USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 97-1584

WALDO G. VAZQUEZ, ET AL.,

Plaintiffs, Appellants,

v.

CARLOS LOPEZ-ROSARIO, 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

Lynch, Circuit Judge,

_____________

Cyr, Senior Circuit Judge,

____________________

and DiClerico, District Judge.*

______________
____________________

Harry Anduze Monta o, with

______________________

whom Raul S. Mariani

________________

Franco was on brief, for appellants.

______
Rafael Cuevas-Kuinlam, with
______________________
Delgado

and Cuevas,

Kuinlam & Bermudez

whom Antonio Cuevas________________

were on

brief, for

_______

___________________________

appellee Carlos Lopez-Rosario.

Jaime Mayol-Bianchi,
____________________
Hernandez and
_________

with

whom

Jose R. Perez________________

Pierluisi & Mayol-Bianchi, P.S.C.

____________________________________

were

on

brief, for appellee Puerto Rico Marine Management, Inc.

Radames
A.
Torruella,
________________________

with

whom

Carmencita
__________

Velazquez-Marquez, Jorge A. Antongiorgi, and McConnell Valdes

_________________ ____________________
________________
were on

brief, for

appellee Puerto

Rico Maritime

Shipping

Authority.

____________________

*Of the District of New Hampshire, sitting by designation.

____________________

January 22, 1998

____________________

-22

LYNCH,
LYNCH,

series of cases

in 1992, in

This case is

arising out of the elections

which the New Progressive Party

from its rival,

the

Circuit Judge.
Circuit Judge.
_____________

in Puerto Rico

(NPP) won power

the Popular Democratic Party

current decade, plaintiffs

another in a

in these cases

(PDP).

During

usually have

been members

of the PDP

administration

violation

this

rights under

case, plaintiff

part of an

Waldo G.

(a public

evidence,

Vazquez,

an NPP

district

court

and a

In

supporter,

eliminated as

He sues his employer,

corporation),

client's board under 42 U.S.C.

The

the First Amendment.1

at a government contractor was

internal party feud.

major client

incoming NPP

has deprived them of their government jobs in

of their

claims his job

who complain that the

member of

its

the

1983 (1994).

concluded

that

Vazquez's

principally his own testimony, amounted to no more

than "hearsay upon hearsay" and "rumors, hearsay, gossip, his

personal

feelings, his intuition

and his

granted summary judgment for defendants.

the district court

conclusions," and

Vazquez argues that

committed error in excluding

evidence as

hearsay

when

opponents.

the

statements

were

admissions

Thus, we explore in some detail the

by

party-

requirements

of Fed. R. Evid. 801(d)(2) as to party-opponent admissions, a

recurring issue in employment cases.

____________________

1.

See, e.g., Acosta-Orozco v.

_________ _____________

1489,

1997 WL

775350, at

Rodriguez-de-Rivera, No. 97___________________

*8 n.1

(citing cases).

-33

(1st Cir. Dec.

22, 1997)

We

agree

with

conversations which the

grounds

is

part of his case.

insufficient

some

to

of

excluded on

a party-opponent and

not necessarily to win the war.

presents

that

district court

are admissions of

been considered as

Vazquez

the

hearsay

should have

To win the

battle is

Because the evidence Vazquez

create

genuine

issue

of

material fact in any event, we affirm.

I.
I.

We state the facts

the

party

opposing

Rodriguez-de-Rivera,
___________________

summary

in the light most

judgment,

favorable to

Acosta-Orozco
_____________

v.

No. 97-1489, 1997 WL 775350, at *1 (1st

Cir. Dec. 22 1997), and describe the evidence in some detail.

Waldo Vazquez was employed for many years by Puerto

Rico Maritime Management, Inc. (PRMMI), a private corporation

that provides management

Shipping

the Puerto

seven

services to the Puerto

Authority (PRMSA), a

Rico legislature.

members

appointed

Rico Marine

public corporation created by

PRMSA's

by the

Governing Board

Governor

of

Puerto Rico,

subject to confirmation by the Commonwealth's Senate.

L.P.R.A.

