Caban-Rodriguez v. Jimenez-Perez ( 2014 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-2130
ILIANA CABÁN-RODRÍGUEZ,
Plaintiff, Appellant,
v.
JAVIER D. JIMÉNEZ-PÉREZ, Mayor of the Municipality of San
Sebastián; AGUSTÍN SOTO-CRUZ, Interim Director of the Human
Resources Office; ZORAIDA VERA Director of Human Resources;
MUNICIPALITY OF SAN SEBASTIÁN; MARÍA MARTELL, Director of Office
of Faith Initiatives and Communities,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Thompson, Baldock,* and Lipez,
Circuit Judges.
Jose Martinez-Custodio, with whom Kenneth Colón was on brief,
for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was on
brief, for individual appellees.
Pedro R. Vázquez for municipal appellee.
March 12, 2014
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Circuit Judge. Plaintiff Iliana Cabán-Rodríguez
appeals the district court’s grant of summary judgment to
Defendants, namely the Municipality of San Sebastián (MSS), Javier
D. Jiménez-Pérez, Agustín Soto-Cruz, Zoraida Vera, and María
Martell, on Cabán’s First Amendment claim of political
discrimination/retaliation. The district court held Cabán failed
to present evidence that would allow a reasonable jury to find
Cabán’s political affiliation was a substantial or motivating
factor in what she labels adverse employment action. Our
jurisdiction arises under 28 U.S.C. § 1291.
We review a grant of summary judgment de novo, applying the
same legal standard as the district court. See Ruiz-Rosa v.
Rullán, 485 F.3d 150, 155 (1st Cir. 2007). Accordingly, we will
affirm only if Defendants have shown “that there is no genuine
dispute as to any material fact and the [Defendants are] entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). That is
to say, viewing the evidence in a light most favorable to Cabán,
we ask whether a jury properly could render a verdict in her favor
upon the evidence presented. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). We answer that question no, and affirm.
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I.
In July 2001, Cabán commenced employment with Defendant MSS as
secretary to the Clerk of the Municipal Assembly.1 In August 2003,
Cabán accepted a career position as an accounting clerk at the
Department of Public Works.2 Justo Medína of the New Progressive
Party (NPP) was Mayor of MSS at the time. Cabán described her
duties at public works as “prepar[ing] purchase orders in the
attendance roster area” and “record[ing] purchase orders issued by
the department.” Aplt’s App. at 104.
Medína did not run for reelection in 2004. Defendant Jiménez,
also a member of the NPP, was elected Mayor that year and assumed
office in January 2005. Cabán supported Jiménez’s candidacy. A
year later, in January 2006, MSS notified Cabán that her services
were needed in the Purchases Office. Cabán described her duties in
the Purchases Office as “keep[ing] a record book, or logbook for
purchases at the department,” and “earmarking budgeted items
1
As we embark upon our factual recitation, we note counsel
for Cabán’s near-total failure to cite to the record in violation
of Fed. R. App. P. 28(e). Cabán’s opening brief cites the record
but once and that makes this Court’s job all the more difficult.
See Aplt’s Br. at 9. As a result, MSS argues Cabán has waived all
arguments on appeal. While we choose not to invoke waiver in this
particular instance, we admonish counsel for his malfeasance, lest
he think it acceptable to violate the applicable rules of procedure
in the future.
2
To qualify for the position of accounting clerk with MSS,
a candidate must have graduated “from high school supplemented by
a course in bookkeeping from an accredited institution.” Aplt’s
App. at 417.
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according to the purchase orders.” Id. at 115.
Eleven months later, in December 2006, Cabán received a letter
from Jiménez’s office indicating her services were then needed in
the Early Head Start (EHS) Program. In a letter to Jiménez dated
January 2007, Cabán objected to the transfer. Cabán labeled her
transfer to EHS as “persecution” (for what she did not say),
stating that “if the real need of service existed in the Office of
Purchases . . . there was no reason for transfer to the [EHS]
Program.” Id. at 775. Cabán received no response, and reported to
her new position that same month. Cabán described her duties at
EHS as “record[ing] information about the budget,” “performing bank
statement reconciliation,” and “mak[ing] entries into the voucher
system, among other things.” Id. at 128.
After her transfer to EHS, Cabán decided to support Jiménez’s
opponent in the March 2008 NPP primary election for Mayor.
Jiménez’s opponent was former Mayor Medína. Jiménez prevailed in
both the primary and general elections, and was reelected Mayor of
MSS. Cabán described her participation in Medína’s campaign as
“a poll watcher” at a school. Id. at 199–200. Cabán also appeared
in motorcades, and, “[o]n one occasion,” in a radio program about
a group of youngsters supporting Medína’s candidacy. Id. at 201.
