Balaguer-Santiago v. Echegoyen , 219 F. App'x 13 ( 2007 )

Not for Publication in West's Federal Reporter.
United States Court of Appeals
For the First Circuit
No. 06-1281
RAFAEL BALAGUER-SANTIAGO; NIMIA ORTIZ-ALICEA;
CONJUGAL PARTNERSHIP BALAGUER-ORTIZ; JOSÉ A. IRIZARRY-TORO;
SYLVIA ESPINOSA-MARTÍNEZ; CONJUGAL PARTNERSHIP
IRIZARRY-ESPINOSA; FÉLIX CASIANO-MERCADO;
RAMONITA RODRÍGUEZ-CANCEL; CONJUGAL PARTNERSHIP
CASIANO-RODRÍGUEZ; IVETTE MALDONADO-VÁZQUEZ;
ABIEZER DÍAZ-BERRIOS; CONJUGAL PARTNERSHIP OF DÍAZ-MALDONADO;
IGNACIO ECHEVARRÍA-ALMONDÓVAR; ÁNGELA VALENTÍN-SOTO;
CONJUGAL PARTNERSHIP ECHEVARRÍA-VALENTÍN;
MARIBEL RIVER-SANTIAGO; JOSÉ NELSON REYES CRUZ;
CONJUGAL PARTNERSHIP REYES-RIVERA; JOSÉ COLLAZO-GONZÁLEZ;
JORGE MALDONADO-GONZÁLEZ,
Plaintiffs, Appellants,
v.
ILEANA ECHEGOYEN, in her personal capacity and in her official
capacity as Secretary of Housing of the Commonwealth of
Puerto Rico; JULIA TORRES HERNANDEZ, in her personal capacity
and in her official capacity as Executive Director of the
Housing Development and Improvements Administration (ADMV);
ARLENE RIVERA-RIVERA, in her personal capacity and in her
official capacity as Deputy Assistant Secretary of Human
Resources of the Commonwealth Department of Housing;
GIOVANY LLORENS-MERCADO, in his personal capacity and his
capacity as Director of the Mayagüez Regional Office of the
Department of Housing; LYDIA FERNANDEZ, in her personal capacity
and in her official capacity as Bayamón Regional Director
of ADMV; ESPERANZA MOLINA, in her personal capacity;
GONZALO GARCIA-CASIANO, in his personal capacity;
ANA YOLANDA GONZALES, in her personal capacity; JOHN DOES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Circuit Judge,
Stahl and Baldock,* Senior Circuit Judges.
Valéry López Torres for appellants.
Zaira Z. Girón-Anadón, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor
General and Maite Oronoz-Rodríguez, Deputy Solicitor General,
were on brief, for appellees.
February 12, 2007
*
Of the Tenth Circuit, Sitting by designation.
Per Curiam. Plaintiffs Rafael Balaguer, Jose Irizarry,
Ignacio Echevarria, Felix Casiano, Jose Collazo, Maribel Rivera,
Jorge Maldonado, and Ivette Maldonado brought this action under 42
U.S.C. § 1983 against defendant government officials Ileana
Echegoyen, Julia Torres, Arlene Rivera, Giovanny Llorens, Gonzalo
Garcia, Esperanza Molina, Lydia Fernandez, and Ana Yolanda
Gonzalez, claiming that defendants violated their First and
Fourteenth Amendment rights by discriminating against them on
account of their political affiliation.1 The district court
granted summary judgment to the defendants, and plaintiffs
appealed.
I.
As we write primarily for the parties, we will recount
only those facts essential to our analysis. In essence,
plaintiffs, all current or former employees of the Housing
Development and Improvement administration (HDIA), complain of
their treatment following the change in government after the 2000
elections. Plaintiffs, who are members of the New Progressive
Party ("NPP"), maintain that defendants, who are members of the
Popular Democratic Party ("PDP"), took discriminatory actions
against them based upon their political allegiance. As did the
district court in considering their claims, we may group the
1
Appellants focus upon their political discrimination claims rather
than their due process claims on appeal.
