January 5, 1993 UNITED STATES COURT OF APPEALS For the First Circuit
No. 92-1648
PEDRO L. RODRIGUEZ-PINTO,
Plaintiff, Appellant,
v.
CIRILO TIRADO-DELGADO, 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.
Hector Urgell Cuebas for appellant.
Vannessa Ramirez, Assistant Solicitor General, with whom Reina
Colon De Rodriguez, Deputy Solicitor General, Department of Justice,
was on brief for appellees.
*Of the District of Massachusetts, sitting by designation
Stahl, Circuit Judge. In this appeal, plaintiff-
appellant Pedro Rodriguez-Pinto challenges the district
court's entry of summary judgment in favor of defendants-
appellees Cirilo Tirado Delgado and Rafael Rivera Gonzalez on
his claim of political affiliation-based discrimination. For
the reasons set forth below, we affirm the district court's
entry of summary judgment on all of plaintiff's claims except
his First Amendment claim for equitable relief. We remand
that claim for further proceedings.
I.
BACKGROUND
As always, we review the district court's summary
judgment ruling de novo, reading the record in a light most
amiable to the nonmoving party. See Federal Deposit Ins.
Corp. v. World Univ., Inc., No. 92-1389, slip op. at 4 (1st
Cir. Oct. 22, 1992). Plaintiff is a career employee of the
State Insurance Fund of the Commonwealth of Puerto Rico ("the
Fund") who, at the time he filed his complaint, had accrued
more than twenty-three years of public service. He also is a
member of the New Progressive Party ("NPP"), whose
gubernatorial candidate lost the general election of November
6, 1984.
At the time the complaint was filed, defendant
Cirilo Tirado Delgado was the Fund's Administrator and
defendant Rafael Rivera Gonzalez was the Fund's Director of
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Personnel. Both defendants are members of the Popular
Democratic Party ("PDP"), whose gubernatorial candidate won
the 1984 election. Defendants were appointed to their
positions subsequent to January 2, 1985, the day the PDP
candidate assumed the governorship of the Commonwealth.
Prior to the 1984 election, plaintiff was Chief of
the Fund's Finance Division. Plaintiff contends that as
Chief, he directed, supervised, and coordinated all Sections
of the Finance Division, including the Pay Vouchers Section,
the Collections Section, and the Claims and Attachments
Section. He further asserts that he coordinated "all the
deposits of funds pertaining to the State Insurance Fund in
the Government Bank and other commercial banks."
The complaint alleges that from July 1985 through
November 1985, defendants did not permit plaintiff to carry
out the duties of his position. It further states that,
since November 1985, plaintiff has been assigned "a small
amount of functions belonging to lesser positions in the
[Fund]. . . ." Plaintiff's sworn declaration, submitted in
opposition to defendants' summary judgment motion, clarifies
that, subsequent to the election, plaintiff was reassigned to
the position of Assistant to the Chief of the Fund's
Collection Division.1
1. Defendants contend that plaintiff's reassignment took place pursuant to a reorganization of the Fund that was carried out late in 1985. Plaintiff asserts that the
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Plaintiff claims that, since his reassignment, the
functions and duties of the Assistant to the Chief of
Collections have not been delegated to him, and that he has
been allotted only nominal tasks which take no more than ten
minutes a day to perform. Plaintiff further claims that the
Chief of the Fund's Collection Division, whom plaintiff now
is assisting, previously was under his supervision. He also
alleges that defendants have deprived him of the following
previously-obtained rights and benefits: (1) personal
secretary, (2) parking space, (3) office, (4) telephone, (5)
supervision of other employees, and (6) access to office
records and documents. Finally, plaintiff contends that he
was placed in a lower salary scale which has adversely
affected his ability to obtain certain pay raises, and that
he is subject to daily ridicule and harassment which, in
conjunction with the other circumstances of his job change,
cause him to feel as if he actually has been discharged from
his employment.2 It is plaintiff's position that
defendants' actions were precipitated by his affiliation with
the NPP.
reorganization was a sham whose true purpose was to demote employees who were members of the NPP and to replace them with PDP members. Plaintiff further asserts that he was, in fact, replaced by active PDP members, and that all the employees who were demoted pursuant to the 1985 reorganization were affiliated with the NPP.
