Rivera Ruiz v. Gonzalez Rivera

• Court: Court of Appeals for the First Circuit
• Decided: January 5, 1993
• Docket: 92-1558
• Status: Published

Opinion

USCA1 Opinion

January 5, 1993

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                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
                                   ________________

                      "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
                                      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
                                    LEGAL ANALYSIS
                                    ______________

            I.  Due Process
            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
            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
            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
                                      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