Cabán’s “piece” in the program lasted around “two minutes.” Id.
Throughout the mayoral election campaign and thereafter, Cabán
continued to work at EHS without any reduction in salary or
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benefits.
On August 31, 2009, twenty months after the primary election,
MSS decided to discontinue sponsoring the EHS Program. Of the
twenty-three or so individuals working at EHS, all but Cabán, a
career employee, were laid off. On October 9, 2009, Jiménez
received a letter from Nereida Oquendo, Acting Director of the Head
Start Program (of which the EHS Program had been a part), stating
Cabán had “no duties under her charge” and requesting she “be
relocated to the position for which she was appointed.” Id. at
410.
That same day, Jiménez also received a letter from Defendant
Martell, Director of the Faith and Community Initiatives Office
(FCIO). Martell’s letter stated in relevant part:
The work with cancer survivors, addicts, homeless people
and bedridden patients take me enough time. For that
reason, Your Honor, I am asking you, to the extent that
you can, that you assign a person to me to perform the
work at the Homeless Center. The Center is preparing
daily, monthly and quarterly reports of the participants.
It also has to prepare quarterly price quotations for the
purchase of foods and inventories. At present, I am
performing that work.
By assigning a person to perform that work, I would be
able to devote more time to our patients.
Id. at 411.
On October 15, 2009, Cabán received a letter from Defendant
Soto in his capacity as Interim Director of the Department of Human
Resources. During a two-week period in October 2009, Soto served
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as Interim Director while Defendant Vera, Director of Human
Resources, was on leave. Soto’s letter informed Cabán of her
transfer to the Emergency Shelter Program at the Homeless Center:
You were on detail at the [EHS] Program of which our
Municipality was a sponsor. Since last September 30,
2009, this program no longer is administered by the
[MSS]. Mrs. Nereida Oquendo, Acting Director of the Head
Start Program, has informed us that you do not have
functions at this time.
The Emergency Shelter Program for Homeless Persons
(Homeless Center) does not have an Accounting Clerk;
therefore it is urgent for us to have a person who can
collaborate in this Department.
Therefore . . . we hereby notify you that effective
Monday, October 19, 2009, you will go on to exercise your
functions as Accounting Clerk in the Emergency Shelter
Program for Homeless Persons (Homeless Center) under the
direct supervision of Mrs. Maria Martell . . . .
Id. at 780.
Rather than reporting to work at the Homeless Center, Cabán
took a leave of absence and sought “medical, psychological and
psychiatric treatment” from the State Insurance Fund (i.e.,
workman’s compensation) Office. Id. at 17. Over three months
later, on February 2, 2010, Cabán reported to Vera at the Human
Resources Office. In a meeting with Vera and Martell, Cabán “asked
if they could, please, relocate [her] to some other office.” Id.
at 159. Cabán acknowledged that during the meeting, Martell spoke
to Cabán about her duties at the Center:
Q What were those duties that Ms. Martell told
you to perform.
A She spoke to me about inventories, price quotes,
and some reports.
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Q Did you perform the duties that Ms. Martell told
you that you were going to be doing?
A None.
Q Why not?
A Because they were not in harmony with my duties.
Id. at 160.
One month later, Cabán sent Jiménez a letter dated March 3,
2010. Therein, Cabán expressed concern for her safety given the
shelter’s clientele and state of disrepair. Cabán expressed
overall frustration with her employment situation. The letter
concluded:
[A]s of the moment of this communication I have not been
provided the necessary equipment and materials, nor much
less have I been advised or trained in the works that I
am going to carry out with the functions in accordance to
my position that were going to be delegated to yours
truly after the transfer for alleged need of service . .
. .
I hereby request reconsideration and to be placed in an
area where I can exercise my functions in accordance with
my position.
Id. at 759.
Martell responded to Cabán on March 9, 2010, by outlining in
a letter the tasks Cabán was to perform “as part of [her] duties as
accounting clerk in the Homeless Center:”
• Participants’ Daily Registry;
• Keep the records updated and orderly;
• Prepare weekly report of participants;
• Prepare weekly food inventory;
• Prepare weekly report of food consumption;
• Receive and file documentation on service
authorizations for participants of the Center sent
by Faith Communities Office;
• Prepare requisitions, price quotations and purchase
orders related to work at the Center;
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• Keep files, employee payrolls and volunteers who
work water, electric power, sanitary license and
fire department endorsement.
Id. at 419. Martell reminded Cabán that one of her duties as an
accounting clerk was “[t]o complete and keep records and registries
containing the corresponding information related to the work
produced in the office.” Id. Other duties described in the
“position classification” of accounting clerk include, but are not
limited to, “maintaining general controls over each municipal
program allocation and line item,” and “[e]nter[ing] information
into the system related to the functions performed in the office.”
