
USCA1 Opinion

	




                            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                                 ____________________                                         -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.                                          ______    _____________________            & 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    &   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                                         -16-                                          16            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                                         -17-                                          17            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.                                         -19-                                          19                      The  judgment of  the district  court is  affirmed.                                                                ________            Costs to appellees.                                         -20-                                          20
