# United Stat es Court of Appeals For the First C ircuit

No. 04-1628 DOMINGO GUZMÁN-RUÍZ, ET AL., Plaintiffs, Appellants,

v. FRANKIE HERNÁNDEZ-COLÓN, ET AL., Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Perez-Gimenez, U.S. District Judge ]

Before Selya, Circuit Judge , Coffin, Senior Circuit Judge , and Lynch, Circuit Judge .

Arturo Luciano Delgado for appellants. Luis Villares Sarmiento with whom Sánchez-Betances, Sifre, Muñoz-Noya & Rivera, P.S.C. was on brief for appellees HernandezColon and Maldonado-Arrigoitia. GaryH. Montilla with whom Roberto Márquez- Sánc hez was on brief for Arecibo.

April 27, 2005-2-

COFFIN, Senior Circuit Judge . This is an appeal from a summaryjudgment in favor of Puerto Rico defendant municipality, Arecibo, its mayor and its director of human resources, in a political discharge suit brought by fourteen employees. Plaintiffs are members of the New Progressive Party (NPP) and the individual defendants are members of the Popular Democratic Party (PDP), which

wa s restored to power after the election of 2000. The new l y electedmayor, Frankie Hernández-Colón, allegedly facing a formidable municipal financial crisis, instigated the termination of many employees, including the plaintiffs. Plaintiffs' complaint, seeking both injunctive relief and damages, invoked 42 U.S.C. §§ 1983, 1985(3), and other federal

causes of action, as well as several Commonwealth provisions. Defendants submitted motions for dismissal a n d summary judgment supported by statements of municipal officers evidencing not only financial stringency but also implementation of a seniority-based layoff plan devised in contemplation of such an emergency by the prior mayor, an NPP member. The district court accepted the

reco mmendations of a magistrate judge that summary judgment be granted in favor of the defendants. After reviewing the evidentiarystate of the record in search of material issues of fact and noting a series of procedural defaults, we affi rm the rulings of the district court rejecting belated reques ts for discovery and concluding that the record is-3-

bereft of any evidence of political animus motivating the discharges. We review the former ruling for abuse of discretion, Torres-Rosado v. Rotger-Sabat , 335 F.3d 1, 5 n.2 (1st Cir. 2003), andthe latter de novo, Rodrigue z v. Ameri can Int'l Ins. Co. of Puerto Rico , 402 F.3d 45, 46 (1st Cir. 2005). We first consider plaintiffs' complaint, which th e di strict court generously characterized as establishing a prima facie case of discrimination. The complaint described plaintiffs as NPP "activists," who served as NPP officers and delegates on election dayin 2000 and assisted at rallies and meetings during the campaign. The ir political beliefs were alleged, in conclusory terms, to be known by defendants. The fourteen plaintiffs were describe das h olding the following positions: carpenter (2), janitor (2), driver (2), clerk (3), secretary (2), coordinator, receptionist, and worker. These allegations may very well describe plaintiffs' jobs as protectedfrompolitically motivated dismissal, see , e.g. , PadillaGarcía v. Guillermo Rodríguez , 212 F.3d 69, 74 (1st Cir. 2000) (non-policymaking employees are protected from employment decisions basedon political affiliation), but job terminations are not unconstitutional solely "because those affiliated with one political party are disproportionately impacted," Sanchez-Lopez v. Fuentes-Pujols , 375 F.3d 121, 140 ( 1st Cir. 2004).-4-

In Acevedo-Diaz v. Aponte , 1 F.3d 62, 69 ( 1st Cir. 1993), plaintiffs were described as playing prominent roles in "publicly and vocally supporting" a former mayor. Even so, we acknowledged that, "[s]tanding alone, even the circumstantial evidence that some plaintiffs were especially conspicuous targets for discriminatory employment action by defendants would give us serious pause." And,

even more recently, in Gonzalez de Blasini v. Family Dep't , 377 F.3d81, 85-86 ( 1st Cir. 2004), we affirmed dismissal of a complaint, concluding that even though plaintiff was alleged to be

