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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br>No. 98-1587 <br> <br>                  MANUEL ANGULO-ALVAREZ, ET AL., <br> <br>                      Plaintiffs-Appellants, <br> <br>                                v. <br> <br>               JOSE E. APONTE DE LA TORRE, ET AL., <br> <br>                      Defendants-Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. Raymond L. Acosta, Senior U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                  Hall,* Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br> <br> <br>     Jess M. Hernndez-Snchez for appellants. <br>     Luis E. Pabn-Roca for appellee Municipality of Carolina and <br>Jos E. Aponte in his Official Capacity as Mayor, Leticia Casalduc- <br>Rabell, Assistant Solicitor General, U. S. Department of Justice <br>for appellee Jos E. Aponte, Mayor of Carolina, in his individual <br>capacity, with whom Carlos Lugo-Fiol, Solicitor General, U. S. <br>Department of Justice and Edda Serrano-Blasini, Deputy Solicitor <br>General, U. S. Department of Justice, were on brief.  <br> <br> <br> <br> <br>March 19, 1999 <br> <br> <br> <br>                                 <br>___________________ <br> <br>     *Of the Ninth Circuit, sitting by designation.

     LIPEZ, Circuit Judge.  Manuel Angulo-Alvarez and twelve of his <br>former coworkers at the Department of Maintenance and <br>Transportation of the Municipality of Carolina, Puerto Rico ("the <br>Department"), appeal from a district court judgment dismissing <br>their political discrimination claims against the Municipality of <br>Carolina and its Mayor, Jos E. Aponte ("Mayor Aponte").  We <br>affirm.  <br>                         I. Background <br>     The plaintiffs are former career employees of the Municipality <br>of Carolina who worked in the Department.  They are also members of <br>the New Progressive Party ("NPP").  Mayor Aponte, currently serving <br>his third term in office, is a member of the Popular Democratic <br>Party ("PDP").  In 1995, the Municipal Assembly of the Municipality <br>of Carolina approved a plan to privatize the Department.  The <br>privatization plan called for the layoff of all employees in the <br>Department, including the thirteen plaintiffs in this case.  <br>     Following the decision to privatize, the Municipality sent <br>each employee a notification letter informing them that the <br>decision to layoff personnel would be made pursuant to the "Layoff <br>Plan."  The employees were later informed that the Municipality <br>would attempt to relocate as many employees as possible by helping <br>them obtain work with the private contractor taking over the <br>Department or by placing them within other departments of the <br>Municipality.  <br>     As part of this process, the plaintiffs were offered unskilled <br>laborer positions with other departments in the Municipality of <br>Carolina.  These positions, however, constituted a demotion from <br>their prior jobs.  Seven of the thirteen plaintiffs met with <br>municipal officials but declined their offers for employment.  Six <br>of the plaintiffs failed to meet with officials at all to discuss <br>employment options.  Municipal officers also called the plaintiffs <br>to their offices so that plaintiffs could fill out job applications <br>with the private company taking over the Department.  Only three of <br>the plaintiffs filled out the applications with the contractor.  <br>     The plaintiffs sued Mayor Aponte, in both his official and <br>individual capacities, and the Municipality of Carolina pursuant to <br>42 U.S.C.  1983.  The plaintiffs alleged that the decision to <br>privatize the Department, the Municipality's failure to relocate <br>the plaintiffs within the Municipality, and its failure to later <br>recall the plaintiffs when positions became available, were <br>politically motivated in violation of their rights under the First <br>and Fourteenth Amendments to the United States Constitution.  <br>     Defendants moved for a summary judgment on the plaintiffs' <br>claims that the decision to privatize the Department and the <br>failure to relocate the plaintiffs were acts of political <br>discrimination.  The district court granted summary judgment on the <br>privatization claim on the ground that the plaintiffs failed to <br>offer any evidence from which a factfinder could infer that <br>political affiliation was a substantial or motivating factor in the <br>elimination of the Department.  On the relocation claim, however, <br>the district court denied summary judgment.   <br>     Following the entry of a partial summary judgment, the <br>district court ordered the claims of failure to relocate and <br>failure to recall plaintiffs to proceed and scheduled a pre-trial <br>settlement conference.  At the conference, the court found that the <br>plaintiffs, on the eve of trial, had not yet offered the evidence <br>necessary to proceed in a political discrimination case.  As a <br>result, the district court ordered each plaintiff to file answers, <br>under oath, to four interrogatories issued by the court itself.   <br>Only one of the thirteen plaintiffs, Angulo-Alvarez, filed answers <br>to the court-ordered interrogatories within the prescribed time.  <br>Defendants filed a motion to dismiss the plaintiffs' complaint for <br>failure to comply with the court's order.  The district court <br>granted the motion with respect to the twelve plaintiffs who failed <br>to respond in toto.  