Mendez-Aponte v. Commonwealth of Puerto Rico

            United States Court of Appeals
For the First Circuit
No. 09-2534
PRUDENCIO MÉNDEZ-APONTE; MARÍA DE LOS ANGELES LÓPEZ-DE MÉNDEZ;
CONJUGAL PARTNERSHIP MÉNDEZ-LÓPEZ,
Plaintiffs, Appellants,
v.
FERNANDO BONILLA, in his official and personal capacities
as Secretary of State; JANE DOE I, as wife of
Fernando Bonilla; CONJUGAL PARTNERSHIP BONILLA-DOE,
Defendants, Appellees,
COMMONWEALTH OF PUERTO RICO, represented by the Secretary of
Justice Hon. Roberto Sánchez-Ramos; STATE DEPARTMENT OF
PUERTO RICO, et al.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Siler,* Circuit Judges.
Nicolás Nogueras-Cartagena, María Teresa Figueroa-Colón, and
Nicolás Nogueras Jr. Law Offices, on brief for appellants.
Irene S. Soroeta-Kodesh, Solicitor General, Leticia M.
Casalduc-Rabell, Deputy Solicitor General, Zaira Z. Girón-Anadón,
Deputy Solicitor General, and Rosa Elena Pérez-Agosto, Assistant
Solicitor General, on brief for appellees.
*
Of the Sixth Circuit, sitting by designation.
July 8, 2011
TORRUELLA, Circuit Judge.          Prudencio Méndez-Aponte, the
former Assistant Secretary of State for Protocol Affairs at the
Puerto   Rico     State   Department,   sued    Fernando    Bonilla,   in   his
personal and official capacity as the Secretary of State of the
Puerto Rico State Department, alleging that Bonilla fired him due
to his political affiliation.              Méndez-Aponte's claim did not
survive Bonilla's motion for summary judgment.             The district court
sanctioned      Méndez-Aponte's     attorneys     $1000    each   because    it
concluded that the pleadings and responses that they submitted
violated Federal Rule of Civil Procedure 11(b).            Méndez-Aponte and
his attorneys now appeal alleging that the district court erred in
granting Bonilla's summary judgment motion and imposing sanctions.
We affirm the district court's decision.
I.   Background
Méndez-Aponte was the Assistant Secretary of State for
Protocol Affairs at the Puerto Rico State Department from June 1,
2001 until March 3, 2006.       Méndez-Aponte alleges that, in 2005, in
the course of his official duties and during “official meetings
where the economic situation of the government of Puerto Rico and
of the [Puerto Rico] State Department . . . were discussed,“ he
suggested    to   Marisara   Pont-Marchese,      the   interim    Puerto    Rico
Secretary of State, that investing in Iraqi dinars would be a good
long-term investment for Puerto Rico.
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Méndez-Aponte      alleges    that     on   August    21,   2005,    a
journalist from El Nuevo Día, a Puerto Rican newspaper, called him
to inquire about rumors that employees at the Puerto Rico State
Department were selling Iraqi dinars during office hours.              Méndez-
Aponte contacted Bonilla to inform him about the journalist's
inquiry and they set up a meeting to discuss the matter the next
day.   The next day, before this discussion could take place,
Méndez-Aponte found out from the press that Bonilla had fired him
and had also asked the Director of the Government Ethics Office to
investigate the rumors that dinars were sold at the Puerto Rico
State Department.    According to Méndez-Aponte, that same day, the
Subsecretary   of    State   asked     Méndez-Aponte     to    meet   with    an
investigator   who    was    conducting     an    inquiry      regarding      the
allegations.   On August 24, 2005, Méndez-Aponte received a written
notification, dated August 22, 2005, informing him that he had been
removed from his position due to illegal conduct.               Specifically,
the letter stated that Méndez-Aponte was suspended because he
“engaged in . . . conduct that is clearly detrimental to the moral
and good name of the Department.“1
1
In his motion for summary judgment, Bonilla alleged that he
fired Méndez-Aponte because he no longer trusted him due to the
allegations that he may have been involved in the sale of Iraqi
dinars.
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On June 27, 2006, Méndez-Aponte, his wife, and their
conjugal partnership filed a complaint against, inter alios,2 the
Commonwealth of Puerto Rico, Fernando Bonilla, in his official and
personal   capacities,     Bonilla's     wife,   and    their   conjugal
partnership, in the United States District Court for the District
of Puerto Rico.    The plaintiffs filed their complaint pursuant to
the Civil Rights Act of 1991, 