-3-
plaintiffs into three categories. The first group, Rafael
Balaguer, Felix Casiano, Ignacio Echevarria, and Jose Irizarry,
contests the closing of the Guanica office and their transfer to
the Mayaguez office ("Guanica plaintiffs"). The Guanica plaintiffs
assert that defendants closed the Guanica office to unfairly
deprive them of their supervisory functions. The second group,
Maribel Rivera, Jorge Maldonado, and Jose Collazo, contests the
termination of their irregular employment contracts ("contract
plaintiffs").2 The contract plaintiffs assert that the defendants
failed to renew their contracts to punish them because of their
allegiance to the NPP. Lastly, there is Ivette Maldonado, who
claims to have been deprived of her normal duties, assigned to
tasks for which she had no training, and harassed, all because of
her NPP membership.
The district court concluded that none of the plaintiffs
had established a prima facie case, largely based upon the lack of
evidence that defendants were aware of plaintiffs' political
affiliation and/or because plaintiffs could not link the disputed
actions to political animus. The court also concluded that
plaintiffs could not refute defendants' tendered nondiscriminatory
2
All three worked on temporary contracts of three to six months,
with renewal contingent upon the agency's needs and available
budget. Rivera and Maldonado's contracts expired in March 2002,
while Collazo's contract expired in September 2001.
-4-
explanation that budgetary problems had prompted the challenged
actions.
II.
All plaintiffs claim that there was sufficient evidence
to create a triable issue of defendants' motive for taking the
disputed employment actions.
We review the granting of summary judgment de novo,
assessing the record in the light most favorable to the nonmoving
party. Nieves-Luciano v. Hernandez-Torres, 397 F.3d 1, 3-4 (1st
Cir. 2005). Summary judgment is proper only if there is no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c). In reviewing a
summary judgment decision, "we do not consider conclusory
allegations, improbable inferences, and unsupported speculation."
Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 154 (1st Cir.
2006)(internal citation and quotation omitted).
To briefly recap the standards for establishing liability
under § 1983, "plaintiffs must show by a preponderance of the
evidence that: (1) the challenged conduct was attributable to a
person acting under color of state law; and (2) the conduct
deprived the plaintiff of rights secured by the Constitution or
laws of the United States." Velez-Rivera, 437 F.3d at 151-52.
There is no dispute that the First Amendment protects non-
-5-
policymaking public employees from adverse employment actions based
upon their political views. Id. at 152.
"When alleging a claim of political discrimination, a
plaintiff bears the burden of producing sufficient evidence,
whether direct or circumstantial, that he engaged in
constitutionally protected conduct and that political affiliation
was a substantial or motivating factor behind the challenged
employment action." Nieves-Luciano, 397 F.3d at 4. In general, a
plaintiff must "make four showings to prove a case of political
discrimination: (1) the plaintiff and the defendant belong to
opposing political affiliations; (2) the defendant has knowledge of
the plaintiff's opposing political affiliation; (3) there is a
challenged employment action; and (4) sufficient evidence, whether
direct or circumstantial, . . . that political affiliation was a
substantial or motivating factor . . . ." Peguero-Moronta v.
Santiago, 464 F.3d 29, 48 (1st Cir. 2006)(internal citation and
quotation omitted). Once a plaintiff satisfies this initial
burden, defendants must "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." Velez-Rivera,
437 F.3d at 152 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 286-87 (1977)). If the defendant makes such
a showing, the plaintiff may attempt to discredit the tendered
-6-
nondiscriminatory reason with either direct or circumstantial
evidence. Velez-Rivera, 437 F.3d at 153.
Guanica Plaintiffs
The Guanica plaintiffs argue that the Guanica office was
closed to punish them for their political allegiance and deprive
them (particularly Balaguer) of their supervisory responsibilities.
Guanica plaintiffs further contend that defendants' explanation for
the closure is unsupported by the evidence. Even giving the
Guanica plaintiffs the benefit of the doubt on their prima facie
case, they have failed to overcome the defendants' defense that
they closed the office for a nondiscriminatory reason.
Defendants asserted that the closing of the Guanica
office was brought about solely by budgetary concerns, and offered
the following facts in support of their position: (1) HDIA faced
a 7% budget decrease; (2) defendants decided to close certain local
offices to consolidate services in the regional offices and reduce
operating expenses; (3) four local offices (including Guanica) were
closed and their employees transferred to the appropriate regional
office; (4) each of the closed local offices had employees
belonging to both political parties; and (5) the Guanica office is
closed and no employee, of either party, reports to work there.
