Rivera-Cotto v. Rivera

• Decision Date: 13 September 1994
• Docket Number: RIVERA-COTT,No. 93-2088,P,93-2088
• Citation: 38 F.3d 611
• Parties: 3 A.D. Cases 1581, 7 A.D.D. 77 Lucettelaintiff, Appellant, v. Ramon Luis RIVERA, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 611

38 F.3d 611

3 A.D. Cases 1581, 7 A.D.D. 77

Lucette RIVERA-COTTO, Plaintiff, Appellant, v. Ramon Luis RIVERA, et al., Defendants, Appellees.

No. 93-2088.

United States Court of Appeals First Circuit.

Heard Sept. 13, 1994.

Decided Oct. 26, 1994.

Evelyn Narvaez Ochoa, San Juan, PR, for appellant.

Edgardo Rodriquez Quilichini, Asst. Sol. Gen., with whom Pedro A. Delgado Hernandez, Sol. Gen., Carlos Lugo Fiol, Deputy Sol. Gen., San Juan, PR, were on brief, for appellees Ramon Luis Rivera and Jose Garcia-Rivera.

Demetrio Fernandez Quinones, Rio Piedras, PR, was on brief, for appellee Municipality of Bayamon.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal, plaintiff-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. FACTUAL AND PROCEDURAL BACKGROUND

We relate the facts in the light most favorable to the non-moving party. See, e.g., Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 702 (1st Cir.1993). This case arises 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 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.

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 In 1988, Rivera-Cotto commenced the present action in which she sued appellees pursuant to 42 U.S.C. Sec. 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.

transfer. Bayamon's appeals were ultimately unsuccessful and Rivera-Cotto has since returned to the legal division.

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. DISCUSSION

On appeal, Rivera-Cotto makes the following arguments: (1) the district court erred in granting 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

We review a district court's grant of summary judgment de novo, reading the record in a light most favorable to the non-moving party. See, e.g., Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). 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, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1845, 123 L.Ed.2d 470 (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 one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511. "Even in cases where elusive 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 Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). "Brash 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 (1st Cir.1993).

B. Political Discrimination Claim

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, 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.

In political discrimination cases, a plaintiff-employee who has held a non-policymaking government job ² avoids summary 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-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

                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 reasonably be able to infer that political affiliation was a "substantial" or "motivating" factor behind the challenged action.

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