Violeta Valiente v. Luis Rivera

• Court: Court of Appeals for the First Circuit
• Decided: June 5, 1992
• Docket: 91-2277
• Status: Published

Opinion

USCA1 Opinion

June 5, 1992             ____________________

No. 91-2277
        No. 91-2332 

                            IRIS VIOLETA VALIENTE, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                        HON. RAMON LUIS RIVERA, ETC., ET AL.,

                               Defendants, Appellants.

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                    APPEALS 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,
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                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

            Reina Colon  De Rodriguez,  Acting Solicitor  General, and  Carlos
            _________________________                                   ______
        Lugo-Fiol, Assistant Solicitor General, on brief for appellants.
        _________
            Jesus Hernandez Sanchez  and Hernandez Sanchez  Law Firm, on brief
            _______________________      ___________________________
        for appellees.

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Per Curiam.  Claiming qualified immunity, defendant
                      __________

            moved for summary  judgment.  Without reaching the  merits of

            the  immunity claim,  the  district court  denied the  motion

            because it was  "filed on the  eve of trial"  and "comes  too

            late."  Defendant has appealed.  For reasons which follow, we

            do not agree that the motion was filed too late.

                                          I

                      Eight plaintiffs, employees of the  municipality of

            Bayaman,  filed  a  complaint  in October  1986  against  the

            municipality and its mayor.  The lead plaintiff, Mrs. Violeta

            Valiente,  stated that she was a member of the same political

            party  as  the  mayor,  but,   because  she  had  refused  to

            discriminate on the basis of political affiliation, the mayor

            had classified her and  her associates (the other plaintiffs)

            as dissenters and had  discriminated against them.  According

            to  the complaint, Mrs. Violeta  Valiente had been demoted in

            1985, moved to  a small  room next  to the  toilet, given  no

            work, and  harassed.  Other plaintiffs had been denied raises

            granted  to   employees  with   less  experience  and   fewer

            credentials, had been transferred to work places more distant

            from their homes, had  suffered a cut in hours,  and had been

            harassed and persecuted.

                      After initial settlement negotiations failed, trial

            was  originally  scheduled  for   March  13,  1990,  but  was

            postponed to July  31, 1990.   On July  26, 1990,  defendants

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filed  their  request for  jury  instruction,  which included

            instruction on qualified  immunity.  The July 31,  1990 trial

            date was  vacated when  the parties  informed the  court that

            promising  settlement negotiations  were underway.   When, by

            mid-September,  no  settlement  had  materialized,  trial was

            rescheduled for May  7, 1991.  On  May 2, 1991, several  days

            before  trial,  defendants sought  a  three-month continuance

            because of  the  mayor's health  problems.   The  motion  was

            granted the next day,  but no new trial date  was immediately

            set.

                      On May  10, 1991, defendant mayor  filed the motion

            which is the subject of this appeal.  He requested permission

            to file  a motion  for  summary judgment  based on  qualified

            immunity.   Accompanying the motion was  a lengthy memorandum

            arguing that  in 1985 and 1986 when  the acts in question had

            taken  place,  the  law  was  not  clearly  established  that

            politically  motivated personnel  actions short  of discharge

            were   constitutionally  proscribed.    The  motion  was  not

            immediately  acted upon.  On May 28, trial was rescheduled to

            December 2, 1991.  On November 4, 1991,  the court denied the

            May 10, 1991 request  to file a motion for  summary judgment.

            The court stated as follows:

                      Denied.  Although a pre-trial  motion for
                      summary judgment is  the best  instrument
                      for  disposing  of  a qualified  immunity
                      defense, this motion, filed on the eve of
                      trial,   comes  too  late  in  this  1986
                      litigation.  Given the  Court's congested

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trial calendar, to allow this filing will
                      inevitably lead  to a continuance  of the
                      trial.

            Defendant mayor has appealed from that order.

                                          II

                      We reject  plaintiffs'  contention that  the  order

            refusing permission to file a motion for summary  judgment is

            not appealable.  Orders denying pre-trial claims of qualified
                                    _______

            immunity are immediately  appealable as collateral orders  in

            accordance with Mitchell v. Forsyth, 472 U.S. 511 (1985).  To
                            ________    _______

            be sure, the  district court  here did  not deny  defendant's
                                                        ____

            claim to qualified immunity on the merits, but rather refused

            to address the merits of the motion at all.  Nevertheless, as

            an asserted right  not to stand  trial is lost  no less by  a

            court's refusal to entertain a pre-trial immunity claim as by

            an erroneous denial  of it on the merits, we  see no basis --

            at least not  in the circumstances of the present case -- for

            distinguishing  between the two  for appellate jurisdictional

            purposes.  See Zayas-Green  v. Casaine, 906 F.2d 18,  23 (1st
                       ___ ___________     _______

            Cir. 1990) ("Without question,  defendants had . . .  a right

            to  appeal from  the  district court's  announced refusal  to

            entertain any further pre-trial motions raising the qualified

            immunity  defense.").   We  have  jurisdiction  to hear  this

            appeal.

