United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit
No. 97-1584
WALDO G. VAZQUEZ, ET AL.,
Plaintiffs, Appellants,
v.
CARLOS LOPEZ-ROSARIO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and DiClerico, District Judge.*
Harry Anduze Monta o, with whom Raul S. Mariani
Franco was on brief, for appellants.
Rafael Cuevas-Kuinlam, with whom Antonio Cuevas-
Delgado and Cuevas, Kuinlam & Bermudez were on brief, for
appellee Carlos Lopez-Rosario. Jaime Mayol-Bianchi, with whom Jose R. Perez-
Hernandez and Pierluisi & Mayol-Bianchi, P.S.C. were on
brief, for appellee Puerto Rico Marine Management, Inc. Radames A. Torruella, with whom Carmencita
Velazquez-Marquez, Jorge A. Antongiorgi, and McConnell Valdes
were on brief, for appellee Puerto Rico Maritime Shipping Authority.
*Of the District of New Hampshire, sitting by designation.
January 22, 1998
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LYNCH, Circuit Judge. This case is another in a LYNCH, Circuit Judge.
series of cases arising out of the elections in Puerto Rico
in 1992, in which the New Progressive Party (NPP) won power
from its rival, the Popular Democratic Party (PDP). During
the current decade, plaintiffs in these cases usually have
been members of the PDP who complain that the incoming NPP
administration has deprived them of their government jobs in
violation of their rights under the First Amendment.1 In
this case, plaintiff Waldo G. Vazquez, an NPP supporter,
claims his job at a government contractor was eliminated as
part of an internal party feud. He sues his employer, its
major client (a public corporation), and a member of the
client's board under 42 U.S.C. 1983 (1994).
The district court concluded that Vazquez's
evidence, principally his own testimony, amounted to no more
than "hearsay upon hearsay" and "rumors, hearsay, gossip, his
personal feelings, his intuition and his conclusions," and
granted summary judgment for defendants. Vazquez argues that
the district court committed error in excluding evidence as
hearsay when the statements were admissions by party-
opponents. Thus, we explore in some detail the requirements
of Fed. R. Evid. 801(d)(2) as to party-opponent admissions, a
recurring issue in employment cases.
1. See, e.g., Acosta-Orozco v. Rodriguez-de-Rivera, No. 97-
1489, 1997 WL 775350, at *8 n.1 (1st Cir. Dec. 22, 1997) (citing cases).
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We agree with Vazquez that some of the
conversations which the district court excluded on hearsay
grounds are admissions of a party-opponent and should have
been considered as part of his case. To win the battle is
not necessarily to win the war. Because the evidence Vazquez
presents is insufficient to create a genuine issue of
material fact in any event, we affirm.
I. I.
We state the facts in the light most favorable to
the party opposing summary judgment, Acosta-Orozco v.
Rodriguez-de-Rivera, No. 97-1489, 1997 WL 775350, at *1 (1st
Cir. Dec. 22 1997), and describe the evidence in some detail.
Waldo Vazquez was employed for many years by Puerto
Rico Maritime Management, Inc. (PRMMI), a private corporation
that provides management services to the Puerto Rico Marine
Shipping Authority (PRMSA), a public corporation created by
the Puerto Rico legislature. PRMSA's Governing Board has
seven members appointed by the Governor of Puerto Rico,
subject to confirmation by the Commonwealth's Senate. See 23
L.P.R.A. 3054 (1994). PRMSA acknowledges it is a
government agency, and we have held it is a "political
subdivision" of the Commonwealth of Puerto Rico under the
National Labor Relations Act. See Chaparro-Febus v.
International Longshoremen Ass'n, Local 1575, 983 F.2d 325
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(1st Cir. 1992). At the time of his dismissal from PRMMI in
1993, Vazquez held the title Vice President of Operations,
Caribbean Division.
