Lopez Hernandez v. Fajardo-Velez

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1776
CARLOS J. LÓPEZ HERNÁNDEZ,
Plaintiff-Appellant,
v.
VICTOR FAJARDO VÉLEZ;
NEREIDA GELABERT DE VARGAS,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Shadur,* Senior District Judge.
Anthony E. Keller for appellant.
Francisco A. Rullán, with whom Quiñones & Sanchez, P.S.C., was
on the brief, for appellees.
January 14, 2003
*Northern District of Illinois, sitting by designation.
Per Curiam. Plaintiff Carlos J. López Hernández is a
career employee of Puerto Rico's Department of Education for the
Mayaguez Region. In 1992, López unsuccessfully ran for office as
a candidate of Puerto Rico's Popular Democratic Party. That same
year, the candidate of the rival New Progressive Party won Puerto
Rico's gubernatorial election. At some point in 1994, persons
affiliated with the New Progressive Party assumed control of the
Department of Education and implemented a "reorganization," which
it is undisputed had the effect of stripping López of his work
duties.
Later that year, López sued the Secretary of the
Department of Education, a former Secretary, and the Department's
then-Regional Director for the Mayaguez Region under 42 U.S.C. §
1983. His complaint alleged that the adverse employment actions he
had suffered were prompted by unlawful political-affiliation
discrimination. In November 1997, López settled the suit with the
Regional Director. In the settlement agreement, the Regional
Director promised, inter alia, either to keep López in his then-
current position (with commensurate duties and salary) or, in the
event of a reorganization, to transfer him to "an equivalent
position, [with] corresponding duties and salary[.]"
In May 1999, López filed, in connection with the 1994
case, a pro se "Motion for Sentence Execution and Continuous
Damages." So far as we can tell, the motion alleged that the
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discrimination complained of in the 1994 action was ongoing. The
district court denied the motion on the ground that it had not
retained jurisdiction to enforce the settlement agreement.
Thereafter, in October 1999, López filed the present action against
the Department's Secretary and the Regional Director for the
Mayaguez Region, who is different than the person sued in this
capacity in the 1994 action. In his complaint, López alleged that
he lacked job duties and ascribed this lack of duties to ongoing
(since the November 1997 settlement agreement) political-
affiliation discrimination. Discovery ensued and the defendants
eventually sought summary judgment, which was granted by the
district court.
The court first adopted the defendants' account of the
facts because López failed to supply a statement of contested
material facts with record citations, as is required by D.P.R.R.
311.12. After concluding that López's damages claims against
defendants in their official capacities lacked viability, the court
decided that López's remaining claims against the Secretary failed
because the Secretary was not personally involved in the acts set
forth in the complaint and because liability under a respondeat
superior theory does not attach in a 42 U.S.C. § 1983 action.
Finally, the court determined that López had failed to adduce
evidence sufficient to permit a jury to reject the non-
discriminatory reason the Regional Director gave to explain López's
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lack of duties, viz., the 1994 reorganization and López's
unwillingness to accept a proposed transfer to an equivalent
position with duties outside the Mayaguez regional office. In
making this determination, the court also stated:
López alleges that several positions
within the scope of his classification were
available within the Mayaguez Regional Office,
but they were given to lesser ranking staff
who wore insignia on their clothes identifying
them as members of the NPP. He further
alleges that [the Regional Director] "has in
effect admitted her bias against the
Plaintiff." These allegations, if true, could
constitute sufficient evidence that
defendants' non-discriminatory reason is a
pretext. But without specific reference to
the record as required by Local Rule 311.12,
they are mere allegations or arguments of
counsel that cannot be considered by the Court
in the summary judgment context.
López Hernández v. Fajardo Vélez, Civil No. 99-2107 (JAG), opinion
and order at 15 (D.P.R. Apr. 25, 2002).
López has appealed the district court's judgment insofar
as it pertains to the Regional Director. We construe his somewhat
convoluted brief to present two arguments: that the court erred in
concluding that he breached Local Rule 311.12 with respect to his
evidence of the Regional Director's bias, and that the court erred
in crediting the Regional Director's assertion that he declined at
least one equivalent job with duties outside the regional office
without additional evidence to support the assertion. Neither
argument provides us with a basis for upsetting the judgment. The
first argument is insufficient because it is unaccompanied by an
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explanation why the present Regional Director's bias against López,
even if assumed for summary judgment purposes, creates a
trialworthy issue as to the credibility of the Regional Director's
explanation why López lacked duties. See Ainsworth v. Stanley, No.
00-1678, slip op. at 4 n.1 (1st Cir. Dec. 24, 2002). The second
argument is insufficient because it is unaccompanied by an
explanation why the Regional Director needed to submit evidence to
corroborate her assertion in order to be awarded summary judgment.
See id.The record in this case is troubling. Nobody disputes
that López lacked job duties for years, and the Regional Director's
explanation for this state of affairs raises more questions than it
answers. But we will not disturb a final district court judgment
absent a developed argument explaining why, in light of the record
and applicable legal principles, the judgment was not properly
entered. See id. López has failed to present us with such an
argument.
Affirmed. No costs.
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