3054

government

agency,

subdivision" of

National

Labor

(1994).

and we

PRMSA

have

the Commonwealth

Relations

Act.

acknowledges

held

it is

of Puerto

See
___

has

See 23
___

it

is

"political

Rico under

Chaparro-Febus
______________

the

v.

International Longshoremen Ass'n, Local 1575,

_____________________________________________

983 F.2d

325

-44

(1st Cir. 1992).

1993,

At the time of his dismissal from

Vazquez held the

Caribbean Division.

title Vice President

PRMMI in

of Operations,

In 1992, a new contract between PRMSA and PRMMI was

signed,

giving

authority

personnel" within

dismiss high-level

PRMMI.

to

the

PRMSA

PRMSA was

Board

given

the

PRMMI employees "for any

over

"key

right

to

material breach

of its contract by such [PRMMI] key personnel and/or for just

cause."

Vazquez's

position was among those

designated "key

personnel."

In

1993, PRMSA had accumulated losses in excess of

$300 million.

Vazquez does

24,

PRMSA Board

1993, the

not dispute this.

voted,

in light

On February

of these

high

losses, to authorize a reduction-in-force (RIF) of twenty-six

employees at PRMMI; eventually

jobs were

eliminated.

selected for

at least forty-one employees'

Vazquez's position

elimination, either

was among

directly by

those

the Board

or

pursuant

to its

RIF directive.

whether

Vazquez's

position

selected

for elimination

evidence

supports the

The record

was

among

by the

Board.

conclusion

that

is not

those

clear

originally

However, as

the Board

some

directly

authorized Vazquez's dismissal, we will assume that it did.

In late March

PRMMI

official,

1993, Steve

informed

Vazquez

Ambassador Plaza Hotel in Puerto

-55

Schulein, a

over

high-level

breakfast

at

the

Rico that his position

was

going to be eliminated at

the beginning of April.

According

to Vazquez's testimony, Schulein told Vazquez that he did not

understand why

Vazquez was

to

be dismissed,

and that

the

elimination of his position had not been part of the original

reorganization plan submitted

said that he understood that

of

the PRMSA

Board.

to the PRMSA Board.

Schulein

the decision came from a member

This conversation

took place

in the

period when the other PRMMI employees were also being let go.

The next day, Vazquez called Manuel Luis del Valle,

Chairman of

the

Governing

Board

of

PRMSA,

in

order

to

ascertain

why his position had been selected for elimination

in the Board's new plans for PRMMI's reorganization.

told Del

Valle that

persecution."

his dismissal "was

Vazquez

an injustice

and a

Vazquez argued that similar employees had not

been eliminated, and that he had rejected the company's early

retirement program

he needed

the

salary and felt

he still had much to offer the company.

Del

Valle

he

promised

dismissal, because,

two years

before because

would help

Vazquez

according to

fight

Vazquez,

his proposed

Del Valle

"also

understood that it was an injustice."

On

informing

him

April

that

2,

1993,

"due

to

Vazquez

received

[PRMMI's]

current

letter

financial

condition you will be laid off . . . ."

Vazquez continued his inquiries

and protests about

his dismissal.

At some later time, Del Valle told Vazquez of

-66

a conversation

Del Valle

member of the

PRMSA Board.

had with

Carlos Lopez-Rosario,

According to

Vazquez, Del Valle

told him that Lopez had told Del Valle that "the problem" was

that Vazquez

had "political

differences" with

Lopez.

The

record is unclear when the conversation between Lopez and Del

Valle supposedly took place or

whether it had anything to do

with

Del

Vazquez's

confirmed

dismissal.

what Vazquez

calls

Valle's

"hallway

comments

also

gossip" that

Lopez

disliked Vazquez.

Vazquez

suspected

that

these

"political

differences" stemmed from the NPP's gubernatorial primary

1992.

Vazquez had

Romero-Barcelo

Commissioner

supported the

("Romero"), now

in Washington,

losing candidate,

the Commonwealth's

while Lopez

in

Carlos

Resident

had supported

the

winner, Pedro Rosello, now the Governor of Puerto Rico.

Vazquez speculated that this disagreement must have

motivated his dismissal.

He remembered a

conversation with

Lopez a few years earlier at an NPP activity in the home of a

prominent

for

supporter.

