Rivera-Cotto v. Rivera

• Court: Court of Appeals for the First Circuit
• Decided: October 26, 1994
• Docket: 93-2088
• Status: Published

Opinion

USCA1 Opinion

November 8, 1994
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-2088

                                LUCETTE RIVERA-COTTO,

                                Plaintiff, Appellant,

                                          v.

                              RAMON LUIS RIVERA, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                   [Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            The opinion  of this court issued on October 26,  1994, is amended
        as follows:

            Page 7, footnote 2,  last cite should read:   O'Connor v. Steeves,
                                                          ________    _______
        994 F.2d 905, 909-12 (1st Cir.), cert. denied, 114 S. Ct. 634 (1993).
                                         _____ ______



United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-2088

                                LUCETTE RIVERA-COTTO,

                                Plaintiff, Appellant,

                                          v.

                              RAMON LUIS RIVERA, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                   [Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Evelyn Narvaez Ochoa for appellant.
            ____________________
            Edgardo Rodriguez  Quilichini, Assistant  Solicitor General,  with
            _____________________________
        whom Pedro A. Delgado Hernandez, Solicitor  General, Carlos Lugo Fiol,
             __________________________                      ________________
        Deputy  Solicitor General,  were  on brief  for  appellees Ramon  Luis
        Rivera and Jose Garcia-Rivera.
            Demetrio  Fernandez was  on  brief for  appellee  Municipality  of
            ___________________
        Bayamon.

                                 ____________________

                                   October 26, 1994
                                 ____________________



STAHL, Circuit Judge.   In this appeal,  plaintiff-
                      STAHL, Circuit Judge.
                             _____________

            appellant  Lucette  Rivera-Cotto ("Rivera-Cotto")  challenges

            the district  court's entry of  summary judgment in  favor of

            defendants-appellees,  the  municipality  of Bayamon,  Puerto

            Rico  ("Bayamon"),  its  Mayor,  Ramon  Luis  Rivera  ("Mayor

            Rivera"), and  Bayamon employee Jose  Garcia-Rivera ("Garcia-

            Rivera")  on  her   claims  of  political   affiliation-based

            discrimination and  discrimination  because of  her  physical

            handicap.  For  the reasons  set forth below,  we affirm  the

            district court's entry of summary judgment.

                                          I.
                                          I.
                                          __

                          FACTUAL AND PROCEDURAL BACKGROUND
                          FACTUAL AND PROCEDURAL BACKGROUND
                          _________________________________

                      We relate the facts in the light most favorable  to

            the non-moving party.  See, e.g., Nereida-Gonzalez v. Tirado-
                                   ___  ____  ________________    _______

            Delgado, 990 F.2d 701, 702 (1st Cir. 1993).  This case arises
            _______

            from  Rivera-Cotto's  employment  relationship with  Bayamon.

            Rivera-Cotto, a partially deaf person who must  use a hearing

            aid, first began to work for Bayamon on a temporary basis  in

            1969.  By  1971, she  had attained permanent  status and,  in

            1980, she became  an Administrative Officer III in  the legal

            division.   She remained  in that  position until  early 1986

            when the events leading to this litigation began.  

                      On  February  6,  1986,   Rivera-Cotto's  immediate

            supervisor  asked  her for  some  information  to assist  the

            supervisor in  preparation of  budget  documents.   Believing

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this to be  an attempted  usurpation of  her duties,  Rivera-

            Cotto  balked.    A  heated  encounter  ensued  during  which

            threatening words  were traded.   This exchange was  one more

            episode in  an already troubled relationship.   The following

            day, the  supervisor dispatched a memorandum  to Mayor Rivera

            reporting the  incident and  requesting that  Rivera-Cotto be

            transferred  out of the division.   Mayor Rivera responded by

            suspending Rivera-Cotto from employment and salary for thirty

            days.1     At  that  time,  however,   Rivera-Cotto  was  not

            transferred.

                      On July 16,  1986, the Mayor  notified Rivera-Cotto

            that,  because of a "need  for [her] services,"  she would be

            transferred to the position  of Administrative Officer III at

            the  Multiple Activities  Center  for the  Elderly.   Rivera-

            Cotto, however,  claims that the transfer  occurred, at least

            in part,  because she  had been  incorrectly identified as  a

            member of  the opposition Popular  Democratic Party  ("PDP").