In 1992, a new contract between PRMSA and PRMMI was
signed, giving authority to the PRMSA Board over "key
personnel" within PRMMI. PRMSA was given the right to
dismiss high-level PRMMI employees "for any material breach
of its contract by such [PRMMI] key personnel and/or for just
cause." Vazquez's position was among those designated "key
personnel."
In 1993, PRMSA had accumulated losses in excess of
$300 million. Vazquez does not dispute this. On February
24, 1993, the PRMSA Board voted, in light of these high
losses, to authorize a reduction-in-force (RIF) of twenty-six
employees at PRMMI; eventually at least forty-one employees'
jobs were eliminated. Vazquez's position was among those
selected for elimination, either directly by the Board or
pursuant to its RIF directive. The record is not clear
whether Vazquez's position was among those originally
selected for elimination by the Board. However, as some
evidence supports the conclusion that the Board directly
authorized Vazquez's dismissal, we will assume that it did.
In late March 1993, Steve Schulein, a high-level
PRMMI official, informed Vazquez over breakfast at the
Ambassador Plaza Hotel in Puerto Rico that his position was
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going to be eliminated at the beginning of April. According
to Vazquez's testimony, Schulein told Vazquez that he did not
understand why Vazquez was to be dismissed, and that the
elimination of his position had not been part of the original
reorganization plan submitted to the PRMSA Board. Schulein
said that he understood that the decision came from a member
of the PRMSA Board. This conversation took place in the
period when the other PRMMI employees were also being let go.
The next day, Vazquez called Manuel Luis del Valle,
Chairman of the Governing Board of PRMSA, in order to
ascertain why his position had been selected for elimination
in the Board's new plans for PRMMI's reorganization. Vazquez
told Del Valle that his dismissal "was an injustice and a
persecution." Vazquez argued that similar employees had not
been eliminated, and that he had rejected the company's early
retirement program two years before because he needed the
salary and felt he still had much to offer the company. Del
Valle promised he would help Vazquez fight his proposed
dismissal, because, according to Vazquez, Del Valle "also
understood that it was an injustice."
On April 2, 1993, Vazquez received a letter
informing him that "due to [PRMMI's] current financial
condition you will be laid off . . . ."
Vazquez continued his inquiries and protests about
his dismissal. At some later time, Del Valle told Vazquez of
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a conversation Del Valle had with Carlos Lopez-Rosario, a
member of the PRMSA Board. According to Vazquez, Del Valle
told him that Lopez had told Del Valle that "the problem" was
that Vazquez had "political differences" with Lopez. The
record is unclear when the conversation between Lopez and Del
Valle supposedly took place or whether it had anything to do
with Vazquez's dismissal. Del Valle's comments also
confirmed what Vazquez calls "hallway gossip" that Lopez
disliked Vazquez.
Vazquez suspected that these "political
differences" stemmed from the NPP's gubernatorial primary in
1992. Vazquez had supported the losing candidate, Carlos
Romero-Barcelo ("Romero"), now the Commonwealth's Resident
Commissioner in Washington, while Lopez had supported the
winner, Pedro Rosello, now the Governor of Puerto Rico.
Vazquez speculated that this disagreement must have
motivated his dismissal. He remembered a conversation with
Lopez a few years earlier at an NPP activity in the home of a
prominent supporter. Vazquez had expressed his preference
for Romero as a gubernatorial candidate and Lopez had
disagreed, arguing for Rosello. Vazquez also speculated that
Lopez might be retaliating against him for the work of
Vazquez's wife in organizing a women's group to support
Romero in a political campaign almost two decades earlier.
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According to Vazquez, Miguel Rossy, PRMMI's
President, confirmed in a conversation at a local restaurant
that Vazquez's position was not included in the original
reorganization plan and that the decision came from an
unnamed PRMSA Board member, "[s]omebody who doesn't . . .
like you, who is opposed to Carlos [Romero's] people."
Vazquez took this unnamed person to be Lopez.
On several occasions, Vazquez also asked both
Commissioner Romero and Governor Rosello personally to
intervene and reverse the decision, citing his long record of
service with PRMMI. The Governor told Vazquez that he would
have to handle the issue with the PRMSA Board himself.
