Casilda Nunez-Soto v. Carlos Alvarado, Etc.

918 F.2d 1029
CourtCourt of Appeals for the First Circuit
DecidedDecember 26, 1990
Docket90-1467
StatusPublished
Cited by30 cases

This text of 918 F.2d 1029 (Casilda Nunez-Soto v. Carlos Alvarado, Etc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casilda Nunez-Soto v. Carlos Alvarado, Etc., 918 F.2d 1029 (1st Cir. 1990).

Opinions

BREYER, Chief Judge.

The plaintiff, a career employee at the Puerto Rico Electric Power Authority (PREPA), claims that in 1985 the defendants, for reasons related to plaintiffs political party affiliation, demoted her from her position as “Supervisor of the Classification and Pay Department” (level M-VI) to the position of “Job Analyst” (level MV). The plaintiff concedes that the defendants did not cut her salary and that they restored her to her former position in 1988. She says, however, that in demoting her and requiring her to work as a job analyst for three years, defendants violated the federal Constitution. See Branti v. Finkel, 445 U.S. 507, 516-17, 100 S.Ct. 1287, 1293-94, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). In her complaint filed under 42 U.S.C. § 1983, plaintiff seeks both damages and injunctive relief.

Defendants asked the district court to grant them summary judgment on plaintiffs claim for damages on the ground that the law, as of 1985, did not clearly show that the federal Constitution prohibited a politically motivated demotion of a career civil servant. Hence, they are immune from damage liability. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. [1030]*10302727, 2738, 73 L.Ed.2d 396 (1982). The district court denied their motion. They now appeal that denial. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (interlocutory appeal from denial of qualified immunity defense on summary judgment). The sole question before us is whether, assuming plaintiffs version of the facts, “a reasonable official” would have understood in 1985, that plaintiff’s demotion violated the federal Constitution. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. In our view the relevant law was not clear in 1985. Consequently, we must reverse the district court’s judgment.

It seems to us fairly obvious that, as of 1985, the law did not clearly state that a politically motivated demotion violated the federal Constitution. The Supreme . Court, of course, had made clear that the Constitution forbids discharge of public employees for reasons of political affiliation (unless political affiliation is an appropriate requirement for the job). See Branti, 445 U.S. at 516-17, 100 S.Ct. at 1293-94; Elrod, 427 U.S. at 373, 96 S.Ct. at 2689. But, the law was unclear about the extent to which the Constitution protected career personnel against politically motivated adverse personnel actions that did not rise to the level of a discharge.

Until very recently, for example, the Fourth Circuit consistently maintained that the Supreme Court’s Elrod/Branti interpretation of the Constitution applied only to adverse personnel actions that amounted to the “substantial equivalent of dismissal.” See Delong v. United States, 621 F.2d 618, 623-24 (4th Cir.1980). The Third Circuit extended Elrod and Branti to demotions, but not until 1987. See Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987). The Second Circuit, in 1988, stated that it had not “previously considered whether unfavorable patronage actions not rising to the level of a discharge may support a claim under § 1983.” Lieberman v. Reisman, 857 F.2d 896, 899 (2d Cir.1988). The Sixth Circuit, in 1986, said that whether the El-rod/Branti principle extends to hiring presented a question of “first impression.” Avery v. Jennings, 786 F.2d 233, 234 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). This circuit, in 1989, tried to resolve the “short-of-discharge” question, noting at that time that the question was novel and difficult. Agosto-De-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1214-18 (1st Cir.1989). The Supreme Court only recently, in 1990, clarified the law in the area, and, in doing so, it pointed out various conflicting views among the circuits. See Rutan v. Republican Party of Illinois, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (explicitly extending anti-patronage principle to promotion, transfer, recall, and hiring decisions).

Plaintiff’s only plausible argument must consist of the claim that the adverse personnel action taken against her in 1985 amounted to a “discharge.” That is to say, she must show that it was a “constructive discharge.” She then could try to rely upon pre-1985 precedent, in the somewhat related “free speech” context, where this court held that the First Amendment protected a government employee from being constructively discharged for having criticized a supervisor. See Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 118-19 (1st Cir.1977).

The problem for plaintiff is that the facts, as she intends to prove them, do not bring her case clearly within the scope of “constructive discharge,” as we defined it, namely as “an onerous transfer, having the purpose and effect of forcing the transferred employee to quit the employment.” Alicea Rosado, 562 F.2d at 119 (quoting Newspaper Guild of Boston v. Boston Herald-Traveler Corp., 238 F.2d 471, 472 (1st Cir.1956)). (Emphasis added.)

We assume that plaintiff will show the following:

1) Plaintiff’s previous position, the third ranking job in her department, involved developing proper job classifications (e.g., for purposes of pay and benefits) for many of the Authority’s 9,000 employees. In her position, she made many important discretionary decisions, she enjoyed [1031]*1031considerable responsibility, and she supervised seven employees.
2) Plaintiffs new position, “job analyst,” involved virtually no discretionary decision-making, little if any responsibility, and no supervision of other employees. She, in effect, became one of the seven employees she used to supervise.
3) The new position was one job level below the old one, at level M-V rather than level M-VI. Plaintiff had worked hard for twelve years to rise from level M-V to M-VI.

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918 F.2d 1029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casilda-nunez-soto-v-carlos-alvarado-etc-ca1-1990.