            In  fact,  she  is a  member  of  the  New Progressive  Party

            ("NPP"), the party in power in Bayamon.  While working at the

            Elderly  Center,  Rivera-Cotto  claimed  that  co-workers and

            supervisors subjected  her to various forms  of ill-treatment

            including changed  duties, denial of lunch,  denial of office

            supplies, unfair disciplinary warnings, and isolation.  

____________________

            1.  Rivera-Cotto does not claim that either the suspension or
            loss of pay violated her constitutional rights.

                                         -3-
                                          3



Meanwhile, Rivera-Cotto appealed both  the transfer

            and the earlier  suspension to  the Board of  Appeals of  the

            Personnel Administration System ("JASAP").  JASAP reduced the

            suspension  to  ten  days  and ordered  the  municipality  to

            reassign  Rivera-Cotto to  her former  position at  the legal

            division.  JASAP  found that  the facts did  not support  the

            claim   that  personnel   needs  necessitated   her  original

            transfer.  Bayamon's appeals were ultimately unsuccessful and

            Rivera-Cotto has since returned to the legal division.

                      In  1988, Rivera-Cotto commenced the present action

            in  which she  sued appellees  pursuant to  42 U.S.C.    1983

            alleging  violations  of  her  constitutional  and  statutory

            rights.      Specifically,  Rivera-Cotto   alleged   she  was

            transferred  and  subjected  to  other  forms  of  harassment

            because of her political affiliation.  She also  claimed that

            she was  subjected to discrimination because  of her handicap

            and  sought   damages  flowing  from   defendants'  acts   of

            discrimination as well as injunctive relief.  

                      The district court  granted defendant's motion  for

            summary judgment.  Judgment  was entered against Rivera-Cotto

            and her complaint was dismissed.  This appeal followed.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      On   appeal,   Rivera-Cotto  makes   the  following

            arguments:    (1)  the   district  court  erred  in  granting

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                                          4



defendants'  motion  for  summary  judgment as  to  both  the

            political  discrimination and  physical handicap  claims; and

            (2) the district court erred in finding that Mayor Rivera and

            Garcia-Rivera were  entitled  to  the  defense  of  qualified

            immunity.   After reciting the summary  judgment standard, we
                        

            first discuss the political  discrimination argument and then

            the physical handicap  claim.  Because  we find that  Rivera-

            Cotto  has  failed  to   satisfy  her  burden  under  summary

            judgment, we do not reach the question of qualified immunity.

            A.  Standard of Review
            ______________________

                      We review  a  district  court's  grant  of  summary

            judgment  de  novo,  reading  the  record  in  a  light  most
                      __  ____

            favorable  to  the non-moving  party.   See,  e.g.,  Woods v.
                                                    ___   ____   _____

            Friction Materials, Inc.,  30 F.3d 255, 259  (1st Cir. 1994).
            ________________________

            When  presented with  a motion  for summary  judgment, courts

            should "pierce the boilerplate of the pleadings and assay the

            parties'  proof  in  order  to  determine  whether  trial  is

            actually required."  Wynne  v. Tufts Univ. Sch. of  Medicine,
                                 _____     _____________________________

            976  F.2d 791, 794 (1st Cir. 1992),  cert. denied, 113 S. Ct.
                                                 _____ ______

            1845  (1993).    Summary   judgment  is  rendered  when  "the

            pleadings,  depositions,  answers  to   interrogatories,  and

            admissions  on file,  together with  the affidavits,  if any,

            show  that there is no genuine  issue as to any material fact

            and that  the moving  party is  entitled to a  judgment as  a

            matter of law."  Fed. R. Civ. P. 56(c).  A "material" fact is

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                                          5



one  "that might  affect the  outcome of  the suit  under the

            governing  law."  Anderson  v. Liberty Lobby,  Inc., 477 U.S.
                              ________     ____________________

            242, 248 (1986).  "If the evidence is merely colorable, or is

            not   significantly  probative,   summary  judgment   may  be

            granted."    Id. at  249-50.   "Even  in cases  where elusive
                         ___

            concepts  such as  motive  or intent  are  at issue,  summary

            judgment  may be  appropriate  if the  nonmoving party  rests

            merely  upon  conclusory allegations,  improbable inferences,

            and unsupported speculation."  Medina-Munoz v.  R.J. Reynolds
                                           ____________     _____________

            Tobacco  Co.,  896  F.2d  5,  8  (1st  Cir.  1990).    "Brash
            ____________

            conjecture, coupled with earnest hope that something concrete

            will eventually materialize, is insufficient to block summary

            judgment."  Dow v. United  Bhd. of Carpenters, 1 F.3d  56, 58
                        ___    __________________________

            (1st Cir. 1993).