According to Vazquez, at some point Ricardo Gonzalez, a PRMSA
Board member, told Vazquez that he had tried to get the
decision reversed, but that "the pressure was too strong."
Gonzalez did not explain what he meant by "pressure," or who
was applying pressure.
Finally, in May 1993, Vazquez met with Lopez
personally in Lopez's office at PRMSA. Vazquez asked Lopez
whether what Del Valle had told him about "political
differences" was true. Lopez replied, according to Vazquez,
"I made some remarks . . . those remarks to Manuel Luis [del
Valle] over a Coca-Cola or a cup of coffee, but Manuel Luis
shouldn't have told you." There is no indication when such
remarks were made.
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II. II.
Vazquez filed suit against PRMSA, PRMMI and Lopez,
alleging that his dimissal was retaliation for his support of
Romero, in violation of his First Amendment2 rights of
political association under Elrod v. Burns, 427 U.S. 347
(1976) and Branti v. Finkel, 445 U.S. 507 (1980).3 Following
2. We note that, under plaintiff's theory, the state action doctrine poses no bar to his assertion of a First Amendment claim against PRMSA and Lopez, although he was employed at a private company. Cf. Yeo v. Town of Lexington, No. 96-1623,
1997 WL 748667, at *8 (1st Cir. Dec. 9, 1997) (en banc) ("If there is no state action, then the court may not impose constitutional obligations on (and thus restrict the freedom of) private actors."). For summary judgment purposes, we take it that Vazquez's dismissal came at the insistence of the Board of Governors of a state agency, an agency which had retained the power in its contract to demand the dismissal of "key personnel." Furthermore, although plaintiff was not a government employee, he was dismissed, at the government's insistence, from his job with a government contractor. The First Amendment forbids the government not only from interfering with the associational rights of its employees, but also from using its power over contractors to punish its political opponents. See Board of County Comm'rs v. Umbehr,
116 S. Ct. 2342 (1996); O'Hare Truck Serv., Inc. v. City of
Northlake, 116 S. Ct. 2353 (1996). Moreover, because his
claim fails against the state actors, it fails against the private or semi-private actors who did the state's bidding.
3. Under Elrod and Branti, the government may not condition
employment on membership in the party in power, unless party affiliation is an appropriate requirement for the position. See Branti, 445 U.S. at 517-18. Vazquez's claim is that his
support of Romero prompted his dismissal by a member of a rival faction within the same party. It is unclear from the summary judgment record whether Vazquez's support of Romero should be analyzed under the categorical rule for political affiliation of Elrod and
Branti or under the balancing test for political speech by
government employees established in Pickering v. Board of
Educ., 391 U.S. 563 (1968). See, e.g., Rodriguez-Rodriguez
v. Munoz-Munoz, 808 F.2d 138, 143-147 (1st Cir. 1986)
(contrasting a claim based on "affiliation with a particular
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discovery, the district court granted motions for summary
judgment for PRMMI and Lopez, and a few days later, granted
summary judgment sua sponte for PRMSA, which had not joined
the other defendants' motions. On appeal, Vazquez claims
that the district court erred in excluding the conversations
he relates in his deposition on hearsay grounds, because most
of the statements, he says, were admissible under Fed. R.
Evid. 801(d)(2) as admissions of a party-opponent. Vazquez
claims that the conversations he describes were sufficient
evidence to permit his case to survive summary judgment. He
also claims that the district court abused its discretion in
entering summary judgment sua sponte for PRMSA.
III. III.
Evidence that is inadmissible at trial, such as
inadmissible hearsay, may not be considered on summary
judgment. See Fed. R. Civ. P. 56(e); FDIC v. Roldan-Fonseca,
795 F.2d 1102, 1110 (1st Cir. 1986). We review the district
court's decision to exclude such evidence for abuse of
discretion. See General Elec. Co. v. Joiner, No. 96-188,
1997 WL 764563, at *4 (U.S. Dec. 15, 1997); Nieves-Villanueva
v. Soto-Rivera, No. 96-1285, 1997 WL 775545, at *5 (1st Cir.
political group" and one based on active partisan activity, speech or running for office). The parties and the district court assumed the Elrod-Branti test applied. We determine
that summary judgment was appropriate even under the more demanding Elrod-Branti standard, and therefore do not reach
the issue of which line of First Amendment precedent should apply.