42 U.S.C. §§ 1981

, 1983, 1985, 1986,
and 1988, alleging violations of the First, Fifth, and Fourteenth
Amendments to the United States Constitution. They asked the court
to exercise supplemental jurisdiction over their Puerto Rico law
claims.
On April 27, 2007, the plaintiffs filed their amended
complaint including Bonilla, in his personal and official capacity
as Secretary of State of the Puerto Rico State Department, as the
only defendant.    Bonilla filed an answer to the amended complaint
on October 15, 2007.     On August 12, 2008, the plaintiffs filed a
notice of partial voluntary dismissal of their claims alleging
Fourteenth Amendment due process violations.       On August 26, 2008,
the   district   court   entered   partial   judgment   dismissing   with
2
The original complaint also included the following defendants:
the Commonwealth of Puerto Rico; the Puerto Rico State Department;
Winda Torres, Lilly Castro, Sara González-Surí, Yanis Blanco,
Orlando Rodríguez, José Negrón, José C. Díaz-Ortiz, Rafael Subero,
Zaira Caraballo, and Isabel Colberg, each in her or his official
and personal capacities, together with each of his or her spouses
and their conjugal partnerships; John Doe, Jane Roe, Corporation X,
Y, Z; and Insurance Company S, T, V. These defendants were not
included in the plaintiffs' amended complaint.
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prejudice plaintiffs' claims alleging violations of Méndez-Aponte's
rights under the Fourteenth Amendment.
On April 4, 2009, the defendant filed a motion for
summary judgment requesting that the district court dismiss the
plaintiffs' section 1983 political discrimination claim because
plaintiffs failed to establish a prima facie case of political
discrimination or, in the alternative, because Bonilla was entitled
to qualified immunity. The plaintiffs filed a timely opposition to
the motion for summary judgment and a statement of contested
material facts on April 23, 2009.         On September 16, 2009, the
district court entered an order granting Bonilla's motion for
summary   judgment   and   dismissing   Méndez-Aponte's   section   1983
political discrimination claims with prejudice and dismissing the
supplemental state law claims without prejudice.            See Méndez-
Aponte v. Puerto Rico, 

656 F. Supp. 2d 277

 (D.P.R. 2009).            The
district court found that the plaintiffs failed to properly dispute
the defendant's statement of uncontested material facts because
their denials and qualifications of the defendant's fact statements
were “mostly irrelevant to the matter at hand and consist of mere
'speculation,   generalities,    conclusory   assertions,    improbable
inferences and, for lack of a better phrase, a lot of “hot air.“'“

Id. at 281

 (quoting Domínguez v. Eli Lilly and Co., 

958 F. Supp. 721

, 728 (D.P.R. 1997)).       The court therefore took its factual
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findings mainly from Bonilla's statement of uncontested material
facts.3   

Id.

The district court concluded that Méndez-Aponte could be
terminated without cause because he held a trust position for which
party affiliation was an appropriate qualification for continued
employment.       Id. at 288-89.    The court therefore dismissed Méndez-
Aponte's political discrimination claim.               Id. at 289.   Pursuant to
Federal Rule of Civil Procedure 11(b), the court also imposed a
sanction of $1,000 each on attorneys Nicolás Nogueras-Cartagena and
Patricia Ramírez Gelpí.         Id. at 291.        The court found that the
attorneys    failed     to   properly    dispute       Bonilla's   statement   of
uncontroverted facts, that their memorandum of law failed to
specify     the    documents   in    the      record    that   supported   their
contentions and left blank the number of the exhibit to which they
were referring the court, and that their “long and generally
incomprehensible opposition [was] frivolous and totally devoid of
any semblance of colorable merit.“             Id. at 290-91.
3
On appeal, Méndez-Aponte challenges the district court's
decision to glean the facts from Bonilla's statement of uncontested
material facts.    As discussed infra at 18, we agree with the
district court that Méndez-Aponte's allegations lacked proper
evidentiary support. We conclude that, pursuant to the District of
Puerto Rico's Local Rule 56(e), the district court properly deemed
Bonilla's facts admitted.
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II.   Discussion
A.    Motion for Summary Judgment
Our review of the district court's entry of summary
judgment is de novo.     Del Toro Pacheco v. Pereira, 

