Opinion
CIVIL 01-1695 (JAG) (JA)
July 28, 2003
OPINION AND ORDER
I. INTRODUCTION
This matter is before the court on motion for reconsideration filed by the defendants. They move the court to reconsider its opinion and order issued on May 7, 2003, granting in part and denying in part their motion for summary judgment. After consideration of the arguments presented by the parties, and after reviewing the record in this case, I find that the entry of summary judgment in favor of the defendants is warranted. Consequently, defendants' motion for reconsideration is GRANTED.
II. BACKGROUND
This is an action brought by plaintiff Milton Nieves-Luciano (hereinafter "Nieves"), his wife and his three minor children against the Municipality of Juana Díaz and its mayor Ramon Henández-Torres (hereinafter "Hernández"). The main allegation in the complaint is that Nieves was discharged from his employment at the municipality due to his political affiliation with the New Progressive Party (hereinafter "NPP") and in violation of the rights guaranteed to him by the First and Fourteenth Amendments to the United States Constitution.
In 1994, Mr. Nieves began working at the municipality of Juana Díaz under a professional services contract. He was subsequently appointed in the trust service Director of Data Processing. Said appointment was approved by the Municipal Assembly in 1997. Mr. Nieves is a member of the NPP.
In the 2000 general elections, co-defendant Hernández was elected mayor of the municipality of Juana Díaz having run on the Popular Democratic Party's (hereinafter "PDP") ticket. Shortly after entering office in January 2001, Hernández served Nieves with a letter of dismissal. The letter indicated that he was being discharged because the position he held was one of trust. Plaintiffs filed this action under 42 U.S.C § 1983 claiming that he was discharged in violation of the First Amendment. Plaintiffs also assert a violation of due process.
Specifically, plaintiffs argue that the discharge was due to the fact that he is a member of the rival political party. It is further claimed by plaintiffs that since the discharge, the position previously occupied by Mr. Nieves has been filled by PDP partisans. Co-defendants on the other hand attempt to justify plaintiff's dismissal claiming that his position as Data Processing Director was deemed unnecessary and duplicative following a reevaluation of the municipal organization. Plaintiff's position was eliminated, according to the defendants, as part of a work-force reduction that responded to the need for maintaining a cost-effective personnel budget. Co-defendants also deny having filled plaintiff's position with individuals affiliated to the PDP.
The co-defendants moved for summary judgment claiming that: (1) Nieves had not been deprived of any cognizable property interest as to justify recovery for violation of his due process rights; (2) plaintiffs had failed to establish a prima facie case of political discrimination; and (3) that the doctrine of qualified immunity shielded co-defendant Hernández in his individual capacity from liability.
On May 7, 2003, 1 issued an opinion and order granting in part and denying in part co-defendants' motion. (Docket No. 62.) I found that there was a genuine and material factual dispute that precluded the entry of summary judgment as to the political discrimination claim. Particularly, I found that there was a factual controversy as to whether plaintiffs position was duplicative and unnecessary. I also found that the question of whether Mr. Nieves was replaced by a member of the PDP was another factual issue that needed to be resolved by the trier of fact. Additionally, I found that summary judgment was inappropriate because the jury had to determine whether plaintiff indeed had been hired in violation of municipal personnel laws as asserted by co-defendants. I granted summary judgment, however, on plaintiffs due process claim finding that Mr. Nieves was hired in the trust service and therefore lacked the requisite property interest for maintaining said claim. The opinion and order also disposed of co-defendants' argument that qualified immunity shielded Hernandez from liability. I noted that the same factual dispute precluding a finding as a matter of law on the political discrimination claim, also precluded a finding as a matter of law on the issue of qualified immunity.
The co-defendants now move the court to reconsider the findings made in its May 7, 2003 opinion and order. They primarily argue that the plaintiffs failed to discharge their burden in order to survive summary judgment, failing to create a genuine controversy of material facts. Plaintiffs filed their opposition to co-defendants' motion for reconsideration on July 21, 2003. (Docket No. 69.) In it, they claim that the court correctly decided defendants' motion for summary judgment by finding that there were genuine issues of material fact pending for adjudication by the jury. Plaintiffs contend that therefore, defendants' motion for reconsideration should be denied. I now reconsider the findings made in my May 7, 2003 opinion and order.