It also granted a dismissal of Angulo- <br>Alvarez's claim on the ground that his answers were inadequate.  <br>     The plaintiffs appeal the entry of summary judgment on their <br>privatization claim and the subsequent dismissal of their remaining  <br>claims of failure to relocate and failure to recall. <br>                      II. Summary Judgment <br>      We review the summary judgment entry de novo, taking the <br>facts in a light most favorable to the nonmoving party.  SeeRivera-Cotto v. Rivera, 38 F.3d 611, 613 (1st Cir. 1994).  We will <br>affirm the entry of judgment if "the pleadings, depositions, <br>answers to interrogatories, and admissions on file, together with <br>the affidavits, if any, show that there is no genuine issue as to <br>any material fact and that the moving party is entitled to judgment <br>as a matter of law."  Fed. R. Civ. P. 56.  Even where motive or <br>intent is at issue, "summary judgment may be appropriate if the <br>nonmoving party rests merely upon conclusory allegations, <br>improbable inferences, and unsupported speculation."  Rivera-Cotto, <br>38 F.3d at 613(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., <br>896 F.2d 5, 8 (1st Cir. 1990)). <br>     When political discrimination is alleged in a case involving <br>the dismissal of a non-policymaking employee, the plaintiff must <br>first produce sufficient evidence, either direct or circumstantial, <br>from which a "rational jury could find that political affiliation <br>was a substantial or motivating factor behind the adverse <br>employment action."  Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 <br>(1st Cir. 1998).  Once the plaintiff meets the threshold burden, <br>the burden then shifts to the defendant-employer who must <br>"articulate a nondiscriminatory basis for the adverse employment <br>action and prove by a preponderance of the evidence that it would <br>have been taken without regard to plaintiff's political <br>affiliation."  Id.; see also Larou v. Ridlon, 98 F.3d 659, 661 (1st <br>Cir. 1996); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993). <br>     Here, the plaintiffs claimed that privatization of the <br>Department was an act of political discrimination.  The district <br>court concluded that the plaintiffs had failed to present anyevidence "from which [one] might infer that political affiliation <br>was the substantial or motivating factor in the elimination of the <br>[Department]."  We agree.  The plaintiffs' complaint stated that <br>the plaintiffs were NPP followers and that Mayor Aponte had <br>"developed a policy, custom or practice of political discrimination <br>against members of the New Progressive Party."  The only evidence <br>submitted in support of those allegations was the affidavit of <br>plaintiff Angulo-Alvarez.  In the affidavit, Angulo-Alvarez stated <br>that Mayor Aponte is a member of the PDP and that the plaintiffs <br>are known, active members of the NPP.  He claimed that of the <br>seventy employees in the Department, most of them were NPP <br>supporters and that this "bothered" the management of the <br>municipality of Carolina.  Neither Angulo-Alvarez's affidavit nor <br>any other evidence in the record supports the statements that 1) <br>the majority of Department employees were NPP followers or 2) that, <br>even if true, the Municipality was troubled by a strong NPP <br>presence in the Department.  Angulo-Alvarez's statements were <br>speculative assertions with no basis in the record.  <br>     Indeed, although the plaintiffs alleged that a majority of the <br>employees at the Department were NPP followers, defendants <br>correctly note that the plaintiffs' own statements belie the <br>accuracy of this statement.  The plaintiffs claim -- and defendants <br>do not dispute -- that there were a total of seventy employees in <br>the Department. In the plaintiffs' motion for reconsideration of <br>the dismissal of their complaint, they listed 29 PDP followers who <br>were relocated to other jobs.  Combined with the other six names <br>set forth in additional documentation, at least half of the <br>employees in the Department must have been PDP followers. At the <br>very most, the plaintiffs can claim that the Department was evenly <br>split between PDP and NPP followers.  On this evidence, no rational <br>jury could conclude that the decision to privatize the department <br>was politically motivated.  Given that the plaintiffs failed to <br>meet their initial burden of presenting a prima facie case of <br>discrimination, the court properly entered summary judgment on the <br>privatization claim.   <br>                     III. Motion to Dismiss <br>     As the court explained in its final order dismissing the <br>plaintiffs' complaint, the court concluded at the pretrial <br>settlement conference that the plaintiffs could not "proffer . . . <br>elementary evidence crucial to a political discrimination case <br>despite the fact that they carry that burden at trial."  Concerned <br>with the plaintiffs' ability to meet their burden at trial, the <br>court ordered each plaintiff to answer four interrogatories.  In <br>the minutes of the conference, the court explained: <br>     [T]he only issue remaining in this action is the <br>     MUNICIPALITY's liability for having failed to <br>     relocate/recall plaintiffs.  