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

No. 04-1175 SONJI A. ORTIZ GARCÍA, Plaintiff, Appellant,

v. FERNANDO TOLEDO FERNÁNDEZ, FRANCISCO APONTE, CARMEN OLIVER, ALMA HERNÁNDEZ, LUIS RIVERO CUBANO, all in their official and personal capacities and the Legal

Partnership of the married defendants,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge ]

Before Lynch, Circuit Judge , Stahl, Senior Circuit Judge , and Howard, Circuit Judge .

Rafael Sanchez Hernandez was on brief for appellants. Isabel Rodríguez Casellas with whom Sanchez-Betances & Sifre, P.S.C. was on brief, for appellees.

April 19, 20051 The appellant's brief was particularly confused, making it

difficult for the court to identify Oritz's appellate claims. We have read the brief liberally but, to the extent that Oritz sought to include claims which we have not considered, she has waived them. See United States v. Zannino ,895 F.2d 1, 17 (1st Cir. 1990).

-2- Per Curiam. In this political discrimination case, plaintiff-appellant Sonji A. Ortiz García appeals the district court’s award of summary judgment in favor of defendants-appellees Fernando Toledo Fern ández, Francisco Aponte, Carmen Oliver, Alma Hernández and Luis Rivera Cubano. We affirm.

Ortiz asserted a claimthat she was subjec t to w orking

co n ditions so unreasonable as "to cause reasonably hardy individuals to compromise their political beliefs and associations in favor of the prevailing party." Agosto-De-Feliciano v. AponteRoque , 889 F.2d 1209, 1217 (1st Cir. 1989) . She also claimed that political discrimination led to a denial of a promotion and being subjectedto unwarranted discipline. As best as we can understand, Ortiz's appeal focuses on the inferior working conditions and unwarranted discipline claims. 1

We recite the relevant facts in the light most favorable to Ortiz. See Figueroa-Serrano v. Ramos-Alverio , 221 F.3d 1, 4 (1st Cir. 2000). Ortiz is a career employee in the Puerto Rico Department of Agri c ulture’s Market Inspection Office, where she holds the position of Agronomist IV. In that office, agronomists

are specialists in a gricul ture, specifically land and cattle-3-

sciences. Ortiz began working at the Market Inspection Office as

an Agronomist I in 199 3, be came a career employee there in 1994, and was promoted to the position of Agronomist IV in 1997. Ortiz is an active member of Puerto Rico’s New Progressive Party (“NPP”). In 1998, she left her Agronomist IV position to hold various trust positions for the NPP, which was in power at the time.

In November 2000, Sila María Calderón, a Popular Democratic Party (“PDP”) candidate, was elected Governor of Puerto Rico. Ortiz subsequently resigned from her trust position and was reinstatedto her career position as Agronomist IV in January 2001. The alleged discrimination began immediately after she was reinstated. Defendants are all members of the PDP andwork either directly in the Market Inspection Office or at the Department of Agriculture.

Shortly after her reinstatement as an agronomist, Ortiz receiveda letter informing her that she would be required to prepare statistical reports for the whole office. She wrote three lett ers to defendant Toledo (the Secretary of the Department of Agriculture) to complain about the assignment, arguing that the report writing would force her to perform the functions of a data entry clerk. Soon thereafter, some of the report writing was redistributed to other agronomists.

During the same time period, Ortiz was also told that she woulddo field activities only once a week while other agronomists2 Ortiz has not developed a discriminatory failure-to-promote

cl aimbut presents this evidence to bolster her showi ng o f discriminatory treatment in her own Agronomist IV position. -4- haddaily fieldresponsibilities. In addition, her decisions were undercut by lower-ranking office members. Andwhile Ortiz oversaw certain inspectors, she did not supervise other agronomists. This responsibility was given to lower-ranking employees.

Soon after Ortiz began work in 2001, another agronomist, Julia Santa, was reclassified from Agronomist III to Agronomist Supervisor. When an additi ona l supervisory position became available, Ortiz applied but another individual wa s se lected. According to Ortiz, between seve n and nine PDP-affiliated agronomists were reclassifiedto higher positions when the PDP took power. 2 In May 2002, disciplinary action was taken against Ortiz for leaving the workplace without authorization and for writing a false travel order. Ortiz has averred that she left the workplace to participate in official charitable activities, and she claimed that the disciplinary action was in contravention of agency regulations and customary practice.

At the conclusion of discovery , def endants moved for summary judgment on the political discrimination claims. The district court awarded summary judgment on two grounds. First, the court found that there was no genuine issue of material fact as to whether the de privat ions suffered by Ortiz were severe enough to3 Ortiz also brought a due process claim which the district

court rejected. O rti z does not develop an argument challenging this ruling on appeal.

