy for NPP members



          and  over  the  years  gave  favorable  treatment  to  their  own



          partisans.   On  the  narrow question  before  us at  this  time,



          however --  whether a material factual  dispute exists concerning



          the constitutionality  of defendants' implementation of  the CRUV



          relocation  procedure  --  plaintiffs have  not  demonstrated  an



          entitlement to trial.




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               5  We are not told  the political affiliation  of the 20 who

          remained unemployed.



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               The judgment  of the  district court is  therefore affirmed.



          Double costs to appellee.





































































































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