

                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 &amp; Bermudez  were on  brief, for                                                    
appellee Carlos Lopez-Rosario.
          Jaime  Mayol-Bianchi,  with  whom  Jose  R.  Perez-                                                                         
Hernandez and  Pierluisi  &amp;  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
                                         

                             -2-                                          2

          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).

                             -3-                                          3

          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                                                         

                             -4-                                          4

(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

                             -5-                                          5

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

                             -6-                                          6

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.

                             -7-                                          7

          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.

                             -8-                                          8

                             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

                             -9-                                          9

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.

                             -10-                                          10

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.                                                   

                             -11-                                          11

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.

                             -12-                                          12

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.                                                                         

&amp; 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

                             -13-                                          13

          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).

                             -14-                                          14

          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

                             -15-                                          15

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    &amp;   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

                             -18-                                          18

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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