Not for Publication in West’s Federal Reporter

United States Court of Appeals For the First Circuit

No. 12-2130

ILIANA CABÁN-RODRÍGUEZ,

Plaintiff, Appellant,

v.

JAVIER D. JIMÉNEZ-PÉREZ, Mayor of the Municipality of San Sebastián; AGUSTÍN SOTO-CRUZ, Interim Director of the Human Resources Office; ZORAIDA VERA Director of Human Resources; MUNICIPALITY OF SAN SEBASTIÁN; MARÍA MARTELL, Director of Office of Faith Initiatives and Communities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, U.S. District Judge]

Before Thompson, Baldock,* and Lipez, Circuit Judges.

Jose Martinez-Custodio, with whom Kenneth Colón was on brief, for appellant. Susana I. Peñagarícano-Brown, Assistant Solicitor General, with whom Margarita L. Mercado-Echegaray, Solicitor General, was on brief, for individual appellees. Pedro R. Vázquez for municipal appellee.

March 12, 2014

* Of the Tenth Circuit, sitting by designation. BALDOCK, Circuit Judge. Plaintiff Iliana Cabán-Rodríguez

appeals the district court’s grant of summary judgment to

Defendants, namely the Municipality of San Sebastián (MSS), Javier

D. Jiménez-Pérez, Agustín Soto-Cruz, Zoraida Vera, and María

Martell, on Cabán’s First Amendment claim of political

discrimination/retaliation. The district court held Cabán failed

to present evidence that would allow a reasonable jury to find

Cabán’s political affiliation was a substantial or motivating

factor in what she labels adverse employment action. Our

jurisdiction arises under

.

We review a grant of summary judgment de novo, applying the

same legal standard as the district court. See Ruiz-Rosa v.

Rullán,

(1st Cir. 2007). Accordingly, we will

affirm only if Defendants have shown “that there is no genuine

dispute as to any material fact and the [Defendants are] entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). That is

to say, viewing the evidence in a light most favorable to Cabán,

we ask whether a jury properly could render a verdict in her favor

upon the evidence presented. See Anderson v. Liberty Lobby, Inc.,

(1986). We answer that question no, and affirm.

-2- I.

In July 2001, Cabán commenced employment with Defendant MSS as

secretary to the Clerk of the Municipal Assembly.1 In August 2003,

Cabán accepted a career position as an accounting clerk at the

Department of Public Works.2 Justo Medína of the New Progressive

Party (NPP) was Mayor of MSS at the time. Cabán described her

duties at public works as “prepar[ing] purchase orders in the

attendance roster area” and “record[ing] purchase orders issued by

the department.” Aplt’s App. at 104.

Medína did not run for reelection in 2004. Defendant Jiménez,

also a member of the NPP, was elected Mayor that year and assumed

office in January 2005. Cabán supported Jiménez’s candidacy. A

year later, in January 2006, MSS notified Cabán that her services

were needed in the Purchases Office. Cabán described her duties in

the Purchases Office as “keep[ing] a record book, or logbook for

purchases at the department,” and “earmarking budgeted items

1 As we embark upon our factual recitation, we note counsel for Cabán’s near-total failure to cite to the record in violation of Fed. R. App. P. 28(e). Cabán’s opening brief cites the record but once and that makes this Court’s job all the more difficult. See Aplt’s Br. at 9. As a result, MSS argues Cabán has waived all arguments on appeal. While we choose not to invoke waiver in this particular instance, we admonish counsel for his malfeasance, lest he think it acceptable to violate the applicable rules of procedure in the future. 2 To qualify for the position of accounting clerk with MSS, a candidate must have graduated “from high school supplemented by a course in bookkeeping from an accredited institution.” Aplt’s App. at 417.

-3- according to the purchase orders.” Id. at 115.

Eleven months later, in December 2006, Cabán received a letter

from Jiménez’s office indicating her services were then needed in

the Early Head Start (EHS) Program. In a letter to Jiménez dated

January 2007, Cabán objected to the transfer. Cabán labeled her

transfer to EHS as “persecution” (for what she did not say),

stating that “if the real need of service existed in the Office of

Purchases . . . there was no reason for transfer to the [EHS]

Program.” Id. at 775. Cabán received no response, and reported to

her new position that same month. Cabán described her duties at

EHS as “record[ing] information about the budget,” “performing bank

statement reconciliation,” and “mak[ing] entries into the voucher

system, among other things.” Id. at 128.

After her transfer to EHS, Cabán decided to support Jiménez’s

opponent in the March 2008 NPP primary election for Mayor.

Jiménez’s opponent was former Mayor Medína. Jiménez prevailed in

both the primary and general elections, and was reelected Mayor of

MSS. Cabán described her participation in Medína’s campaign as

“a poll watcher” at a school. Id. at 199–200. Cabán also appeared

in motorcades, and, “[o]n one occasion,” in a radio program about

a group of youngsters supporting Medína’s candidacy. Id. at 201.