Id. at 416.
Cabán would hear none of it. On April 5, 2010 she wrote
Jiménez another letter:
In communication dated March 9, 2010, I was delegated
some tasks which are not part of my description of duties
as Accounting Clerk . . . .
The tasks delegated to yours truly in the communication
mentioned above mostly involve functions of lesser and
inferior complexity . . . .
Id. at 763 (emphasis added). Cabán informed Jiménez that most of
the tasks described in Martell’s letter were to be performed either
by an official buyer, a warehouse manager, or the cook. As a
result, “no real need of immediate service of the undersigned in
the Homeless Center arises.” Id. And for the first time, Cabán
accused Jiménez of political retaliation: “Without a doubt, your
actions clearly show ill will, persecution and decisions made in
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retaliation against yours truly for not supporting your political
candidacy in the past internal primaries of the New Progressive
Party (NPP).” Id at 764. Six months later, Cabán filed this §
1983 action.
II.
The only federal cause of action Cabán alleges in her amended
complaint based on the foregoing facts arises under the First
Amendment. In this context, we see no distinction between a
political discrimination and political retaliation claim. See
Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014)
(First Amendment political discrimination includes “retaliation for
a contrary political opinion”). To establish a prima facie case of
political discrimination/ retaliation, first Cabán must demonstrate
that she engaged in protected First Amendment conduct. Id. at
301–02. Second, Cabán must demonstrate that her conduct was a
substantial or motivating factor in an adverse employment action,
that action being Defendants’ decision to transfer her to the
Homeless Center. Id. at 302.
The district court granted Defendants’ motion for summary
judgment. The court implicitly recognized that Cabán’s support for
Mayor Jiménez’s 2008 primary opponent constituted protected
political conduct. The court ruled, however, that Cabán “failed to
point to evidence” sufficient to establish the second prong of her
prima facie case:
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Plaintiff has failed to point to evidence that would
allow a reasonable fact-finder to find that Plaintiff’s
political affiliation was a substantial or motivating
factor for her transfer. Plaintiff references her own
deposition on many occasions in an attempt to raise a
factual dispute, however, such testimony merely amounts
to a legal conclusion. . . . Other than Plaintiff’s own
statements claiming discrimination, Plaintiff points to
no facts that would allow a reasonable jury to infer that
Defendants discriminated against her due to her support
for Medína. After reviewing the facts, the court cannot
locate any facts that support Plaintiff’s assertion.
Aplt’s App. at 813.
On appeal, Cabán claims the record evidence is sufficient to
establish that her support for past Mayor Medína in the 2008
primary election was a substantial or motivating factor in her
transfer to the Homeless Center. To be sure, Cabán’s tenure at the
Homeless Center appears to have been unpleasant. Working
conditions at the Homeless Center were far from ideal. Cabán’s
complaints to the MSS Fire Department and to the Puerto Rico
Occupational Safety and Health Administration (OSHA) regarding the
condition of the Center were not unwarranted. An OSHA inspection
of the Homeless Center in late July 2010 revealed the presence of
vermin, an excessive gathering of dust, dirt, and cobwebs, and
leaks in the roof. See id. at 766–68. This inspection and other
problems led MSS to permanently close the Homeless Center on
November 1, 2010.3
3
MSS subsequently transferred Cabán to the FCIO located in
the municipal library. Cabán stated that since her most recent
transfer, she has not complained about any duties Martell assigned
her: “I have not complained, because I have performed them
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Cabán’s work (or lack thereof) and her surroundings at the
Homeless Shelter undoubtedly were not to her liking. And, in some
instances, an employee’s transfer may amount to an adverse
employment action for the purpose of establishing a prima facie
case of discrimination. See Rodríguez-García v. Miranda-Marín, 610
F.3d 756, 766 (1st Cir. 2010) (explaining that “[a]ctions short of
dismissal or demotion,” including transfers, are “adverse” if they
“result in a work situation unreasonably inferior to the norm for
the position” (citation and internal quotation marks omitted)).
But less than ideal employment conditions, absent a showing of
improper motivation, do not constitute First Amendment
discrimination. Cabán’s transfer to the Homeless Shelter came
twenty months after the primary election in which she participated,
so temporal proximity lends her discrimination claim no support.
See Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 240
(1st Cir. 2012) (“While mere temporal proximity between a change of
administration and an adverse employment action is insufficient to
establish discriminatory animus, . . . it is relevant to whether
political affiliation was a substantial or motivating factor in
that adverse employment decision.”). Moreover, Cabán’s transfer
came only after MSS decided to close the EHS Program and lay off
all non-career employees of the Program. Additionally, Cabán was
not without duties at the Homeless Center at least arguably related
voluntarily, to keep myself busy.” Aplt’s App. at 177.
