Mercado-Alicea v. P.R. Tourism Co.
| Decision Date | 27 January 2005 |
| Docket Number | No. 03-2246.,03-2246. |
| Citation | 396 F.3d 46 |
| Parties | Jorge MERCADO-ALICEA; Angel Nazario, Plaintiffs, Appellants, The De Facto Tourism Employees Association of Politically Discriminated Employees, Plaintiff, v. P.R. TOURISM COMPANY; Milton Segarra, Executive Director of P.R. Tourism; Guillermo Cabret; Nelson Cardona-Muñiz; Jose F. Faz; Mariano Méndez-Salcedo; William Méndez; Anabel Jaime, Defendants, Appellees, José Reyes; Jose T. Rivera; John Does, Defendants. |
| Court | U.S. Court of Appeals — First Circuit |
Francisco R. Gonzalez with whom F.R. Gonzalez Law Office, was on brief, for appellants.
Laura Belendez-Ferrero with whom Ineabelle Santiago-Camacho and Reichard & Escalera, were on brief, for appellee Puerto Rico Tourism.
Irene S. Soroeta-Kodesh, Assistant Solicitor General, Department of Justice, Commonwealth of Puerto Rico, for appellee Jaime etc.
Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and FUSTE,* District Judge.
Jorge Mercado ("Mercado") and Angel Nazario ("Nazario") brought an action against defendants, the Puerto Rico Tourism Company ("PRTC"), Milton Segarra, Nelson Cardona, Jose Faz, Mariano Mendez ("M.Mendez"), William Mendez, and Anabel Jaime, pursuant to 42 U.S.C. § 1983 (2003). Plaintiffs complained that they were terminated and constructively discharged because of their political affiliation. The district court granted summary judgment for defendants upon finding that the plaintiffs had failed to comply with Local Rule 311.12. The plaintiffs filed this appeal, challenging whether the district court (1) properly deemed as admitted defendants' statement of uncontested facts; and (2) properly concluded that defendants had not violated Mercado's and Nazario's due process and First Amendment rights. We affirm.
Mercado worked as the Gaming Official Supervisor, a career position, at the PRTC since 1996. His duties included, inter alia, visiting casinos to ensure compliance with the Games of Chance Statute.
On or about December 1999, Mercado visited the Hotel Ambassador Plaza with a check made to the order of the New Progressive Party ("NPP") for the amount of one thousand dollars ($1,000). The check bore the name Carlos Pesquera on the lower left-hand side. On the reverse of the check, Mercado wrote the name of a bank, his name "Georgie Mercado" and the word "tourism." M. Mendez, the Ambassador Hotel's Cage and Collection Manager, cashed the check.
On February 16, 2001, Mercado requested treatment at the State Insurance Fund. He thereafter requested medical leave and license without pay from August 23, 2001, until October 31, 2001. Mercado returned to work on November 1, 2001. On June 27, 2002, Mercado was dismissed for violations of Section 12-3 of the PRTC Human Resources Regulations, which prohibit, in relevant part:
(3) Availing yourself of your job's duties and powers, property or public funds to directly or indirectly benefit from the same, for family member or any other person, business or entity, to gain advantages, benefits or privileges not allowed by the law.
(5) Accepting or soliciting from anyone, either directly or indirectly for any member of your family unit, or any other person, business or entity, asset of any financial value, including gifts, loans, promises, favors or services, in exchange of an action by said official or public employee, being influenced to favor that or any other person.
(16) Using your official position for political ends — partisan or for other ends that are not compatible with public service.
(17) Perform duties or tasks that result in a conflict of interest with your obligations as a public employee.
(18) Conduct that is improper or is against duties, which taint the good name of the [PRTC] or of the Government of Puerto Rico.
Alicea v. Puerto Rico Tourism Co., 270 F.Supp.2d 243, 248 (D.P.R.2003).