Romero

as

Vazquez had expressed

gubernatorial

disagreed, arguing for Rosello.

Lopez

might

Vazquez's

be retaliating

wife

in

candidate

and

Lopez

him

women's

for the

group

work

of

to support

Romero in a political campaign almost two decades earlier.

-77

had

Vazquez also speculated that

against

organizing a

his preference

According

President,

that

Vazquez,

Miguel

Rossy,

PRMMI's

confirmed in a conversation at a local restaurant

Vazquez's position

reorganization

unnamed PRMSA

like

to

you, who

plan and

was not

that

Board member,

is

opposed

included

the

decision

"[s]omebody

to

in the

Carlos

came

original

from

who doesn't

[Romero's]

an

. . .

people."

Vazquez took this unnamed person to be Lopez.

On

Commissioner

several

Romero

occasions,

and

Governor

Vazquez

also

Rosello

asked

personally

both

to

intervene and reverse the decision, citing his long record of

service with PRMMI.

have

to handle

The

the

Governor told Vazquez that he would

issue

with

the PRMSA

Board

himself.

According to Vazquez, at some point Ricardo Gonzalez, a PRMSA

Board

member, told

decision

Vazquez that

reversed, but that

he

had tried

"the pressure was

Gonzalez did not explain what

to get

the

too strong."

he meant by "pressure," or who

was applying pressure.

Finally,

in

personally in Lopez's

whether

what

differences"

Del

May

Valle

was true.

had

told

met

Vazquez

him

about

with

Lopez

asked Lopez

"political

Lopez replied, according to Vazquez,

those remarks to Manuel Luis [del

Coca-Cola or a cup of

shouldn't have told

Vazquez

office at PRMSA.

"I made some remarks . . .

Valle] over a

1993,

you."

coffee, but Manuel Luis

There is no

indication when such

remarks were made.

-88

II.
II.

Vazquez filed suit against PRMSA,

PRMMI and Lopez,

alleging that his dimissal was retaliation for his support of

Romero,

in violation

political

of

his

association under

First

Elrod v.
_____

Amendment2

Burns,
_____

rights

427 U.S.

(1976) and Branti v. Finkel, 445 U.S. 507 (1980).3

______
______

of

347

Following

____________________

2.

We

note that, under plaintiff's theory, the state action

doctrine poses no

bar to his assertion of

claim against PRMSA and Lopez,

private company.

Cf. Yeo
___ ___

although he was employed at a

v. Town of Lexington, No. 96-1623,

_________________

1997 WL 748667, at *8 (1st Cir.

there

is no

state action,

constitutional obligations
of) private
take it

a First Amendment

actors.").

then

Dec. 9, 1997) (en banc) ("If

the court

may not

impose

on (and thus restrict the freedom

For summary

that Vazquez's dismissal

judgment purposes,

came at the

we

insistence of

the Board of Governors of a state agency, an agency which had

retained the power in its contract to demand the dismissal of
"key personnel."

Furthermore, although plaintiff was

government employee, he

was dismissed,

insistence, from his job

First

Amendment

interfering with

at the

the

government

the associational rights of

but also from using its

government's

with a government contractor.

forbids

not a

not

only

The
from

its employees,

power over contractors to punish its

political opponents.

See Board of County Comm'rs v. Umbehr,

___ ________________________
______

116 S. Ct. 2342 (1996);

Northlake,
_________

116 S.

claim fails

O'Hare Truck Serv., Inc. v.

________________________

Ct. 2353 (1996).

against the state

City of
_______

Moreover,

because his

actors, it fails

against the

private or semi-private actors who did the state's bidding.

3.

Under

Elrod and Branti, the government may not condition

_____
______

employment

on membership in the party in power, unless party

affiliation is an

appropriate requirement for

See Branti, 445 U.S. at 517-18.

___ ______
support of

Romero prompted

the position.

Vazquez's claim is that his

his dismissal by

a member

of a

rival faction within the same party.

It is unclear
Vazquez's

support of

categorical
Branti or
______

rule

for

Romero should

employees

Educ., 391 U.S.