a well known supporter of the NPP, had held a trust position under the pr evious NPP administration, and defendant had expressed interest in giving her position to a PDP member, this fell short of evidence that defendant knew of plaintiff's affiliation. See also Cosme-Rosado v. Serrano-Rodríguez , 360 F.3d 42, 48 ( 1st Cir. 2004) (st atement of PDP mayor of intent to rid town of NPP activis t s insufficient to generate genuine issue of material fact); FigueroaSerrano v. Ramos-Alverio , 221 F.3d 1, 8 (1st Cir. 2000) (similar). We note our doubt concerning whether plaintiffs had truly set forth a prima facie case to emphasize that it is at best no t a strong one . T heir task under the burden-shifting analysis applicable to political discrimination cases was to show that their constitutionallyprotected conduct was a substantial or motivating factor for the adverse employment de cision . See , e.g. , PadillaGarcía , 212 F.3d at 74 (citing Mt. Healthy City Sch. Dist. Bd. of-5-

Educ. v. Doyle , 429 U.S. 274, 287 (1977)). Assuming their skimpy showing met this standard, the allegations nonetheless lack any specific information that could bulwark a ca se for rejecting the genuineness of defendants' response that they "would have taken the same action regardless of the plaintiff's political beliefs," id. (referring to "the Mt. Healthydefense"). This sets the stage for the critical assessment of defendants' profferedjustific ation. After considerable jousting by the parties over service of process and plans for discovery, the court set th e da te of May 7, 2003 for a status conference. A few days before that date, defendants fileda motion for summary judgment with a Statement of Uncontested Material Facts and a motion to dismiss. Unaccountably, plaintiffs' counsel didnot attend the May 7 conference. This was only the beginning of missed cue s. Plaintiffs respondedon May 14 to the mot ion for summary judgment only by requesting an extension of time beyond the customary ten day limit to June 11 to oppose the motions. That date passed without any effort to secure a further extension, or to conduct discovery, and withou t an y statement of opposition or opposing statement of material facts, as required by local rules. Accordingly, on July 14, the court referred the case to the m agistrate judge for a report and recommendation, which was to be considered "unopposed." Under the applicable local rule, facts in a statement of material-6-

facts, if supportedby record citations, are deemed admitted unless properly controverted. See D.P.R. R. 56(e). Thre e weeks later, on August 8, plaintiffs' counsel file d a motion for reconsideration of the order of reference. We have looked in vain for any support for such a motion except an appeal for sheer mercy. Counsel averred that it was "foreseeable that plaintiffs would need additional time [beyondJune 11] to conclude the discovery" but did not explain why preventive anti cipatory action was not attempted. Counsel had "coordinated" the tentative deposition of defendant Ma yor He rnández but "the undersigner calendar [sic] during the months of June and July of 2003 prevented to do so." Finally, the request: "Plaintiffs deserve an opportunityto conduct further discovery . . . . It was our mistake not to request an additional extension of time to oppose said motion." Counsel perhaps deserves high marks for candor, but to ask us to find that the district court abused its discretion in refusing to grant this motion is to ask us to use this sad case to make very badlaw. Counsel for Arecibo appropriately calls our attention to Justice Harlan's thought in Link v. Wabash Railroad Co. : "[K]eeping this suit alive merely because plaintiff should not be p enaliz ed for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant ." 370 U.S. 626, 634 n.10 (1962) (emphasis in original). Now, if ever, are the teachings of-7-

such cases as Resolution Trust Corp. v. North Bridge Assocs. , 22 F.3d 1198 ( 1st Cir. 1994), pertinent. There, we called attention to the safety valve of Fed. R. Civ. P. 56(f), which gives a party with an authentic need the opportunity to buy more time to mount an opposition to summary judgment. Id. at 1203. But we emphasized that invoking the r ule required "due diligence both in pursuing disc over ybefore the summary judgment initiative surfaces and in pursuing an extension of time thereafter." Id. In addition to due diligence, we added: When, as is often the case, the reason [for a requested extension] relates to incomplete discovery, the party's explanation must take a special form: it should show good cause for the failure to ha ve d iscovered the facts sooner; it should set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exi st; and it shouldindicate how the emergent facts, if adduced, will influence the ou t come of the pending summary judgment motion. Id. In this case, there was no diligence exercised during the three month s of May, June, and July after the motion for summary judgment surfaced. And not only was no good cau se shown for failure to have discovered facts sooner, but there w as no indication of plausibly hoped for "specified facts" and the f easibilityof their timely collection. We therefore h ave n o alternative but to conclude that the district court did not abuse its d iscr etion in refusing to reconsider and grant belated discovery. The magistrate judge therefore properly considered the-8-

