Figueroa v. Alejandro

• Decision Date: 04 March 2010
• Docket Number: No. 08-1921.,08-1921.
• Citation: 597 F.3d 423
• Parties: John A. UPHOFF FIGUEROA, Plaintiff, Appellant, v. Hector ALEJANDRO; and Nitza Vazquez Rodriguez, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

597 F.3d 423

John A. UPHOFF FIGUEROA, Plaintiff, Appellant, v. Hector ALEJANDRO; and Nitza Vazquez Rodriguez, Defendants, Appellees.

No. 08-1921.

United States Court of Appeals,

First Circuit.

Heard Jan. 4, 2010.

Decided March 4, 2010.

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Raul Barrera Morales for the appellant.

Marie L. Cortes Cortes for the appellees.

Before LYNCH, Chief Judge, BOUDIN and STAHL, Circuit Judges.

LYNCH, Chief Judge.

A judge and a jury, between them, rejected all of the multitude of employment claims John Uphoff Figueroa, an environmental attorney, brought against his employer, the Puerto Rico Electric Power Authority (PREPA) and at least seven PREPA officials. His basic theory dressed in many garbs, was that the new Popular Democratic Party (PDP) regime discriminated against him by denying him a permanent appointment as the administrator of PREPA's environmental law office and by creating hostile working conditions because he was a member of the New Progressive Party (NPP). He alleges the NPP regime then retaliated against him after he filed a federal lawsuit in 2003. We find no merit to his claims and affirm.

We hold as a matter of law under Brant i v. Fiukel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and its progeny that the position of administrator is not within First Amendment protection because it is a policy position. PREPA officials could have considered political affiliation when deciding whether to give Uphoff the permanent position. Once again we remind litigants that political discrimination and retaliation claims under the First Amend ment cannot be restated as claims under the Equal Protection Clause. And we hold that Uphoff did not state a claim under the Fair Labor Standards Act (FLSA) because he did not allege he was involved in FLSAprotected activity.

I.

Uphoffs suit, as amended in 2004 brought First Amendment and equal protection political discrimination claims; First Amendment retaliation claims FLSA retaliation claims, 27 U.S.C § 215(a)(3); Title VII retaliation claims, 42 U.S.C. § 2000e-3(a); civil rights conspiracy claims, 42 U.S.C. § 1985(3);¹ and state constitutional and statutory claims.² He sued PREPA; two of his supervisors, Hector Alejandro Navarez and Nitza Vazquez Rodriguez; and other PREPA officials.³

The trial court dismissed on the pleadings Uphoffs First Amendment discrimination claim that he was denied the position of administrator of the environmental law office, holding that political affiliation was a legitimate qualification for the job. Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa I), No. 03-1509 2005 WL 3095517, at *6-ll (D.P.R. Nov. 18, 2005). The court dismissed his political discrimination and retaliation claims against all defendants except Vazquez and Alejandro. See id. at * 12-14. It dismissed his Title VII and civil rights con-spiracy claims against all defendants, id. at *14—16, and his FLSA claim against PREPA, dismissing PREPA from the case, Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa II), No. 09-1509, 2006 WL 1663537 (D.P.R. June 7, 2006). The court allowed Uphoffs FLSA and state law claims against all individual defendants to proceed to trial, and it allowed his political discrimination and retaliation claims against Alejandro and Vazquez to proceed to trial as well.

After trial, the court granted judgment as a matter of law (JMOL), Fed.R.Civ.P. 50(a), in favor of all defendants, including Alejandro and Vazquez, on Uphoffs FLSA claims and on one of his state law claims, under Puerto Rico Law 115 (Law 115). Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa III), No. 09-1509, slip op. at 4-10 (D.P.R. Jun. 2, 2008). It also held Uphoff had not presented sufficient evidence for a jury to find the individual defendants except Alejandro and Vazquez liable on any of the remaining (state law) claims, and it dismissed those defendants from the case. Id. at 10-11.

Only Alejandro and Vazquez were left in the case. Uphoffs remaining claims against them, for political discrimination and retaliation and for violations of state law, went to a jury. A jury rejected all of Uphoffs claims against Alejandro and Vazquez. The trial court denied his new trial motion for purported errors in the jury instructions and verdict form and his motion to amend the verdict.

Uphoff appeals the court's dismissal of his claims on the pleadings, its grants of judgment as a matter of law, the jury instructions and verdict form, and the court's denial of his motion for a new trial or to amend the verdict. We affirm.

II.