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Dec. 22, 1997). Once we determine what evidence can properly
be considered, we review the district court's decision to
grant summary judgment de novo. Acosta-Orozco v. Rodriguez-
de-Rivera, No. 97-1489, 1997 WL 775350, at *1 (1st Cir. Dec.
22, 1997).
A. Hearsay and Party-Opponent Admissions
Fed. R. Evid. 801(c) defines hearsay generally as
"a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." All of the
conversations which Vazquez relates fit this general
definition, as they are offered to show that Lopez was behind
Vazquez's dismissal, and that his motive was to retaliate for
Vazquez's support of Romero. Indeed, most of the
conversations are hearsay within hearsay.
Vazquez argues, however, that these conversations
are nonetheless admissible because the Federal Rules of
Evidence define admissions by a party-opponent as "not
hearsay." See Fed. R. Evid. 801(d)(2). Vazquez argues that
the comments by high PRMSA and PRMMI officials, acting within
the scope of their agency or employment, are admissible under
this rule. In addition, Vazquez properly notes, there is no
objection to "hearsay within hearsay" if each link in the
chain is admissible under an exception to the hearsay rules
or is not defined as hearsay. See Fed. R. Evid. 805.
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Careful scrutiny of the comments on which Vazquez relies is
necessary to evaluate this argument.
For a statement to be an admission under Rule
801(d)(2), the statement must be made by a party, or by a
party's agent or servant within the scope of the agency or
employment. See, e.g., Woodman v. Haemonetics Corp., 51 F.3d
1087, 1093-94 (1st Cir. 1995); Union Mutual Life Ins. Co. v.
Chrysler Corp., 793 F.2d 1, 6-8 (1st Cir. 1986).4 Each link
in the chain must be admissible, either because it is an
admission and thus not hearsay or under some other hearsay
exception.
The conversations that Vazquez himself describes as
"hallway gossip" were properly excluded as hearsay. Although
Vazquez identifies some of the individuals who related the
4. Fed. R. Evid. 801(d)(2) provides that a statement is "not hearsay" if: The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The other exceptions are not relevant to the statements offered in this case, which can more easily fit the exceptions mentioned in the text.
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rumor that Lopez disliked him, nothing in the record
identifies the sources of this information. While there may
be a controversy over whether admissions must be based on
personal knowledge, see Brookover v. Mary Hitchcock Mem.
Hosp., 893 F.2d 411, 414-16 (1st Cir. 1990) (canvassing the
controversy), unattributed statements repeated by party-
opponents cannot be admissible. As the original declarant is
unknown, it is impossible to determine whether the original
declarant also fits within the party-opponent definition, and
thus the exclusion of such office gossip was proper. See,
e.g., Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1001-
02 (3rd Cir. 1988) (excluding such unattributed hearsay when
repeated by party-opponent); Cedeck v. Hamiltonian Fed. Sav.
& Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977) ("That part
of [the party-opponent's] statement which contains a
reiteration of what someone told him is not admissible as an
admission by [a] party-opponent since the author of the
statement is unknown.")5
5. We distinguish cases where the statements are not offered as proof that they were in fact made, but rather as general examples of unlawful company policy. See, e.g., Abrams v.
