Nieves-Luciano v. Hernandez-Torres , 397 F.3d 1 ( 2005 )

United States Court of Appeals
For the First Circuit
Nos. 03-2520, 04-1169
MILTON NIEVES-LUCIANO; GERARDINA RIVERA-GALVAN;
SHAWN NIEVES-RIVERA; RICHARD NIEVES-RIVERA; JOANNE NIEVES-RIVERA,
Plaintiffs, Appellants,
v.
RAMÓN HERNÁNDEZ-TORRES, In His Personal Capacity and as Mayor of
the Municipality of Juana Díaz; MUNICIPALITY OF JUANA DÍAZ,
Defendants/Third-Party Plaintiffs, Appellees,
v.
SANTIAGO MARTÍNEZ-IRIZARRY
Third-Party Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Fredeswin Perez Caballero, with whom Jesus Hernandez-Sanchez
and Hernandez Sanchez Law Firm were on brief, for appellants.
Johanna M. Emmanuelli Huertas, with whom Gina Ismalia
Gutiérrez-Galang and Law Office Pedro E. Ortiz Alvarez, were on
brief, for appellees.
January 28, 2005
HOWARD, Circuit Judge. Milton Nieves-Luciano and his
wife and children (collectively "appellants") sued the Municipality
of Juana Díaz and its mayor, Ramón Hernández-Torres, (collectively
"appellees") for terminating Nieves' public employment on account
of his political affiliation. In so far as relevant to this
appeal, the complaint alleged violations of the First Amendment and
the Fourteenth Amendment's due process clause. After discovery,
the district court awarded appellees summary judgment. We affirm.
Nieves is a member of the New Progressive Party ("NPP").
He was hired by the Municipality of Juana Díaz in July 1994 under
a professional services contract. In 1997, the then mayor of Juana
Díaz created the position of Director of Data Processing. This
position was identified as a trust position, meaning that its
occupant could be terminated at will and without cause. The
Director of Data Processing was primarily responsible for
implementing and managing a computerized accounting system for the
municipality. Nieves was appointed to the position in August 1997.
From 1993 through late 2000, the NPP controlled the Juana
Díaz municipal government. In November 2000, however, power
changed hands as Hernández-Torres, a member of the Popular
Democratic Party ("PDP"), was elected mayor. On April 11, 2001,
Nieves received notice that his appointment as Data Processing
Director would be terminated immediately. The letter did not
provide Nieves with a reason for the termination other than to
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state that, because Nieves occupied a trust position, his
employment could be terminated at any time.
Subsequently, appellees explained that they terminated
Nieves' employment because his position was unnecessary and was
created in violation of municipal law. According to appellees,
every municipality in Puerto Rico was required to participate in a
central accounting system operated by the Office of the Commission
for Municipal Affairs (the "OCAM system"). After the PDP assumed
power, the new government reviewed the utility of several municipal
positions. As part of this review, the government determined that
the Director of Data Processing position was duplicative because
the OCAM system already provided a mandatory accounting system that
contained essentially the same features as the local system that
Nieves had been overseeing. Appellants brought the underlying
lawsuit to assert that this rationale was a sham and that Nieves
was terminated on account of his NPP membership.
At the conclusion of discovery, appellees moved for
summary judgment on Nieves' First Amendment and due process claims.
The district court granted the motion on the due process claim
because appellants had not produced evidence that Nieves had a
property interest in his employment.1 The court, however, rejected
appellees' challenge on the political discrimination claim on the
ground that there were disputed material facts concerning the true
1
This ruling is not challenged on appeal.
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reason for the termination. Specifically, the court stated that
there were disputes concerning whether the local system was
duplicative of the OCAM system, whether Nieves was replaced as the
Director of Data Processing by PDP members, and whether the
position was initially created in violation of municipal law.2
A month after the district court's ruling, appellees
moved for reconsideration of the denial of their motions for
summary judgment on the First Amendment claim. On reconsideration,
the district court determined that appellants' original summary
judgment opposition did not comply with D.P.R. Local R. 311.12
because their counter-statement of facts did not contain record
citations.3 The court also ruled that Nieves' affidavit, which
stated that he had been replaced by PDP members and that Hernández-
Torres had said that he wanted to "clean the house of NPP
employees," was inadmissible because it was not based on personal
knowledge. As a result, the court granted appellees summary
judgment on the ground that there was no evidence from which a jury
could conclude that Nieves' termination was at least partially
motivated by his political affiliation.