            B.  Political Discrimination Claim
            __________________________________

                      As noted above, the district court  granted summary

            judgment  on  Rivera-Cotto's political  discrimination claim.

            Applying our decision in Agosto-de-Feliciano v. Aponte-Roque,
                                     ___________________    ____________

            889 F.2d 1209 (1st  Cir. 1989) (en banc), the court held that

            Rivera-Cotto had failed to establish, by clear and convincing

            evidence,  that  defendants'  actions   resulted  in  a  work

            situation  that  was  "unreasonably  inferior" to  the  norm.

            Rivera-Cotto  disputes  the  court's  interpretation  of  the

            evidence.  We agree with the result below but come to it by a

            different route.

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                                          6



In  political  discrimination  cases, a  plaintiff-

            employee who  has  held a  non-policymaking  government  job2

            avoids summary judgment by pointing to evidence in the record

            which, if credited,  would permit a  rational fact finder  to

            conclude that  the challenged  personnel action occurred  and

            stemmed  from  a  politically  based  discriminatory  animus.

            Nereida-Gonzalez,  990 F.2d  at 706.   The  fact  finder must
            ________________

            reasonably be able to infer that political  affiliation was a

            "substantial"  or "motivating"  factor behind  the challenged

            action.   Acevedo-Diaz  v. Aponte,  1 F.3d  62, 66  (1st Cir.
                      ____________     ______

            1993);  Aviles-Martinez v. Monroig,  963 F.2d 2,  5 (1st Cir.
                    _______________    _______

            1992); Agosto-de-Feliciano, 889 F.2d  at 1220.  Without more,
                   ___________________

            a nonmoving plaintiff-employee's unsupported  and speculative

            assertions regarding  political  discrimination will  not  be

            enough to survive  summary judgment.   Cf.  Nereida-Gonzalez,
                                                   ___  ________________

            990 F.2d at 706  (discriminatory animus found where statement

            by defendants, though controverted, that plaintiff's demotion

            was due to party affiliation combined with other evidence led

            to reasonable conclusion that  plaintiff was a member  of the

            opposition   party,  defendants   had  engaged   in  a   sham

            reorganization,  and other  personnel  actions only  affected

____________________

            2.  Defendants  do  not  contend  that  Rivera-Cotto  held  a
            confidential  or  policymaking  position  for  which partisan
            political   affiliation  might   have   been   a   legitimate
            requirement.   See  Branti  v. Finkel,  445 U.S.  507, 517-18
                           ___  ______     ______
            (1980); O'Connor v. Steeves, 994 F.2d 905, 909-12 (1st Cir.),
                    ________    _______
            114 S. Ct. 634 (1993).

                                         -7-
                                          7



members  of  plaintiff's party);  Rodriguez-Pinto  v. Tirado-
                                              _______________     _______

            Delgado,  982 F.2d 34,  40 (1st Cir.  1993) (allegations, not
            _______

            conclusively rebutted,  that plaintiff was a  known member of

            the  NPP,  that  plaintiff's  prior position  was  filled  by

            members  of the PDP, and that everyone who was demoted during

            reorganization  was a  NPP  member,  sufficient to  establish

            political affiliation discrimination).  

                      Rivera-Cotta has not  sustained her burden. In  her

            sworn  statement, Rivera-Cotto  asserts  that the  defendants

            believed  that she  was  a member  of  the PDP  when  she was

            actually a  member of  the NPP.   Our  review of  the record,

            however,   reveals  no   other  evidence   to   support  this

            allegation.  More importantly, there is no other evidence  to

            support the  allegation that defendants' wrongly  held belief

            was  the motivating  factor behind  Rivera-Cotto's transfer.3

            In fact, Rivera-Cotto's assertions about political motivation

            contradict her  own interpretation  of the events  leading to

            the transfer.   Rivera-Cotto  repeatedly points to  the JASAP

            report as support  for her contention  that the transfer  was

            not pursuant  to  the "need  for  [her] services,"  as  Mayor

            Rivera originally  suggested, but rather flowed  from Rivera-

                                
            ____________________

            3.  Whether  an  employee's  discharge  arises  out  of  "the
            government employer's belief, wrongly held, that the employee
            was  in league  with the  opposition party"  gives rise  to a
            constitutional claim is an open question.  Correa-Martinez v.
                                                       _______________
            Arrillaga-Belendez, 903 F.2d 49, 57 n.7 (1st Cir. 1990).  The
            __________________
            question  is similarly open  in the context  of a politically
            motivated transfer.  We need not reach the issue here.  

