Ocasio-Hernandez, et al v. Fortuno-Burset, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [13-1336]

Case: 13-1336

Document: 00116788616

Page: 1

Date Filed: 01/20/2015

Entry ID: 5880725

United States Court of Appeals
For the First Circuit

No. 13-1336
CARMEN M. OCASIO-HERNÁNDEZ, GERARDO PIZARRO-PIZARRO, JORGE L.
RODRÍGUEZ-FIGUEROA, ÁNGEL L. FIGUEROA-ROLÓN, HÉCTOR G.
GUERRERO-FRAU, DIANA D. RODRÍGUEZ-VICENTE, NYDIA DÍAZ-FRANCISCO,
CARLOS SANTOS-RIVERA, JUAN CARRASQUILLO-LÓPEZ, FELÍCITA
RIVERA-BÁEZ, IVÁN RIVERA-CANALES, WILLIAM BURGOS-CASTELLANOS,
VÍCTOR M. CAMACHO-PIZARRO, ÁNGEL BÁEZ-TORRES, JOHN DOE-01,
CONJUGAL PARTNERSHIP DOE-OCASIO, JANE DOE-01, CONJUGAL
PARTNERSHIP PIZARRO-DOE, JANE DOE-02, CONJUGAL PARTNERSHIP
RODRÍGUEZ-DOE, JANE DOE-03, CONJUGAL PARTNERSHIP FIGUEROA-DOE,
JANE DOE-04, CONJUGAL PARTNERSHIP GUERRERO-DOE, JOHN DOE-02,
CONJUGAL PARTNERSHIP DOE-RODRÍGUEZ, JOHN DOE-03, CONJUGAL
PARTNERSHIP DOE-DÍAZ, JANE DOE-05, CONJUGAL PARTNERSHIP
SANTOS-DOE, JANE DOE-06, CONJUGAL PARTNERSHIP CARRASQUILLO-DOE,
JANE DOE-07, CONJUGAL PARTNERSHIP RIVERA-DOE, JOHN DOE-04,
CONJUGAL PARTNERSHIP CARRASQUILLO-DOE, CONJUGAL PARTNERSHIP
RIVERA-DOE; CONJUGAL PARTNERSHIP DOE-RIVERA, JANE DOE-08,
CONJUGAL PARTNERSHIP BURGOS-DOE, JANE DOE-09, CONJUGAL
PARTNERSHIP CAMACHO-DOE, JANE DOE-10, CONJUGAL PARTNERSHIP
BÁEZ-DOE,
Plaintiffs, Appellants,
v.
LUIS G. FORTUÑO-BURSET, in his personal capacity and as Governor
of the Commonwealth of Puerto Rico, LUCÉ VELA, in her individual
and official capacity as First Lady, VELMARIE BERLINGERI-MARÍN,
in her individual and official capacity as Administrator of the
Governor's Mansion, JUAN CARLOS BLANCO, in his individual and
official capacity as Chief of Staff, CONJUGAL PARTNERSHIP
FORTUÑO-VELA, JOHN DOE, CONJUGAL PARTNERSHIP DOE-BERLINGERI, JANE
DOE, CONJUGAL PARTNERSHIP BLANCO-DOE,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]

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Before
Torruella, Thompson, and Barron,
Circuit Judges.

Carlos Antonio Del Valle Cruz, with whom Eileen Landrón
Guardiola, Eduardo Vera Ramírez, Luis A. Rodríguez Muñoz, and
Landrón & Vera, LLP were on brief, for appellants.
Margarita Mercado-Echegaray, Solicitor General, Department of
Justice, for appellees.

January 20, 2015

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THOMPSON, Circuit Judge.

Date Filed: 01/20/2015

Entry ID: 5880725

In 2009, the plaintiffs --

fourteen maintenance, domestic, and warehouse workers -- embarked
on a quest to seek some relief after being abruptly fired from the
Puerto

Rico

executive

governor took the helm.1
"the

workers"

--

mansion

shortly

after

a

newly

elected

The plaintiffs -- to whom we'll refer as

sued

then-Governor

Luis

Fortuño-Burset

("Fortuño"), his wife, and two executive staffers, alleging that
they were terminated solely because they affiliated with Fortuño's
rival political parties. The firings, the workers have maintained,
amounted

to

political

discrimination

prohibited

by

the

First

Amendment.
After six years and two appeals, this voyage has reached
its end -- for the reasons discussed below, we affirm the district
court's

summary

judgment

disposal

of

the

workers'

political

discrimination claim.2
I. BACKGROUND
A. The Factual Skeleton
Because we are reviewing a summary judgment motion, we
recite the facts "in a light as favorable to [the workers] as the

1

One of the fourteen plaintiffs worked at the governor's
country home, and not at the executive mansion. This variance does
not affect our analysis.
2

The workers also appeal the district court's denial of their
motion to reconsider the summary judgment decisions, which we
address below.
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record will reasonably allow."