Accordingly, plaintiffs <br>     would have to establish at trial that they were laid off <br>     and not relocated/recalled even though: (1) there were <br>     employment positions available within the MUNICIPALITY <br>     (2) for which they qualified and (3) these positions were <br>     filled by PDP followers instead. <br> <br>          Plaintiffs were not able to identify a single <br>     position which they claim was filled by a PDP for which <br>     they qualified. <br> <br>          Given the narrow issues which remain outstanding, <br>     the imminence of trial date, plaintiffs' burden at trial <br>     and in order to avoid the time and expense involved in <br>     trial and its preparation, each plaintiff shall provide <br>     under oath/verification . . . answers to [four] <br>     questions. <br> <br>The plaintiffs were warned that "failure to comply shall result in <br>the dismissal of the claim(s) and/or sanctions against counsel <br>personally."  In response to the order, the plaintiffs submitted <br>one affidavit, signed by Angulo-Alvarez.  Defendants then filed a <br>motion to dismiss for failure to comply with the court's order.  <br>The court granted the motion to dismiss on the basis that the <br>plaintiffs' answers to the interrogatories were incomplete   twelve <br>of the thirteen plaintiffs failed to even submit answers and <br>Angulo-Alvarez's answers were incomplete.  The court found that <br>Angulo-Alvarez failed to proffer the required information, noting <br>that "there is no justification for plaintiffs to lack this <br>information at this late stage of the proceedings."   <br>     Federal Rules of Civil Procedure 37(b)(2)(C) and 41(b) give <br>the court the authority to dismiss a complaint for failure to <br>comply with a court order. Rule 37(b)(2)(C) specifically provides <br>for dismissal if a party fails to comply with an order to provide <br>discovery while Rule 41(b) is a more general grant of authority, <br>allowing dismissal for the failure to comply with any order of the <br>court.  Although the court did not specify which rule of procedure <br>it relied upon in dismissing the complaint, we review such a <br>decision on either of the above stated grounds for an abuse of <br>discretion. See Guex v. America Financial Life Ins. and Annuity <br>Co., 146 F.3d 40, 41 (1st Cir. 1998)(reviewing dismissal pursuant <br>to Fed. R. Civ. P. 37(b)(2)(C) for abuse of discretion); HMG <br>Property Investors, Inc. v. Parque Industrial Rio Canas, Inc., 847 <br>F.2d 908, 916-917 (1st Cir. 1988)(reviewing choice of remedy under <br>Fed. R. Civ. P. 41(b) for abuse of discretion). <br>     At the pretrial settlement conference, the court ordered the <br>plaintiffs to answer four questions due to the apparent dearth of <br>evidence.  The plaintiffs were warned by the court at this <br>conference that failure to comply with the court's order could lead <br>to a dismissal of their complaint in its entirety.  Nonetheless, <br>twelve of the thirteen plaintiffs made no effort to comply with the <br>order. Angulo-Alvarez, the only plaintiff to submit answers, did so <br>selectively.  He set forth those 16 jobs that were available at the <br>time the plaintiffs were laid off.  He failed, however, to provide <br>the qualifications necessary to fill each of the positions. <br>Instead, he selectively described the necessary qualifications for <br>certain positions, and then stated that the plaintiffs were <br>qualified to fill those positions.  In response to the court's <br>request that he state the name of each person who filled the 16 <br>vacant positions described in response to question one as well as <br>their political affiliation, Angulo-Alvarez only offered the names <br>of eight PDP followers.  Finally, Angulo-Alvarez failed entirely to <br>respond to the request for evidence he intended to use to establish <br>that political affiliation was a motive for filling the positions.  <br>The plaintiffs' contention that Angulo-Alvarez's answers "complied <br>with the District Courts' [sic] questions propounded to  <br>plaintiffs" is without merit. <br>     We are similarly unpersuaded by the plaintiffs' protestations <br>that the complaint was improperly dismissed because they were not <br>given an opportunity to oppose defendants' motion.  We have stated <br>in this circuit that "[l]ack of a hearing does not offend due <br>process where the plaintiff had ample warning of the consequences <br>of his failure to comply with court orders." Spiller v. U.S.V. <br>Lab., Inc., 842 F.2d 535, 538 (1st Cir. 1988)(citing Link v. Wabash <br>R.R. Co., 370 U.S. 626 (1962)).  Nor is it an abuse of discretion <br>to employ the sanction of dismissal without first considering less <br>severe sanctions.  "[T]he law is well established in this circuit <br>that where a noncompliant litigant has manifested a disregard for <br>orders of the court and been suitably forewarned of the <br>consequences of continued intransigence, a trial judge need not <br>first exhaust milder sanctions before resorting to dismissal." <br>Figuero Ruiz v. Alegria, 896 F.2d 645, 649 (1st Cir. 1990)(internal <br>quotation marks and citation omitted).  The court clearly warned <br>the plaintiffs that failure to comply with its order that each <br>plaintiff answer the  interrogatories could result in a dismissal <br>of their claims.   The plaintiffs' disregard of this order and the <br>court's specific warning that dismissal could follow from such <br>noncompliance provided a sufficient basis for the dismissal.  We <br>find no abuse of discretion in the district court's action.   <br>     Judgment affirmed. <br>      <br>  <br> <br></pre>

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