633 F.3d 57

, 62
(1st Cir. 2011).    We draw all reasonable inferences in favor of the
non-moving party.     Lopera v. Town of Coventry, 

640 F.3d 388

, 395
(1st Cir. 2011); Del Toro Pacheco, 633 F.3d at 62.         “We ignore any
'conclusory allegations, improbable inferences, and unsupported
speculation.'“     Del Toro Pacheco, 633 F.3d at 62 (quoting Sutliffe
v. Epping Sch. Dist., 

584 F.3d 314

, 325 (1st Cir. 2009)).             “The
court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.“        Fed. R. Civ. P. 56(a).4
“We may affirm summary judgment on any ground manifest in the
record.“    Klaucke v. Daly, 

595 F.3d 20

, 24 (1st Cir. 2010)
(internal quotation marks omitted).
The   First   Amendment    protects   public   employees   from
adverse action due to their political affiliation, unless political
affiliation is an appropriate requirement for the position.            See
Branti v. Finkel, 

445 U.S. 507

, 518 (1980); Ocasio-Hernández v.
Fortuño-Burset, 

640 F.3d 1

, 13 (1st Cir. 2011).              A plaintiff
4
We cite the amended version of Rule 56, effective December 1,
2010, because doing so is just and practicable where the standard
for granting summary judgment remains unchanged. See Ophthalmic
Surgeons, Ltd. v. Paychex, Inc., 

632 F.3d 31

, 35 n.4 (1st Cir.
2011).
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seeking to establish a political discrimination claim under 

42 U.S.C. § 1983

 must establish four elements: “(1) that the plaintiff
and defendant have opposing political affiliations, (2) that the
defendant is aware of the plaintiff's affiliation, (3) that an
adverse   employment     action   occurred,     and   (4)     that    political
affiliation was a substantial or motivating factor for the adverse
employment action.“ Ocasio-Hernández, 

640 F.3d at 13

 (internal
quotation marks omitted).         Here, Bonilla argues that political
affiliation is a proper requirement for Méndez-Aponte's position
and that, therefore, Bonilla could properly fire Méndez-Aponte for
his political affiliation.
The question of whether political affiliation is an
appropriate basis for dismissal is a legal one for the court.
Uphoff Figueroa v. Alejandro, 

597 F.3d 423

, 429 (1st Cir. 2010);
Hadfield v. McDonough, 

407 F.3d 11

, 15 (1st Cir. 2005).                    This
circuit has typically conducted a two-part analysis to make this
determination.     See Hadfield, 

407 F.3d at 16

; Duriex-Gauthier v.
López-Nieves, 

274 F.3d 4

, 9 (1st Cir. 2001).           We ask (1) “whether
the governmental unit decides 'issues where there is room for
political disagreement on goals or their implementation,'“ Ruiz-
Casillas v. Camacho-Morales, 

415 F.3d 127

, 132 (1st Cir. 2005)
(quoting Jiménez Fuentes v. Torres Gaztambide, 

807 F.2d 236

, 241-42
(1st   Cir.    1986)   (en   banc)),    and   (2)   whether    “the    specific
responsibilities of the position resemble those of a policymaker or
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other officeholder whose functions are such that party affiliation
is an appropriate criterion for holding the post,“ Hadfield, 

407 F.3d at 16

.      We have upheld political dismissals of mid- or upper-
level employees where the employee “merely represented the agency's
policy positions to other entities or to the public or where
important personnel functions were part of the portfolio.“                   Flynn
v. City of Boston, 

140 F.3d 42

, 45 (1st Cir. 1998).
Turning to the first inquiry, we agree with the district
court that the Puerto Rico State Department handles matters where
there    is    room   for    political    disagreement   on    goals   or    their
implementation. See Méndez-Aponte, 