Cabán’s “piece” in the program lasted around “two minutes.” Id.

Throughout the mayoral election campaign and thereafter, Cabán

continued to work at EHS without any reduction in salary or

-4- benefits.

On August 31, 2009, twenty months after the primary election,

MSS decided to discontinue sponsoring the EHS Program. Of the

twenty-three or so individuals working at EHS, all but Cabán, a

career employee, were laid off. On October 9, 2009, Jiménez

received a letter from Nereida Oquendo, Acting Director of the Head

Start Program (of which the EHS Program had been a part), stating

Cabán had “no duties under her charge” and requesting she “be

relocated to the position for which she was appointed.” Id. at

410.

That same day, Jiménez also received a letter from Defendant

Martell, Director of the Faith and Community Initiatives Office

(FCIO). Martell’s letter stated in relevant part:

The work with cancer survivors, addicts, homeless people and bedridden patients take me enough time. For that reason, Your Honor, I am asking you, to the extent that you can, that you assign a person to me to perform the work at the Homeless Center. The Center is preparing daily, monthly and quarterly reports of the participants.

It also has to prepare quarterly price quotations for the purchase of foods and inventories. At present, I am performing that work.

By assigning a person to perform that work, I would be able to devote more time to our patients.

Id. at 411.

On October 15, 2009, Cabán received a letter from Defendant

Soto in his capacity as Interim Director of the Department of Human

Resources. During a two-week period in October 2009, Soto served

-5- as Interim Director while Defendant Vera, Director of Human

Resources, was on leave. Soto’s letter informed Cabán of her

transfer to the Emergency Shelter Program at the Homeless Center:

You were on detail at the [EHS] Program of which our Municipality was a sponsor. Since last September 30, 2009, this program no longer is administered by the [MSS]. Mrs. Nereida Oquendo, Acting Director of the Head Start Program, has informed us that you do not have functions at this time.

The Emergency Shelter Program for Homeless Persons (Homeless Center) does not have an Accounting Clerk; therefore it is urgent for us to have a person who can collaborate in this Department.

Therefore . . . we hereby notify you that effective Monday, October 19, 2009, you will go on to exercise your functions as Accounting Clerk in the Emergency Shelter Program for Homeless Persons (Homeless Center) under the direct supervision of Mrs. Maria Martell . . . .

Id. at 780.

Rather than reporting to work at the Homeless Center, Cabán

took a leave of absence and sought “medical, psychological and

psychiatric treatment” from the State Insurance Fund (i.e.,

workman’s compensation) Office. Id. at 17. Over three months

later, on February 2, 2010, Cabán reported to Vera at the Human

Resources Office. In a meeting with Vera and Martell, Cabán “asked

if they could, please, relocate [her] to some other office.” Id.

at 159. Cabán acknowledged that during the meeting, Martell spoke

to Cabán about her duties at the Center:

Q What were those duties that Ms. Martell told you to perform. A She spoke to me about inventories, price quotes, and some reports.

-6- Q Did you perform the duties that Ms. Martell told you that you were going to be doing? A None. Q Why not? A Because they were not in harmony with my duties.

Id. at 160.

One month later, Cabán sent Jiménez a letter dated March 3,

2010. Therein, Cabán expressed concern for her safety given the

shelter’s clientele and state of disrepair. Cabán expressed

overall frustration with her employment situation. The letter

concluded:

[A]s of the moment of this communication I have not been provided the necessary equipment and materials, nor much less have I been advised or trained in the works that I am going to carry out with the functions in accordance to my position that were going to be delegated to yours truly after the transfer for alleged need of service . . . .

I hereby request reconsideration and to be placed in an area where I can exercise my functions in accordance with my position.

Id. at 759.

Martell responded to Cabán on March 9, 2010, by outlining in

a letter the tasks Cabán was to perform “as part of [her] duties as

accounting clerk in the Homeless Center:”

• Participants’ Daily Registry; • Keep the records updated and orderly; • Prepare weekly report of participants; • Prepare weekly food inventory; • Prepare weekly report of food consumption; • Receive and file documentation on service authorizations for participants of the Center sent by Faith Communities Office; • Prepare requisitions, price quotations and purchase orders related to work at the Center;

-7- • Keep files, employee payrolls and volunteers who work water, electric power, sanitary license and fire department endorsement.

Id. at 419. Martell reminded Cabán that one of her duties as an

accounting clerk was “[t]o complete and keep records and registries

containing the corresponding information related to the work

produced in the office.” Id. Other duties described in the

“position classification” of accounting clerk include, but are not

limited to, “maintaining general controls over each municipal

program allocation and line item,” and “[e]nter[ing] information

into the system related to the functions performed in the office.”

