January 5, 1993
United States Court of Appeals For the First Circuit
No. 92-1558
DAMARIS RIVERA-RUIZ,
Plaintiff, Appellant,
v.
LEONARDO GONZALEZ-RIVERA, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and Skinner,* District Judge.
Rafael F. Castro-Lang for appellant.
Vannessa Ramirez, Assistant Solicitor General, Department of
Justice, with whom Anabelle Rodriguez-Rodriguez, Solicitor General,
was on brief for appellees.
*Of the District of Massachusetts, sitting by designation.
Stahl, Circuit Judge. Appellant Damaris Rivera-
Ruiz ("Rivera") sued appellees pursuant to 42 U.S.C. 1983
and 1985 for alleged violations of her constitutional rights.
Specifically, the complaint alleged that appellees demoted
and transferred Rivera because of her political affiliation.
The district court granted summary judgment to appellees
because Rivera failed to "meet the standard for alleging
constitutional injury as set forth in Agosto-Feliciano v.
Aponte-Roque, 889 F.2d 1209 (1st Cir. 1989)." Rivera-Ruiz v.
Leonardo Gonzalez-Rivera, No. 87-1592, slip. op. at 2 (D.P.R.
April 1, 1992). Because we disagree with the district
court's view of Rivera's showing, we reverse the district
court's judgment and remand the case for further proceedings.
SUMMARY JUDGMENT
"Summary judgment is only appropriate when . . .
`there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law.'" Hoffman v. Reali, 973 F.2d 980, 984 (1st Cir. 1992)
(quoting Fed. R. Civ. P. 56(c)). Summary judgments receive
plenary review, in which we read the record and indulge all
inferences in the light most favorable to the nonmoving
party. E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907
F.2d 1274, 1277 (1st Cir. 1990).
-2- 2
BACKGROUND
The facts in the light most favorable to Rivera are
as follows. Rivera, a member of the New Progressive Party
("NPP"), worked at an agency of Puerto Rico's government
Corporacion de Fomento Recreativo since 1971. In that
organization, she held the career position of Executive
Officer IV since February 1, 1984.
In December 1986, appellees, members of the Popular
Democratic Party ("PDP") took Rivera's job duties away from
her and reassigned them to a member of the PDP. On the 22nd
of that month, appellees also reduced her monthly salary from
$1,131 to $998. On May 30, 1987, appellees demoted Rivera to
Executive Secretary I, which carries a monthly salary of
$995.
As a result of these actions, Rivera became
severely depressed, and on March 27, 1987, she was placed on
rest status at the State Insurance Fund. Rivera remained on
rest status until the State Insurance Fund declared itself
"without jurisdiction because [Rivera's] emotional condition
[is] due to political discrimination." Subsequently, Rivera
received private psychiatric care.
After receiving psychiatric care, Rivera reported
back to work, and appellees sent her to the agency's press
office where she was assigned minimal duties by a former
subordinate.
-3- 3
In September 1990, appellees transferred Rivera to
a division that did not require her skills as an Executive
Secretary. Moreover, at that division, Rivera had no desk,
typewriter, or office. Rivera never received a hearing on
any of these demotions or transfers.
LEGAL ANALYSIS
I. Due Process
The Due Process Clause of the Fourteenth Amendment
guarantees public employees with a property interest in
continued employment the right to a pre-termination hearing.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). State law determines whether an employee has such an
interest. Bishop v. Wood, 426 U.S. 341, 344 (1976). Under
Puerto Rico law, a career position is a constitutionally
protected property interest. Kaufmann v. Puerto Rico Tel.
Co., 841 F.2d 1169, 1173 (1st Cir. 1988). However, that
property right is void if the employee acquired the career
position through a violation of the Puerto Rico Personnel Act
or agency regulations promulgated under that Act. Id.
No one disputes that Rivera held a career position.
However, appellees contend that her ascension to the
Executive Officer IV position entailed two violations of the
agency regulations. First, they argue that in October 1979,
Rivera was erroneously reclassified from Secretary V to
Executive Secretary II. Specifically, they state that she
-4- 4
did not perform functions similar to those performed in the
Executive Secretary I position for one year as required by
the agency regulations.
In response, Rivera has offered an affidavit from
an Interagency Coordinator of Human Resources for the
Municipal Government of San Juan stating that the
reclassification was appropriate. She also argues that she
worked for more than one year as an Executive Secretary III,
a position two levels higher than Executive Secretary I, and
that she therefore has satisfied the required one year of
experience similar to that of Executive Secretary I.
Second, appellees contend that Rivera's promotion
from Executive Secretary II to Executive Officer IV was void
because she did not have the minimal qualifications for that
position. Specifically, they assert that she did not meet
the requirement of one year of experience performing
functions similar to those of an Executive Officer III.
Rivera contends, however, that she did meet that requirement,
and the record is unclear on this issue. Thus, there are
genuine issues of material fact with respect to whether
Rivera's ascension to Executive Officer IV violated the
personnel regulations, and the district court should not have
granted appellees summary judgment on Rivera's due process
claim.