656 F. Supp. 2d at 286

 (holding
that the first prong of the inquiry was satisfied).                The Governor
of Puerto Rico, who is “elected by direct vote in each general
election,“ P.R. Const. art. IV, § 1, appoints the Secretary of
State,     id.   §    5.     The   Secretary    of   State    is   charged    with
“promulgat[ing] all proclamations and orders of the Governor and
all laws enacted by the Legislative Assembly.“ 

P.R. Laws Ann. tit. 3, § 51

.      Further, the Puerto Rico State Department is in charge of
arranging the visits of “personages from foreign countries who can
come and observe Puerto Rican life and who . . . can in some way
make known outside of Puerto Rico the facts concerning [Puerto
Rico].“ 

Id.

 § 62.          This is certainly a politically sensitive task.
Given that the Puerto Rico State Department and the Governor of
Puerto Rico have a close working relationship, the State Department
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represents Puerto Rico to governments of other countries, and the
policy goals of the State Department may change with different
administrations, we hold that the State Department is an agency
that “involve[s] decision making on issues where there is room for
political disagreement on goals or their implementation.“     Olmeda
v. Ortiz-Quiñonez, 

434 F.3d 62

, 66 (1st Cir. 2006) (internal
quotation marks omitted).
We now look to the specific responsibilities of the
position to determine whether party affiliation is an appropriate
requirement.    Ruiz-Casillas v. Camacho-Morales, 

415 F.3d 127

, 132
(1st Cir. 2005).     In applying the second prong of the analysis,
this court has looked at a variety of factors which include
the relative compensation level for the
position, the technical expertise (if any)
required to do the job, the extent to which
the position involves supervision and control
over others, the degree to which the position
confers authority to speak in the name of
higher-ups who themselves are policymakers,
the influence of the position over programs
and policy initiatives, and the public
perception of what the position entails.
Galloza v. Foy, 

389 F.3d 26

, 29-30 (1st Cir. 2004) (citing Jiménez-
Fuentes, 

807 F.2d at 242

).     We also consider “the relationship of
the position to elected officials, party leaders, and partisan
politics.“     Id. at 30.   We focus only on “the inherent duties of
the position under review and do not consider the actual tasks
performed by a present or past officeholder.“      Roldán-Plumey v.
Cerezo-Suárez, 

115 F.3d 58

, 64 (1st Cir. 1997); accord Jiménez-
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Fuentes, 

807 F.2d at 242

.      The official job description is a
presumptively reliable basis for determining the actual functions
of the position.   Uphoff-Figueroa, 

597 F.3d at 430

; Roldán-Plumey,

115 F.3d at 62

.
Because we have an official job description available, we
begin with this document.5   See Galloza, 

389 F.3d at 30

 (“[I]f a
formal job description exists, it is important for an inquiring
court to look to the specifics of that document.“).         The job
description for the position of Assistant Secretary of State for
Protocol Affairs lists the following relevant duties:
2. [Advise]6 the Secretary of State on the
formulation of public policy that will rule
his work area, or to [sic] the management of
staff    of    the    Department     and    the
representatives    of   public   and    private
organizations as to the mission and goals of
the   different    activities   and    services
provided.
. . . .
4. Prepare rules and analyze administrative
and    fiscal    procedures    to     formulate
5
According to the human resources records, Méndez-Aponte's
employee status is listed as one of “confidence.“ Under Puerto
Rico law, government positions are classified as career or
trust/confidence. Uphoff-Figueroa, 

597 F.3d at

430 n.7; Morales-
Santiago v. Hernández-Pérez, 

488 F.3d 465

, 469 (1st Cir. 2007).
Although we have previously found such classifications relevant,
they are not dispositive of whether political affiliation is an
appropriate requirement for a position.    López-Quiñones v. P.R.
Nat'l Guard, 