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Velázquez-Pérez v. Developers

Diversified Realty Corp., 753 F.3d 265, 267 (1st Cir. 2014).
In

November

2008,

Fortuño,

of

Puerto

Rico's

New

Progressive political party ("NPP"), defeated the incumbent, a
member of the NPP's primary rival, to become Puerto Rico's newly
elected governor. Fortuño took office on January 2, 2009, bringing
on board a chief of staff, Juan Carlos Blanco-Urrutia ("Blanco"),
and an administrator, Velmarie Berlingeri-Marín ("Berlingeri").
Through an executive order, Fortuño authorized Berlingeri to "take
any necessary actions and sign any necessary official documents
related to the administration of the Office of the Governor," which
included administering the executive mansion, where the governor
lived and worked.
A few days after taking office, Fortuño issued another
executive order declaring a statewide fiscal emergency, authorizing
a hiring freeze across state agencies, and requiring certain
spending cuts.
eliminate
positions."

The executive order required each state agency to

thirty

percent

of

"all

authorized

trust

service

Relevant to this case, "trust service" employees --

one of several categories of employment types within the Puerto
Rico government -- could be "freely remove[d]," or, in other words,
terminated without cause.

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Shortly after the executive order was issued, each of the
plaintiffs (all of whom were trust employees)3 was let go either in
February or March 2009, by way of written termination letters
signed by Berlingeri.

The termination letters (which were all

identical in substance) did not provide a specific reason for the
firings,

citing

only

to

the

regulations

allowing

for

"trust

service" employees to be "freely selected and freely dismissed."
Berlingeri has since asserted that some of the workers were fired
-- based on the recommendation of their immediate supervisors -because of their poor work performance; others, she claimed, were
fired due to the budget cuts.
B. The (Long) Procedural History
Wasting no time, in March 2009, the workers sued Fortuño,
his chief of staff (Blanco), his administrator (Berlingeri), and
his wife, First Lady Luz E. Vela-Gutiérrez ("Vela"), asserting that
each of the defendants had a role in their allegedly unlawful
terminations and claiming they were fired because they affiliated
with non-NPP political parties.

The workers' complaint brought §

1983 claims,4 alleging violation of their due process and equal

3

During the summary judgment proceedings before the district
court, the workers took issue with documentation the defendants
used to verify that a few of the plaintiffs were trust employees.
But the plaintiffs did not dispute there (or in their briefing to
us) that they were in fact part of the trust service.
4

42 U.S.C. § 1983 allows plaintiffs to sue for constitutional
violations.
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protection rights under the Fifth and Fourteenth Amendments and
their right to free speech under the First Amendment.5

They also

sought relief under numerous Puerto Rico laws and the Puerto Rico
constitution.
In

July

2009,

the

defendants

moved

to

dismiss

the

workers' claims, arguing that the complaint failed to state a
plausible claim for relief. The district court allowed that motion
and dismissed all of the federal and state claims against all of
the defendants.
Apparently

abandoning

their

due

process

claim,

the

employees appealed only the dismissal of their First Amendment and
state law causes of action;6 we vacated the dismissal of those
claims and remanded them to the district court.

See Ocasio-

Hernández v. Fortuño-Burset, 640 F.3d 1, 19 (1st Cir. 2011).
With the case back before the trial court, discovery
ensued. At its close, the defendants moved for summary judgment on
the remaining political discrimination claim, arguing that the
workers could not show that the defendants knew of their political

5

The workers later amended their complaint. We refer to the
amended complaint (which is the operative one in this case) as "the
complaint."
6

Readers may be wondering why this case feels so familiar.
The answer is likely because our 2011 decision, which involved the
same parties, has become well known (and frequently cited) for its
detailed explanation of the applicable standard of review for a
motion to dismiss. See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12-13 (1st Cir. 2011).
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views or that politics was a reason for the terminations.

