Vazquez v. Lopez-Rosario

• Decision Date: 04 November 1997
• Docket Number: No. 97-1584,LOPEZ-ROSARIO,97-1584
• Citation: 134 F.3d 28
• Parties: 48 Fed. R. Evid. Serv. 849 Waldo G. VAZQUEZ, et al., Plaintiffs, Appellants, v. Carlos, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

134 F.3d 28

48 Fed. R. Evid. Serv. 849

Waldo G. VAZQUEZ, et al., Plaintiffs, Appellants, v. Carlos LOPEZ-ROSARIO, et al., Defendants, Appellees.

No. 97-1584.

United States Court of Appeals, First Circuit.

Heard Nov. 4, 1997.

Decided Jan. 22, 1998.

Harry Anduze Montano, Hato Rey, PR, with whom Raul S. Mariani Franco, San Juan, PR, was on brief, for appellants.

Rafael Cuevas-Kuinlam, Hato Rey, PR, with whom Antonio Cuevas-Delgado and Cuevas, Kuinlam & Bermudez, were on brief, for appellee Carlos Lopez-Rosario.

Jaime Mayol-Bianchi, San Juan, PR, with whom Jose R. Perez-Hernandez and Pierluisi & Mayol-Bianchi, P.S.C., were on brief, for appellee Puerto Rico Marine Management, Inc.

Radames A. Torruella, Hato Rey, PR, with whom Carmencita Velazquez-Marquez, Jorge A. Antongiorgi, San Juan, PR, and McConnell Valdes, Hato Rey, PR, were on brief, for appellee Puerto Rico Maritime Shipping Authority.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and DICLERICO, District Judge. ^*

LYNCH, Circuit Judge.

This case is another in a series of cases arising out of the elections in Puerto Rico in 1992, in which the New Progressive Party (NPP) won power from its rival, the Popular Democratic Party (PDP). During the current decade, plaintiffs in these cases usually have been members of the PDP who complain that the incoming NPP administration has deprived them of their government jobs in violation of their rights under the First Amendment. ¹ In this case, plaintiff Waldo G. Vazquez, an NPP supporter, claims his job at a government contractor was eliminated as part of an internal party feud. He sues his employer, its major client (a public corporation), and a member of the client's board under 42 U.S.C. § 1983 (1994).

The district court concluded that Vazquez's evidence, principally his own testimony, amounted to no more than "hearsay upon hearsay" and "rumors, hearsay, gossip, his personal feelings, his intuition and his conclusions," and granted summary judgment for defendants. Vazquez argues that the district court committed error in excluding evidence as hearsay when the statements were admissions by party-opponents. Thus, we explore in some detail the requirements of Fed.R.Evid. 801(d)(2) as to party-opponent admissions, a recurring issue in employment cases.

We agree with Vazquez that some of the conversations which the district court excluded on hearsay grounds are admissions of a party-opponent and should have been considered as part of his case. To win the battle is not necessarily to win the war. Because the evidence Vazquez presents is insufficient to create a genuine issue of material fact in any event, we affirm.

I.

We state the facts in the light most favorable to the party opposing summary judgment, Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97,98 (1st Cir. 1997), and describe the evidence in some detail.

Waldo Vazquez was employed for many years by Puerto Rico Maritime Management, Inc. (PRMMI), a private corporation that provides management services to the Puerto Rico Marine Shipping Authority (PRMSA), a public corporation created by the Puerto Rico legislature. PRMSA's Governing Board has seven members appointed by the Governor of Puerto Rico, subject to confirmation by the Commonwealth's Senate. See 23 L.P.R.A. § 3054 (1994). PRMSA acknowledges it is a government agency, and we have held it is a "political subdivision" of the Commonwealth of Puerto Rico under the National Labor Relations Act. See Chaparro-Febus v. International Longshoremen Ass'n, Local 1575, 983 F.2d 325 (1st Cir.1992). At the time of his dismissal from PRMMI in 1993, Vazquez held the title Vice President of Operations, Caribbean Division.

In 1992, a new contract between PRMSA and PRMMI was signed, giving authority to the PRMSA Board over "key personnel" within PRMMI. PRMSA was given the right to dismiss high-level PRMMI employees "for any material breach of its contract by such [PRMMI] key personnel and/or for just cause." Vazquez's position was among those designated "key personnel."

In 1993, PRMSA had accumulated losses in excess of $300 million. Vazquez does not dispute this. On February 24, 1993, the PRMSA Board voted, in light of these high losses, to authorize a reduction-in-force (RIF) of twenty-six employees at PRMMI; eventually at least forty-one employees' jobs were eliminated. Vazquez's position was among those selected for elimination, either directly by the Board or pursuant to its RIF directive. The record is not clear whether Vazquez's position was among those originally selected for elimination by the Board. However, as some evidence supports the conclusion that the Board directly authorized Vazquez's dismissal, we will assume that it did.