_____
Munoz-Munoz,
___________

(contrasting

F.2d

record whether

analyzed under
of

Elrod
_____

test for political

established in

563 (1968).
808

be

political affiliation

under the balancing

government

v.

from the summary judgment

the
and

speech by

Pickering v.
_________

Board of
________

See, e.g., Rodriguez-Rodriguez

__________ ___________________
138,

143-147

(1st

Cir.

1986)

a claim based on "affiliation with a particular

-9-

discovery,

the district

judgment for PRMMI

summary judgment

the other

that

court granted

and Lopez, and a few

motions for

days later, granted

sua sponte for PRMSA, which

defendants' motions.

On

summary

had not joined

appeal, Vazquez

claims

the district court erred in excluding the conversations

he relates in his deposition on hearsay grounds, because most

of

the statements, he

Evid. 801(d)(2) as

claims that the

says, were

admissible under

admissions of a party-opponent.

conversations he

evidence to permit his case

also claims that the district

describes were

Fed. R.

Vazquez

sufficient

to survive summary judgment.

He

court abused its discretion in

entering summary judgment sua sponte for PRMSA.

III.
III.

Evidence

inadmissible

judgment.

that is

hearsay,

may

inadmissible at

not

be

considered

on

as

summary

See Fed. R. Civ. P. 56(e); FDIC v. Roldan-Fonseca,

___
____
______________

795 F.2d 1102, 1110 (1st Cir. 1986).

court's

trial, such

decision to

discretion.

exclude

such

We

review the district

evidence

See General Elec. Co. v.

___ __________________

for

Joiner, No.
______

abuse

of

96-188,

1997 WL 764563, at *4 (U.S. Dec. 15, 1997); Nieves-Villanueva

_________________

v. Soto-Rivera, No. 96-1285, 1997

___________

WL 775545, at *5 (1st Cir.

____________________

political group" and

one based on active

partisan activity,

speech or running for office).

The parties and the district

court

test applied.

assumed the Elrod-Branti

_____ ______

that summary

judgment was

appropriate even

demanding Elrod-Branti standard, and

_____ ______
the issue of

which line of First

apply.

-1010

We determine
under the

therefore do not

more
reach

Amendment precedent should

Dec. 22, 1997).

be considered,

grant

Once we determine what evidence can properly

we review

the district

summary judgment de novo.

de-Rivera,
_________

court's decision

to

Acosta-Orozco v. Rodriguez_____________
__________

No. 97-1489, 1997 WL 775350, at *1 (1st Cir. Dec.

22, 1997).

A. Hearsay and Party-Opponent Admissions

________________________________________

Fed. R.

"a statement,

Evid. 801(c) defines hearsay

other than

one made

testifying at the

trial or hearing,

prove

of

the

truth

the

by

generally as

the declarant

while

offered in evidence

matter asserted."

All

of

to

the

conversations

which

Vazquez

relates

fit

this

general

definition, as they are offered to show that Lopez was behind

Vazquez's dismissal, and that his motive was to retaliate for

Vazquez's

support

of

Romero.

Indeed,

most

of

the

conversations are hearsay within hearsay.

Vazquez argues,

are

nonetheless

Evidence

hearsay."

define

however, that

admissible

because

admissions

by

See Fed. R.
___

these conversations

the

Federal Rules

party-opponent

Evid. 801(d)(2).

as

of

"not

Vazquez argues that

the comments by high PRMSA and PRMMI officials, acting within

the scope of their agency or employment, are admissible under

this rule.

objection to

chain

In addition,

Vazquez properly notes, there is no

"hearsay within hearsay"

is admissible under an

if each

link in

the

exception to the hearsay rules

or is

not

defined as

hearsay.

See Fed.
___

R.

Evid.

805.

-1111

Careful scrutiny of

the comments on which Vazquez

relies is

necessary to evaluate this argument.

For

statement

to be

an

admission

under Rule

801(d)(2), the

party's agent

employment.

statement must be

or servant within

Chrysler Corp., 793 F.2d 1, 6-8

______________

the chain

admission

party, or by

the scope of the

agency or

See, e.g., Woodman v. Haemonetics Corp., 51 F.3d

_________ _______
_________________

1087, 1093-94 (1st Cir. 1995);

in

made by a

must be

and thus not

Union Mutual Life Ins. Co. v.

