
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                                         -2-                                          2            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                                         -4-                                          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                                         -5-                                          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.                                         -6-                                          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-                                         -10-                                          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.                      _________                                         -11-                                          11
