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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1137 <br> <br>                 LUIS A. ACEVEDO-GARCIA, ET AL., <br> <br>                      Plaintiffs, Appellees, <br> <br>                                v. <br> <br>                  ROBERTO VERA-MONROIG, ET AL., <br> <br>                     Defendants, Appellants. <br> <br> <br> <br>          APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                 <br>                FOR THE DISTRICT OF PUERTO RICO <br>                                 <br>       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                 Coffin, Senior Circuit Judge, <br>                                 <br>                    and Lipez, Circuit Judge <br>                                 <br>                                 <br>                                 <br>                                 <br>     Orlando Fernndez, with whom Juan Carlos Garay and Garcia & <br>Fernndez were on brief, for appellants Roberto Vera-Monroig and <br>Irma Gonzlez in their personal capacities. <br>     Johanna M. Emmanuelli-Huertas, with whom Pedro E. Ortiz <br>Alvarez was on brief, for appellants Municipality of Adjuntas and <br>Roberto Vera-Monroig and Irma Gonzlez in their official <br>capacities. <br>     Israel Roldn-Gonzlez for appellees. <br> <br> <br> <br> <br>February 17, 2000 <br> <br> <br> <br>                                 <br>                                 <br> <br>  LIPEZ, Circuit Judge.  This case requires us to consider <br>claims of immunity from suit and liability raised by Roberto Vera- <br>Monroig, the mayor of Adjuntas in Puerto Rico,  Irma Gonzlez, <br>Adjuntas's Director of Human Resources, and the municipality of <br>Adjuntas in response to a lawsuit filed by eighty-eight former and <br>current employees of the municipality, all members of the New <br>Progressive Party ("NPP"), in the wake of an election in November <br>1996.  Alleging violations of their First, Fifth, and Fourteenth <br>Amendment rights pursuant to 42 U.S.C.  1983, the plaintiffs fall <br>into two groups: those who allege that they were discharged from <br>their positions and replaced with workers from the mayor's <br>political party; and those who allege that they suffered changed <br>work conditions and responsibilities, including removal of job <br>functions, relocation to distant or substandard office facilities,  <br>assignment of menial duties to supervisory staff, and restrictions <br>on bathroom breaks.  These actions occurred after the election of <br>Mayor Vera of the Popular Democratic Party ("PDP") in November 1996 <br>and almost exclusively affected employees affiliated with the NPP. <br>  The individual defendants sought summary judgment from <br>the district court on the basis of absolute immunity for their <br>legislative activities and qualified immunity for the performance <br>of discretionary government functions.  The municipality sought <br>summary judgment on the grounds that liability was unavailable <br>under  1983 because the plaintiffs had not established a policy of <br>harassment and because the municipality followed the laws of Puerto <br>Rico.  The defendants also moved for summary judgment on more <br>traditional grounds, arguing that the plaintiffs failed to provide <br>sufficient evidence of discrimination based on political <br>affiliation to warrant a jury trial.  The district court rejected <br>the absolute and qualified immunity defenses of the individual <br>defendants and the grounds asserted by the municipality for summary <br>judgment, thereby prompting this appeal.  See Acevedo-Garcia v. <br>Vera-Monroig, 30 F. Supp. 2d 141 (D.P.R. 1998).   <br>  We affirm the denial of summary judgment for two reasons: <br>(1) the district court's ruling on the unavailability of absolute <br>immunity for the non-legislative acts of the individual defendants <br>was correct; and (2) we lack jurisdiction to consider the <br>challenges to the district court's rulings on qualified immunity <br>and municipal liability. <br>                          I.  BACKGROUND <br>A. Factual Summary <br>  Drawing upon the district court's opinion, we first set <br>forth the uncontested facts.  We then set forth the contested facts <br>in the light most favorable to the plaintiffs, cognizant of the <br>principle that we must take the record in the light most favorable <br>to the party opposing summary judgment.  See Buenrostro v. Collazo, <br>973 F.3d 39, 41 (1st Cir. 1992).      <br>  1.  Uncontested Facts  <br>  Mayor Vera of the PDP won the November 1996 elections in <br>Adjuntas.  See Acevedo-Garcia, 30 F. Supp. 2d at 143-44.  The <br>previous mayor had been a member of the NPP, and during his tenure <br>from 1989 to 1997 only two of the 114 employees he hired had been <br>members of the PDP.  According to an April 1996 audit report from <br>the Puerto Rico Comptroller's Office, Adjuntas had operated with an <br>annual deficit of at least $1,000,000 for over a decade.  Mayor <br>Vera requested a further financial study of municipal operations <br>from a private certified public accountant.  The financial report <br>prepared by the accountant showed a cumulative deficit of over <br>$5,000,000 as well as long-term debt of $2,000,000.  Mayor Vera <br>decided that the municipal departments were overstaffed and that <br>the municipality could not maintain the same levels of employment.  <br>He hired a private human resources consulting firm to evaluate all <br>personnel files and prepare a layoff plan.  See id. at 144. <br>  Pursuant to Puerto Rican law, P.R. Laws Ann. tit. 21, <br>4551, the Mayor submitted the layoff plan (Ordinance No. 25) to <br>the Adjuntas Municipal Assembly for approval; the Assembly approved <br>it in April 1997.  The layoff plan detailed procedures for the <br>selection of employees for discharge and any ensuing appeals of the <br>municipality's decisions.  See id.  After meeting with the <br>municipal officials and the private consultants responsible for the <br>financial study and layoff plan, Mayor Vera instructed his staff to <br>implement the plan.  Municipal staff evaluated personnel files to <br>determine seniority, notified employees of their seniority status, <br>and provided an opportunity for employees to contest their status.  <br>On September 11, 1997, letters of severance were sent to affected <br>employees, informing them of their anticipated discharge and their <br>right to appeal the decision to the Personnel Administration <br>Systems Board of Appeals.  Municipal officials posted employee <br>seniority status and listed employees affected by the layoff plan.  <br>See id.  Employees listed for termination received a second letter <br>informing them again of their right to appeal.  See id. at 145. <br>  Pursuant to Puerto Rican law, the elimination of <br>municipal positions occurs through a legislative act.  On November <br>19, 1997, the municipality enacted Ordinance No. 20 which <br>eliminated 102 positions.  See id. at 144.  Almost all of the <br>employees discharged were members of the NPP.  After the layoff, <br>Mayor Vera hired 77 new contract employees for positions in state- <br>funded programs.  See id. at 145.  Most of the contract workers <br>were affiliated with the PDP.   <br>  2.  Contested Facts <br>  While the plaintiffs concede that the defendants' actions <br>were taken pursuant to the layoff plan, they claim that the <br>defendants implemented the layoff plan in a discriminatory manner.  <br>The municipality did not always observe the plan's seniority <br>criteria, sometimes retaining employees with less seniority than <br>the plaintiffs who were fired.  Moreover, the most senior <br>terminated employees were not always offered open municipal <br>positions for which they qualified, contrary to the provisions of <br>the plan.  Indeed, many whose positions were eliminated were <br>replaced by less senior contract workers from the PDP who performed <br>the same job functions but under different titles.  Plaintiffs who <br>retained their positions were treated differently than PDP workers <br>while they remained on the job.  They experienced a variety of <br>indignities, such as deprivation of job functions, bathroom breaks, <br>and office furniture.  See id. <br>B.  The District Court's Decision <br>  In a lengthy written opinion, the district court rejected <br>all of the immunity and municipal liability defenses.  The <br>individual defendants were not entitled to immunity for legislative <br>acts because the alleged political discrimination took place in the <br>administration of the layoff plan and not in its legislative <br>adoption.  See id. at 148.  The municipality could not prevail on <br>summary judgment because its liability hinged on disputed material <br>facts.  See id. at 152.  <br>  In rejecting the qualified immunity defense of the <br>individual defendants, the court first noted that the defendants <br>would be shielded by qualified immunity if the jobs in question <br>"potentially concerned matters of a partisan political interest and <br>involved at least a modicum of policymaking responsibility, access <br>to confidential information, or official communication."  Id. at <br>149 (quoting Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1478, <br>1480 (1st Cir. 1989)).  The defendants, however, did not invoke <br>qualified immunity because of the nature of the plaintiffs' jobs.  <br>Instead, Mayor Vera and Director Gonzlez argued that they were <br>entitled to qualified immunity because they "acted in an <br>objectively reasonable manner and in conformance with relevant <br>legal standards by proposing and implementing the Layoff Plan based <br>on Puerto Rico Law 81." <br>  The court found this argument legally insufficient: "Even <br>if the Court 'objectively' considers the fact that Defendants <br>allegedly followed Law 81 in the analysis of qualified immunity, <br>Plaintiffs have proffered evidence of a triable issue of fact <br>regarding a potentially discriminatory application of the Layoff <br>Plan."  Id.   The court's finding of a triable issue of fact on <br>political motivation applied both to the claims of plaintiffs who <br>had lost their jobs and plaintiffs who claimed political harassment <br>because of changes in their work conditions and responsibilities.  <br>In addition, by rejecting qualified immunity for the political <br>harassment claims of plaintiffs who still had jobs, the court <br>implicitly determined that the law protecting them from the <br>politically-motivated changes in work conditions and <br>responsibilities was "clearly established."  See Harlow v. <br>Fitzgerald, 457 U.S. 800, 818-19 (1982) ("If the law was clearly <br>established, the immunity defense ordinarily should fail . . . .").  <br>  After disposing of the qualified immunity issues, the <br>court turned to the defendants' traditional summary judgment <br>argument that the individual plaintiffs had not generated genuine <br>issues of material fact on either their termination or political <br>harassment claims.  With respect to the allegations of unlawful <br>termination, the trial court denied the defendants summary judgment <br>as to the claims of seven of the plaintiffs.  For this group of <br>claims, the court found that the defendants' replacement of NPP <br>members with PDP members in the same job function but with a <br>different title created a triable issue of fact as to whether the <br>conduct had been motivated by political discrimination.  See id. at <br>154.  For the remaining plaintiffs alleging unlawful termination, <br>the trial court requested that they submit additional evidence <br>indicating the job duties of positions created after January 1, <br>1997, and the qualifications of the plaintiffs to fill those <br>positions.  See id. at 155.  <br>  The trial court then evaluated which plaintiffs had <br>offered sufficient evidence of political harassment to withstand <br>summary judgment.  The court found that thirty plaintiffs had put <br>forward some affirmative evidence that they were harassed on the <br>basis of political affiliation after the new administration took <br>office.  See id. at 156-57.  The defendants countered with evidence <br>that the alleged campaign of harassment represented "legitimate <br>efforts to enable the Municipality to be more efficient."  After <br>considering this evidence, the court concluded that summary <br>judgment should be granted for defendants as to the claims of two <br>of the plaintiffs who "only allege claims relating to the use of <br>the telephone, the timing of breakfast breaks, and the use of sign <br>in sheets."  Id. at 158.  The court concluded that these policy <br>changes were founded on legitimate municipal needs and that the <br>changes would have been made regardless of political affiliation.  <br>These two claims were the only claims dismissed by the district <br>court. <br>  The court denied summary judgment to the defendants for <br>the thirty remaining plaintiffs who had offered evidence of <br>harassment.  These plaintiffs had provided evidence of "further <br>harassment, including that their job functions were decreased or <br>eliminated, that they were forced to do menial work not related to <br>the job functions, that they were not allowed to go to the bathroom <br>and/or that the bathroom was not always available, and that they <br>were not allowed to take breakfast breaks."  Id.  