Lightolier, Inc., 50 F.3d 1204, 1215-16 (3rd Cir. 1995)
(finding admissible supervisor's statement, repeated to ADEA plaintiff, that company "frowned on" older workers); Hybert
v. Hearst Corp., 900 F.2d 1050, 1053 (7th Cir. 1990)
(admitting supervisor's statements about "concerns" and "feelings" of home office as direct statements of the company's attitude or policy rather than second-hand repetitions, inadmissible because unattributed). Vazquez does not claim that PRMSA had a policy or custom of persecuting Romero followers, but merely that one Board
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Likewise, the exclusion as hearsay of the statement
of Miguel Rossy, PRMMI's president, that Vazquez's dismissal
was at the behest of "someone [at PRMSA] who doesn't like
you, who is opposed to Carlos [Romero's] people," was within
the district court's discretion. Even assuming dubitante
that Rossy's description of the statement is enough to
identify the declarant as Lopez, or at least as a Board
member and thus an agent of PRMSA, Rossy was the President of
PRMMI, not PRMSA. This breaks the link in the hearsay chain.
There is no evidence that Rossy was authorized to speak for
PRMSA's Board, and thus his statement cannot be considered
within the scope of his agency as an officer of PRMMI.
See Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091-92
(9th Cir. 1990) (no abuse of discretion in exclusion of
double-hearsay statement which was related to plaintiff by an
agent of a different employer where there was "no evidence
that [the person who related the alleged statement] had any
authority to make [such] admissions"); cf. Woodman, 51 F.3d
at 1094 (examining record to determine whether manager was
acting within scope of her employment); Miles v. M.N.C.
Corp., 750 F.2d 867, 874 (11th Cir. 1985) (same).
member, Lopez, did so in his case. See Abrams, 50 F.3d at
1216 (contrasting a "specific declaration made [concerning] a particular employment decision . . . offered for its truth," which was inadmissible if from an unknown declarant, with a supervisor's "opinion regarding company policy," which was admissible).
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However, many of the other conversations on which
Vazquez relies should not have been excluded as hearsay. Del
Valle's conversation with Vazquez relating the "problem" of
Lopez's "political differences" with Vazquez fits within the
Rule 801(d)(2) exception. The statement concerning political
differences was made by a party (Lopez) and related by Del
Valle, who was Chairman of the PRMSA Board and thus the agent
of PRMSA, a party. The district court abused its discretion
by excluding this conversation as "hearsay," if that is
indeed what it did.
Similarly, the statement of Gonzalez, a PRMSA Board
member, that "the pressure was too strong" to reverse the
decision is not hearsay, as Gonzalez was clearly an agent of
PRMSA. Thus, Gonzalez's statement can properly be used to
prove the truth of the matter asserted, i.e., that he felt
under "pressure" not to reverse the PRMSA decision. However,
Gonzalez's statement cannot be used as "hearsay within
hearsay" to prove that Lopez had urged the Board to stand by
a decision to dismiss Vazquez. Gonzalez does not identify
the person applying "pressure," and the statement of an
unidentified declarant is hearsay.
Finally, Vazquez's description of his confrontation
with Lopez is plainly not hearsay. Lopez is a party, and his
direct admission that he had made some informal comments to
Del Valle that he did not want Vazquez to hear is not
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hearsay. Again, Lopez's statement can be used to prove the
truth of the matter asserted, i.e., that he made comments to
Del Valle that he did not want repeated to Vazquez.
The Lopez statement, however, is insufficient to
establish an "adoptive admission" that Lopez acknowledged
that he had been responsible for Vazquez's dismissal and that
it was in retaliation for Vazquez's support of Romero, as
Vazquez argues. See Fed. R. Evid. 801(d)(2)(B) (defining as
"not hearsay" "a statement of which the party has manifested
an adoption or belief in its truth"). The burden is on
Vazquez to show that the circumstances surrounding the
conversation with Lopez demonstrate that Lopez manifested a
belief in the accusation of retaliation. See Ricciardi v.
Children's Hosp. Med. Ctr., 811 F.2d 18, 24 (1st Cir. 1987).
"In all cases, the burden is on the proponent to convince the
judge that in the circumstances of the case a failure to
respond is so unnatural that it supports the inference that
the party acquiesced in the statement." Id. (quoting J.
