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

Nos. 03-2520, 04-1169

MILTON NIEVES-LUCIANO; GERARDINA RIVERA-GALVAN; SHAWN NIEVES-RIVERA; RICHARD NIEVES-RIVERA; JOANNE NIEVES-RIVERA, Plaintiffs, Appellants,

v. RAMÓN HERNÁNDEZ-TORRES, In His Personal Capacity and as Mayor of the Municipality of Juana Díaz; MUNICIPALITY OF JUANA DÍAZ,

Defendants/Third-Party Plaintiffs, Appellees,

v. SANTIAGO MARTÍNEZ-IRIZARRY Third-Party Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Justo Arenas, U.S. Magistrate Judge ]

Before Lynch, Lipez, and Howard, Circuit Judges .

Fredeswin Perez Caballero , with whom Jesus Hernandez-Sanchez and Hernandez Sanchez Law Firmwere on brief, for appellants. Johanna M. Emmanuelli Huertas , with whom Gina Ismalia Gutiérrez-Galan g a nd Law Office Pedro E. Ortiz Alvarez , were on brief, for appellees. January 28, 2005-2- HOWARD, Circ u it Judge . Milton Nieves-Luciano and his wife and children (collectively "appellants") sued the Municipality of Juana Díaz and its mayor, Ramón Hernández-Torres, (collectively "appellees") for terminating Nieves' public employment on account of his political affiliation. In so far as releva nt to this appeal, the complaint alleged violations of the First Amendment and the Fourteenth Ame ndme nt's due process clause. After discovery, the district court awarded appellees summary judgment. We affirm.

Nieves is a member of the New Progressive Party ("NPP"). He was hired by the Municipality of Juana Díaz in July 1994 under

a professional services contract. In 1997, the then mayor of Juana Díaz created the position of Director of Data Processing. This position was identi fied a s a trust position, meaning that its occupant could be terminated at will and without cause. The Director of Dat a Pr ocessing was primarily responsible for implementing and managing a computerized accounting system for the municipality. Nieves was appointed to the position in August 1997.

From1993 through late 2000, the NPP controlled the Juana Díaz municipal government. In November 2000, howe ver, power changedhands as Hernánd ez-T orres, a member of the Popular Democratic Party ("PDP"), was elected mayor. On April 11, 2001, Nieves received notice tha t his appointment as Data Processing Director would be termin ated i mmediately. The letter did not provide Nieves with a reason for the termination other than to1 This ruling is not challenged on appeal. -3- state that, because Nieves occupied a trust position, his employment could be terminated at any time.

Subsequently, appellees explained that they terminated Nieves' employment because his position was unnecessary and was createdin violation of municipal law. According to appe lle es, every municipality in Puerto Rico was required to participate in a central accounting system operated by the Office of the Commission for Municipal Affairs (the "OCAM system"). After the PDP assumed power, the new government reviewed the utility of several municipal positions. As part of this review, the government determined that the Director of Data Process ing position was duplicative because the OCAMsystem already provided a mandatory accounting system that containe d esse ntially the same features as the local system that Nieves had been overseeing. App ella nts brought the underlying lawsuit to assert that this rationale was a sham andthat Nieves was terminated on account of his NPP membership.

At the concl us ion of discovery, appellees moved for summary judgment on Nieves' First Amendment and due process claims. The district court granted the motion on the due process claim because appellants had not produced evidence that Nieves had a property interest in his employment. 1 The court, however, rejected appellees' challenge on the political discrimination claim on the groundthat there were disputed material facts concerning the true2 Because of these disput ed f acts, the district court also

rejectedHernández-Torres' claim that he was entitled to summ ary judgment on qualified immunity grounds.