4 We have quest ioned, without resolving, the extent to which Agosto-de-Feliciano 's "unreasonably inferior work environment" standardapplies after the Supreme Court's de cision in Rutan v. Republican Party of Ill. , 497 U.S. 62 (1990). See Acevedo-Garcia v. Vera-Monroig , 204 F.3d 1, 12 (1st Cir. 2000) ; Nerida-Gonzalez v. Tirado-Delgado , 990 F.2d 701, 705 (1st Cir. 1993). But we have offereda rationale for retaining the "unreasonably inferior rule" in cases such as this. See Acosta-Orozco v. Rodriguez-de-Rivera , 132 F.3d 97, 101 n.5 (1st Cir. 1997) ("We do not regard [ Rutan ] as necessarily foreclosing something like the 'unreasonably inferior' rule for personnel actions short of demotions or transfers."). In any event, this case was argued before the district court and this court on the ground that Agosto-de-Feliciano provides the governing standard. We will the ref ore assume arguendo that this standard applies. -5- establish an “unreasonably inferior” work environment. Second, the court decided that Ortiz did not provide suff ici ent evidence to establish a prima facie case of discriminatory animus. 3

We review the grant of summary judgment de novo . See Figueroa-Serrano , 221 F.3d at 4. To succeed on her work environment claim, Ortiz has to show, by clear and convincing evidence, that she was subjected to an unrea sona bly inferior environment. 4 Agosto-de-Feliciano , 889 F.2d at 1217-2 0. If that burden is met, Ortiz has to show that her political affiliation was

a substantial factor in the establishment of the unreasonably inferior work environment. See id. at 1218-20. If she makes this prima facie showing, the burden shifts to the defendants to show that the y wou ld have acted in the same way regardless of Oritz's-6-

political affiliation. See Mount Healthy Sch. Dist. v. Doyle , 429 U.S. 274, 286-87 (1977).

Ortiz’s inferior work environment clai m falters at the th reshol d. To establish her claim, Ortiz must identify evidence fromwhich a factfinder could con clude that her job is “unreasonably inferior to the norm for the position.” Agosto-deFeliciano , 889 F.2d at 1220. To determine whether an environment is unreasonably inferior, a factfinder should “canvass the specific ways in which th e pl aintiff’s job has changed.” Id. ; see also Rivera-Ruiz v. Gonzalez-Rivera , 983 F.2d 332, 335 (1st Cir. 1993). Ortiz argues that she was forced to endure an unreasonably inferior work environment because she lost certain benefits (including a parking space and personal te leph one); was assigned tasks unsuitable for an Agronomist IV; and recei ved less favorable treatment than other employees.

Ortiz’s evidence of mistreatment is insufficient to meet the demanding requirement for an unreasonab ly inferior work environment claim. First, in this situation a parking space and a personal telephone are perquisites. Of the twenty employees at the Market Inspection Office, four had parking spots, and thr ee had phones on their desks. Ortiz's job description says nothing to indicate that she ha d a right to them or a need for them. The deprivation of such perquisites ordi nari ly does not support an inference of an “unreasonably inferior” work environment.5 Ortiz began her second tour of duty in the Agronomis t I V

position when the new administration was installed at the Department of Agriculture. Because she was not an Agronomist IV immediately prior to the start of the alleged inferior treatment, comparison with her circumstances immediately prior to the change in power is not relevant.

6 Orti z does not compare her treatment with that of the other eight employees occupying Agronomist IV posi tion s. Instead, she relies heavily upon evidence regarding the reclassification of one employee, Julia Santa (a PDP member), from Agronomist III to Agronomist Supe rvi sor. But Ortiz does not adduce evidence that Santa was not qualified for the reclassification or that she was promotedin an inequitable way. The same holds true for the person -7- See Agosto-de-Felici ano , 889 F.2dat 1219 (“An employee who has lost merely the ‘perks’ of his position--for example, the best office or secretary in the agency, unlimitedtelep hone access or unusually minimal oversight--would not meet the ‘unreasonably inferior’ standard.”).

Second, there is n o evidence of substantially changed work ing co nditions. Ortiz’s account of her job assignments fits squarely within the job description of an Agronomist IV. Further, while Ortiz held the Agronomist IV position before being promoted to a trust position, she has not presented evidence comparing her pre sent duties to her duties when she previously held the position. 5 Thus, a factfinder would have no way t o know whether the position she occupies now materially differs from the position

as it existed previously. Moreover, while Ortiz claims that other agronomists were better treated, she provides little inf ormation about these individuals or their work assignments from which a meaningful comparison of work environments could be ma de. 6 Inpromoted to the Agronomist Supervisor position that Ortiz applied

for but did not receive. -8- short, the record is inadequate for a reasonable factfinder to conclude that Ortiz was subjected to an unreasonably inferior work environment after her return to the Agronomist IV position.

The unwarranted discipline claim fails for a lack o f competent comparative evidence suggesting political animus. Cf. Rathbun v. Autozone, Inc. , 361 F.3d 61, 76 (1st Cir. 200 4) (explaining that, for Title VII claims, comparative evidence must "show[] that others similarly situated . . . in all relevant respects were treated different l y" than the individual alleging discrimination) (quoting Conwardv. Cambridge Sc. Comm. , 171 F.3d 12, 20 (1st Cir. 1 999). Ort iz claimed ten other employees were accusedof absence from the workplace without authorization but that none were disciplined. She failed, however, to identify them

or provide other information necessary to compare her situation to theirs, including their party membership. See Kaufmann v. P.R. Tel. Co. , 841 F.2d 1169, 1172 n.5 (1st Cir. 1988). Without this information, no inference of dis crim inatory motive can be drawn. In addition, Ortiz was charged not just with being absent from the workplace, but also with writing a false travel order. She presented no evidence disputing this charge. Nor did she provide evidence that any other employee was similarly accused but was treatedmore l eni ently. The summary judgment record is thus-9-

insufficient to support the inference that Ortiz was placed in the disciplinary hearing because of her political affiliation.

Ortiz has failed to establish that she was subjected to

an unreasonably inferior work environment or that the disciplinary p roceed ing against her was motivated by political animus. We therefore affirm

the district court’s award of summary judgment.