In a

written order, the court allowed the motion as to Fortuño, Vela,
and Blanco on the grounds that there was no evidence that these
defendants were aware of the workers' political affiliations or
that they were personally involved in the terminations.

The court

held off on Berlingeri because it wanted to engage in "additional
and deeper analysis" and hear oral argument before deciding whether
to dismiss the claim against her.

The court later ended up

dismissing Berlingeri from the case as well, in a separate written
decision concluding that there was insufficient evidence that
political affiliation was the reason for the dismissals.7 The
workers then moved the district court to reconsider its judgment,
which the court denied.
The workers now bring the case to us once again; on
resurgence, they ask us to reverse the district court's summary
judgment disposal of their First Amendment claim, as well as the
court's subsequent denial of their motion to amend the judgment.
We address both rulings in turn.
II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de
Velázquez-Pérez, 753 F.3d at 270.

novo.

Summary judgment is

appropriate only if the moving party "shows that there is no

7

The court also dismissed the state law claims against all
the defendants, which the workers do not appeal.
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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).

We

consider a dispute genuine if "a reasonable jury, drawing favorable
inferences, could resolve it in favor of the nonmoving party."
Velázquez-Pérez, 753 F.3d at 270 (citation and quotations omitted).
But

"[c]onclusory

allegations,

improbable

inferences,

and

unsupported speculation[] are insufficient to establish a genuine
dispute of fact."

Id. (citation and quotations omitted).

To succeed in showing that there is no genuine dispute of
material fact, the moving party must direct us to specific evidence
in the record that would be admissible at trial.

That is, it must

"affirmatively produce evidence that negates an essential element
of the non-moving party's claim," or, using "evidentiary materials
already on file . . . demonstrate that the non-moving party will be
unable to carry its burden of persuasion at trial."

Carmona v.

Toledo, 215 F.3d 124, 132 (1st Cir. 2000) (citations omitted).
"[I]f the summary judgment record satisfactorily demonstrates that
the plaintiff's case is, and may be expected to remain, deficient
in vital evidentiary support, this may suffice to show that the
movant has met its initial burden."

Id. at 133.

III. DISCUSSION
A. Summary Judgment
The dispute before us arises from the well established
constitutional mandate prohibiting government officials from firing
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public employees on the basis of their political affiliations.8

To

prove political discrimination, the workers must show that: (1)
they and the defendants have "opposing political affiliations," (2)
the defendants were aware of the workers' political affiliations,
(3)

an

"adverse

termination)
substantial
action."9

employment

occurred,
or

and

motivating

action"

(4)

(e.g.,

"political

factor

for

the

an

employment

affiliation
adverse

was

a

employment

Ocasio-Hernández, 640 F.3d at 13.
Here, the district court held in a written ruling that

the workers "failed to come up with any evidence to the effect that
[Fortuño, Vela, and Blanco] were aware of their adverse political
affiliation,

and

as

such,

that

partisan

politics

played

a

8

While not applicable in this case, an exception to this rule
is when "political affiliation is an appropriate requirement for
the position." García-González v. Puig-Morales, 761 F.3d 81, 92
(1st Cir. 2014) (citation and quotations omitted).
9

The workers expend a good bit of effort in their opening
brief trying to convince us that they have successfully
defense.
See
circumvented
the
defendants'
Mt.
Healthy
Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.
2000) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977)) (holding that after the plaintiffs make
a prima facie showing of political discrimination, the government
official is then "given the opportunity to establish that it would
have taken the same action regardless of the plaintiff's political
beliefs"); Padilla-Garcia, 212 F.3d at 77 ("[T]he plaintiff may
discredit
the
proffered
nondiscriminatory
reason,
either
circumstantially
or
directly,
by
adducing
evidence
that
discrimination was more likely than not a motivating factor [in the
termination decision]."). We need not reach Mt. Healthy at all in
this case because -- as we explain below -- the workers have not
met their threshold prima facie burden.
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substantial or motivating role" in the terminations.10

Entry ID: 5880725

Later, in

a separate written ruling addressing the remaining defendant,
Berlingeri, the trial judge acknowledged that the "parties disagree
whether

Berlingeri

affiliations,"

but

had

knowledge

"refrain[ed]

from

of

Plaintiffs'

passing

political

judgment

on

the

knowledge requirement" because it was "dismiss[ing] Plaintiffs'
claims on alternative grounds," i.e., causation.
As we explain below, we agree with the district court
that the record lacks sufficient evidence that Fortuño, Vela, and
Blanco were aware of the plaintiffs' political affiliations.

