Not for Publication in West's Federal Reporter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. 04-2005

TOMÁS R. CÉSPEDES RODRÍGUEZ,

Plaintiff, Appellant,

v.

VÍCTOR RIVERA HERNANDES, in his official capacity as former 

Puerto Rico Secretary of Labor and in his personal capacity, and 

MARÍA ROSA ITURREGUI-GONZÁLEZ, in her official capacity as former

Administrator of the Puerto Rico Vocational Rehabilitation 

Administration and in her personal capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

 Torruella, Lipez, and Howard, Circuit Judges.

Charles S. Hey-Maestre with whom DeJesús, Hey & Vargas,

Rosalinda Pesquera and Dávila, Pesquera & Murphy, were on brief,

for appellant.

Héctor J. Benítez Arraiza with whom Llovet Zurinaga & López,

P.S.C. was on brief, for appellee, María Rosa Iturregui-González,

in her individual capacity.

Juan M. Frontera Suau with whom Celina Romany, was on brief,

for Víctor Rivera Hernandes, both officially and personally and

María Rosa Iturregui, in her official capacity.

June 14, 2005
-2-

Per Curiam. Plaintiff Tomás Céspedes-Rodríguez appeals

from the entry of judgments as a matter of law in favor of

defendants Víctor Rivera Hernandez and María Rosa IturreguiGonzález on his claims that he was the victim of unlawful political

discrimination, in violation of his First Amendment rights, and an

unlawful termination from tenured public employment, in violation

of his due process rights. Our consideration of the briefs and

record convinces us that there is little to add to the two

thoughtful opinions issued by the district court in support of its

rulings -- especially in view of the fact that the argument section

in plaintiff's brief (which contains only a few of the citations to

the record required by Fed. R. App. P. 28(a)(9)(A)) largely fails

to engage the court's reasoning. Consequently, we affirm largely

on the basis of the district court's opinions and keep our

additional remarks brief. See, e.g., Vargas-Ruiz v. Golden Arch

Dev., Inc., 368 F.3d 1, 2 (1st Cir. 2004).

In July 1997, Céspedes, a member of Puerto Rico's New

Progressive Party, assumed a trust position -- that of special aide

in charge of Management Information Systems -- within the

Vocational Rehabilitation Administration of Puerto Rico ("VRA").

In May 2000, Céspedes was granted a probationary (because an

election was fewer than six months away) "transfer" to the career

position of Executive Director IV, but the evidence shows that he

retained his trust duties and, by special exception, his former
-3-

level of pay (which was almost double the pay of a typical

Executive Director IV). This transfer was effectuated to protect

Céspedes' employment in the event of a change in administrations

-- an event which transpired in January 2001 after the Popular

Democratic Party won the November 2000 elections.

In January 2001, Rivera was appointed Puerto Rico's

Secretary of Labor and Human Resources, and Iturregui was appointed

administrator of the VRA (which falls under the auspices of the

Department of Labor and Human Resources). On February 5, 2001,

Iturregui confirmed Céspedes' appointment to the Executive Director

IV position, thus ending the probationary period. Thereafter,

however, Céspedes' employment situation began to sour as he lost

his office, access to a company car, and his former job duties.

(In September 2001, a new trust position of Director of Management

Information Services was created and awarded to one Ramón Burgos.

Céspedes was made Burgos' Deputy Director -- at the same salary --

but Burgos assumed many of the job duties that Céspedes formerly

performed.) Céspedes complained to the Personnel Administration

System Appeal Board that he was the victim of unlawful political

discrimination and sought a meeting with Iturregui, but his

complaints went nowhere. Céspedes felt ostracized at work and, in

March 2002, began three months of sick leave for depression.

On October 24, 2002, Céspedes was suspended from his

position after a general personnel records audit ordered by
-4-

Iturregui allegedly uncovered evidence that Céspedes had falsified

his resumé and had obtained his salary exception by dishonestly

representing that he had a private sector offer at a high salary.

On November 22, 2002, Céspedes received an informal hearing before

an attorney. Céspedes denied the allegations and submitted

evidence that they were false but was dismissed anyway, on December

5, 2002. The present lawsuit followed, but judgments as a matter

of law in favor of Rivera and Iturregui were entered by the

district court under Fed. R. Civ. P. 50 after the plaintiff rested.

The district court concluded, and we agree, that Céspedes

had failed to meet his "threshold burden to produce sufficient

direct or circumstantial evidence from which a rational jury could

find that political affiliation was a substantial or motivating

factor behind the adverse employment action [complained of]."

Rodriquez-Rios v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998). While

this standard is necessarily imprecise, and evidentiary sufficiency

in close cases may reside in the eye of the beholder, the evidence

Céspedes submitted (which we have summarized in a light most

favorable to him, see Guilloty Perez v. Pierluisi, 339 F.3d 43, 50

(1st Cir. 2003)), is insufficient. 

Céspedes makes much of the fact that the supposedly less

qualified Burgos, who was a member of the Popular Democratic Party,

was assigned to assume the directorship duties that he formerly

exercised. But the record demonstrates that those duties were, in
1In citing these cases, we do not imply that the McDonnell

Douglas burden-shifting framework applicable to Title VII cases

applies in the First Amendment political discrimination context.

Rather, we express no opinion on the issue.

-5-

fact, trust duties which defendants were entitled to assign to a

political confidante. See Nieves-Luciano v. Hernández-Torres, 397

F.3d 1, 2 (1st Cir. 2005). Céspedes also highlights the evidence

that his termination was based on trumped-up charges, but even if

we accept for the sake of argument that there is a trialworthy

issue here, Céspedes still must show that the pretext masked

unlawful political discrimination on the part of defendants (and

not the "mere" desire to rid themselves of a vociferously unhappy

employee). Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 146-49 (2000) (pretext evidence in a Title VII case is

sufficient only if the factfinder may infer that the pretext masks

discrimination on the forbidden ground); Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 6-9 (1st Cir. 2000)

(similar).1 Thus, the pretext evidence, while certainly probative,

channels our inquiry back to the basic question whether there is

enough evidence for the jury to have found that Céspedes was

terminated because of his political affiliation. 

We share the district court's conviction that the answer

to this question is "no." No rational jury could find that

Céspedes' political affiliation (rather than his reaction to the

loss of the job duties and perquisites that accompanied his
-6-

transfer from a supervisory trust position to a less prestigious

and demanding career position) was the real reason for the charges

against him. At most, the evidence tended to show only that

Céspedes was dismissed unfairly by people who knew him to be of a

different political affiliation than themselves more than a year

and a half after they took power. For the reasons set forth by the

district court, this is not enough.

Two final arguments advanced by Céspedes warrant only

brief responses. First, Céspedes contends that the district court

erroneously prevented him from introducing additional probative

evidence of discrimination in the form of a letter his father wrote

complaining about political discrimination at the VRA, and formal

complaints of discrimination filed before various tribunals by

Céspedes and other VRA employees. Such evidentiary determinations

are reviewed only for an abuse of discretion, see, e.g., United

States v. Mercado Irizarry, 404 F.3d 497, 500 (1st Cir. 2005), and

the court here reasonably concluded that this evidence, some of

which was hearsay, only tended to establish the authors' beliefs

and could not substitute for actual evidence of the events

described and the reasons those events occurred. Second, Céspedes

contends that the jury could have found that his dismissal

constituted a substantive due process violation. But the

substantive due process doctrine is reserved for truly outrageous
-7-

government conduct, see, e.g., Rivera v. Rhode Island, 402 F.3d 27,

36 (1st Cir. 2005), and this case does not merit that description.

Affirmed.