Uphoff-Figueroa v. PREPA, et al

Filing 920100304

Opinion

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var WPFootnote1 = '                   Uphoff also sued under the Fifth Amendment\'s Due Process\
Clause and the Ninth Amendment. He does not appeal the district\
court\'s dismissal of these claims. See Uphoff-Figueroa I, 2005 WL\
3095517, at *12.\
'

var WPFootnote2 = '                   Those claims were under Puerto Rico Law 100, P.R. Laws\
Ann. tit. 29, §§ 146 et seq., and Puerto Rico Law 115, P.R. Laws\
Ann. tit. 29, § 194a; articles 1802 and 1803 of the Puerto Rico\
Code, P.R. Laws Ann. §§ 5141-42; and Article II, sections 1, 4, 6,\
7, 8, and 16, of the Constitution of the Commonwealth of Puerto\
Rico.\
'

var WPFootnote3 = '                   Those officials were Maria Mendez Rivera, Maria Torrales\
Hernandez, Ana Blanes Rodriguez, Hector Rosario, Ramon Rodriguez\
Melendez, and several John Does.\
'

var WPFootnote4 = '                   The briefs and trial transcript do not clearly explain\
how all of Uphoff\'s factual allegations supported his legal\
theories. We briefly recite his core factual claims as we\
understand them.\
'

var WPFootnote5 = '                   Uphoff does not challenge the district court\'s dismissal\
of his Fourteenth Amendment political discrimination claims against\
all defendants except Alejandro and Vazquez or its ruling that res\
judicata barred several claims.\
'

var WPFootnote6 = '                   "Thus, we have upheld political discharges of the\
regional director of an administrative agency, the municipal\
secretary in a mayor\'s office, an officer in charge of human\
resources, a director of public relations, a superintendent of\
public works, a director of a city\'s federal programs office, and\
a director of a satellite office of the Massachusetts Secretary of\
State." Flynn, 140 F.3d at 45; see also, e.g., Ruiz-Cassillas, 415\
F.3d at 132-33 (holding the second-ranking officer in a\
municipality\'s Federal Programs Division was a policymaker);\
Galloza, 389 F.3d at 30-32 (holding the regional administrator for\
the state\'s municipal tax collection agency was a policymaker).\
'

var WPFootnote7 = '                   Puerto Rico law classifies government positions as either\
"career" or "trust." Costa-Urena v. Segarra, 590 F.3d 18, 22 (1st\
Cir. 2009). "Trust" employees participate in policymaking and can\
be hired and fired on political grounds. Id. "Career" employees\
must be selected and terminated based on merit, not politics. Id. \
How Puerto Rico law classifies a position is not dispositive on\
whether the position is a policymaking one under the First\
Amendment. See Ruiz-Casillas v. Coamacho-Morales, 415 F.3d 127,\
133 (1st Cir. 2005).\
'

var WPFootnote8 = '                   The mistreatment claims that proceeded to trial against\
Alejandro and Vazquez were improperly classified under the rubric\
of the Equal Protection Clause rather than the First Amendment. An\
equal protection claim alleging political discrimination merely\
restates a First Amendment political discrimination claim and, as\
we have said repeatedly, should have been considered under the\
First Amendment. See, e.g., Morales-Santiago v. Hernández-Pérez,\
488 F.3d 465, 471 (1st Cir. 2007); Pagán v. Calderón, 448 F.3d 16,\
36 (1st Cir. 2006). We discuss the disposition of those claims\
later.\
              The Supreme Court has held that plaintiffs can bring political\
discrimination claims based on employment action beyond hiring and\
firing, but it has not precisely articulated what actions qualify. \
See Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65 (1990). \
It is unclear under current law whether many incidents of\
mistreatment Uphoff has alleged qualify. See id. But we need not\
reach that question; Uphoff does not appeal the district court\'s\
ruling that he failed to plead sufficient facts supporting\
political discrimination claims against the defendants except\
Alejandro and Vazquez, and the jury rejected his claims against\
Alejandro and Vazquez.\
'