                                         -8-
                                          8



Cotto's  altercation with  her  superior.   Thus, by  Rivera-

            Cotto's   proffered  reading   of  the   record,  defendants'

            motivation  for the  transfer was  substantially disciplinary

            rather than political.4

                        Because Rivera-Cotto has failed  to go the  first

            step in  establishing her  constitutional claim, we  need not

            proceed  farther.5  We find  that the district court properly

            granted summary judgment.

            C.  Physical Handicap Claim
            ___________________________

                      Although the district court did not address Rivera-

            Cotto's  handicap claim,  we hold  that summary  judgment was

            properly granted.

                      Rivera-Cotto   fails   to   offer   any   developed

            argumentation on this point.  She simply refers us to Section

            504  of the  Rehabilitation  Act, 29  U.S.C.    794,  and  to

____________________

            4.  We  note  that at  one point  in  her memorandum  to this
            court, Rivera-Cotto argues that the transfer was "due to [her
            perceived political  affiliation] and all  the reasons herein
            mentioned."   The  point  remains that  Rivera-Cotto has  not
            argued, and the  record will  not support, a  claim that  her
            political  affiliation  was  the  substantial  or  motivating
            factor  behind the  transfer or  any other  ill-treatment she
            suffered.

            5.  This  case especially  underscores  a principle  we  have
            noted  before:  "In  the  absence  of  a  cognizable  federal
            question,   a  federal  court  cannot  intrude  upon  another
            sovereign's civil  service system and declare  itself a court
            of last  resort to  hear personnel  appeals addressed  to the
            wisdom, or even the good faith, of staffing decisions reached
            by  government  actors."   Correa-Martinez  903  F.2d at  58.
                                       _______________
            Rivera-Cotto  has challenged,  successfully, the  validity of
            her transfer under applicable local law.  

                                         -9-
                                          9



several cases without  elaboration.  She  makes no effort  to

            recite  the well-developed doctrine in this area or to relate

            the law to the single piece  of evidence on which she relies.

At oral argument, counsel for Rivera-Cotto conceded

            that  there is only one  factual allegation on  the record to

            support her  claim. A  routing sheet from  the municipality's

            finance  department,  dated   October  30,   1990,  bears   a

            handwritten note that reads:   "Waiting for quotation.   Call

            the deaf  woman."  Upon  review of the  record, we also  note

            that,  in  a  deposition,  Rivera-Cotto  reported disparaging

            remarks made by Mayor  Rivera and Rivera-Cotto's  supervisor.

            Both remarks referred to her hearing imparity.  Otherwise, we

            find  the record  contains only  conclusory statements  about

            alleged discrimination.

                      Rivera-Cotto has failed to  sustain her burden.  To

            forestall   summary   judgment,   we   require    more   than

            "unsubstantiated   conclusions,   backed   only  by   a   few

            uncoordinated evidentiary fragments."   Wynne v. Tufts  Univ.
                                                    _____    ____________

            Sch.  of Medicine, 976 F.2d  791, 795 (1st  Cir. 1992), cert.
            _________________                                       _____

            denied,  113 S. Ct. 1845 (1993).  Yet, that is precisely what
            ______

            Rivera-Cotto  presents here.   She  alleges various  forms of

            ill-treatment flowing from defendants'  discriminatory animus

            based on her handicap.   To bolster her claim, she  offers no

            more than  what we  have described  above.  Further,  Rivera-

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                                          10



Cotto's specific allegation that defendants were motivated by

            handicap discrimination  in  transferring her  is,  as  noted

            above, contradicted by her own interpretation of the transfer

            as disciplinary rather than discriminatory.  Accordingly, the

            district  court  properly  granted summary  judgment  on this

            claim.                       III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For the  reasons stated above, the  decision of the

            district court is

                      Affirmed.
                      Affirmed.
                      _________

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