And,

although the district court did not address Berlingeri's knowledge,
we conclude that the record does not provide enough evidence of
hers either, and affirm both summary judgment rulings on that
ground.11

10

The court also found that there was no evidence that
Fortuño, Vela, or Blanco were personally involved in the
terminations, which is also a requirement for any constitutional
claim against a government official. See Ocasio-Hernández, 640
F.3d at 16. Because we are affirming on other grounds, we need not
address that issue.
11

With the exception discussed below, the defendants do not
make an issue of elements one or three of the political
discrimination test on appeal. They do argue (as they did before
the district court) that the workers' case fails as to both the
knowledge and causation prongs (elements two and four) as to all
the defendants.
The district court dismissed the claim against Berlingeri
as to a single plaintiff, Iván Rivera, on the ground that he did
not have an opposing political affiliation (element one of the
political discrimination test).
Following suit, the defendants
argue that because Rivera "is a member of the NPP and admittedly
voted for Fortuño . . . in the 2008 general elections," he does not
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We delve into our discussion by first noting that the
workers' opening brief does not address the sufficiency of evidence
of knowledge, focusing instead on causation.

At oral argument,

counsel explained the workers' position that "given that the
[trial] judge did not decide [knowledge,] . . . [that issue] was to
be decided in favor of the plaintiff, and that for purposes of
appeal, [the court] must assume that the defendants knew of [the
workers'] political affiliation."
As we suggested at oral argument, counsel's statement is
incorrect in three respects.
First, the workers appear to have imparted a holding that
was specific to Berlingeri on the rest of the defendants.

As we

noted above, the district court did rule on knowledge as to
defendants Fortuño, Blanco, and Vela, but separately from its
ruling on Berlingeri.12

have an opposing political affiliation. As we have noted before,
however, being a member of the same political party does not
necessarily alter the "constitutionally protected status" of a
person's political affiliations. Padilla-Garcia, 212 F.3d at 76 &
n.6. See also Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir.
1991) ("We do not think that liability in a political
discrimination
case
involving
non-policymaking
positions
necessarily depends on a finding that the defendants knew to a
certainty that the ousted jobholders were members of the opposition
party."). We need not address the specifics of what might save
Rivera on the first prong, however, because in any event, we affirm
on the lack of evidence regarding the defendants' knowledge of any
of the plaintiffs' political affiliations.
12

Given that the summary judgment ruling that addressed the
claims against Fortuño, Vela, and Blanco was not included in the
notice of appeal, perhaps the workers simply overlooked the fact
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Second, the workers incorrectly suggest that the district
court's choice not to address Berlingeri's knowledge equated to a
ruling in their favor on that particular issue.
Third, based on their misapprehension that the district
court ruled in their favor on Berlingeri's knowledge, the workers
assume that we are now obligated to adopt the district court's
ruling in that regard, thus choosing to focus their arguments on
the causation element.
Here are the problems with the workers' logic.

On de

novo review of a summary judgment motion, we undertake the same
inquiry as the district court -- we look at whether the supported
facts, when considered as a whole, are legally sufficient to
satisfy each element of a claim.

Here, the district court did not

decide one way or another whether the knowledge element was
satisfied as to Berlingeri.

It simply found that there was

insufficient evidence in the record to satisfy a different element

that those particular defendants were dismissed in a separate
ruling from Berlingeri.
Despite the workers' failure to include both summary judgment
rulings in the notice of appeal, a mistake that generally divests
us of jurisdiction under Federal Rule of Appellate Procedure
3(c)(1)(C), we still review them both.
The notice of appeal
references the judgment entered against all the defendants, and
both parties briefed (and argued) the merits of the dismissals of
the First Amendment claim as to all the defendants. Therefore,
despite it being "carelessly drafted," the notice of appeal
"provides a sufficient foundation for the exercise of appellate
jurisdiction over the original order of dismissal." Chamorro v.
Puerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002).
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of the workers' claim (i.e., causation), and dismissed Berlingeri
on that ground.
Even if the district court had ruled, in the workers'
favor, that the record showed sufficient evidence of Berlingeri's
knowledge, on de novo review, we do not just assume the district
court was correct in its ruling.