Id. at 416.

Cabán would hear none of it. On April 5, 2010 she wrote

Jiménez another letter:

In communication dated March 9, 2010, I was delegated some tasks which are not part of my description of duties as Accounting Clerk . . . .

The tasks delegated to yours truly in the communication mentioned above mostly involve functions of lesser and inferior complexity . . . .

Id. at 763 (emphasis added). Cabán informed Jiménez that most of

the tasks described in Martell’s letter were to be performed either

by an official buyer, a warehouse manager, or the cook. As a

result, “no real need of immediate service of the undersigned in

the Homeless Center arises.” Id. And for the first time, Cabán

accused Jiménez of political retaliation: “Without a doubt, your

actions clearly show ill will, persecution and decisions made in

-8- retaliation against yours truly for not supporting your political

candidacy in the past internal primaries of the New Progressive

Party (NPP).” Id at 764. Six months later, Cabán filed this §

1983 action.

II.

The only federal cause of action Cabán alleges in her amended

complaint based on the foregoing facts arises under the First

Amendment. In this context, we see no distinction between a

political discrimination and political retaliation claim. See

Pierce v. Cotuit Fire Dist.,

(1st Cir. 2014)

(First Amendment political discrimination includes “retaliation for

a contrary political opinion”). To establish a prima facie case of

political discrimination/ retaliation, first Cabán must demonstrate

that she engaged in protected First Amendment conduct.

at

301–02. Second, Cabán must demonstrate that her conduct was a

substantial or motivating factor in an adverse employment action,

that action being Defendants’ decision to transfer her to the

Homeless Center.

.

The district court granted Defendants’ motion for summary

judgment. The court implicitly recognized that Cabán’s support for

Mayor Jiménez’s 2008 primary opponent constituted protected

political conduct. The court ruled, however, that Cabán “failed to

point to evidence” sufficient to establish the second prong of her

prima facie case:

-9- Plaintiff has failed to point to evidence that would allow a reasonable fact-finder to find that Plaintiff’s political affiliation was a substantial or motivating factor for her transfer. Plaintiff references her own deposition on many occasions in an attempt to raise a factual dispute, however, such testimony merely amounts to a legal conclusion. . . . Other than Plaintiff’s own statements claiming discrimination, Plaintiff points to no facts that would allow a reasonable jury to infer that Defendants discriminated against her due to her support for Medína. After reviewing the facts, the court cannot locate any facts that support Plaintiff’s assertion.

Aplt’s App. at 813.

On appeal, Cabán claims the record evidence is sufficient to

establish that her support for past Mayor Medína in the 2008

primary election was a substantial or motivating factor in her

transfer to the Homeless Center. To be sure, Cabán’s tenure at the

Homeless Center appears to have been unpleasant. Working

conditions at the Homeless Center were far from ideal. Cabán’s

complaints to the MSS Fire Department and to the Puerto Rico

Occupational Safety and Health Administration (OSHA) regarding the

condition of the Center were not unwarranted. An OSHA inspection

of the Homeless Center in late July 2010 revealed the presence of

vermin, an excessive gathering of dust, dirt, and cobwebs, and

leaks in the roof. See

at 766–68. This inspection and other

problems led MSS to permanently close the Homeless Center on

November 1, 2010.3

3 MSS subsequently transferred Cabán to the FCIO located in the municipal library. Cabán stated that since her most recent transfer, she has not complained about any duties Martell assigned her: “I have not complained, because I have performed them

-10- Cabán’s work (or lack thereof) and her surroundings at the

Homeless Shelter undoubtedly were not to her liking. And, in some

instances, an employee’s transfer may amount to an adverse

employment action for the purpose of establishing a prima facie

case of discrimination. See Rodríguez-García v. Miranda-Marín,

(1st Cir. 2010) (explaining that “[a]ctions short of

dismissal or demotion,” including transfers, are “adverse” if they

“result in a work situation unreasonably inferior to the norm for

the position” (citation and internal quotation marks omitted)).

But less than ideal employment conditions, absent a showing of

improper motivation, do not constitute First Amendment

discrimination. Cabán’s transfer to the Homeless Shelter came

twenty months after the primary election in which she participated,

so temporal proximity lends her discrimination claim no support.

See Torres-Santiago v. Municipality of Adjuntas,

(1st Cir. 2012) (“While mere temporal proximity between a change of

administration and an adverse employment action is insufficient to

establish discriminatory animus, . . . it is relevant to whether

political affiliation was a substantial or motivating factor in

that adverse employment decision.”). Moreover, Cabán’s transfer

came only after MSS decided to close the EHS Program and lay off

all non-career employees of the Program. Additionally, Cabán was

not without duties at the Homeless Center at least arguably related

voluntarily, to keep myself busy.” Aplt’s App. at 177.

