D'Alzina v. Lausell

702 F. Supp. 377, 1988 U.S. Dist. LEXIS 13754, 1988 WL 130745
CourtDistrict Court, D. Puerto Rico
DecidedSeptember 16, 1988
DocketCiv. No. 86-0238(RLA)
StatusPublished

This text of 702 F. Supp. 377 (D'Alzina v. Lausell) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Alzina v. Lausell, 702 F. Supp. 377, 1988 U.S. Dist. LEXIS 13754, 1988 WL 130745 (prd 1988).

Opinion

OPINION AND ORDER

ACOSTA, District Judge.

Amador D’Alzina has sued the Puerto Rico Telephone Company (alternatively “the Company” or “PRTC”) and five of its officers complaining that they violated his civil rights by discharging him from his high-ranking managerial position solely because of his affiliation to the New Progressive Party. In his complaint, based on 42 U.S.C. § 1983, plaintiff claims that defend[378]*378ants, under color of state law, denied him his first amendment right to freedom of association by firing him for political reasons and his fourteenth amendment right to due process of law by not giving him a pre-dismissal hearing. He seeks injunctive relief and compensatory damages for this alleged constitutional tort.

We will now rule upon a rash of disposi-tive motions filed by both sides.

BACKGROUND

In the present case, three motions for summary judgment were filed on the same day. They were followed by a long string of oppositions, replies, and surreplies.

Starting the hit parade was plaintiff who filed a motion for partial summary judgment (filed April 30, 1987, docket No. 38) arguing that under the personnel regulations of the Company (Article 10.2 promulgated on April 4, 1983) he had a property-interest which, pursuant to established constitutional law, could not be taken without notice and a pre-termination hearing. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). It being uncontroverted that plaintiff received no hearing before his termination, he concludes that there is no triable issue that he was denied due process of law. Two distinct groups of defendants, one the Company and the other the defendant-officers of the Company, separately opposed plaintiffs motion but on essentially the same ground, i.e., that plaintiff, having been hired and/or transferred illegally to his position, did not have a property interest and therefore received all the process due to him. (See dockets Nos. 46 and 51).

Prior to their oppositions, in fact concurrent with plaintiffs motion, the two groups of defendants filed their own summary judgment motions seeking mainly to dismiss the entire complaint. Both motions cover the same panoply of defenses, to wit, and in a rehash of their oppositions, that D’Alzina was illegally hired; that D’Alzina performed confidential, policy-making and/or spokesperson duties; and, lastly, that in 1985, when D’Alzina was dismissed, it was not clearly illegal to fire professionals like him and therefore defendants should be granted immunity from having to pay damages in this suit. Plaintiff dutifully opposed these motions (see docket No. 50, filed July 14, 1987). As to the foundation for his alleged property interest, he avers that “/h/is status as a regular managerial employee was legitimate and valid pursuant to personnel practices and norms implemented during those years /i.e., 1979-1985/.” (Plaintiff’s Memorandum at 3.) In other words, that he had expectation of continued employment, based on company policies, which gelled into a constitutionally protected property interest pursuant to the judicial doctrine established in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Plaintiff also disputes that his hiring was in any way improper especially given that the Puerto Rico Public Service Personnel Act, 3 L.P.R.A. §§ 1301 et seq. (1978), was not expressly made applicable to the PRTC until the Puerto Rico Supreme Court case of Torres-Ponce v. Jimenez, 113 D.P.R. 58 (1982). (It was this case in fact that prompted the Company to promulgate new personnel regulations, in 1983, to incorporate the merit principle underpinning the Personnel Law.) Plaintiff asserts rather simply that he was hired in 1979, and that that hiring process, though now prohibited by all applicable law, was nonetheless at the time a proper one. Moreover, he asserts that his transfer in September 1985 from Executive Aide to the PRTC Board President (as well as Secretary of the Board) to Commercial Director Metro/North/West Area was also legal under the law and regulations.

Finally, plaintiff strongly opposes defendants’ averments that he was a confidential employee properly subject to political dismissal.1 On this count he states: “There is no question whatsoever that plaintiff was and performed primarily as an Executive Assistant. The delegated duties performed as Secretary of the Board [379]*379were of a secondary nature.” (Plaintiffs Memorandum at 3.)

Subsequent to the filing of the three main motions for brief disposition and their corresponding oppositions, the Court was flooded by derivative motions such as replies, surreplies, motions for judicial notice, oppositions thereto, etc. The Court has studied them all. None requires extended comment as each one generally tends to restate arguments already submitted to the Court.2

ISSUES

The main issue before us is whether or not plaintiff had a property interest in his former position such that he was entitled to a pre-termination hearing as prescribed by Loudermill, supra.

The other important issue is whether or not plaintiffs former job, considering its inherent duties and its link to the political concerns of the Company, was such that political affiliation was an appropriate job requirement. And, if not, whether political affiliation was a substantial or motivating factor in plaintiffs dismissal.

Since we find that recent case law from the First Circuit Court of Appeals supports defendants’ arguments and compels us to dismiss the complaint we will not consider defendants’ entitlement to qualified immunity.

SUMMARY

We will dismiss plaintiffs complaint for the following reasons: (1) D’Alzina has no viable due process claim because he was illegally hired to his first job with PRTC. He thus has no property interest in continued employment with the Company; (2) plaintiffs due process claim also fails because his first job with the Company, i.e., Executive Assistant and Secretary to the Board was imbued with confidential/policy-making/spokesperson duties which clearly affected the politically sensitive affairs of the entire organization such that plaintiff was dischargeable at will; (3) although plaintiff characterizes his second, and last, job with the Company as a “career” one and thus constitutionally protected — that transfer, five months before his dismissal, was as illegal as his first hiring and similarly fails to provide plaintiff with any property interest. In short, plaintiffs hiring and transfer were illegal and, in addition, his first job was highly confidential, therefore, plaintiff cannot claim any fourteenth amendment constitutional protection.

Regarding plaintiffs first amendment claims, the confidentiality of both the positions he occupied and their influence on the politically colored tasks of the company preclude any Section 1983 claim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Board of Regents of State Colleges v. Roth
408 U.S. 564 (Supreme Court, 1972)
Perry v. Sindermann
408 U.S. 593 (Supreme Court, 1972)
Elrod v. Burns
427 U.S. 347 (Supreme Court, 1976)
Personnel Administrator of Mass. v. Feeney
442 U.S. 256 (Supreme Court, 1979)
Branti v. Finkel
445 U.S. 507 (Supreme Court, 1980)
Pennhurst State School and Hospital v. Halderman
465 U.S. 89 (Supreme Court, 1984)
Cleveland Board of Education v. Loudermill
470 U.S. 532 (Supreme Court, 1985)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
George W. Packish v. Heather McMurtrie
697 F.2d 23 (First Circuit, 1983)
Susan E. Johnson v. Educational Testing Service
754 F.2d 20 (First Circuit, 1985)
Luisa A. De Abadia v. Hon. Luis Izquierdo Mora
792 F.2d 1187 (First Circuit, 1986)
Bessie A. Kauffman v. Puerto Rico Telephone Company
841 F.2d 1169 (First Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
702 F. Supp. 377, 1988 U.S. Dist. LEXIS 13754, 1988 WL 130745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalzina-v-lausell-prd-1988.