Weinstein & M. Berger, Weinstein's Evidence
801(d)(2)(B)[01], at 801-202 n.15 (1985) (internal quotation
marks and alterations omitted)).
The record, however, reveals that Vazquez, at most,
accused Lopez of making statements to Del Valle, and Lopez
responded by admitting that he had made "some remarks."
Vazquez does not say that he accused Lopez directly of
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retaliating against him, only that he accused him of making
statements to Del Valle about their political differences.
It would hardly be unnatural to fail to respond to an
accusation that Vazquez does not claim to have made.
B. Summary Judgment on the Motive for Vazquez's Dismissal
In order to forestall summary judgment, Vazquez
must have demonstrated that his support of Romero was at
least a "motivating factor" in the Board's decision to
dismiss him. See Rodriguez-Rodriguez v. Munoz-Munoz, 808
F.2d 138, 143 (1st Cir. 1986). Vazquez must "point[] to
[admissible] evidence in the record which, if credited, would
permit a rational fact finder to conclude that [his
dismissal] stemmed from a politically based discriminatory
animus," LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996)
(quoting Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.
1994) (internal quotation marks and alterations omitted)),
rather than for economic reasons. "Without more, [Vazquez's]
unsupported and speculative assertions regarding political
discrimination will not be enough to survive summary
judgment." Id.
The record reveals that Vazquez felt his dismissal
was unfair and that many of his friends agreed with him. He
had worked for many years at PRMMI, climbing the corporate
ladder, had rejected early retirement two years before and
was then dismissed. The conversations he relates contain
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many statements of support from PRMSA and PRMMI employees who
sympathized with him. However, "[m]erely juxtaposing a
protected characteristic -- [Lopez's] politics -- with the
fact plaintiff was treated unfairly is not enough to state a
constitutional claim." Acosta-Orozco, 1997 WL 775350, at *5
(quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
58 (1st Cir. 1990) (internal quotation marks omitted)).
Instead, Vazquez must point to evidence which shows
that Lopez singled out Vazquez's position, which was not
included in the original reorganization plan, for elimination
and that he did so to retaliate for Vazquez's support of
Romero. Vazquez can point to three conversations to support
this theory. First, he can point to Del Valle's comments
that "the problem" was Vazquez's "political differences" with
Lopez. Second, he can point to Lopez's acknowledgement that
he made "some comments" to Del Valle that he did not want
Vazquez to hear. Finally, he can note Gonzalez's statement
that Gonzalez felt "pressure" not to reverse Vazquez's
dismissal.
These comments are insufficient to establish that
Lopez engineered Vazquez's dismissal in order to retaliate
for Vazquez's support of Romero, and amount to no more than
"unsupported and speculative assertions." LaRou, 98 F.3d at
661. Even viewing these statements in the light most
favorable to Vazquez, no reasonable jury could find that such
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statements prove by a preponderance of the evidence that
Vazquez's support of Romero was a "substantial" or
"motivating" factor in the PRMSA Board's decision to include
his position in the reorganization. That Vazquez had
"political differences" with a single PRMSA Board member at
some unidentified time does not establish that the Board or a
majority of the Board acquiesced in a plan to eliminate his
position in retaliation for those differences. Nor does it
establish that "the problem" referred to the elimination of
Vazquez's position. Similarly, Gonzalez's statement that he
felt "pressure" not to reverse Vazquez's dismissal says
nothing about the reason for the pressure. Facing a deficit
in excess of $300 million, PRMSA Board members undoubtedly
felt pressure to stand by the reorganization plan.
Finally, we find no abuse of discretion in the
action of the district court in entering summary judgment sua
sponte for PRMSA, following the district court's grant of
summary judgment to PRMMI and Lopez. Vazquez had
"appropriate notice and a chance to present [his] evidence on
the essential elements of [his] claim . . . ." Berkovitz v.
Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996).
Vazquez does not identify how his opposition to summary
judgment for PRMSA would have differed in any way from his
opposition to summary judgment for PRMMI and Lopez.
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The judgment of the district court is affirmed.
Costs to appellees.
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