-5- 5
II. First Amendment
The district court concluded that Rivera's First
Amendment claim fails for two reasons. First, it stated that
even if Rivera could show that political affiliation was a
"motivating factor" in appellees' actions, appellees can show
that they would have demoted her regardless of her political
affiliation. Rivera-Ruiz, No. 87-1592, slip. op. at 12.
On appeal, appellees concede that Rivera carried
her initial burden of a prima facie showing that appellees'
conduct was politically motivated. See Kaufmann, 841 F.2d at
1172. She alleged that: (1) she support the NPP, and that
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January 5, 1993
United States Court of Appeals For the First Circuit
No. 92-1558
DAMARIS RIVERA-RUIZ,
Plaintiff, Appellant,
v.
LEONARDO GONZALEZ-RIVERA, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and Skinner,* District Judge.
Rafael F. Castro-Lang for appellant.
Vannessa Ramirez, Assistant Solicitor General, Department of
Justice, with whom Anabelle Rodriguez-Rodriguez, Solicitor General,
was on brief for appellees.
*Of the District of Massachusetts, sitting by designation.
Stahl, Circuit Judge. Appellant Damaris Rivera-
Ruiz ("Rivera") sued appellees pursuant to 42 U.S.C. 1983
and 1985 for alleged violations of her constitutional rights.
Specifically, the complaint alleged that appellees demoted
and transferred Rivera because of her political affiliation.
The district court granted summary judgment to appellees
because Rivera failed to "meet the standard for alleging
constitutional injury as set forth in Agosto-Feliciano v.
Aponte-Roque, 889 F.2d 1209 (1st Cir. 1989)." Rivera-Ruiz v.
Leonardo Gonzalez-Rivera, No. 87-1592, slip. op. at 2 (D.P.R.
April 1, 1992). Because we disagree with the district
court's view of Rivera's showing, we reverse the district
court's judgment and remand the case for further proceedings.
SUMMARY JUDGMENT
"Summary judgment is only appropriate when . . .
`there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law.'" Hoffman v. Reali, 973 F.2d 980, 984 (1st Cir. 1992)
(quoting Fed. R. Civ. P. 56(c)). Summary judgments receive
plenary review, in which we read the record and indulge all
inferences in the light most favorable to the nonmoving
party. E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907
F.2d 1274, 1277 (1st Cir. 1990).
-2- 2
BACKGROUND
The facts in the light most favorable to Rivera are
as follows. Rivera, a member of the New Progressive Party
("NPP"), worked at an agency of Puerto Rico's government
Corporacion de Fomento Recreativo since 1971. In that
organization, she held the career position of Executive
Officer IV since February 1, 1984.
In December 1986, appellees, members of the Popular
Democratic Party ("PDP") took Rivera's job duties away from
her and reassigned them to a member of the PDP. On the 22nd
of that month, appellees also reduced her monthly salary from
$1,131 to $998. On May 30, 1987, appellees demoted Rivera to
Executive Secretary I, which carries a monthly salary of
$995.
As a result of these actions, Rivera became
severely depressed, and on March 27, 1987, she was placed on
rest status at the State Insurance Fund. Rivera remained on
rest status until the State Insurance Fund declared itself
"without jurisdiction because [Rivera's] emotional condition
[is] due to political discrimination." Subsequently, Rivera
received private psychiatric care.
After receiving psychiatric care, Rivera reported
back to work, and appellees sent her to the agency's press
office where she was assigned minimal duties by a former
subordinate.
-3- 3
In September 1990, appellees transferred Rivera to
a division that did not require her skills as an Executive
Secretary. Moreover, at that division, Rivera had no desk,
typewriter, or office. Rivera never received a hearing on
any of these demotions or transfers.
LEGAL ANALYSIS
I. Due Process
The Due Process Clause of the Fourteenth Amendment
guarantees public employees with a property interest in
continued employment the right to a pre-termination hearing.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985). State law determines whether an employee has such an
interest. Bishop v. Wood, 426 U.S. 341, 344 (1976). Under
Puerto Rico law, a career position is a constitutionally
protected property interest. Kaufmann v. Puerto Rico Tel.
Co., 841 F.2d 1169, 1173 (1st Cir. 1988). However, that
property right is void if the employee acquired the career
position through a violation of the Puerto Rico Personnel Act
or agency regulations promulgated under that Act. Id.
No one disputes that Rivera held a career position.
However, appellees contend that her ascension to the
Executive Officer IV position entailed two violations of the
agency regulations. First, they argue that in October 1979,
Rivera was erroneously reclassified from Secretary V to
Executive Secretary II. Specifically, they state that she
-4- 4
did not perform functions similar to those performed in the
Executive Secretary I position for one year as required by
the agency regulations.
In response, Rivera has offered an affidavit from
an Interagency Coordinator of Human Resources for the
Municipal Government of San Juan stating that the
reclassification was appropriate. She also argues that she
worked for more than one year as an Executive Secretary III,
a position two levels higher than Executive Secretary I, and
that she therefore has satisfied the required one year of
experience similar to that of Executive Secretary I.