2. The record reveals, however, that plaintiff has not left his employment with the Fund.
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In June of 1986, plaintiff filed this action
pursuant to, inter alia, 42 U.S.C. 1983, alleging that
defendants had violated rights secured him under the First
and Fourteenth Amendments to the United States Constitution.
Plaintiff's complaint sought both damages and equitable
relief in the form of temporary and permanent injunctions
directing defendants to reinstate plaintiff to his former
employment and to refrain from acting toward him in an
unconstitutional manner. Subsequently, defendants filed a
motion for summary judgment, arguing that plaintiff's claims
under 1983 were insufficiently supported to forestall the
entry of judgment in their favor. The district court granted
defendants' motion, ruling (1) that plaintiff had not been
constructively discharged, (2) that plaintiff had not offered
sufficient proof on his claim that, since his transfer, his
work situation was so "unreasonably inferior to the norm,"
see Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218
(1st Cir. 1989) (en banc) (announcing this circuit's standard
for evaluating First Amendment political affiliation-based
employment discrimination claims where the employee has not
been discharged) (hereinafter "the Agosto-de-Feliciano
claim"), that it violated the First Amendment,3 and (3) that
3. The district court alternatively ruled that even if plaintiff had adequately supported his First Amendment claim, defendants would be entitled to qualified immunity therefrom insofar as plaintiff was seeking civil damages from the defendants in their individual capacities.
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plaintiff had not been deprived of any property right
protected by the Fourteenth Amendment.4 On appeal,
plaintiff challenges all of the district court's rulings. We
discuss each in turn.
II.
DISCUSSION
A. The First Amendment
1. Plaintiff's Constructive Discharge Claim
Plaintiff argues that the district court erred in
ruling that he was not constructively discharged. However,
we recently made clear that a First Amendment "claim of
constructive discharge due to a demotion or transfer cannot
succeed when a claimant, in fact, has not left employment."
Pedro-Cos v. Contreras, 976 F.2d 83, 85 (1st Cir. 1992) (per
curiam) (surveying pertinent First Circuit authority). Here,
the record reflects that plaintiff has not left his
employment with the Fund. Thus, his constructive discharge
claim fails as a matter of law.
2. Plaintiff's Agosto-de-Feliciano Claim5
2. Plaintiff's Agosto-de-Feliciano Claim5
4. At the same time, the court also dismissed several pendent state claims brought by plaintiff.
5. In his concurrence, Judge Torruella questions the continuing vitality of Agosto-de-Feliciano in light of the
Supreme Court's ruling in Rutan v. Republican Party of
Illinois, 110 S. Ct. 2729 (1990). Because we find, as will
be discussed more fully infra, that there exist sufficient
genuine and material factual disputes to warrant a trial on plaintiff's claim for equitable relief even under the arguably more stringent standard set forth in Agosto-de-
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a. Civil Damages
Plaintiff also takes issue with the district
court's alternative ruling, see supra note 3, that defendants
are entitled to qualified immunity from his claim for civil
damages under Agosto-de-Feliciano.6 However, we repeatedly
have stated that, prior to our decision in Agosto-de-
Feliciano and the Supreme Court's decision in Rutan, 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. See, e.g., Pedro-Cos, 976 F.2d at 85; Valiente
v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Castro-Aponte v.
Ligia-Rubero, 953 F.2d 1429, 1430 (1st Cir. 1992). Here, all
the complained of adverse personnel actions took place prior
to our decision in Agosto-de-Feliciano and the Supreme
Court's decision in Rutan. As a result, the district court's
ruling that defendants were entitled to qualified immunity
from plaintiff's claim for civil damages was plainly correct.
b. Equitable Relief
Feliciano, we do not reach this issue.