526 F.3d 23

, 26 (1st Cir. 2008).
6
The certified translation of the job description translates the
Spanish word “asesorar“ as “assess.“ According to many Spanish-
English dictionaries, however, “asesorar“ means “to advise,
counsel.“ See, e.g., Cassell's Spanish Dictionary 94 (1968). We
have modified the translation accordingly.
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recommendations   about   [matters]7   under   his
jurisdiction.
5. Represent and/or accompany the Secretary of
State or the Governor and the Under-Secretary
on official acts, as required.
6. Responsible for the planning, development,
supervision and execution of visits of high
ranking dignitaries from different governments
[commissioned]8 by the Secretary of State and
the Governor of the Commonwealth of Puerto
Rico.
7. To counsel the Secretary of State and the
Governor of the Commonwealth of Puerto Rico as
to international, local, military and civil
protocol affairs.
8. To establish and maintain the necessary
coordination with other government agencies,
civic,    cultural      and    entrepreneurial
organizations on the island and from abroad,
also    with     diverse    institutions    of
international character, related with [sic]
their work area.
. . . .
11. Answer inquiries, prepare [memoranda]9 and
communications of [a] confidential [nature]
for the signing of the Secretary and to
7
The certified translation of the job description translates the
word “asuntos“ as “manners.“ We have modified the translation.
See Cassell's Spanish Dictionary 97 (1968) (translating “asuntos“
as “matters“).
8
The certified translation of the job description translates the
word “encomienda“ as “entrusted.“        We have modified the
translation.    See Cassell's Spanish Dictionary 369 (1968)
(translating “encomienda“ as “commission“).
9
The certified translation of the job description translates the
word “memoriales“ as “memorials.“         We have modified the
translation.    See Cassell's Spanish Dictionary 556 (1968)
(translating “memorial“ as “memorandum“).
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represent him in [meetings], public hearings
and conferences, among other activities.10
These duties strongly suggest that political affiliation
is an appropriate requirement for the position.             Many of these
duties are not purely ministerial and are open-ended. See Galloza,

389 F.3d at 31

 (noting that open-ended job description duties
generally allow the employee to exercise discretion “and, thus,
tend to indicate that a position is policymaking in nature“).          For
example,   the   position    can   involve   formulating   recommendations
regarding matters under the jurisdiction of the Secretary for
Protocol Affairs, and counseling the Secretary of State and the
Governor of Puerto Rico regarding “international, local, military
and civil protocol affairs.“         These duties indicate a level of
discretion that indicates that the position involves policymaking.
Méndez-Aponte's position also involves “supervision and
control over others.“       Galloza, 

389 F.3d at 29

.   It is uncontested
that the position of Secretary for Protocol Affairs involves
supervising employees; four employees report directly to the person
in this position. López-Quiñones v. P.R. Nat'l Guard, 

526 F.3d 23

,
26 (1st Cir. 2008) (considering that the terminated employee
10
The certified translation of the job description translates the
word “índole“ as “manner“ and “reuniones“ as “reunions.“ We have
modified the translations. See Cassell's Spanish Dictionary 681
(1968) (translating “reuniones“ as “meetings“); WordReference.com
Spanish-English Dictionary, http://www.wordreference.com/es/en/
translation.asp?spen=indole   (translating   “índole“  as   “kind,
nature“) (last visited June 24, 2011).
-14-
supervised other employees as a factor indicating that the position
involves discretionary judgments and policymaking).         In addition,
the   Secretary    for   Protocol   Affairs   reports   directly   to   the
Secretary of State and the Sub-Secretary of State and we have
previously considered that “report[ing] to those in the upper
echelons of [an] agency“ is indicative of a policymaking position.
See Hadfield, 

407 F.3d at 17

.
The position may also involve acting as a liaison to
other government agencies, “represent[ing]. . . the Secretary of
State or the Governor and the Under-Secretary“ in official acts,
representing the Secretary of State “in [meetings], public hearings
and conferences, among other activities,“ and supervising and
executing    the   visits   of   important    dignitaries   from   foreign
governments.   These functions involve representing the Puerto Rico
Governor's or the Secretary of State's views to other agencies, the
public, and other governments.       We consider these functions to be
exemplary of the position's spokesperson-like capacities, which we
have previously considered to be indicative of a policymaking
position.    Uphoff Figueroa, 

597 F.3d at 429

 (“[I]t is enough that
the official [is] involved in policy, even if only as an adviser,
implementer, or spokesperson.“      (emphasis and second alteration in
original) (quoting Flynn, 