III. DISCUSSION A. The Standard for Summary Judgment
As stated in my previous opinion and order, summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In order to defeat summary judgment, the non-moving party has to set forth facts to demonstrate that a genuine issue exists for trial. See Fed.R.Civ.P. 56(e), The burden shifts to the party opposing summary judgment to produce "specific facts, in suitable evidentiary form," to counter the evidence presented by the movant. López-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 2000) (quoting Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). A party cannot discharge; said burden by relying upon "conclusory allegations, improbable inferences, and unsupported speculation." Id. Here, the plaintiffs will "have to point to [admissible] evidence in the record, that if credited, would permit [a] rational fact finder to conclude that the challenged adverse action occurred and stemmed from a politically based discriminatory animus," in order to overcome summary judgment. Rivera-Cotto v. Rivera, 38 F.3d 611, 613-14 (1st Cir. 1994)).
With this standard in mind, I review the record to determine if plaintiffs have discharged their burden in order to overcome co-defendants' motion for summary judgment.
B. Arguments Advanced by the Defendants
In support of their motion for reconsideration, the co-defendants advance several arguments. First, co-defendants contend that plaintiffs' failed to point to admissible evidence in the record to rebut defendants' position that there is no genuine controversy requiring adjudication by the trier of fact. According to the co-defendants, while they have submitted deposition testimony and other evidence, all that plaintiffs have presented is a counter statement of uncontested material facts where they either accept or deny co-defendants', and the sworn testimony of Mr. Nieves. This, in co-defendants' opinion, is insufficient to discharge their burden under Federal Rule of Civil Procedure 56(e).Second, the co-defendants contend that Mr. Nieves' affidavit is also insufficient to defeat summary judgment for it contains statements that are not based on personal knowledge and/or inadmissible at trial in direct contravention of Rule 56(e). Specifically, the affidavit is insufficient when it attempts to create a factual dispute by conclusorily alleging that co-defendant Hernandez stated that he would "clean the house of NPP employees," and by claiming that he was replaced in his functions by members of the PDP. Co-defendants claim that besides these unsupportable speculations, the plaintiffs failed to point to the record and to admissible evidence to create a genuine dispute for the trier of fact.
C. Arguments Advanced by the Plaintiffs
The plaintiffs argue, to the contrary, that the court correctly decided defendants1 motion for summary judgment when it found that there were genuine issues of material fact not amenable to resolution at such stage of the litigation. Additionally, plaintiffs claim that they have "made specific reference to defendants' exhibits, presented their own to support their responses to the statement, and provided the reasons why each issue of fact was not accepted as uncontroverted." Plaintiffs' Opposition to Motion for Reconsideration, Docket No. 69, at 2.) Plaintiffs further contend that the defendants incorrectly state that they have submitted a certification under penalty of perjury with regards to the fact that they did not replace Mr. Nieves with PDP members. (Id. at 3.) According to plaintiffs, such certification is not made under penalty of perjury and is therefore insufficient to establish the absence of a factual dispute as to that issue. (Id.)
D. Analysis
As stated in the May 2, 2003 opinion and order, political discrimination restrains the freedom of belief and association, core activities protected by the First Amendment. Cosme-Rosado v. Serrano-Rodríguez, 196 F. Supp.2d 117, 122 (D.P.R. 2002) (citingElrod v. Burns, 427 U.S. 347, 354 (1976)). A prima facie case of political discrimination is established by demonstrating that plaintiff (1) engaged in protected conduct and (2) that such conduct was a substantial or motivating factor in the adverse employment decision. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle. 429 U.S. 274, 287 (1977); see also Padilla-García v. Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000). In other words, a plaintiff has to prove that his or her political persuasions were a substantial or motivating factor in the challenged action. Ortiz-Piñero v. Rivera-Arroyo, 84 F.3d 7, 11-12 (1st Cir. 1996). Once a prima facie case has been established, then the employer is given an opportunity to demonstrate that it would have taken the same action regardless of plaintiffs political beliefs. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287.
However, as stated above, to survive a motion for summary judgment, the plaintiffs have to point to evidence in the record that would allow "a rational fact finder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus."Rivera-Cotto v. Rivera, 38 F.3d at 614. After reconsidering the evidence in the record and the arguments of the parties, I find that the plaintiffs have failed to do so. Accordingly, summary judgment in favor of the defendants is warranted.