6. The doctrine of qualified immunity shields governmental officials performing discretionary functions from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Rivera v. Murphy,
No. 92-1688, slip op. at 7 (1st Cir. Nov. 10, 1992) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
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Plaintiff's claim for equitable relief under
Agosto-de-Feliciano to redress perceived ongoing
constitutional violations by defendants presents us with a
considerably more difficult issue. As noted above, the
district court held that plaintiff did not introduce
sufficient proof on this claim to warrant a trial. More
specifically, the court ruled that plaintiff had not
"produced enough evidence" of a sufficiently severe decline
in his work conditions for a factfinder to conclude, under a
"clear and convincing evidence" standard, that plaintiff's
work situation is "unreasonably inferior to the norm for the
position." See generally Agosto-de-Feliciano, 889 F.2d at
1218-20. The court also ruled that plaintiff had failed to
adduce evidence sufficient for a factfinder to determine,
under a "preponderance of the evidence" standard, that
defendants' true motivation in taking their actions was
political affiliation-based discrimination. See id. at 1220.
In so doing, the court found that the allegations set forth
in plaintiff's sworn complaint and elaborated upon in
plaintiff's sworn declaration were "conclusory" and, without
more, were insufficient to defeat defendants' motion for
summary judgment. We do not share the district court's view
of plaintiff's evidence.
Summary judgment acts "to pierce the boilerplate of
the pleadings and assay the parties' proof in order to
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determine whether trial is actually required." Wynne v.
Tufts Univ. Sch. of Medicine, No. 92-1437, slip op. at 6 (1st
Cir. Oct. 6, 1992). It is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). "In this context, `genuine' means that the
evidence is such that a reasonable jury could resolve the
point in favor of the nonmoving party." United States v. One
Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A "material" fact is one "that might affect the
outcome of the suit under the governing law." Anderson, 477
U.S. at 248.
The moving party bears the initial burden of
averring that the evidence is insufficient to support the
nonmoving party's case. See, e.g., Lawrence v. Northrop, No.
92-1702, slip op. at 3 (1st Cir. Nov. 25, 1992) (citations
omitted). Once that burden is met, the opposing party must
"limn a genuine disagreement as to some material fact." One
Parcel of Real Property, 960 F.2d at 204. In so doing, the
nonmovant cannot avoid summary judgment merely by promising
to produce admissible evidence at trial. Id. (citing Garside
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v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990)).
"Instead, the [nonmovant] must present affirmative evidence
in order to defeat a properly supported motion for summary
judgment." Anderson, 477 U.S. at 257.
In this case, plaintiff's burden is more onerous
than that of the usual civil litigant opposing a summary
judgment motion. Ordinarily, for the nonmovant to avoid the
entry of summary judgment, the record must be such that a
reasonable factfinder could determine by a preponderance of
the evidence that the nonmovant is entitled to a verdict.
See id. at 252. Here, however, the record must contain
evidence which would allow the factfinder to conclude, by
clear and convincing evidence, that the nonmoving employee's
new position is "unreasonably inferior to the norm." Agosto-
de-Feliciano, 889 F.2d at 1220; see also Anderson, 477 U.S.
at 254 (holding that the clear and convincing evidence
standard, when applicable, must be taken into account at the
summary judgment stage). Although the "unreasonably inferior
to the norm" standard is not self-defining and its contours,
at times, may be difficult to ascertain, we have specifically
noted some situations where a factfinder would, in all
likelihood, be entitled to find an employee's new job
situation to be "unreasonably inferior." See generally id.
at 1219. Included among these are situations where (1) the
employee has been stripped of responsibilities that
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previously were legitimately his/hers and the
responsibilities have been reassigned to someone who was the
employee's subordinate; (2) the employee has been stripped of
both supervisory status and his/her right to work
independently on projects of significance; and (3) the
employee has endured a sustained and significant general
worsening of employment conditions. See id.
Even if the plaintiff has established the existence
of at least one genuine and material issue of fact under the
aforementioned standard, s/he is not necessarily entitled to
go to trial. Instead, the record also must permit the
factfinder to conclude by a preponderance of the evidence
that the changes in the nonmoving employee's work situation
were motivated by discrimination on the basis of political
affiliation. See id. at 1220. Assuming the nonmovant meets
that burden, "an employer then may seek to establish by a
preponderance of the evidence that the changes would have
been made regardless of political affiliation." Id. (citing
Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Cordero v. DeJesus- Mendez, 867 F.2d 1, 5 (1st Cir.
1989); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264
(1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988)).
