Lopez Hernandez v. Fajardo-Velez, (1st Cir. 2003)

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Not for Publication in West's Federal Reporter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

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

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

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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