defe ndants' statement of uncontested material facts as unopposed and, consequently, conceded to be true. Thu s gu ided, the magistrate judge first noted the sworn statement of Arecibo's Finance Director stating that as of the beginning of Mayor Hernández's administration in 2001 Arecibo had a deficit of twelve million dollars. The statement asserted that because of this extrem e si tuation, and after considering other options such as personnel relocation and reduction of working hours, "the only option available to prevent a collapse of the Municipal economy was to implement layoff of personnel." The report went on to consider the sworn statement of the municipality's Human Resources Director, referring to letters of dismissa l (c opies of which were included) informing employees of their impending dismissal, due to the economic crisis, under a dismissal plan b ase d on seniority. Each letter notified the recipient of his right to appeal the dismissal to the Appeals Board of the Personnel System. Finally, the magistrate judge found no evidence of pretext concealing a discriminatory animus. He then, apparently having given every favorable inference to the allegations in the complaint, recommended that summary judgment issue for defendants. Pl aint iffs made timely objections to this report and

rec omm endation, which are really a replay of the plea for discoverymade in the motion for reconsideration. They consist of-9-

two types of allegations. The first is a criticism of both the f inancial deficit information and the procedures follo wed i n implementing the layoff plan. For example, the assertion is made that defendants' "fact" concerning financial crisis "can be easily questioned" by reviewing municipal financial statements a n d the "totalityof the personnel actions." Th e dema nd is for unidentified more "reliable" documents than the affidavits of the Finance Director and the Human Resources Director. The second set of allegations consists of categorical assertions lacking in any specificity, such as: "certain employees" have been excluded from dismissal and allowedto continue working;

new personnel have been hired; "big spending" has taken place; all municipal appointed directors have received substantial pay increases. Plaintiffs assert that, if discovery is allowed, all this will be proven. What all this comes down to is an outline of areas of hopeful inquiry , something that plaintiffs could have articulated and pursuedmonths earlier. Ultimately, we come to the judgment of the district court when it adopt ed andapproved the Report and Recommendation of the magistrate judge, granting summary judgment for defendants and dismissing all claims. Its key finding was that "[t]he record is void of evidence supporting allegations of political discrimination." While plaintiffs assert that the court placedan improper burden on them to show pretext affirmatively, we-10-

think the state of the record is such that there is no basis for a rational jury to conclude other than that plaintiffs' terminations

w ere the result of "uniformly applied personnel practice s[ ] predicatedon legitimate reasons," Sanchez-Lopez , 375 F.3dat 140. There are two remaining arguments of plaintiffs that claim our attention. On October 31, 2003, they filed an "Informative Motion andRequest of Judicial Knowledge," asking t he court to take judicial notice "for all legal purposes" of another case involving

some two hundred dismissed employees in which plaintiffs had filed

a motion for summary judgment before another judge. We note first that plaintiffs did not make this argument to the magistrate, and it is therefore waived. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co. , 840 F .2d 985, 990-91 (1st Cir. 1988). Moreover, plaintiffs made no attempt to specify what "adjudicable facts" met the requirements of Federal Rule of Evidence 201. Not only do pleadings, parties, issues, and facts differ in different cases, but plaintiffs ca nnot sidestep their neglect to offer evidence in this case by asking the court to rule on the basis of the record in another case. Finally, the district court's ruling in the other case – finding that the seniori ty plan used by defendants "could not, as a matter of law, have formed t he le gal basis for Plaintiffs' dismissal" – did not occur until March 2004, some four months after the Informative Motion was made and on the-11-

same day that the di strict cou rt in this case signed its order. Refusal to take judicial notice was amply justified. Afinal contention is that the district court improperly dismissedplaintiffs' claims based on Act No. 382 of May 11, 1950, 29 P.R. Laws Ann. §§ 136-139. This argument dwindles in the face of the municipality's assertion, not denied by plaintiffs, that the provision was repealed by Act 121 of September 13, 1997, before any events relating to this case took place. Affirmed.