To counter these facts, the Guanica plaintiffs first
offer some ambiguous comments by Secretary Echegoyen about whether
she was specifically notified of and participated in the decision
-7-
to close the offices, or just generally advised about the need to
economize because of the budget reduction. This quibbling does not
undermine the underlying explanation by defendants. Second,
plaintiffs state, without elaboration, that three PDP members still
work in the town of Guanica. This fact is of little value to their
case, given that plaintiffs concede that the Guanica HDIA office is
no longer operating, and that no one reports there. Third,
plaintiffs argue that no "formal study" was done to evaluate the
advantages and disadvantages of closing the Guanica office.
However, the defendants maintain that the viability of the various
offices, if not formally studied, was fully considered, and the
Guanica plaintiffs do not meaningfully contest this. On this
record, the Guanica plaintiffs have failed to show a material
dispute concerning defendants' tendered explanation for closing the
Guanica office. Contrast Padilla-Garcia v. Guillermo Rodriguez,
212 F.3d 69, 78 (1st Cir. 2000) (that only plaintiff impacted by
"restructuring" of department casts doubt on defendant's
explanation).
Contract Plaintiffs
The contract plaintiffs maintain that their irregular
contracts were not renewed solely to punish them for their
political allegiance. While conceding that they were renewed on
multiple occasions after the elections, the contract plaintiffs
maintain that defendants eventually saw an opportunity to remove
-8-
them based upon their political views. They also claim that
defendants' stated justification - a lack of funds - was mere
pretext, as the plaintiffs were replaced by members of the PDP. As
with the Guanica plaintiffs, we conclude that summary judgment was
properly granted.
We begin with the contract plaintiffs' prima facie cases.
The record reveals little evidence that the relevant decision-
makers were aware of the contract plaintiffs' political
affiliation. In essence, the contract plaintiffs, all low level
functionaries, claim that the various defendants "must have known"
them because they worked at the agency, "must have known" their
political affiliation because the defendants could have
investigated it and found out, and "must have discriminated"
against them because their contracts were not renewed. These
assertions are inadequate to state a prima facie case however, for,
as we noted in Mercado-Alicea v. P.R. Tourism Co., 396 F.3d 46, 52
(1st Cir. 2005), merely juxtaposing the decision-maker's politics
against an adverse employment decision is insufficient to support
a claim of political discrimination.
Moreover, the contract plaintiffs have failed to cast any
doubt on the defendants' Mt. Healthy defense. We begin with
plaintiff Collazo, who conceded at his deposition that he was based
in Guanica as a title searcher, that the Guanica office did not
employ a title searcher after his departure, and that the Guanica
-9-
office was closed very shortly after his contract was not renewed.
In light of these concessions, it is difficult to see pretext in
defendants' explanation that his contract was not renewed for
budgetary reasons. Moreover, his contention that other title
searchers were hired "island wide" does not address the relevant
question: whether his contract services were needed in Guanica.
Plaintiff Maldonado's claim that he was replaced also fails, as he
conceded at his deposition that no one filled his position after he
was terminated. As to plaintiff Rivera, she claims that, after her
termination, she was temporarily replaced by two employees from
another office and that defendant Lydia Fernandez's cousin (who
Rivera surmises belongs to the PDP) was placed in Rivera's old
position (with the same title and salary) by the end of the year.
Neither claim holds up under scrutiny. First, that two current
employees were temporarily transferred to perform Rivera's duties,
as opposed to a new hire, does not by itself refute the defendants'
budgetary shortfall explanation. Second, as to the employment of
defendant Fernandez's cousin, Rivera relies largely on Fernandez's
answer to an interrogatory, in which she states that her cousin did
start to work in the office, but the interrogatory answer says
nothing about the employee's title or duties, and moreover it
asserts that the cousin's contract was separately funded. That
evidence does not support Rivera's assertion of a material factual
dispute.
-10-
Ivette Maldonado
Lastly, plaintiff Maldonado argues that she established
her prima facie case, but presents no challenge to the district
court's acceptance of defendants' Mt. Healthy defense. Thus,
Maldonado has abandoned any challenge to the district court's
conclusion. See In re Miles, 436 F.3d 291, 294 (1st Cir.
2006)(failure to challenge district court's reasonable rationale is
fatal to an appeal); Horizon Bank & Trust Co. v. Massachusetts, 391
F.3d 48, 53 (1st Cir. 2004)(failure to appeal both of district
court's alternative grounds for result moots the appeal because
reviewing court can give no effective relief).
Affirmed.
-11-