Rather, we take a fresh look at

the record to determine for ourselves whether the plaintiffs met
their evidentiary burden.13

In so doing, "we are not bound by the

district court's decisional calculus but, rather, may affirm the
decision below on any ground made manifest by the record." Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007).
As we will explain, upon our review of the record, a jury
could not reasonably infer that any of the defendants were aware of
the workers' political affiliations.

Because the plaintiffs' case

fails on that element, we need not address any others.
Knowledge
Even though the workers mistakenly presumed that the
knowledge element was satisfied as to all of the defendants, we
gave the workers a chance at oral argument to point us to what, if
any, evidence in the record suggests that any of the defendants
were aware of their political affiliations.

13

The workers conceded

We further note that we allowed the workers' motion to waive
the filing of an appendix and, per the workers' request, conducted
our review of this case "on the original record." Thus, we had no
choice but to independently scour the summary judgment record.
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that the record offered no direct evidence that the defendants knew
of their political inclinations, but urged us to infer that because
the workers were hired by a prior administration, the defendants
must have known that they were not affiliated with Fortuño's party.
We recognize that political discrimination, which often
turns on an employer's cloaked motives, can be hard for a worker to
to prove.

In so recognizing, we have consistently held that

circumstantial evidence can suffice to show a defendant's knowledge
of a plaintiff's political party.

See, e.g., Martinez-Vélez v.

Rey-Hernández, 506 F.3d 32, 44 (1st Cir. 2007) (noting that a jury
could

reasonably

infer

that

the

defendant

was

aware

of

the

plaintiff's NPP affiliation based on testimony that the plaintiff
"spoke openly about her political views and sat in the NPP portion
of the de facto segregated cafeteria").

We have also held that a

government official's knowledge that an employee was hired by a
prior administration -- when considered in tandem with other
relevant facts -- could certainly help prove the defendant's
knowledge of the employee's political affiliation.

See, e.g.,

Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991) ("Given the
nature of the [employees'] positions, the defendants' knowledge
that the plaintiffs had originally been hired by the previous []
administration, the timing of the moves, the identities of those
consulted, the lack of any legitimate reason for ousting the
incumbents,

and

the

partisan

connections

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of

the

replacement

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workers, it seems disingenuous to suggest that [the defendant]
acted without regard to the politics of the situation.").
Beside the fact that here, the workers' argument lies on
a shaky factual premise (the defendants claim, and the workers do
not refute, that two of the plaintiffs were actually hired under an
NPP administration), more generally, a defendant's mere knowledge
that an employee was hired by a prior governor -- without more -is not sufficient to show political discrimination.

Were that the

case, a newly elected governor could never impose budget-related
(or other legitimate) layoffs.

See Martinez-Vélez, 506 F.3d at 42

(concluding that if reorganization "was hatched as a plan to clear
the decks of NPP [employees] so that PDP [employees] could be
favored, it was up to plaintiffs to conduct the necessary discovery
and offer the evidence [at trial].

Liability without such proof

would effectively preclude any post-election reorganization that
happens to affect adversely employees connected to the previously
dominant party.").
Significantly, as the defendants have pointed out, the
workers here have directed us to no evidence showing that the
defendants they sued had knowledge of their particular political
affiliations.

The record actually suggests the opposite -- a

number of the plaintiffs testified at their depositions that
mansion employees did not usually discuss at work the political
parties to which they belonged, employees' political affiliations

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were not common knowledge within the mansion, and the plaintiffs
did not discuss politics in general at work.

The workers have

directed us to no evidence in the voluminous record to refute the
veracity of their own testimony. See Torres-Martínez v. P.R. Dep't
of Corr., 485 F.3d 19, 22 (1st Cir. 2007) ("[A]s to issues on which
the summary judgment target[s] bear[] the ultimate burden of proof,
[they] cannot rely on an absence of competent evidence, but must
affirmatively

point

to

specific

facts

that

demonstrate

the

existence of an authentic dispute.") (citation and quotations
omitted).

When all is said and done, the workers have offered no

proof that others in the mansion -- let alone the higher ups -- had
knowledge of their political leanings.

As we have held in the

past, while "an incoming administration may not use a systematic
reorganization to effectuate otherwise impermissible terminations,"
in order to defeat summary judgment, the plaintiffs have the burden
of directing us to sufficient record evidence to "create a triable
issue."

