Filed: Aug. 04, 2006
Latest Update: Feb. 21, 2020
Summary: Carlos R. Ramírez and John F. Neváres & Associates, PSC on, brief, for appellant.terminated Otero's employment.a career position within PRIDCO.to cite a case from the Supreme Court of Puerto Rico, Pi Gonzalez v. AAA, 146 D.P.R.a career employee of the Municipality of San Juan.ero opinion.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2573
EDDIE OTERO-VALCÁLCEL,
Plaintiff, Appellant,
v.
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY;
HIRAM RAMÍREZ RANGEL, in his personal and official capacities
as Executive Director of the Puerto Rico Industrial Development
Company; ROCÍO CRUZ-DÍAZ, in her personal capacity;
JOHN DOE; RICHARD ROE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lynch, and Howard, Circuit Judges.
Carlos R. Ramírez and John F. Neváres & Associates, PSC on
brief, for appellant.
Salvador J. Antonetti-Stutts, Solicitor General, Mariana D.
Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, and Irene S. Soroeta-Kodesh,
Assistant Solicitor General, on brief, for the governmental
appellees.
José M. Marxuach-Fagot, Carlos R. Pastrana-Torres, Jaime
Riera, and Goldman Antonetti & Córdova, P.S.C. on brief, for the
individual appellees.
August 4, 2006
Per Curiam. On October 7, 2003, the district court
entered summary judgment against plaintiff Eddie Otero-Varcálcel on
his claims that his then-employer, the Puerto Rico Industrial
Development Company (PRIDCO), and several fellow employees, had
engaged in unlawful political discrimination by stripping him of
duties and responsibilities as PRIDCO's Director of Labor
Relations. See Otero-Varcálcel v. Cantero Frau, Civ. No. 02-1685
(PG), slip op. at 1 (D.P.R. Oct. 7, 2003) (opinion and order). The
court concluded that the privations Otero suffered did not
implicate his federal constitutional rights because Otero held a
policy-making position for which political affiliation was a
permissible requirement. See id. at 6-9. We affirmed the court's
ruling in an unpublished opinion. See Otero-Varcálcel v. Cantero-
Frau, 124 Fed. Appx. 662 (1st Cir. 2005).
On March 26, 2004, some five months after the district
court's ruling, Hiram Ramírez Rangel, PRIDCO's Executive Director,
terminated Otero's employment. Thereafter, PRIDCO (through its
agents) rebuffed Otero's repeated requests that he be reinstated to
a career position within PRIDCO. On August 20, 2004, Otero brought
the present action, in which he alleges entitlement to
reinstatement under PRIDCO Personnel Regulation 5.5B, amended and
reissued as Personnel Regulation VII B(B)(4)(b) following the
institution of this lawsuit, and that the refusal to accord him his
regulatory reinstatement right was prompted by unlawful political
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discrimination. Once again, the district court entered summary
judgment against Otero, concluding that the present claim could
have been brought in the earlier action and thus was barred by the
res judicata doctrine. See Otero-Varcálcel v. Puerto Rico Indus.
Dev. Co., Civil No. 04-1858 (PG), slip op. at 4-9 (D.P.R. Aug. 29,
2005) (opinion and order). Otero appeals, arguing that his present
claim -- based on a refusal to reinstate following termination --
did not ripen until after the district court entered its original
judgment against him.
The district court's res judicata rationale for entering
judgment against Otero may be problematic, but we may affirm on any
ground that is supported by the record. E.g., Stoll v. Principi,
449 F.3d 263, 265 (1st Cir. 2006). Here, there is a
straightforward alternative ground for affirmance. The personnel
regulation on which Otero relies creates a reinstatement right only
for a policy-making employee who, inter alia, has assumed his
position "as a result of a transfer or assignment from another
government agency." In other words, the regulation protects only
a former career employee whose ascension to a policy-making post
was at the instigation or behest of some third party with
supervisory authority over him in his career position. But Otero
was not "transferred" or "assigned" by a third party to the
position of Director of Labor Relations; he resigned from his
former career position at another government agency to assume the
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post. For this reason (at least), Otero has not met his burden of
showing that the personnel regulation entitles him to
reinstatement.
Otero has no response to this line of argument other than
to cite a case from the Supreme Court of Puerto Rico, Piñero
Gonzalez v. AAA, 146 D.P.R. 890 (1998), in which, Otero says, the
Court recognized a reinstatement right for a plaintiff in a policy-
making role who, prior to assuming her new position, resigned as
a career employee of the Municipality of San Juan. But Otero has
not supplied us with a certified translation of the Piñero opinion.
See Lopez-Gonzalez v. Municipality of Comerio, 404 F.3d 548, 553
n.4 (1st Cir. 2005) (failure to provide certified translations of
Puerto Rico Supreme Court opinions published only in Spanish gives
rise to a waiver); see also First Circuit Local Rule 30(d). Nor
has he argued that the Piñero Court considered whether a person who
has resigned from a career position to assume a policy-making
position can be thought to have entered the new post "as a result
of a transfer or assignment," as the PRIDCO regulation requires.
Under the circumstances, we shall not construe the "transfer or
assignment" provision of the regulation contrary to its ordinary
connotation, which does not encompass the present situation.
Affirmed.
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