Pedros Cos v. Contreras

• Court: Court of Appeals for the First Circuit
• Decided: October 7, 1992
• Docket: 91-2225
• Status: Published

Opinion

USCA1 Opinion

October 7, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No.  91-2225

MANUEL C. PEDRO-COS,
                                 Plaintiff, Appellee,

                                          v.

                               BLAS CONTRERAS, ET AL.,
                               Defendants, Appellants.

                                 ____________________

ERRATA SHEET

               The opinion of this  Court issued on September 30,  1992, is
          amended as follows:

               On the cover  sheet on the first line of the caption, change
          "Pedros" to "Pedro".

               Page 3, line 5, change "remains" to "remain".

               Page 4, footnote #2, change "is" to "are".

               Page 4, line 4, change "affilation" to "affiliation".

               Page 4, line 15, add a comma after "(en banc)".

               Page 6, line 2,  add a ")" immediately following  "(1st Cir.
          1956)".

               PageSeptember 30, 1992

___________________

No. 91-2225

MANUEL C. PEDROS-COS,

                                 Plaintiff, Appellee,

                                          v.

                               BLAS CONTRERAS, ET AL.,

                               Defendants, Appellants.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                 ___________________

               Anabelle  Rodriguez,  Solicitor  General,  Reina   Colon  De
               ___________________                        _________________
          Rodriguez,  Deputy  Solicitor  General,  and  Carlos  Lugo  Fiol,
          _________                                     __________________
          Assistant Solicitor General, Department  of Justice, on brief for
          appellants.

__________________

                                  __________________

Per Curiam.  Plaintiff, Manuel C. Pedro Cos, filed suit,
                 __________

            in  1986, pursuant to, inter alia, 42 U.S.C.   1983, claiming

            that he was transferred  because of his political affiliation

            in     violation     of     his    constitutional     rights.

            Defendants/appellants,  officials  of  the  General  Services

            Administration  (GSA) of  the  Commonwealth  of Puerto  Rico,

            where Pedro  Cos is  employed, appeal  the denial of  summary

            judgment on their claim of qualified immunity.1   Mitchell v.
                                                              ________

            Forsyth,  472  U.S.  511,  530 (1985)  (denial  of  qualified
            _______

            immunity is  immediately appealable).   We vacate  and remand

            with directions  to grant summary judgment  to the defendants

            on the issue of qualified immunity from damages liability.

                 The relevant facts are these:

                 1)   Pedro Cos is a member  of the New Progressive Party

            (NPP), whose  candidate lost the governorship  of Puerto Rico

            in the 1984 election.

                 2)   The  defendants   are   members  of   the   Popular

            Democratic  Party (PDP), whose candidate won the governorship

            of Puerto Rico in the 1984 election.

                 3)   Pedro Cos is a career employee of GSA for more than

            20 years.  His classification  (since 1980) is Accountant VI.

            From  1984 until August 1,  1986, he was  Chief of Industrial

            Accounting.  According to Pedro  Cos, he prepared the monthly

____________________

            1.  Plaintiff failed to file any appellee brief.

                                         -2-

financial statements, paid  all suppliers, and supervised  25

            employees.

                 4)   On August 1,  1986, Pedro Cos was  transferred to a

            new  position -  Special Assistant  to the  Finance Director.

            His classification and salary remain as Accountant VI. 

                 5)   According to  Pedro Cos, he now  supervises no one.

            He no longer has  a secretary.   Almost all of his  functions

            were taken away.   He now is responsible for  menial clerical

            tasks.  He reconciles  the paymaster's cash with the  monthly

            bank statements.  He says this takes one hour a month.  He is

            also responsible for a Social Security report which, he says,

            takes one hour every three months.

                 6)   Pedro  Cos  has  a bachelor's  degree  in  business

            administration and a master's degree  in accounting.  He also

            has  taken four seminars in  the field of  accounting.  Pedro

            Cos says that his present functions are not commensurate with

            his  academic preparation and  his work experience.   He says

            that he does  not perform any of the  duties contained in the

            job description of Accountant VI.

                 7)   Pedro Cos alleges that he was replaced in his prior

            position with a PDP member with less academic preparation and

            work experience and a classification of Accountant IV.

                 8)   Pedro  Cos contends that  defendants were  aware of

            his  political affiliation.    He claims  that these  actions

            occurred  because  of  his  political  affiliation  and  that

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defendants  are constantly  harrassing and  humiliating him,2

            all with the intent to force him to resign.

                 Appellants  deny  that   Pedro  Cos'  transfer  occurred

            because of his political  affiliation, but rather pursuant to

            legitimate  needs of  GSA and  in the  course of a  bona fide

            reorganization, encompassing the  transfer of other employees

            as well.    They also  claim  that, in  any  event, they  are

            shielded  from liability  for civil  damages because,  at the

            time  of  their  actions  (August  1986), the  constitutional

            protection   against  a  politically  motivated  demotion  or

            transfer short of dismissal was not clearly established.