140 F.3d at 46

) (internal quotation marks
omitted)).
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Looking   at     the   inherent   duties    of   the   position   of
Assistant Secretary of State for Protocol Affairs, we hold that
political affiliation is an appropriate qualification for the
position and that, therefore, it is one that is not federally
protected against political discrimination.             The district court
properly granted Bonilla's motion for summary judgment on the
ground that Méndez-Aponte held a trust position that was not
protected under the First Amendment.
B.   Sanctions
We   review    the     district   court's   decision    to   impose
sanctions for abuse of discretion.            Cooter & Gell v. Hartmarx
Corp., 

496 U.S. 384

, 405 (1990) (“[A]n appellate court should apply
an abuse-of-discretion standard in reviewing all aspects of a
district   court's   Rule    11    determination.“);    Meléndez-García      v.
Sánchez, 

629 F.3d 25

, 33 (1st Cir. 2010); Young v. City of
Providence ex rel. Napolitano, 

404 F.3d 33

, 38 (1st Cir. 2005).               A
district court abuses its discretion when its ruling is based on an
erroneous view of the law or on clearly erroneous factual findings.
See F.A.C., Inc. v. Cooperativa de Seguros de Vida de P.R., 

563 F.3d 1

, 6 (1st Cir. 2009).
We give deference to a district court's decision to
impose sanctions because it is in the best position to “evaluate
the circumstances surrounding an alleged violation and render an
informed judgment.“       McLane, Graf, Raulerson & Middleton, P.A. v.
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Rechberger, 

280 F.3d 26

, 44 (1st Cir. 2002) (quoting Cruz v.
Savage, 

896 F.2d 626

, 632 (1st Cir. 1990)) (internal quotation
marks omitted).      “Rule 11(b) is not a strict liability provision
and a showing of at least 'culpable careless[ness]' is required
before a violation of the Rule can be found.“ Citibank Global
Markets, Inc. v. Rodríguez Santana, 

573 F.3d 17

, 32 (1st Cir. 2009)
(alteration in original) (citations omitted); Young, 404 F.3d at
39.
Rule 11(b) states that “by signing, filing, submitting,
or later advocating“ a pleading, the party represents that
(3) the factual contentions have evidentiary
support or, if specifically so identified,
will likely have evidentiary support after a
reasonable     opportunity    for    further
investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonably based on belief
or a lack of information.
Fed. R. Civ. P. 11(b)(3)-(4).
The district court listed the following as its reasons
for imposing sanctions on the two attorneys: (i) the document was
“incomprehensible“;     (ii)    the   document   included   an    irrelevant
history   of   the   Puerto    Rico   State   Department;   and   (iii)   the
opposition was sloppy and careless as evidenced by, for example,
omissions in the citations to the record.           Méndez-Aponte, 

656 F. Supp. 2d at 290-91

.    After reviewing the filings and the record, we
conclude that the court did not abuse its discretion in imposing
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sanctions.    We agree with the district court that the plaintiffs'
opposition to summary judgment and the statement of contested
material     facts   consist,   in   large       part,   of    speculation    and
conclusory allegations for which the only evidentiary support is
Méndez-Aponte's sworn affidavit, which itself contains conclusory
allegations.     See 

id. at 281

.       Neither filing has any promise of
likely   evidentiary      support.     We    provide     one   example   of   the
conclusory    allegations    included       in   the   opposition   to   summary
judgment:
Plaintiff's conduct [-- speaking in favor of
the   purchase    of   Iraqi   dinars   --]   was
constitutionally protected. And it was under
the pretext of this conduct that he was
condemned     and      discriminated     against.
Plaintiff did not hold a policy making
position, and his political affiliation was
not a requirement for the office held. . . .
[P]ursuant to the difference in political
affiliation     [between     Méndez-Aponte    and
Bonilla,]    he    was    suspended   from    his
employment.
After engaging in the same wild-goose chase that the district court
had to endure to find evidentiary support for Méndez-Aponte's
factual allegations, we hold that the district court did not abuse
its   discretion     in   concluding    that      Méndez-Aponte's     attorneys
violated Federal Rule of Civil Procedure 11(b).                   We therefore
affirm its imposition of sanctions.
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III.   Conclusion
For the aforementioned reasons we affirm the district
court's grant of summary judgment in appellee's favor and its
imposition of sanctions.
Affirmed.
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