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to the job description of a low-level accounting clerk; regardless,
she obstinately refused to perform those duties after her
objections to the transfer fell on deaf ears.
As the district court recognized, Cabán has offered little
evidence apart from her own say-so that Defendants, individually or
collectively, had any political motivations in their treatment of
her. That Cabán answered “none” to an interrogatory asking her to
identify the witnesses she intended to call at trial illustrates
the point. Aplt’s App. at 285. Cabán’s subjective beliefs simply
are not evidence sufficient to counter Defendants’ well-supported
motion for summary judgment. See Pilgrim v. Trustees of Tufts
College, 118 F.3d 864, 871 (1st Cir. 1997). Cabán “may not prevail
simply by asserting an inequity and tacking on the self-serving
conclusion that the [D]efendant[s] w[ere] motivated by a
discriminatory animus.” Santiago v. Canon U.S.A., Inc., 138 F.3d
1, 5 (1st Cir. 1998) (internal quotation marks omitted). This,
however, appears to be precisely what Cabán attempts to do.
Cabán asserts that while discovery was ongoing in the case,
she witnessed Martell on June 14, 2011, writing a letter at her
FCIO computer, printing the same, signing it, photocopying it, and
then placing the original signed letter in the wastebasket. Cabán
removed the letter from the wastebasket. According to Cabán,
“[t]his letter had the date of October 9, 2009 and was pretending
to be a request from Martell to have someone assigned to perform
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food inventory duties at the Homeless Center.” Aplt’s Amend. Op.
Br. at 7. In other words, Cabán says “the alleged necessity of
[her] services at the Homeless Center was fabricated via a letter
dated October 9, 2009 which was created by Martell on June 14,
2011.” Id. at 9.
Unfortunately for Cabán, the record before us contains no
evidence to support her assertion that Martell fabricated the
October 9, 2009 letter to Jiménez after the fact. The letter Cabán
claims to have removed from Martell’s wastebasket is not part of
the record, so neither are its contents. At oral argument, Cabán’s
counsel reluctantly acknowledged the letter as Cabán says she found
it on June 14, 2011, is not before us. So all we have is Cabán’s
word. We well recognize that at the summary judgment stage, “we
need not exclude all interested testimony, specifically testimony
that is uncontradicted by the nonmovant.” Dennis v. Osram
Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008). But, the “Best
Evidence Rule requires that a party seeking to prove the ‘content’
of a writing must introduce the original or a ‘duplicate’ of the
original” if the original is unavailable through no fault of the
proponent. Airframe Sys., Inc. v. L-3 Commc’ns Corp., 658 F.3d
100, 107 n.9 (1st Cir. 2011). Cabán simply has not proven the
contents of the letter she says she retrieved from Martell’s
wastebasket.
On top of that, Defendants have contradicted Cabán’s claim
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that Martell’s October 9, 2009 letter was fabricated after the
fact. Defendants have made part of the record a July 2012 report
of a professional inspection of Martell’s computer. According to
the report of electrical engineer Ricardo Acevedo, proprietor of
TEK Solutions, Inc.:
The purpose of the [inspection] was to check creation and
modification date of the document “letter to Mayor.”
After reviewing details of date and location of the
document “letter to Mayor,” I found that it was created
and modified on Friday, October 9, 2009 at 11:23 am with
a size of 21k. This document “Letter Mayor” was found to
be located in the server whose address is P\MyDocuments\
letters, additionally a copy of the same was found on the
local hard disk Dell Optoplex 330 in the location
“Documents and settings\mmartell\ MyDocuments\letters”
with the same above date. [I] did not find any other
document with the same name at another date modified or
created.
Aplt’s App. at 806. Cabán’s failure to introduce the letter so
critical to her cause sounds her case’s death knell.4
Because Cabán failed in the district court to establish a
prima facie case of political discrimination/retaliation, the
court’s grant of summary judgment to Defendants on her First
4
The only evidence that even remotely suggests political
discrimination against Cabán is contained in the affidavit of her
husband, Orlando Ortiz. Ortiz, a long time MSS employee, states
Jiménez “told to Mayor Echevarria [of the Municipality of Aguada]
that we [Ortiz and Cabán] should not participate in the primary on
behalf of Mayor Medina.” Id. at 754. Interestingly, Cabán does
not mention this statement anywhere in her appellate argument. Nor
did she to our record knowledge ever follow the statement’s lead by
questioning Jiménez about it or deposing Ortiz or Echevarria.
Perhaps this is because the statement appears to constitute
inadmissible double hearsay.
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Amendment claim was proper. As a result, the court acted well
within its discretion, despite Cabán’s ongoing protestations, in
dismissing Cabán’s commonwealth claims without prejudice.
AFFIRMED.
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