USCA1 Opinion
November 8, 1994
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2088
LUCETTE RIVERA-COTTO,
Plaintiff, Appellant,
v.
RAMON LUIS RIVERA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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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,
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994 F.2d 905, 909-12 (1st Cir.), cert. denied, 114 S. Ct. 634 (1993).
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United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2088
LUCETTE RIVERA-COTTO,
Plaintiff, Appellant,
v.
RAMON LUIS RIVERA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Evelyn Narvaez Ochoa for appellant.
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Edgardo Rodriguez Quilichini, Assistant Solicitor General, with
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whom Pedro A. Delgado Hernandez, Solicitor General, Carlos Lugo Fiol,
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Deputy Solicitor General, were on brief for appellees Ramon Luis
Rivera and Jose Garcia-Rivera.
Demetrio Fernandez was on brief for appellee Municipality of
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Bayamon.
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October 26, 1994
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STAHL, Circuit Judge. In this appeal, plaintiff-
STAHL, Circuit Judge.
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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.
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FACTUAL AND PROCEDURAL BACKGROUND
FACTUAL AND PROCEDURAL BACKGROUND
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We relate the facts in the light most favorable to
the non-moving party. See, e.g., Nereida-Gonzalez v. Tirado-
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Delgado, 990 F.2d 701, 702 (1st Cir. 1993). This case arises
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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
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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.
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1. Rivera-Cotto does not claim that either the suspension or
loss of pay violated her constitutional rights.
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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.
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DISCUSSION
DISCUSSION
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On appeal, Rivera-Cotto makes the following
arguments: (1) the district court erred in granting
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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
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We review a district court's grant of summary
judgment de novo, reading the record in a light most
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favorable to the non-moving party. See, e.g., Woods v.
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Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994).
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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,
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976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 113 S. Ct.
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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
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one "that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S.
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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
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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
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Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). "Brash
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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
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(1st Cir. 1993).
B. Political Discrimination Claim
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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,
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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.
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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
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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.
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1993); Aviles-Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir.
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1992); Agosto-de-Feliciano, 889 F.2d at 1220. Without more,
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a nonmoving plaintiff-employee's unsupported and speculative
assertions regarding political discrimination will not be
enough to survive summary judgment. Cf. Nereida-Gonzalez,
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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
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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
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(1980); O'Connor v. Steeves, 994 F.2d 905, 909-12 (1st Cir.),
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114 S. Ct. 634 (1993).
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members of plaintiff's party); Rodriguez-Pinto v. Tirado-
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Delgado, 982 F.2d 34, 40 (1st Cir. 1993) (allegations, not
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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-
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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.
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Arrillaga-Belendez, 903 F.2d 49, 57 n.7 (1st Cir. 1990). The
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question is similarly open in the context of a politically
motivated transfer. We need not reach the issue here.
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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
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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
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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.
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Rivera-Cotto has challenged, successfully, the validity of
her transfer under applicable local law.
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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.
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Sch. of Medicine, 976 F.2d 791, 795 (1st Cir. 1992), cert.
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denied, 113 S. Ct. 1845 (1993). Yet, that is precisely what
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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-
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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.
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CONCLUSION
CONCLUSION
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For the reasons stated above, the decision of the
district court is
Affirmed.
Affirmed.
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