2
Because of these disputed facts, the district court also
rejected Hernández-Torres' claim that he was entitled to summary
judgment on qualified immunity grounds.
3
In April 2004, this Rule was recodified as D.P.R. Local R.
56(c).
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After the entry of judgment, appellants filed a Fed. R.
Civ. P. 60(b)(2) motion seeking relief from judgment because of a
newly acquired affidavit from one of Nieves' coworkers. The
affidavit stated that the affiant had heard Hernández-Torres say
that he "would clean the house of NPP employees." The court denied
appellants Rule 60(b)(2) relief on the ground that the affidavit
was "not newly discovered evidence" within the meaning of the Rule.
This appeal, challenging the summary judgment ruling and the denial
of the motion for relief under Rule 60(b)(2), followed.
We review the district court's grant of summary judgment
de novo, viewing the record in the light most hospitable to the
party opposing summary judgment. See Padilla-García v. Guillermo
Rodriguez, 212 F.3d 69, 73 (1st Cir. 2000). Summary judgment is
only appropriate if there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c).
Before proceeding to the merits, we dispose of a
threshold issue that appellants call "jurisdictional." Appellants
contend that the district court was without power to reconsider its
initial denial of summary judgment on the political discrimination
claim because appellees did not move for reconsideration within ten
days as required by Fed. R. Civ. P. 59(e). The argument is
meritless.
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Rule 59(e) provides a party with ten days to move to
alter or amend a judgment, and the district court may not enlarge
the time frame. See Feinstein v. Moses, 951 F.2d 16, 19 (1st Cir.
1991). But Rule 59(e) does not apply to motions for
reconsideration of interlocutory orders from which no immediate
appeal may be taken, see United States v. Martin, 226 F.3d 1042,
1048 (9th Cir. 2000), including summary judgment denials, see
Pacific Union Conf. of Seventh-Day Adventists v. Marshall, 434 U.S.
1305, 1306 (1977) (Rehnquist, J., in chambers). Interlocutory
orders such as these "remain open to trial court reconsideration"
until the entry of judgment. Geffon v. Micrion Corp., 249 F.3d
29, 38 (1st Cir. 2001) (quoting Pérez v. Crespo-Guillén, 25 F.3d
40, 42 (1st Cir. 1994)). Thus, the district court could reconsider
its initial summary judgment ruling even though appellees did not
seek reconsideration within ten days of the ruling.
We turn now to appellants' challenge to the correctness
of the summary judgment ruling. 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. See Gonzalez-De-Blasini v. Family
Dept., 377 F.3d 81, 85 (1st Cir. 2004). The plaintiff must
identify evidence which, if believed, would permit a factfinder to
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conclude that the challenged employment action stemmed from
politically based animus. See LaRoue v. Ridlon, 98 F.3d 659, 661
(1st Cir. 1996).
The district court ruled that appellants had failed to
identify evidence which could support a conclusion that Nieves was
fired because of his NPP membership. Even if we were to credit
appellants' inadequately supported counter-statement of facts
(which the district court declined to do), we see no error in this
judgment.
Appellants argue that there was a material dispute over
whether the local accounting system was actually duplicative of the
OCAM system and that this dispute warranted a trial on the First
Amendment claim. In support of this argument, appellants point to
a single sentence in the deposition testimony from an OCAM employee
in which she suggested that, at one point, the local system
provided a printing feature not available through the OCAM system.