Mercado's letter of dismissal also stated that his conduct constituted a violation of the PRTC's Discipline Manual, which enumerates the following as violations of the same:
(22) Conduct yourself in such a way that taints the good name of the Company, either during or out of regular work hours as a public employee.
(61) Performing services or financial relationships with individuals or entities who are considered to be a conflict of interest with your duties as a public employee.
(62) Performing tasks, activities or duties that entail conflicts of interest against your duties as a public employee.
(66) Embezzlement or undue use of funds, assets or services of the [PRTC].
The letter additionally stated that Mercado could appeal the decision before the Office of the Examiner of the PRTC within fifteen days, but Mercado failed to do so.
Mercado did not avail himself of several opportunities to appeal his dismissal in an administrative hearing.
Nazario started working at the PRTC on August 4, 1999, as Director of Information Systems, a Career Civil Service position. On April 14, 2000, former governor Pedro Rossello issued Executive Order OE-2000-19, which established that Directors of Computer Information Systems at government agencies should be designated by the nominating authority and that such a position would be a trust position.1 On February 20, 2001, the PRTC named Daniela Gonzalez ("Gonzalez") as Principal Officer of Information Systems. Nazario was ordered to report to Gonzalez. On March 9, 2002, Nazario requested and received a transfer with a pay increase to the Municipality of San Juan, effective April 15, 2001.
The plaintiffs now challenge the district court's entry of summary judgment on their due process and political discrimination claims. The plaintiffs argue that the district court erred in concluding that they had failed to comply with Local Rule 311.12, which requires that they file their own statement of facts when opposing a summary judgment motion. Plaintiffs also argue that the district court improperly dismissed their first amendment and due process claims on the merits.
In reviewing the application of Local Rule 311.12, we recognize that "[d]istrict courts enjoy broad latitude in administering local rules." Air Line Pilots Assoc. v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir.1994). We review a court's granting of summary judgment de novo. Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 16 (1st Cir.2004); Podiatrist Ass'n, Inc. v. La Cruz Azul De P.R., Inc., 332 F.3d 6, 13 (1st Cir.2003).
According to Local Rule 311.12, a party who moves for summary judgment must submit "a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried and the basis of such contention as to each material fact." D.P.R.R. 311.12.2 The opposing party must then file a statement "of the material facts as to which it is contended that there exists a genuine issue to be tried." Id. Failure to file such a statement will result in the court deeming admitted the movant's statement. Id. ().
As we have previously declared, "[w]e have consistently upheld the enforcement of [the District Court of Puerto Rico's local rule], noting repeatedly that `parties ignore [it] at their peril' and that `failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies the court's deeming the facts presented in the movant's statement of undisputed facts admitted.'" Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir.2004) (quoting Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000)).
The plaintiffs argue that the district court erred when it deemed defendant's facts admitted because of plaintiffs' failure to comply with Local Rule 311.12. Plaintiffs argue that defendants themselves failed to refer to the record in their statement of facts.
The district court correctly ascertained that the plaintiffs' statement of facts failed to adhere to Local Rule 311.12. Instead of filing a statement of contested facts, plaintiffs filed their own uncontested facts lacking any references to the record that might aid the court in making its decision. Plaintiffs also filed "Commentaries to Defendants' Uncontested Facts," in which plaintiffs make reference to testimonies that are not in evidence. Plaintiffs further made numerous conclusory allegations and assertions of fact for which they offered no support. District courts are not required to ferret through sloppy records in search of evidence supporting a party's case. See Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir.2001) ( ). Additionally, contrary to plaintiffs' allegations, defendants' statement of facts contained references to the record, making plaintiffs' argument devoid of any merit.
Therefore, the facts pleaded by defendants were properly deemed admitted according with Local Rule 311.12. See D.P.R.R. 311.12.
The First Amendment protects non-policymaking public employees from adverse employment actions based on their political opinions. See Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.2000); see also Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). We employ a two-part, burden-shifting analysis to evaluate claims of political discrimination. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Padilla-Garcia, 212 F.3d at 74. To establish a...
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