                 Appellants are correct in their assessment of the status

            of the law as of 1986.  We have repeatedly stated that, prior

            to our  decision in Agosto-De-Feliciano v.  Aponte-Roque, 889
                                ___________________     ____________

            F.2d 1209 (1st Cir. 1989) (en banc), and the Court's decision

            in  Rutan v. Republican Party of Illinois, 110 S. Ct. (1990),
                _____    ____________________________

            the law was not so well settled that reasonable people should

            have  been aware that such constitutional protection existed.

            Valiente  v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Aviles-
            ________     ______                                   _______

            Martinez v. Monroig, 963  F.2d 2, 6 (1st Cir.  1992); Castro-
            ________    _______                                   _______

            Aponte v. Ligia-Rubero, 953 F.2d  1429, 1430 (1st Cir. 1992);
            ______    ____________

            Balaguer-Santiago v. Torres-Gaztambide,  932 F.2d 1015,  1016
            _________________    _________________

            (1st Cir. 1991);  Roque-Rodriguez v. Lema Moya, 926 F.2d 103,
                              _______________    _________

____________________

            2.  This alleged constant harassment and humiliation are  not
            further described.

                                         -4-

108 (1st Cir. 1991);  Nunez-Soto v. Alvarado, 918  F.2d 1029,
                                  __________    ________

            1030 (1st Cir. 1990).

                 The district court declined to grant summary judgment on

            the ground of qualified immunity, however.  It concluded that

            the contention  that Pedro  Cos' present position  was almost

            entirely devoid  of duties and responsibilities  coupled with

            his allegation that the defendants' purpose was to secure his

            resignation raised a material  question of fact regarding his

            actual   duties  and  whether   his  transfer  constituted  a

            constructive discharge.   The court pointed  out that we  had

            recognized   the  constitutional  dimension  of  a  claim  of

            constructive discharge in Alicea  Rosado v. Garcia  Santiago,
                                      ______________    ________________

            562  F.2d 114  (1st Cir. 1977),  long before  the defendants'

            actions  in this  case,  thus precluding  them from  claiming

            qualified immunity.

                 We respectfully disagree with  the district court.  Even

            assuming  that Pedro Cos'  description of his  present job is

            accurate,  we  conclude  that  his claim  of  a  constructive

            discharge  fails as a matter of law.   As explained in Alicea
                                                                   ______

            Rosado,
            ______

                      [a]  "constructive  discharge"  has  been
                      defined as "an  onerous transfer,  having
                      the  purpose  and effect  of  forcing the
                                    __________
                      transferred   employee    to   quit   the
                      employment."

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Id.  at  119 (quoting  Newspaper  Guild of  Boston  v. Boston
            ___                    ___________________________     ______

            Herald-Traveler  Corp., 238  F.2d 471,  472 (1st  Cir. 1956))
            ______________________

            (emphasis added).

                      [T]he "burden imposed  upon the  employee
                      must cause, and  be intended to cause,  a
                      __________                              _
                      change  in  his  working   conditions  so
                      _________________________________________
                      difficult or unpleasant  as to force  him
                      _________________________________________
                      to resign."
                      _________

            Id.  (quoting Crystal  Princeton Refining  Co., 222  N.L.R.B.
            ___           ________________________________

            1068, 1069 (1976)) (emphasis added).

                 Pedro Cos  is still employed and drawing his full salary

            from  GSA.    He has,  in  fact,  not  resigned or  left  his

            employment.   No discharge,  constructive  or otherwise,  has

            occurred.  As we stated in Alicea Rosado, 
                                       _____________

                      [b]efore  a "constructive  discharge" may
                      be found, entitling  the employee to quit
                      working altogether  rather than accepting
                      a transfer which  he thinks is  violative
                      of his constitutional  rights, the  trier
                      of fact  must be  satisfied that the  new
                      working  conditions  would  have been  so
                      difficult or unpleasant that a reasonable
                      person in the employee's shoes would have
                      felt compelled to resign.

            Id.  A claim of  constructive discharge due to a  demotion or
            ___

            transfer cannot  succeed when a  claimant, in  fact, has  not

            left employment.   Cf. Smith  v. Bath Iron  Works Corp.,  943
                               ___ _____     ______________________

            F.2d 164,  167  (1st Cir.  1991)  (because claimant  did  not

            resign until  6 months after last  episode of discrimination,

            she cannot  prevail under  a constructive  discharge theory).

            Indeed,  we point out that in the  case of Newspaper Guild v.
                                                       _______________

            Boston Herald-Traveler Corp., 238 F.2d  at 472, which was the
            ____________________________

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source  of  our   much  quoted  definition  of   constructive

            discharge,  the claim of  constructive discharge was rejected

            precisely because  the employee had not  left his employment,

            but continued to  work and draw  his full salary on  the less

            desirable 1:00 a.m. shift to which he had been transferred.

                 The order of the  district court denying the defendants'

            motion  for  summary judgment  on  their  claim of  qualified

            immunity from damages liability is vacated and  we remand for

            entry of summary judgment in defendants' favor on this issue.

                 Vacated and remanded.
                 _____________________

             6, line 10, add a ")" immediately following "(1976)". 

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