                                         III

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Contrary   to  the   court's  ruling,   the  motion

            requesting permission  to file a motion  for summary judgment

            was not filed  on the eve of trial.   Rather, when the motion

            was filed, the court  had already vacated the May  trial date

            and   granted   defendants'   request   for   a   substantial

            continuance.  As the  new trial date was not  until December,

            the  motion ended up having been filed almost seven months in

            advance of  trial.  Seven months in advance is not the eve of

            trial.   There was  sufficient time for the  court to rule on

            the summary judgment request.1

                      Moreover,  it   is  clear   that   to  the   extent

            defendant's motion  asserted qualified immunity  from damages

            liability for politically  motivated personnel actions  short

            of   dismissal,  the   motion  should   have  been   granted.

            Government officials are not liable for monetary damages in  

            1983 suits unless their actions violate  "clearly established

            statutory  or constitutional  rights  of which  a  reasonable

            person  would have  known."   Harlow v. Fitzgerald,  457 U.S.
                                          ______    __________

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            1.  One   reason   why   the   court  may   have   mistakenly
            characterized  the  summary  judgment motion  as  having been
            filed on  the  eve  of  trial  is  that  defendant's  summary
            judgment  motion, ostensibly  drafted before  the motion  for
            continuance  had been  granted,  itself stated  it was  being
            filed on the eve  of trial.   Defendant sought to excuse  the
            late  filing by pointing to a two  and a half month old First
            Circuit  opinion  and  arguing  that only  recently  had  the
            applicable  law crystallized.  We  would be faced  with a far
            different  case  had  the  district  court  not  granted  the
            continuance.  Once the  continuance was granted, however, the
            summary judgment request  was no longer last minute  and must
            be viewed in the context of the new trial schedule.

                                         -5-

800, 818 (1982);  Anderson v.  Creighton, 483  U.S. 635,  639
                              ________     _________

            (1987).  As we have  explained in other cases similar  to the

            present involving actions short of discharge, not until Rutan
                                                                    _____

            v. Republican  Party of Illinois, 110 S.Ct.  2729 (1990), was
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            decided  did it  become clearly  established that  the Elrod-
                                                                   ______

            Branti   constitutional   prohibition   against   politically
            ______

            motivated firings applied to other personnel actions, such as

            promotions,  transfers,  and hirings.   See  Castro-Aponte v.
                                                    ___  _____________

            Ligia-Rubero,  953  F.2d  1429  (1st  Cir.  1992)  (qualified
            ____________

            immunity for 1986 transfer decision); Roque-Rodriguez v. Lema
                                                  _______________    ____

            Moya,  926 F.2d 103, 106-07 (1st Cir. 1991) (plaintiff denied
            ____

            promotion from  1985 to 1989; qualified immunity); Nunez-Soto
                                                               __________

            v. Alvarado, 918 F.2d 1029, 1030 (1st Cir. 1990)  (demotion).
               ________

            In  the  present  case, plaintiffs  complained  of  demotion,

            changes  in  duties,  transfers,  reduced  hours,  and  raise

            denials predating  their  1986  complaint.   As  it  was  not

            clearly established at that time that such personnel actions,

            even  if politically  motivated,  violated the  constitution,

            defendant  mayor  is  entitled  to  qualified  immunity  from

            damages liabilitywith respectto these FirstAmendment claims.2

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            2.  In their appellate brief, various plaintiffs assert other
            possible claims:  1) denial of procedural due process in that
            no hearing  preceded the demotion or  other adverse personnel
            actions,  2)  constructive discharge  in  violation  of First
            Amendment rights, and 3)  violation of First Amendment rights
            in  that plaintiffs  were  harassed because  of their  speech
            concerning  unhealthy  conditions.    We do  not  now  decide
            whether all these claims were raised below or whether summary
            judgment  with respect to any  of them is  proper, but rather

                                         -6-

Pursuant to First  Circuit Rule 27.1, the  November

            4,  1991 order is vacated  to the extent  it denied defendant

            mayor's  motion requesting  permission to  file a  motion for

            summary judgment, and the case is remanded with directions to

            grant summary  judgment to  defendant mayor  on the  issue of

            qualified  immunity from  damages liability  with respect  to

            plaintiffs'  claims that defendant violated plaintiffs' First

            Amendment  rights  by  subjecting  them  to  adverse  working

            conditions  short  of   discharge  (actual  or  constructive)

            because of their political affiliation.

                      Vacated and remanded.
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            leave  these matters to be addressed in the first instance by
            the district court.

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