Shortly after so testifying, however, the employee clarified that
the OCAM system was later updated to provide the same feature,
making the systems duplicative. This clarification refutes
appellants' argument that there was a genuine dispute over whether
the local accounting system was duplicative of the OCAM system.4
4
Appellants also assert that there was a material dispute over
whether the Data Processing Director position was initially created
in violation of municipal personnel law. We fail to see the
materiality of this alleged dispute. Even if we assumed that the
position was properly created at its inception, this would not
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Appellants next contend that two statements in Nieves'
affidavit were sufficient to establish a genuine issue of material
fact as to whether discriminatory animus prompted Nieves'
termination. The first statement identified PDP members whom
(Nieves claims) replaced him as the Director of Data Processing.
Appellees contend that Nieves was not replaced because the position
was eliminated. The second statement recited an alleged comment by
Hernández-Torres that he planned to "clean the house of NPP
employees." The district court treated these statements as
inadmissible because there was no indication that they were based
on personal knowledge as is required by Fed. R. Civ. P. 56(e).
For purposes of summary judgment, an allegation in an
affidavit must be based on personal knowledge and show
affirmatively that the affiant is competent to testify to the
matters stated therein. See López-Carrasquillo v. Rubianes, 230
F.3d 409, 414 (1st Cir. 2000). Nieves' statements do not meet this
requirement. If Nieves had been replaced, presumably the
replacements did not begin work until after Nieves' employment had
ended. Without further foundation, we cannot assume that Nieves
had personal knowledge of whether he was replaced and, if so, the
identity and political affiliations of the replacements. See Perez
undermine appellees' primary explanation for terminating Nieves,
i.e., that the Data Processing Director position was duplicative.
In any event, appellants have not identified record evidence that
the Data Processing Director position was in fact lawfully created
in 1997.
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v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (stating that
an affidavit attesting to facts that took place before the affiant
joined his employer are not based on the affiant's personal
knowledge). Similarly, there are no foundational facts indicating
that Nieves personally heard Hernández-Torres say that he planned
to "clean the house of NPP employees."5
Finally, appellants contend that appellees' failure to
state the reason for Nieves' termination in the dismissal letter
suggests impermissible motive because it shows that appellees'
stated reasons for the termination were post hoc justifications.
We fail to see any logic in the inference that appellants would
have us draw. No reasonable fact finder could conclude, in these
circumstances, that the absence of a contemporaneous explanation in
Nieves' dismissal letter was proof of discrimination. Such a
conclusion would be the product of unsubstantiated speculation
which, of course, can never defeat a properly supported summary
judgment motion.6 See, e.g., Poulis-Minott v. Smith, 388 F.3d 354,
366-67 (1st Cir. 2004).
In sum, appellants did not identify competent evidence
showing political animus. Nor did they identify evidence
5
At oral argument, appellants' counsel conceded that Nieves
did not actually hear Hernández-Torres make this comment.
6
In any event, Nieves was not entitled to an explanation for
his termination because his employment was terminable at will and
without cause.
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disputing appellees' claim that Nieves was terminated because the
Director of Data Processing position was duplicative. Appellants
therefore failed to meet their initial burden of showing that
political affiliation was the substantial or motivating cause of
Nieves' termination. The district court correctly entered summary
judgment on the political discrimination claim. See Angulo-Alvarez
v. Aponte de La Torre, 170 F.3d 246, 250 (1st Cir. 1999).7
Affirmed.
7
As noted above, appellants also challenge the district
court's Fed. R. Civ. P. 60(b)(2) ruling that the proffered
affidavit from Nieves' coworker (stating that she had heard
Hernández-Torres say that he planned to "clean the house of NPP
employees") was not newly discovered evidence. Relief from
judgment under Rule 60(b) is "extraordinary in nature" and "should
be granted sparingly." See Karak v. Bursaw Oil Corp., 288 F.3d 15,
19 (1st Cir. 2002). Among other requirements, the moving party
must show that the new evidence would likely change the result of
the proceeding. See United States Steel, Co. v. M. DeMatteo
Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002). Here, even if the
affidavit had been considered, it would have made no difference.
A generalized statement that the mayor intended to "clean house" of
opposition party members would be insufficient to satisfy
appellants' summary judgment burden. See Figueroa-Serrano v.
Ramos-Alverio, 221 F.3d 1, 8 (1st Cir. 2000).
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