Reading the record in the light most favorable to
plaintiff, we believe there exist genuine and material
questions of fact which, if resolved in plaintiff's favor,
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could result in his prevailing at trial. First of all, we do
not agree with the district court that the allegations in
plaintiff's sworn complaint, as elaborated upon in his sworn
declaration, are "conclusory." Rather, our review reveals a
series of factual assertions that are probative of whether
defendants are discriminating against plaintiff on the basis
of his political affiliation.7
More importantly, we find that plaintiff's sworn
allegations, if believed, could allow a reasonable factfinder
to find for plaintiff. We note that the following
allegations by plaintiff have in no way been conclusively
rebutted:
(1) that prior to his reassignment, plaintiff directed, supervised, and coordinated the Fund's Finance Division;
(2) that since his reassignment, plaintiff has been assisting a person who previously was under his supervision;
(3) that since his reassignment, plaintiff has not been delegated the functions and duties of his new job title;
(4) that since his reassignment, plaintiff only has been assigned clerical tasks which take ten minutes a day to perform;
(5) that since his reassignment, plaintiff has been deprived of his supervisory status;
(6) that since his reassignment, plaintiff has been placed in a lower pay scale where he no longer can obtain certain pay raises;
7. The assertions at issue are set forth in Section I of this opinion.
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(7) that plaintiff is a known member of the NPP;
(8) that plaintiff's prior position was filled by members of the PDP; and
(9) that everyone who was demoted during the 1985 reorganization was affiliated with the NPP.
Simply put, we view sworn allegations (1)-(6) as a sufficient
evidentiary basis for a reasonable factfinder to find by
clear and convincing evidence that plaintiff's current
position is "unreasonably inferior to the norm."8
Similarly, we believe that allegations (7)-(9) could
constitute an adequate foundation for that same factfinder to
conclude by a preponderance of the evidence that defendants
were motivated by discrimination on the basis of political
affiliation. Accordingly, we find that the district court
should not have entered summary judgment on plaintiff's
Agosto-de-Feliciano claim insofar as that claim was seeking
equitable relief.9
8. We note the similarity between these allegations and the examples of situations that we previously indicated should go to the jury. See Agosto-de-Feliciano, 889 F.2d at 1219.
9. In their brief, defendants go to great lengths to assert a "changeover" defense. See generally Agosto-de-Feliciano,
889 F.2d at 1220-22. In so doing, they argue that plaintiff was transferred as part of a legitimate reorganization of the Fund in 1985. See supra note 1. As stated, defendants'
changeover defense may articulate a legitimate reason for plaintiff's reassignment. However, it makes no attempt to explain why the reorganization took place along the political lines alleged by plaintiff. Accordingly, there remain genuine issues of material fact as to whether the 1985 reorganization was pretextual. See id. at 1221-22.
Moreover, in presenting us with their changeover argument, defendants do not deny or attempt to explain why
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B. The Due Process Clause
Plaintiff's final argument is that the district
court erred in granting defendants summary judgment on his
claim, as set forth generally in his complaint, that
"plaintiff's property interests are being adversely affected
by defendants['] actions . . . in violation of [plaintiff's]
rights to due process under the Fourteenth Amendment. . .
."10 We disagree with plaintiff's contention.
Plaintiff's due process claim depends on his having
been deprived of a property right without due process of law.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985). To establish such a right, "a person clearly must
have more that an abstract need or desire for it. [S/h]e
must have more than a unilateral expectation of it. [S/h]e
plaintiff (1) has not been delegated the functions and duties of his new job title, (2) is assigned only clerical tasks which take ten minutes a day to perform, or (3) is now assisting a former subordinate. Nor do defendants conclusively refute plaintiff's claim that he now is in a lower pay scale. Accordingly, defendants' changeover defense does not provide us with an alternative basis for affirming the district court's entry of summary judgment in favor of defendants on plaintiff's Agosto-de-Feliciano claim for
equitable relief.
10. On appeal, plaintiff alleges for the first time that the property interests of which he was unconstitutionally deprived were the right to remain Chief of the Fund's Finance Division and the right to remain in the same salary scale regardless of his reassignment.
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must, instead, have a legitimate claim of entitlement to it."
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
Moreover, a property right is not created by the
Constitution, but is created and defined in dimension "`by
existing rules or understandings that stem from an
independent source such as state law.'" Loudermill, 470 U.S.
at 538 (quoting Roth, 408 U.S. at 577).