-11- to the job description of a low-level accounting clerk; regardless,

she obstinately refused to perform those duties after her

objections to the transfer fell on deaf ears.

As the district court recognized, Cabán has offered little

evidence apart from her own say-so that Defendants, individually or

collectively, had any political motivations in their treatment of

her. That Cabán answered “none” to an interrogatory asking her to

identify the witnesses she intended to call at trial illustrates

the point. Aplt’s App. at 285. Cabán’s subjective beliefs simply

are not evidence sufficient to counter Defendants’ well-supported

motion for summary judgment. See Pilgrim v. Trustees of Tufts

College,

(1st Cir. 1997). Cabán “may not prevail

simply by asserting an inequity and tacking on the self-serving

conclusion that the [D]efendant[s] w[ere] motivated by a

discriminatory animus.” Santiago v. Canon U.S.A., Inc.,

(1st Cir. 1998) (internal quotation marks omitted). This,

however, appears to be precisely what Cabán attempts to do.

Cabán asserts that while discovery was ongoing in the case,

she witnessed Martell on June 14, 2011, writing a letter at her

FCIO computer, printing the same, signing it, photocopying it, and

then placing the original signed letter in the wastebasket. Cabán

removed the letter from the wastebasket. According to Cabán,

“[t]his letter had the date of October 9, 2009 and was pretending

to be a request from Martell to have someone assigned to perform

-12- food inventory duties at the Homeless Center.” Aplt’s Amend. Op.

Br. at 7. In other words, Cabán says “the alleged necessity of

[her] services at the Homeless Center was fabricated via a letter

dated October 9, 2009 which was created by Martell on June 14,

2011.”

.

Unfortunately for Cabán, the record before us contains no

evidence to support her assertion that Martell fabricated the

October 9, 2009 letter to Jiménez after the fact. The letter Cabán

claims to have removed from Martell’s wastebasket is not part of

the record, so neither are its contents. At oral argument, Cabán’s

counsel reluctantly acknowledged the letter as Cabán says she found

it on June 14, 2011, is not before us. So all we have is Cabán’s

word. We well recognize that at the summary judgment stage, “we

need not exclude all interested testimony, specifically testimony

that is uncontradicted by the nonmovant.” Dennis v. Osram

Sylvania, Inc.,

(1st Cir. 2008). But, the “Best

Evidence Rule requires that a party seeking to prove the ‘content’

of a writing must introduce the original or a ‘duplicate’ of the

original” if the original is unavailable through no fault of the

proponent. Airframe Sys., Inc. v. L-3 Commc’ns Corp.,

, 107 n.9 (1st Cir. 2011). Cabán simply has not proven the

contents of the letter she says she retrieved from Martell’s

wastebasket.

On top of that, Defendants have contradicted Cabán’s claim

-13- that Martell’s October 9, 2009 letter was fabricated after the

fact. Defendants have made part of the record a July 2012 report

of a professional inspection of Martell’s computer. According to

the report of electrical engineer Ricardo Acevedo, proprietor of

TEK Solutions, Inc.:

The purpose of the [inspection] was to check creation and modification date of the document “letter to Mayor.” After reviewing details of date and location of the document “letter to Mayor,” I found that it was created and modified on Friday, October 9, 2009 at 11:23 am with a size of 21k. This document “Letter Mayor” was found to be located in the server whose address is P\MyDocuments\ letters, additionally a copy of the same was found on the local hard disk Dell Optoplex 330 in the location “Documents and settings\mmartell\ MyDocuments\letters” with the same above date. [I] did not find any other document with the same name at another date modified or created.

Aplt’s App. at 806. Cabán’s failure to introduce the letter so

critical to her cause sounds her case’s death knell.4

Because Cabán failed in the district court to establish a

prima facie case of political discrimination/retaliation, the

court’s grant of summary judgment to Defendants on her First

4 The only evidence that even remotely suggests political discrimination against Cabán is contained in the affidavit of her husband, Orlando Ortiz. Ortiz, a long time MSS employee, states Jiménez “told to Mayor Echevarria [of the Municipality of Aguada] that we [Ortiz and Cabán] should not participate in the primary on behalf of Mayor Medina.” Id. at 754. Interestingly, Cabán does not mention this statement anywhere in her appellate argument. Nor did she to our record knowledge ever follow the statement’s lead by questioning Jiménez about it or deposing Ortiz or Echevarria. Perhaps this is because the statement appears to constitute inadmissible double hearsay.

-14- Amendment claim was proper. As a result, the court acted well

within its discretion, despite Cabán’s ongoing protestations, in

dismissing Cabán’s commonwealth claims without prejudice.

AFFIRMED.

-15-