Second, appellees contend that Rivera's promotion
from Executive Secretary II to Executive Officer IV was void
because she did not have the minimal qualifications for that
position. Specifically, they assert that she did not meet
the requirement of one year of experience performing
functions similar to those of an Executive Officer III.
Rivera contends, however, that she did meet that requirement,
and the record is unclear on this issue. Thus, there are
genuine issues of material fact with respect to whether
Rivera's ascension to Executive Officer IV violated the
personnel regulations, and the district court should not have
granted appellees summary judgment on Rivera's due process
claim.
-5- 5
II. First Amendment
The district court concluded that Rivera's First
Amendment claim fails for two reasons. First, it stated that
even if Rivera could show that political affiliation was a
"motivating factor" in appellees' actions, appellees can show
that they would have demoted her regardless of her political
affiliation. Rivera-Ruiz, No. 87-1592, slip. op. at 12.
On appeal, appellees concede that Rivera carried
her initial burden of a prima facie showing that appellees'
conduct was politically motivated. See Kaufmann, 841 F.2d at
1172. She alleged that: (1) she support the NPP, and that
appellees were PDP supporters; (2) appellees gave the duties
of her former position to a specific PDP supporter; and (3)
two other employees in similar situations who were PDP
supporters had not been demoted.
Appellees argue, however, that they then met their
burden of production by offering a legitimate reason for
Rivera's demotion: she held the Executive Officer IV
position in violation of the personnel regulations. However,
as discussed above, it is unclear whether this justification
is supported by the record. Indeed, genuine issues of
material fact exist with respect to Rivera's qualifications
to hold this position.
The second reason that the district court rejected
Rivera's First Amendment claim was that Rivera failed to meet
-6- 6
the standard set out in Agosto-Feliciano v. Aponte-Roque, 889
F.2d 1209 (1st Cir. 1989) (holding that actions short of
dismissal may violate employee's First Amendment rights, but
placing restrictions on when they constitute such violation).
We disagree. Simply put, we believe that Rivera's
allegations, which have not been demonstrated to be false,
could provide a sufficient evidentiary basis for a reasonable
factfinder to determine, by clear and convincing evidence,
that Rivera's current position is "unreasonably inferior to
the norm," as that term is defined in Agosto-Feliciano. See
id at 1218-20; see also Rodriguez-Pinto v. Tirado-Delgado,
No. 92-1648, slip op. at 9-13 (1st Cir. Dec. , 1992).
Moreover, we are of the opinion that Rivera's allegations
also are of such a nature that a reasonable factfinder could
conclude by a preponderance of the evidence that appellees'
actions were motivated by discrimination on the basis of
political affiliation. See Agosto-Feliciano, 889 F.2d at
1220; see also Rodriguez-Pinto, slip op. at 11-13.
Accordingly, we find that the district court should not have
granted defendants summary judgment on Rivera's First
Amendment claim.1
1. There is some question as to the continuing vitality of Agosto-Feliciano in light of the Supreme Court's ruling in
Rutan v. Republican Party of Illinois, 110 S. Ct. 2729
(1990). See Rodriguez-Pinto, slip op. at 18 (Torruella, J.
concurring). Because we conclude, however, that there exist sufficient genuine and material factual disputes to warrant a trial even under the arguably more stringent standard set
-7- 7
III. Qualified Immunity
Appellees' suggest that as government officials,
they are entitled to qualified immunity. The qualified
immunity defense does not rescue appellees in this case.
Qualified immunity is an affirmative defense for
government officials sued for damages. Domegan v. Fair, 859
F.2d 1059, 1063 (1st Cir. 1988). However, government
officials are not entitled to this defense if they violate
clearly established rights of which a reasonable government
official would have known. Harlow v. Fitzgerald, 457 U.S.
800, 818-19 (1982).
Because some portion of appellees' conduct
allegedly occurred after Agosto-Feliciano and Rutan were
decided, said conduct, if deemed unconstitutional, would have
violated clearly established rights about which appellees
should have known. Thus, appellees are not entitled to
qualified immunity with respect to those actions.2
forth in Agosto-Feliciano, we do not reach this issue.
2. Of course, appellees remain entitled to qualified immunity with respect to any conduct that occurred prior to the Agosto-Feliciano and Rutan decisions. See Rodriguez-
Pinto, slip. op., at 7 ("prior to our decision in Agosto-
Feliciano and the Supreme Court's decision in Rutan v.
Republican Party of Illinois, 110 S. Ct. 2729 (1990), it was
not clearly established that the constitutional prohibition against politically motivated firings applied to other
personnel actions, such as promotions, transfers, demotions, and hirings") (citations omitted) (emphasis original).
-8- 8
CONCLUSION
Because genuine issues of material fact exist with
respect to Rivera's claims against appellees, we reverse the
summary judgment, and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
-9- 9