In 1996, Uphoff started as principal environmental attorney at PREPA, a position just below the position of administrator of the environmental office. He handled the office's more complex cases. Just before the 2000 elections, he was temporarily appointed the administrator of the office.

After the PDP took power in the 2000 elections, two PDP members, defendants Hector Alejandro and Nitza Vazquez, became Uphoffs supervisors. The environmental law office was moved to Alejandro's directorate in September 2001. In June 2002, Alejandro appointed Vazquez as administrator without allowing Uphoff to apply for the permanent position; Uphoff returned to being the principal attorney. Alejandro was promoted in September 2003 and no longer supervised Uphoff or Vazquez.

Uphoff apparently claimed that Alejandro and Vazquez began a campaign to mistreat him because he was an NPP member.⁴ He testified that they excluded him from meetings, blocked him from attending professional seminars, reduced his workload and responsibilities, and maligned him to other employees, destroying his relationships with his colleagues.

Before he became Uphoffs supervisor, Alejandro's directorate often consulted the environmental law office, and Alejandro and Uphoff worked together. In early 2001, Uphoff and Alejandro already began disagreeing over how to handle several cases. Alejandro testified that Uphoff did not obtain approval before improperly awarding a $3.4 million contract, failed totimely negotiate a contract, and failed to send documents to federal authorities upon request,

Uphoff, in turn, asserted that Alejandro and Vazquez limited his autonomy at work. They ordered him to arrive promptly at the start of business, 7:30 a.m. Uphoff sometimes credited hours he worked late to morning hours on his time sheet without obtaining prior permission to do so, as PREPA regulations required. Alejandro and Vazquez ordered him to accurately report his arrival time. Once Alejandro refused to sign a time sheet, after Uphoff missed a 10:00 a.m. conference call about a federal regulatory matter but reported on his sheet that he had arrived at 7:30 a.m.

Uphoff also testified that Alejandro and Vazquez denied him vacation leave. Vazquez and Alejandro testified, however, that in 2002 PREPA began requiring all executive and managerial personnel to accept payment for vacation time in excess of 450 hours and that Uphoff refused to comply

Uphoff claimed that his immediate supervisor, Nitza Vazquez, tried to isolate him. In late 2003 Vazquez prevented Uphoffs secretary from using a computer to edit Uphoffs work. Vazquez also changed the locks to the environmental law office (then on the sixth floor) for security reasons. Uphoff claimed he was the only attorney not given a key; Vazquez, Alejandro, and other employees, however, testified that no attorneys were given keys. When the office later moved to the seventh floor, all attorneys, including Uphoff, were given keys.

Uphoff testified that his position as principal attorney eroded in 2004 and 2005. As principal attorney, Uphoff was accustomed to having a larger office than the other lawyer's. When the environmental law office moved floors in 2004, Uphoff tried to claim the second-largest office but was told it would become a conference room. He was left to choose among five identical, small offices designated for attorneys.

In 2005 PREPA instituted an agencywide reclassification plan, based on recommendations by an outside consultant, which made Uphoff and all the attorneys "senior attorneys." The other attorneys received raises to match Uphoffs salary; Uphoff received no raise. Several of his colleagues received promotions even before the reclassification plan; the defendants offered nondiscriminatory reasons for those promotions.

Uphoff attempted to tie all these incidents to political animus. He showed that Alejandro, Vazquez, and a few of the other individual defendants were PDP members but had little evidence they felt animosity toward NPP members. His secretary testified that Alejandro had told her the executive director of the agency was pressuring him to oust Uphoff. Uphoff also testified that Alejandro had said he, Alejandro, had experienced "real" discrimination when the NPP was in power.

The defendants denied that Uphoff was mistreated and that his political affiliation made any difference. Vazquez testified that she gave Uphoff many complex cases and that she and Alejandro let Uphoff attend appropriate meetings and seminars. She explained that she only stripped him of cases after he failed to execute assignments. Alejandro admitted telling Uphoff and others that Uphoff was "Machiavellic, " after a particular incident in which he disapproved of what Uphoff had done. Otherwise, Alejandro, Vazquez, and other employees denied that Uphoffs supervisors undermined his work relationships.

Alejandro and Vazquez testified that tensions arose because Uphoff was insubordinate, displayed a bad attitude, andoften lost his temper. They also testified that Uphoff never respected Nitza Vazquez's authority over him as the administrator, and Uphoff did not properly complete assignments that Vazquez assigned him. Alejandro testified that Uphoff did not work well with supervisors, colleagues, or state and federal agencies.

III.

A. The District Court Properly Dismissed Several of Uphoffs Claims under Rule...