Rodríguez-Sanchez v. Municipality of Santa Isabel, 658

F.3d 125, 130-31 (1st Cir. 2011) (citation omitted).
We acknowledge that it is certainly curious that more
than a dozen workers -- almost none of whom affiliated with their
new boss's political party -- were all terminated within a couple
months of the new governor's move into the mansion.14 But we cannot

14

While the "temporal proximity between the change in
political administration and the turnover of staff . . .
unquestionably contributes . . . to the reasonable inference that
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a

to

case

suspicion.

to

proceed

trial

Date Filed: 01/20/2015

based

on

Entry ID: 5880725

unsubstantiated

The workers do not even offer generalized statistical

evidence showing how many NPP employees were retained after the
layoffs (as compared to non-NPP employees), whether NPP employees
were also given the boot, or whether the terminated workers were
replaced with NPP affiliates. See Anthony, 952 F.2d at 606 (noting
that

even

though

the

record

showed

that

most

of

the

ousted

plaintiffs were replaced by members of the opposing political
party, "these raw numbers alone [still] are likely insufficient to
ground a finding of patronage dismissal"); Figueroa-Serrano v.
Ramos-Alverio, 221 F.3d 1, 8 (1st Cir. 2000) (noting that in their
unsuccessful attempt to defeat summary judgment, "plaintiffs' most
viable claim, the allegation that similarly situated [opposing
party] members were not fired, lacked factual support," and that
plaintiffs "failed to provide names or other specific factual
information supporting their claim that the [government] replaced
them with new hires from the [opposing political party]"). Because
the workers have simply failed to meet their burden, we must affirm
the district court's grant of summary judgment.

the employment decision was politically motivated," OcasioHernández, 640 F.3d at 18, dubious timing, on its own, is still not
enough to prove the defendants had a discriminatory motive, id.,
let alone knowledge of a plaintiffs' politics. See also Anthony,
952 F.2d at 606 (considering timing of the terminations as one of
several circumstantial facts used to infer the defendants'
knowledge of plaintiffs' political affiliations).
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B. Motion to Alter Judgment
The workers also argue that the district court erred in
denying their request to reconsider the judgment, pursuant to
Federal Rule of Civil Procedure 59(e).

We grant Rule 59(e) relief

"when the original judgment evidenced a manifest error of law, if
there is newly discovered evidence, or in certain other narrow
situations."

Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930

(1st Cir. 2014)

(citation and quotations omitted).

The workers'

only articulated basis for appealing the denial of the motion to
reconsider is the "permitting of the evidence which was not
properly before the Court."

While the workers do not elaborate on

what evidence they refer to, based on discussion earlier in their
brief, we assume they object to the district court's apparent
reliance on deposition testimony stating that Berlingeri received
negative employee evaluations from the workers' direct supervisors.
The

workers

contend

that

this

testimony

evidence

would

be

inadmissible.
Whether

the

district

court

considered

inadmissible

hearsay to resolve the causation question is an orthogonal issue,
given that we are affirming on other of this case's shortfalls. We
needn't say more on the point.

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Case: 13-1336

Document: 00116788616

Page: 19

Date Filed: 01/20/2015

Entry ID: 5880725

IV. THE FAREWELL
The first time this case was before us, we expressed
outright our appreciation that the workers' allegations, as set out
in

their

complaint,

"unquestionably

describe[d]

a

plausible

discriminatory sequence that is all too familiar in this circuit."
Ocasio-Hernández, 640 F.3d at 19.

For laundry room workers, and

maintenance staff, and warehouse employees -- who have no direct
say in or influence on the policies of the government by which they
are employed -- to face recurring fear that their livelihood will
be pulled out from under them every time the state sees a change in
leadership is, to say the least, a sad state of affairs.

As the

district court judge suggested, perhaps the workers here were
unable to prove their case because they were stymied by the
mechanics of litigation deadlines.
case simply didn't stack up.

Or perhaps the facts of their

But unlike our assessment of the

sufficiency of a complaint, where we take the veracity of the
allegations at face-value, once summary judgment rolls around, the
proof is in the pudding.
For the reasons discussed above, we affirm both summary
judgment dismissals of the workers' First Amendment claim, as well
as the denial of their motion to reconsider.

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