__________________________

(1st Cir. 1986).4

admissible, either

hearsay or under

Each link

because it

is an

some other hearsay

exception.

The conversations that Vazquez himself describes as

"hallway gossip" were properly excluded as hearsay.

Vazquez

identifies some of

____________________

the individuals who

Although

related the

4.

Fed. R. Evid. 801(d)(2) provides that a statement is "not

hearsay" if:
The statement is offered
and is (A)

the party's own statement

either an individual
capacity or (B) a
party

has

belief in
by

in

or a representative

statement of which the

manifested

an

its truth, or

a person

adoption

or

(C) a statement

authorized by the

make a statement
or (D) a

against a party

party to

concerning the subject,

statement by the party's

agent

or servant concerning a matter within the

scope of

the agency or

employment, made

during the existence of the relationship,

or (E) a statement
a

party

during

by a coconspirator of
the

course

and

in

furtherance of the conspiracy.

The

other

offered

in

exceptions
this

case,

are not
which

exceptions mentioned in the text.

-1212

relevant
can

more

to

the statements
easily

fit

the

rumor

that

Lopez

disliked

him,

identifies the sources of this

be

a controversy

personal

Hosp.,
_____

information.

over whether admissions

knowledge, see
___

Brookover
_________

893 F.2d 411, 414-16 (1st

controversy),

unattributed

in

the

record

While there may

must be

based on

v. Mary Hitchcock Mem.

_____________________

Cir. 1990) (canvassing the

statements

opponents cannot be admissible.

unknown, it is

nothing

repeated

by

party-

As the original declarant is

impossible to determine whether

the original

declarant also fits within the party-opponent definition, and

thus the

exclusion of such

office gossip was proper.

See,
____

e.g., Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1001____ ______
________________________

02

(3rd Cir. 1988) (excluding such unattributed hearsay when

repeated by

party-opponent); Cedeck v. Hamiltonian Fed. Sav.

______
_____________________

& Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977) ("That part
____________

of

[the

party-opponent's]

statement

reiteration of what someone told

admission

by

[a]

which

contains

him is not admissible as an

party-opponent since

the

author

of the

statement is unknown.")5

____________________

5.

We distinguish cases where the statements are not offered

as proof that
examples of

they were in fact made, but

unlawful company policy.

rather as general

See, e.g.,

Abrams v.

_________
Lightolier, Inc.,
_________________

50

F.3d 1204,

1215-16

(3rd

______
Cir. 1995)

(finding admissible supervisor's statement,

repeated to ADEA

plaintiff, that

workers); Hybert
______

v.

company "frowned on" older

Hearst Corp.,
_____________

900

(admitting

supervisor's

"feelings"

of

company's

attitude

repetitions,
does

not

persecuting

home

F.2d

office
or

that

Romero

1053

statements
as

(7th

about

direct

policy

inadmissible

claim

1050,

Cir.

"concerns"

statements

rather

than

had

followers,

-1313

policy

but merely

or
that

and

of

the

second-hand

because unattributed).

PRMSA

1990)

Vazquez
custom
one

of

Board

Likewise, the exclusion as hearsay of the statement

of Miguel Rossy, PRMMI's president,

that Vazquez's dismissal

was at

PRMSA] who

the behest

of "someone [at

you, who is opposed to

the district

that

Carlos [Romero's] people," was within

court's discretion.

Rossy's description

identify

doesn't like

the declarant

of

the

as Lopez,

Even assuming

statement

or

is

at least

dubitante

enough

as a

to

Board

member and thus an agent of PRMSA, Rossy was the President of

PRMMI, not PRMSA.

There is no

PRMSA's

within

This breaks the link in the hearsay chain.

evidence that Rossy was authorized

Board, and thus

the scope

See Skillsky
___ ________

of

his

his statement cannot

agency as

an

to speak for

be considered

officer of

v. Lucky Stores, Inc., 893 F.2d

___________________

PRMMI.

1088, 1091-92

(9th

Cir. 1990)

(no

abuse of

discretion

in exclusion

of

double-hearsay statement which was related to plaintiff by an

agent

of a different

that [the person who

authority to make

at

employer where there

related the alleged statement] had

[such] admissions"); cf. Woodman,

___ _______

1094 (examining record

acting

within

was "no evidence

scope

to determine whether

of her

employment);

any

51 F.3d

manager was

Miles
_____

v. M.N.C.
______

Corp., 750 F.2d 867, 874 (11th Cir. 1985) (same).