To begin with, the only evidence that the plaintiffs presented in opposition to I summary judgment is the statement of contested material facts that is mandated by the local rules of this district, (see Local Rule 311.12), and the sworn statement of Mr. Nieves. j Their opposition attempts to raise the following issues for the trier of fact: (1) whether Nieves7 position at the municipality was duplicative and unnecessary (Docket No. 60, at 5); (2) whether the position was eliminated after his dismissal (id. at 6); (3) whether PDP affiliates have performed the duties previously performed by Nieves (id.); and whether, Nieves was hired in violation of municipal personnel laws (id. at 6-7.) However, the plaintiffs attempt to establish such a factual dispute by way of their own conclusory and unsupported assertions. They failed to submit an appropriate counterstatement of contested facts with specific reference to evidence in the record as mandated by the so-called "anti-ferretting" rule. Local Rule 311.12. On the contrary, all plaintiffs' statement does is either accept or deny defendants' statement of uncontested material facts.
The First Circuit has consistently admonished that parties ignore the anti-ferreting rule at their own peril. Ruiz-Rivera v. Riley. 209 F.3d 24, 28 (1st Cir. 2000). Non-compliance with said local rule can be, where appropriate, grounds for judgment against the party failing to submit an adequate statement. See Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 36 (1st Cir. 2001). Local Rule 311.12 was created u[i]n order to aid the Court in the daunting task of searching for genuine issues of material fact in the record[.]" Hogar Club Paraiso. Inc., v. Varela-Llavona, 208 F.R.D. 481, 482 (D.P.R. 2002). "A list of facts with no specific references to the record is of no use to the Court." Id.
In this regard, plaintiffs' statement is inadequate. It is limited to either accept or deny the assertions made in defendants' own statement of uncontested fact. In addition, there are no exhibits or evidence, other than Mr. Nieves' sworn statement, submitted to support their opposition. Finally, the only reference to the record in plaintiffs' statement is to an exhibit submitted by the defendants. (See "Plaintiffs Contested Issues of Fact, Docket No. 60, at 1, ¶ 4.) This can hardly be construed as an attempt to comply with Rule 311.12.
Nieves' sworn statement is deficient when it states that Mayor Hernandez-Torres stated that he would "dean the house of NPP employees" and that when Nieves was dismissed, his position was filled by Jorge Rodriguez-Torres, Eduardo Garcia and Brenda Santiago, all PDP members. An affidavit submitted in support of a motion for summary judgment has to satisfy the admissibility requirements of Federal Rule of Civil Procedure 56. In other words, a supporting affidavit must set forth facts that are admissible in evidence. Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 29 (1st Cir. 1998); Fed.R.Civ.P. 56(e). The affidavit does not satisfy the requirements of Rule 56(e). It fails to affirmatively show that, at least on the issues that plaintiffs' claim are disputed, he has personal knowledge and that the testimony would be admissible at trial.
Rule 56(e) provides in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Fed.R.Civ.P. 56(e).
In the face of all these deficiencies, plaintiffs fail to establish a prima facie case of political discrimination. Specifically, the plaintiffs fail to show that any adverse employment action against Mr. Nieves was motivated by a politically discriminatory animus on the part of the co-defendants. The defendants have presented a list of facts, adequately supported by references to admissible evidence in the record. (See "Defendants' Statement of Facts in Support of Summary Judgment," Docket No. 54.) Since, as discussed above, plaintiffs have failed to controvert said list of facts, the court will deem defendants' statements admitted and conclude that there is no genuine issue of material fact worthy of a trial. Hence, summary judgment was warranted in favor of the defendants as to plaintiffs' political discrimination claim. Defendants' motion for reconsideration is, accordingly, GRANTED.
I am mindful that defendants' motion also sought reconsideration of my finding that the same factual dispute precluded a determination as a matter of law on the issue of qualified immunity. I find it unnecessary to address the issue in view of my holding above that defendants are entitled to summary judgment on the political discrimination claim. See, e.g., Ramos-Bonilla v. Vivoni, 259 F. Supp.2d 135, 145-46 (D.P.R. 2003).
IV. CONCLUSION
After reviewing the record and considering the arguments of the parties, I find that plaintiffs failed to discharge their burden at the summary judgment stage. In other words, the plaintiffs have failed to establish that there are genuine issues of material fact requiring determination by a jury as to their claim of political discrimination. This decision incorporates the determination made in my May 7, 2003 opinion and order granting summary judgment in defendants' favor as to plaintiffs' due process claim. Thus incorporated, defendants' motion for summary judgment is GRANTED in its entirety. The supplemental claims invoked under 28 U.S.C. § 1367(a) and based upon Article 1802 of the Civil Code of Puerto Rico are also dismissed.The Clerk is directed to enter judgment dismissing the case in its entirety.
SO ORDERED.