var WPFootnote9 = '                   His original federal court complaint did not set forth a\
cause of action under the FLSA, and his amended complaint did not\
erase that problem by purporting to add a retaliation claim.\
              In any event, as we explain below, the district court properly\
held that Uphoff presented no evidence showing the individual\
defendants except Alejandro and Vazquez were liable on any claim. \
And the jury found, in a special verdict in favor of Alejandro and\
Vazquez, that Uphoff did not suffer retaliation.\
'

var WPFootnote10 = '                   Once the FLSA claim was dismissed, the district court\
declined to exercise supplemental jurisdiction over the remaining\
state law claims against PREPA. Uphoff-Figueroa II, 2006 WL\
1663537, at *3. Uphoff asserts the district court erred by doing\
so, but he has waived this argument by failing to develop it any\
further in his brief. Regardless, a district court has discretion\
to decline to exercise supplemental jurisdiction after dismissing\
"all claims over which it ha[d] original jurisdiction." 28 U.S.C.\
§ 1367(c)(3); see also Alvarez-Torres v. Ryder Mem. Hosp., Inc.,\
582 F.3d 47, 53 (1st Cir. 2009).\
'

var WPFootnote11 = '                   The FLSA exempts from its wage and hours requirements,\
inter alia, "any employee employed in a bona fide executive,\
administrative, or professional capacity." 29 U.S.C. § 213(a)(1). \
Federal regulations define "professional" to include "learned\
professionals" and establish a three-part test to determine whether\
employees are "learned professionals." See 29 C.F.R. § 541.301(a). \
Employees must "perform work requiring advanced knowledge." Id.\
§ 541.301(a), (b). That advanced knowledge "must be in a field of\
science or learning," which "includes the traditional professions\
of law, medicine, theology," and the like. Id. § 541.301(a), (c). \
And it "must be customarily acquired by a prolonged course of\
specialized intellectual instruction," generally an academic\
degree. Id. § 541.301(a), (d).\
'

var WPFootnote12 = '                   Law 100 prohibits employment discrimination, including\
because of political affiliation. P.R. Laws Ann. tit. 29, § 146;\
Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 15 n.6 (1st Cir.\
2001). Uphoff sued under several Puerto Rican constitutional\
provisions that also bar employment discrimination and retaliation. \
See P.R. Const. art. II, §§ 1, 4, 6, 7, 8, 16. Articles 1802 and\
1803 are derivative tort statutes that depend on "the viability of\
the underlying employment discrimination claim." Costa-Urena, 590\
F.3d at 30; see also P.R. Laws Ann. tit. 31, §§ 5141-42.\
'

var WPFootnote13 = '                   The jury also rejected the remaining state law claims\
against Alejandro and Vazquez.\
'

var WPFootnote14 = '                   The parties dispute whether Uphoff preserved his\
objections. Uphoff preserved his objection to the jury\
instructions on political retaliation; he asked the district court\
to use his list of eleven incidents in that instruction.\
              Uphoff arguably waived his objection to how the verdict form\
presented his political discrimination claims. He asked the court\
to include his list in question 7 but argues on appeal the court\
should have included his list in question 6. Because question 6\
contained materially identical language to question 7, we will\
assume arguendo that Uphoff preserved an objection to question 6.\
              Uphoff agrees he did not preserve his objection that the \
verdict form prevented the jury from reaching question 7 and\
accepts we must review it for plain error.\
'

var WPFootnote15 = '                   Uphoff also argues the jury\'s discrimination verdict was\
inconsistent because it found he was treated differently because of\
his political affiliation (in some undefined way) but found the\
defendants\' actions described were nondiscriminatory. Parties must\
object that a jury verdict was inconsistent before the jury is\
dismissed to preserve that objection. E.g., Wennik v. Polygram\
Group Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). Uphoff\
does not dispute that he did not object before the jury was\
discharged, and this claim is waived.\
'

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