3 In A pril 2004, this Rule was recodified as D.P.R. Local R. 56(c). -4- reason for the termination. Specifically, the court stated that there were disputes concerning whether the local system was duplicative of the OCAM system, whether Nieves was replaced as the Director of Data Processing by PDP members, and whether the position was initially created in violation of municipal law. 2

Amonth af ter t he district court's ruling, appellees movedfor reconsideration of the denial of t hei r motions for summary judgment on the First Amendment claim. On reconsideration, the district court determined t h at appellants' original summary judgment opposition did not comply with D.P.R. Local R. 311.12 because their counter-statement of facts did not contain record citations. 3 The court also ruled that Nieves' affidavit, which statedthat he had been replaced by PDP members and that HernándezTorres had said that h e wanted to "clean the house of NPP employees," was inadmissible because it was not based on personal knowledge. As a result, the court granted appelle es summary judgment on the ground that there was no evidence from which a jury couldconclude that Niev es' termination was at least partially motivated by his political affiliation.-5- After the entry of judgment, appellants filed a Fed. R. Civ. P. 60(b)(2) motion seeking relief from judgment because of a newly acquired affidavit fro m o ne of Nieves' coworkers. The af fida vit stated that the affiant had heard Hernández-Torres say that he "would clean the house of NPP employees." The court denied appellants Rule 60(b)(2) relief on the ground that t he affidavit

was "not newly discovered evidence" within the meaning of the Rule. This appeal, challenging the summary judgment ruling and the denial of the motion for relief under Rule 60(b)(2), followed.

We review the district court's grant of summary judgment de novo , viewing t he record in the light most hospitable to the party opposing summary judgment. See Padilla-García v. Guillermo Rodrigue z , 21 2 F.3d 69, 73 (1st Cir. 2000). Summary judgment is only appropriate if there is n o gen uine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

Befo re proceeding to the merits, we dispose of a thresholdissue that appellants call "jurisdictional." Appellants contendthat the district court was without power to reconsider its initial denial of summary judgment on the political discrimination claimbecause appellees did not move for reconsideration within ten days as requir e d by Fed. R. Civ. P. 59(e). The argument is meritless.-6- Rule 59(e) provides a party with ten days to move to alter or amend a judgment, and the district court may not enlarge the time frame. See Feinstein v. Moses , 951 F.2d 16, 19 (1st Cir. 1991). But Rule 59(e) does not apply to motions for reconsideration of interlocutory orders from which no imm e diate appeal may be taken, see United States v. Mart in , 2 26 F.3d 1042, 1048 (9th Cir. 2000), including summary judgment denials, see Pacific Union Conf. of Seventh-Day Adventists v. Marshall , 434 U.S. 1305, 1306 (1977) (Rehnquist, J., in chambers). Interlocutory orders such as these "remain open to trial court reconsideration" until the entry of judgment. Geffon v. Micrion Corp. , 249 F.3d 29, 38 (1st Cir. 2001) (quoting Pérez v. Crespo-Guillén , 25 F.3d 40, 42 (1st Cir. 1994)). Thus, the district court could reconsider its initial summary judgment ruling even though appellees did not seek reconsideration within ten days of the ruling.

We turn now to appellants' challenge to the correctness of the summary judgment ruling. When alleging a claim of political discrimination, a pl aintiff bears the burden of producing sufficient evidence, whether direct or circumsta ntial , that he engagedin constitutionally protec ted conduct and that political affiliation was a substantial or motivating factor behind the challengedemp loym ent action. See Gonzalez-De-Blasini v. Family Dept. , 377 F.3d 81, 85 (1st C ir. 2004 ). The plaintiff must identify evidence which, if believed, would permit a factfinder to4 Appellants also assert that there was a material dispute over

whether the Data Processing Director position was initially created in violation of municipal person nel law. We fail to see the materiality of this alleged dispute. Even if we assumed that the position was properly created at its inception, this would not -7- conclude that the challenged employment a cti on stemmed from politically based animus. See LaRoue v. Ridlon , 98 F.3d 659, 661 (1st Cir. 1996).

The district court ruled that ap pell ants had failed to identify evidence which could support a conclusion that Nieves was firedbecause of his NPP membership. Even if we were to credit appellants' inadequately supported counter-statement of facts (which the district court declined to do), we see no error in this judgment. Appellants argue that there was a material dispute over whether the local accounting system was actually duplicative of the OCAMsystem and that this dispute warranted a tria l on the First Amendment claim. In support of this argument, appellants point to

a single sentence in the deposition testimony from an OCAM employee in which she suggested that, at one point, the local system provideda printing feature not available through the OCAMsystem. Shortly after so testifying, however, the employee clarified that the OCAM system was later updated to provide the same feature,

ma king the systems duplicative. This clarification refute s appellants' argument that there was a genuine dispute over whether the local accounting system was duplicative of the OCAM system. 4undermine appellees' primary explanation for terminating Nieves,

i.e., that the Data Processing Director position was duplicative. In any event, appellants have not identified record evidence that the Data Processing Director position was in fact lawfully created in 1997. -8-