In late March 1993, Steve Schulein, a high-level PRMMI official, informed Vazquez over breakfast at the Ambassador Plaza Hotel in Puerto Rico that his position was going to be eliminated at the beginning of April. According to Vazquez's testimony, Schulein told Vazquez that he did not understand why Vazquez was to be dismissed, and that the elimination of his position had not been part of the original reorganization plan submitted to the PRMSA Board. Schulein said that he understood that the decision came from a member of the PRMSA Board. This conversation took place in the period when the other PRMMI employees were also being let go.

The next day, Vazquez called Manuel Luis del Valle, Chairman of the Governing Board of PRMSA, in order to ascertain why his position had been selected for elimination in the Board's new plans for PRMMI's reorganization. Vazquez told Del Valle that his dismissal "was an injustice and a persecution." Vazquez argued that similar employees had not been eliminated, and that he had rejected the company's early retirement program two years before because he needed the salary and felt he still had much to offer the company. Del Valle promised he would help Vazquez fight his proposed dismissal, because, according to Vazquez, Del Valle "also understood that it was an injustice."

On April 2, 1993, Vazquez received a letter informing him that "due to [PRMMI's] current financial condition you will be laid off...."

Vazquez continued his inquiries and protests about his dismissal. At some later time, Del Valle told Vazquez of a conversation Del Valle had with Carlos Lopez-Rosario, a member of the PRMSA Board. According to Vazquez, Del Valle told him that Lopez had told Del Valle that "the problem" was that Vazquez had "political differences" with Lopez. The record is unclear when the conversation between Lopez and Del Valle supposedly took place or whether it had anything to do with Vazquez's dismissal. Del Valle's comments also confirmed what Vazquez calls "hallway gossip" that Lopez disliked Vazquez.

Vazquez suspected that these "political differences" stemmed from the NPP's gubernatorial primary in 1992. Vazquez had supported the losing candidate, Carlos Romero-Barcelo ("Romero"), now the Commonwealth's Resident Commissioner in Washington, while Lopez had supported the winner, Pedro Rosello, now the Governor of Puerto Rico.

Vazquez speculated that this disagreement must have motivated his dismissal. He remembered a conversation with Lopez a few years earlier at an NPP activity in the home of a prominent supporter. Vazquez had expressed his preference for Romero as a gubernatorial candidate and Lopez had disagreed, arguing for Rosello. Vazquez also speculated that Lopez might be retaliating against him for the work of Vazquez's wife in organizing a women's group to support Romero in a political campaign almost two decades earlier.

According to Vazquez, Miguel Rossy, PRMMI's President, confirmed in a conversation at a local restaurant that Vazquez's position was not included in the original reorganization plan and that the decision came from an unnamed PRMSA Board member, "[s]omebody who doesn't ... like you, who is opposed to Carlos [Romero's] people." Vazquez took this unnamed person to be Lopez.

On several occasions, Vazquez also asked both Commissioner Romero and Governor Rosello personally to intervene and reverse the decision, citing his long record of service with PRMMI. The Governor told Vazquez that he would have to handle the issue with the PRMSA Board himself. According to Vazquez, at some point Ricardo Gonzalez, a PRMSA Board member, told Vazquez that he had tried to get the decision reversed, but that "the pressure was too strong." Gonzalez did not explain what he meant by "pressure," or who was applying pressure.

Finally, in May 1993, Vazquez met with Lopez personally in Lopez's office at PRMSA. Vazquez asked Lopez whether what Del Valle had told him about "political differences" was true. Lopez replied, according to Vazquez, "I made some remarks ... those remarks to Manuel Luis [del Valle] over a Coca-Cola or a cup of coffee, but Manuel Luis shouldn't have told you." There is no indication when such remarks were made.

II.

Vazquez filed suit against PRMSA, PRMMI and Lopez, alleging that his dismissal was retaliation for his support of Romero, in violation of his First Amendment ² rights of political association under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). ³ Following discovery, the district court granted motions for summary judgment for PRMMI and Lopez, and a few days later, granted summary judgment sua sponte for PRMSA, which had not joined the other defendants' motions. On appeal, Vazquez claims that the district court erred in excluding the conversations he relates in his deposition on hearsay grounds, because most of the statements, he says, were admissible under Fed.R.Evid. 801(d)(2) as admissions of a party-opponent. Vazquez claims that the conversations he describes were sufficient evidence to permit his case to survive summary judgment. He also claims that the district court abused its discretion in...