No. 13-1336
CARMEN M. OCASIO-HERNNDEZ, GERARDO PIZARRO-PIZARRO, JORGE L.
RODRGUEZ-FIGUEROA, NGEL L. FIGUEROA-ROLN, HCTOR G.
GUERRERO-FRAU, DIANA D. RODRGUEZ-VICENTE, NYDIA DAZ-FRANCISCO,
CARLOS SANTOS-RIVERA, JUAN CARRASQUILLO-LPEZ, FELCITA
RIVERA-BEZ, IVN RIVERA-CANALES, WILLIAM BURGOS-CASTELLANOS,
VCTOR M. CAMACHO-PIZARRO, NGEL BEZ-TORRES, JOHN DOE-01,
CONJUGAL PARTNERSHIP DOE-OCASIO, JANE DOE-01, CONJUGAL
PARTNERSHIP PIZARRO-DOE, JANE DOE-02, CONJUGAL PARTNERSHIP
RODRGUEZ-DOE, JANE DOE-03, CONJUGAL PARTNERSHIP FIGUEROA-DOE,
JANE DOE-04, CONJUGAL PARTNERSHIP GUERRERO-DOE, JOHN DOE-02,
CONJUGAL PARTNERSHIP DOE-RODRGUEZ, JOHN DOE-03, CONJUGAL
PARTNERSHIP DOE-DAZ, JANE DOE-05, CONJUGAL PARTNERSHIP
SANTOS-DOE, JANE DOE-06, CONJUGAL PARTNERSHIP CARRASQUILLO-DOE,
JANE DOE-07, CONJUGAL PARTNERSHIP RIVERA-DOE, JOHN DOE-04,
CONJUGAL PARTNERSHIP CARRASQUILLO-DOE, CONJUGAL PARTNERSHIP
RIVERA-DOE; CONJUGAL PARTNERSHIP DOE-RIVERA, JANE DOE-08,
CONJUGAL PARTNERSHIP BURGOS-DOE, JANE DOE-09, CONJUGAL
PARTNERSHIP CAMACHO-DOE, JANE DOE-10, CONJUGAL PARTNERSHIP
BEZ-DOE,
Plaintiffs, Appellants,
v.
LUIS G. FORTUO-BURSET, in his personal capacity and as Governor
of the Commonwealth of Puerto Rico, LUC VELA, in her individual
and official capacity as First Lady, VELMARIE BERLINGERI-MARN,
in her individual and official capacity as Administrator of the
Governor's Mansion, JUAN CARLOS BLANCO, in his individual and
official capacity as Chief of Staff, CONJUGAL PARTNERSHIP
FORTUO-VELA, JOHN DOE, CONJUGAL PARTNERSHIP DOE-BERLINGERI, JANE
DOE, CONJUGAL PARTNERSHIP BLANCO-DOE,
Defendants, Appellees.
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Rico
executive
workers"
--
mansion
shortly
after
newly
elected
sued
then-Governor
Luis
Fortuo-Burset
to
political
discrimination
prohibited
by
the
First
Amendment.
After six years and two appeals, this voyage has reached
its end -- for the reasons discussed below, we affirm the district
court's
summary
judgment
disposal
of
the
workers'
political
discrimination claim.2
I. BACKGROUND
A. The Factual Skeleton
Because we are reviewing a summary judgment motion, we
recite the facts "in a light as favorable to [the workers] as the
Velzquez-Prez v. Developers
Diversified Realty Corp., 753 F.3d 265, 267 (1st Cir. 2014).
In
November
2008,
Fortuo,
of
Puerto
Rico's
New
thirty
percent
of
"all
authorized
trust
service
-4-
citing
only
to
the
regulations
allowing
for
"trust
They also
sought relief under numerous Puerto Rico laws and the Puerto Rico
constitution.
In
July
2009,
the
defendants
moved
to
dismiss
the
abandoning
their
due
process
claim,
the
See Ocasio-
In a
The court
novo.
Summary judgment is
The court also dismissed the state law claims against all
the defendants, which the workers do not appeal.
-7-
We
"[c]onclusory
allegations,
improbable
inferences,
and
Carmona v.
Toledo, 215 F.3d 124, 132 (1st Cir. 2000) (citations omitted).
"[I]f the summary judgment record satisfactorily demonstrates that
the plaintiff's case is, and may be expected to remain, deficient
in vital evidentiary support, this may suffice to show that the
movant has met its initial burden."
Id. at 133.
III. DISCUSSION
A. Summary Judgment
The dispute before us arises from the well established
constitutional mandate prohibiting government officials from firing
-8-
To
an
"adverse
termination)
substantial
action."9
employment
occurred,
or
and
motivating
action"
(4)
(e.g.,
"political
factor
for
the
an
employment
affiliation
adverse
was
employment
the workers "failed to come up with any evidence to the effect that
[Fortuo, Vela, and Blanco] were aware of their adverse political
affiliation,
and
as
such,
that
partisan
politics
played
Later, in
Berlingeri
affiliations,"
but
had
knowledge
"refrain[ed]
from
of
Plaintiffs'
passing
political
judgment
on
the
And,
10
At oral argument,
As we
On de
13
that the record offered no direct evidence that the defendants knew
of their political inclinations, but urged us to infer that because
the workers were hired by a prior administration, the defendants
must have known that they were not affiliated with Fortuo's party.
We recognize that political discrimination, which often
turns on an employer's cloaked motives, can be hard for a worker to
to prove.
Rey-Hernndez, 506 F.3d 32, 44 (1st Cir. 2007) (noting that a jury
could
reasonably
infer
that
the
defendant
was
aware
of
the
See, e.g.,
Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991) ("Given the
nature of the [employees'] positions, the defendants' knowledge
that the plaintiffs had originally been hired by the previous []
administration, the timing of the moves, the identities of those
consulted, the lack of any legitimate reason for ousting the
incumbents,
and
the
partisan
connections
-14-
of
the
replacement
-15-
were not common knowledge within the mansion, and the plaintiffs
did not discuss politics in general at work.
point
to
specific
facts
that
demonstrate
the
proof that others in the mansion -- let alone the higher ups -- had
knowledge of their political leanings.
14
allow
case
suspicion.
to
proceed
to
trial
based
on
unsubstantiated
evidence showing how many NPP employees were retained after the
layoffs (as compared to non-NPP employees), whether NPP employees
were also given the boot, or whether the terminated workers were
replaced with NPP affiliates. See Anthony, 952 F.2d at 606 (noting
that
even
though
the
record
showed
that
most
of
the
ousted
the employment decision was politically motivated," OcasioHernndez, 640 F.3d at 18, dubious timing, on its own, is still not
enough to prove the defendants had a discriminatory motive, id.,
let alone knowledge of a plaintiffs' politics. See also Anthony,
952 F.2d at 606 (considering timing of the terminations as one of
several circumstantial facts used to infer the defendants'
knowledge of plaintiffs' political affiliations).
-17-
The workers'
workers
contend
that
this
testimony
evidence
would
be
inadmissible.
Whether
the
district
court
considered
inadmissible
-18-
their
complaint,
"unquestionably
describe[d]
plausible
As the
-19-