Appellants next contend that two state ment s in Nieves' affidavit were sufficient to establish a genuine issue of material fac t as to whether discriminatory animus prompted Nieve s ' termination. The first statement identified PDP members whom (Nieves claims) replaced him a s the Director of Data Processing. Appellees contendthat Nieves was not replaced because the position

was eliminated. The second statement recited an alleged comment by Hernández-Torres that he planned to "clean the house of NPP employees." The district court treated these statements as inadmissible because there was no indication that they were based on personal knowledge as is required by Fed. R. Civ. P. 56(e).

For purposes of summary judgment, an allegation in an affidavit must be based on personal knowledge and show affirmatively that the affiant is co mpeten t to testify to the matters stated therein. See López-Carrasquillo v. R ubia nes , 230 F.3d409, 414 (1st Cir. 2000). Nieves' statements do not meet this requirement. If Nieves had been replaced, presumably the replacements didnot begin work until after Nieves' employment had ended. With out fu rther foundation, we cannot assume that Nieves had personal knowledge of whether he was replaced and, if so, the identity andpolitical affiliations of the replacements. See Perez5 At oral argument, appellants' counsel conceded that Nieves

did not actually hear Hernández-Torres make this comment.

6 In any event, Nieves was not en titl ed to an explanation for his termination because his employment was terminable at will and without cause. -9- v. Volvo Car Corp. , 247 F.3d 303, 316 (1st Cir. 2001) (stating that

an affidavit attesting to facts that took place before the affiant joinedhis employer are not based on the affiant's personal knowledge). Similarly, there are no foundational facts indicating that Nieves personally heard Hernández-Torres say that he planned to "clean the house of NPP employees." 5

Finally, appellants contend that appellees' failure to state the reason for Nieve s' ter mination in the dismissal letter suggests impermi ssibl e motive because it shows that appellees' statedrea sons for the termination were post hoc justifications. We fail to see any logic in the inference that appellants would have us draw. No reasonable fact finder could conclude, in these circumstances, that the absence of a contemporaneous explanation in Nieves' dismissal letter was proof o f disc rimination. Such a

conc lusion would be the product of unsubstantiated speculati o n which, of course, ca n never defeat a properly supported summary judgment motion. 6 See, e.g. , Poulis-Minott v. Smith , 388 F.3d 354, 366-67 (1st Cir. 2004).

In sum, appellants did not identify competent evidence showing political animus. Nor did they identify evidence7 As noted above, appellants als o challenge the district

cou rt's Fed. R. Civ. P. 60(b)(2) ruling that the proff ere d affidavit from Nieves' coworker (stating that she had heard Hernández-Torres say that he planned to "clean the house of NPP employees") was not newly discovered evidence. Relief from judgment under Rule 60(b) is "extraordinary in nature" and "should be granted sparingly." See Karak v. Bursaw Oil Corp. , 288 F.3d 15, 19 (1st Cir. 2002). Among other requirements, the moving party must show that the new evidence would likely change the result of the proceeding. See United States Steel, Co. v. M. DeMatteo Constr. Co. , 315 F.3d 43, 52 (1st Cir. 2002). Here, even if the affidavit had been considered, it would have made no dif ference. Ageneralized statement that the mayor intended to "clean house" of o pposition party members would be insufficient to sat isf y appellants' summary judgment burden. S ee Figueroa-Serrano v. Ramos-Alverio , 221 F.3d 1, 8 (1st Cir. 2000). -10- disputing appellees' claim that Nieves was terminated because the Director of Data Processing position was duplicative. Appellants theref ore failed to meet their initial burden of showing that po liti cal affiliation was the substantial or motivating cause of Nieves' termination. The district court correctly entered summary judgment on the political discrimination claim. See Angulo-Alvarez

v. Aponte de La Torre , 170 F.3d 246, 250 (1st Cir. 1999). 7

Affirmed .