_____

____________________

member, Lopez, did

so in his case.

See Abrams, 50
___ ______

F.3d at

1216 (contrasting a "specific declaration made [concerning] a

particular employment decision . . . offered
which

was inadmissible if from

for its truth,"

an unknown declarant, with a

supervisor's "opinion

regarding company

policy," which

was

admissible).

-1414

However, many

of the other conversations

on which

Vazquez relies should not have been excluded as hearsay.

Valle's

conversation with Vazquez

relating the "problem" of

Lopez's "political differences" with Vazquez fits within

Rule 801(d)(2) exception.

Del

the

The statement concerning political

differences was

made by a

party (Lopez) and related

by Del

Valle, who was Chairman of the PRMSA Board and thus the agent

of PRMSA, a party.

The district court abused its discretion

by

conversation as

excluding

this

"hearsay,"

if

that is

indeed what it did.

Similarly, the statement of Gonzalez, a PRMSA Board

member,

that "the

pressure was too

decision is not hearsay, as

PRMSA.

truth of the

reverse the

Gonzalez was clearly an agent of

Thus, Gonzalez's statement

prove the

strong" to

can properly be

used to

matter asserted, i.e., that

he felt

under "pressure" not to reverse the PRMSA decision.

Gonzalez's

hearsay" to

statement

cannot

be

used

as

"hearsay

However,

within

prove that Lopez had urged the Board to stand by

the

decision to dismiss

person

applying

Vazquez.

Gonzalez

"pressure," and

the

does not identify

statement

of an

unidentified declarant is hearsay.

Finally, Vazquez's description of his confrontation

with Lopez is plainly not hearsay.

direct

admission that he had

Del Valle

that

he did

not

Lopez is a party, and his

made some informal comments to

want

-1515

Vazquez to

hear

is

not

hearsay.

Again,

Lopez's statement can be used

truth of the matter asserted,

to prove the

i.e., that he made comments to

Del Valle that he did not want repeated to Vazquez.

The

establish

Lopez statement,

an "adoptive

however, is

admission"

insufficient to

that Lopez

acknowledged

that he had been responsible for Vazquez's dismissal and that

it

was in retaliation

Vazquez argues.

for Vazquez's

Romero, as

See Fed. R. Evid. 801(d)(2)(B) (defining as

___

"not hearsay" "a statement of which

an adoption

or belief

Vazquez

show

to

support of

that

the party has manifested

in its

truth").

the

circumstances

The

burden is

surrounding

on

the

conversation with Lopez

belief in

demonstrate that Lopez

the accusation of

retaliation.

Children's Hosp. Med. Ctr., 811

__________________________

See
___

manifested a

Ricciardi v.
_________

F.2d 18, 24 (1st Cir. 1987).

"In all cases, the burden is on the proponent to convince the

judge

that in

the circumstances

respond is so unnatural

the

party

&

M.

case a

failure to

that it supports the inference

acquiesced in

Weinstein

of the

the statement."

Berger,

Id.
___

that

(quoting J.

Weinstein's
Evidence
______________________

801(d)(2)(B)[01], at 801-202 n.15 (1985) (internal

quotation

marks and alterations omitted)).

The record, however, reveals that Vazquez, at most,

accused Lopez

of making statements

responded

admitting

by

that he

to Del Valle,

had

made

and Lopez

"some remarks."

Vazquez

does

not

say

that he

accused

Lopez

directly of

-1616

retaliating against him,

statements to Del

It

would

only that he accused him

Valle about

hardly be

unnatural

their political

to

fail

of making

differences.

to respond

to

an

accusation that Vazquez does not claim to have made.

B. Summary Judgment on the Motive for Vazquez's Dismissal

_________________________________________________________

In

must have

least

to forestall

demonstrated

a "motivating

dismiss

F.2d

order

him.

138, 143

See
___

that his

factor"

in

summary

support of

the

1986).