In the proceedings below, plaintiff's attempts at
explication of his due process claim consisted of the
aforementioned paragraph in his complaint and two paragraphs
in his memorandum of law in opposition to defendants' motion
for summary judgment, wherein he recaps the paragraph in his
complaint and points out, irrelevantly, that defendants are
not claiming qualified immunity on his due process claim. In
fact, plaintiff never clearly identified the property right
or rights of which he allegedly was deprived.11 Nor did he
attempt (1) to identify the source of any such right or
rights; (2) to explain how the right or rights are entitled
to constitutional protection; (3) to specify the facts which
allegedly support his due process claim; or (4) to cite any
legal authority tending to strengthen his claim. In light of
11. At one point in his memorandum in opposition to defendants' summary judgment motion, plaintiff seems to be asserting that he was deprived of continued public employment to which he was legitimately, and therefore constitutionally, entitled. See Roth, 408 U.S. at 577. As the district court
noted, this argument fails for the simple reason that plaintiff has remained employed by the Fund.
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these omissions, it is apparent that plaintiff presented his
due process claim to the district court in only a most
perfunctory manner. And, it is well settled that arguments
made in a perfunctory manner below are deemed waived on
appeal. See, e.g., World Univ., Inc., slip op. at 13 (citing
Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992)); see
also McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13,
22 (1st Cir. 1991) ("[T]heories not raised squarely in the
district court cannot be surfaced for the first time on
appeal.") (citations omitted), cert. denied, 112 S. Ct. 1939
(1992); cf. Kensington Rock Island Ltd. Partnership v.
American Eagle Historic Partners, 921 F.2d 122, 125 (7th Cir.
1990) ("`A party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered. If it does not do
so, and loses the motion, it cannot raise such reasons on
appeal.'") (quoting Liberles v. County of Cook, 709 F.2d
1122, 1126 (7th Cir. 1983)).
Obviously, the district court made significant
efforts to discern and address the merits of plaintiff's due
process claim.12 In this instance, however, we prefer to
12. The district court construed plaintiff's claim as one for the deprivation of the right to continue as Chief of the Fund's Finance Division and/or the right to remain in the same salary scale regardless of reassignment, and then found that plaintiff had no such right or rights. In fact, it appears that the district court's construction of his claim provided the basis for plaintiff's due process argument on
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avoid the constitutional ruling.13 See, e.g., El Dia, Inc.
v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992) ("`It
has long been a basic tenet of the federal courts to eschew
the decision of cases on constitutional grounds unless and
until all other available avenues of resolution [are]
exhausted.'") (quoting Aggarwal v. Ponce School of Medicine,
745 F.2d 723, 726 (1st Cir. 1984)). Nonetheless, we affirm
the district court's entry of summary judgment against
plaintiff on his due process claim.
III.
CONCLUSION
For the reasons herein stated, we affirm the
district court's entry of summary judgment in favor of
defendants on plaintiff's constructive discharge claim and
plaintiff's Agosto-de-Feliciano claim for civil damages. We
also affirm the court's entry of summary judgment in favor of
defendants on plaintiff's due process claim. However, we
reverse and remand for further proceedings the court's entry
appeal.
13. We may, of course, "`affirm the entry of summary judgment on any independently sufficient ground made manifest by the record.'" World Univ., Inc., slip op. at 4 (quoting
Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st
Cir. 1992)).
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of summary judgment in favor of defendants on plaintiff's
Agosto-de-Feliciano claim for equitable relief.
Affirmed in part, reversed in part. Remanded for
further proceedings consistent with this opinion.
"Concurrence follows"
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TORRUELLA, Circuit Judge (Concurring). Although I
concur with the majority I am of the view that Agosto-de-
Feliciano v. Aponte-Rogue, 889 F.2d 1209 (1st Cir. 1989) (en
banc), particularly its so-called "changeover" defense, see
ante at 13 n.9, no longer reflects the law of the land as
articulated by the Supreme Court in Rutan v. Republican Party
of Illinois, 110 S. Ct. 2729 (1990). I therefore do not
consider Agosto-de-Feliciano authoritative circuit precedent.
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