Romero was

at

decision

to

Board's

Rodriguez-Rodriguez v.
___________________

(1st Cir.

judgment, Vazquez

Munoz-Munoz, 808
___________

Vazquez must

"point[] to

[admissible] evidence in the record which, if credited, would

permit

dismissal]

rational

stemmed from

animus," LaRou
_____

(quoting

1994)

fact

finder

to

a politically

v. Ridlon, 98
______

marks and

that

[his

based discriminatory

F.3d 659, 661 (1st

Rivera-Cotto v. Rivera, 38
____________
______

(internal quotation

conclude

Cir. 1996)

F.3d 611, 614 (1st Cir.

alterations omitted)),

rather than for economic reasons.

unsupported

and speculative

discrimination

judgment."

will

not

"Without more, [Vazquez's]

assertions regarding

be

enough

to

political

survive

summary

Id.
___

The record reveals that

Vazquez felt his dismissal

was unfair and that many of his friends agreed with him.

had worked

ladder,

was then

for many years

had rejected early

dismissed.

at PRMMI, climbing

the corporate

retirement two years

The conversations

-1717

He

before and

he relates

contain

many statements of support from PRMSA and PRMMI employees who

sympathized

protected

with

him.

However, "[m]erely

characteristic -- [Lopez's]

fact plaintiff was treated unfairly

constitutional

claim."

juxtaposing

politics --

with the

is not enough to state a

Acosta-Orozco, 1997 WL 775350, at *5

_____________

(quoting Correa-Martinez v. Arrillaga-Belendez,

_______________
__________________

903 F.2d 49,

58 (1st Cir. 1990) (internal quotation marks omitted)).

Instead, Vazquez must point to evidence which shows

that

Lopez singled

out Vazquez's

position,

which was

not

included in the original reorganization plan, for elimination

and

that he

Romero.

did so

to retaliate

for Vazquez's

support of

Vazquez can point to three conversations to

this theory.

First,

he can point

to Del

support

Valle's comments

that "the problem" was Vazquez's "political differences" with

Lopez.

Second,

he made

"some comments" to

Vazquez to hear.

that

he can point to Lopez's acknowledgement that

Gonzalez

Del Valle

that he did

Finally, he can note Gonzalez's

felt

"pressure"

not

to

reverse

not want

statement

Vazquez's

dismissal.

These comments

Lopez engineered

are insufficient to

Vazquez's dismissal

for Vazquez's support

establish that

in order

to retaliate

of Romero, and amount to

no more than

"unsupported

661.

and speculative assertions."

Even viewing

these

statements

in

LaRou, 98 F.3d at
_____

the

light

most

favorable to Vazquez, no reasonable jury could find that such

-1818

statements

prove by

a preponderance

of

the evidence

that

Vazquez's

support

"motivating"

his

of

Romero

was

"substantial"

or

factor in the PRMSA Board's decision to include

position

in

the

reorganization.

"political differences" with

That

Vazquez

a single PRMSA Board

had

member at

some unidentified time does not establish that the Board or a

majority of the

Board acquiesced in a plan

position in retaliation for

to eliminate his

those differences.

Nor does

establish that "the

problem" referred to the

Vazquez's position.

Similarly, Gonzalez's statement

felt

"pressure"

not

to

reverse

nothing about the reason for

in

excess of $300

Vazquez's

the pressure.

million, PRMSA Board

it

elimination of

that he

dismissal says

Facing a deficit

members undoubtedly

felt pressure to stand by the reorganization plan.

Finally,

we find

no abuse

of

discretion in

the

action of the district court in entering summary judgment sua

sponte for

summary

PRMSA, following

judgment

to

the district

PRMMI

and

court's grant

Lopez.

Vazquez

of

had

"appropriate notice and a chance to present [his] evidence on

the essential elements of [his]

Home Box Office, Inc.,

_______________________

Vazquez

does

judgment for

not

89

claim . . . ."

F.3d 24,

identify how

PRMSA would have

his

29

Berkovitz v.
_________

(1st Cir.

opposition

differed in any way

opposition to summary judgment for PRMMI and Lopez.

-1919

1996).

to summary

from his

The

judgment of

Costs to appellees.

the district

court is

affirmed.
________

-2020