The court found <br>that these allegations were "sufficient to state a claim for <br>political harassment under Agosto-de-Feliciano and Rutan" because <br>a finder of fact could reasonably conclude that their positions <br>were made "unreasonably inferior to the norm" compared to similarly <br>situated PDP employees. <br>  The individual defendants and the municipality filed this <br>appeal, seeking reversal of the district court's determinations on <br>absolute immunity, qualified immunity, and municipal liability.  <br>Although defendants do not formally challenge the court's denial of <br>summary judgment on the traditional evidentiary sufficiency grounds <br>for the claims of thirty-one of the eighty-eight plaintiffs, they  <br>fail to appreciate the relevance of the court's "triable issue of <br>fact" determinations to the availability of an appeal from the <br>denial of a request for summary judgment on the basis of qualified <br>immunity.  Ordinarily, the denial of summary judgment is not <br>appealable.  See Buenrostro v. Collazo, 973 F.3d 39, 41 (1st Cir. <br>1992).  However, review is sometimes available for the denial of <br>summary judgment on immunity grounds because the immunity <br>encompasses immunity from both suit and liability.  See Mitchell v. <br>Forsyth, 472 U.S. 511, 525-27 (1985).  Appeal of such decisions is <br>limited to issues of law, such as whether an act was truly <br>"legislative" or whether the constitutional rights at issue were <br>"clearly established."  See Diaz v. Diaz Martinez, 112 F.3d 1, 3 <br>(1st Cir. 1997) (citing Johnson v. Jones, 515 U.S. 304, 317 <br>(1995)).  Defendants may not file an immunity appeal simply on the <br>ground that they did not do what the plaintiffs allege. See id.  <br>Such fact-based appeals inappropriately ask the appellate court to <br>revisit the trial court's decision that "the pretrial record sets <br>forth a 'genuine' issue of fact for trial."  Johnson, 515 U.S. at <br>319-20.  We therefore turn to the defendants' various grounds for <br>appeal, cognizant of these jurisdictional bars. <br>                      II. ABSOLUTE IMMUNITY <br>  Officials acting in a legislative capacity have absolute <br>immunity from suit and liability under  1983.  See Romero-Barcelo <br>v. Hernandez-Agosto, 75 F.3d 23, 28 (1st Cir. 1996).  The function <br>of such immunity is "to insure that the legislative function may be <br>performed independently without fear of outside interference."  <br>Supreme Court of Virginia v. Consumers Union of the United States, <br>446 U.S. 719, 731 (1980); see also Forrester v. White, 484 U.S. <br>219, 223 (1988) ("When officials are threatened with personal <br>liability for acts taken pursuant to their official duties, they <br>may well be induced to act with an excess of caution or otherwise <br>to skew their decisions . . . .").  Legislative immunity applies to <br>local legislators as well as to their state and federal <br>counterparts, see Bogan v. Scott-Harris, 118 S. Ct. 966, 970-72 <br>(1998) (reasoning that the common law had afforded this protection <br>and that the rationales for legislative immunity applied with equal <br>force to local legislators), and it applies when these officials <br>act "in a field where legislators traditionally have power to act."  <br>Tenney v. Brandhove, 341 U.S. 367, 379 (1951).  The administrative <br>or executive actions of legislators are not entitled to protection.  <br>See Bogan, 523 U.S. at 972.  "[I]mmunity is justified and defined <br>by the functions it protects and serves, not by the person to whom <br>it attaches."  Forrester, 484 U.S. at 227.  An official's bad <br>motivation, or "unworthy purpose," does not affect the immunity <br>privilege so long as the actions fall within the ambit of protected <br>legislative activity.  Tenney, 341 U.S. at 377; see also Rateree v. <br>Rockett, 852 F.2d 946, 951 (7th Cir. 1988) (A "legislator may vote <br>for legislation for seemingly improper reasons; nevertheless, the <br>rule of absolute immunity shields this conduct."). <br>  Defendants' claim to absolute immunity hinges on whether <br>the actions at issue here were legislative or administrative.  <br>Absolute immunity applies to "prospective, legislative-type rules" <br>that are general in nature.  Alexander v. Holden, 66 F.3d 62, 67 <br>(4th Cir. 1995).  "Employment decisions generally are <br>administrative" except when they are "accomplished through <br>traditional legislative functions" such as policymaking and <br>budgetary restructuring that "strike at the heart of the <br>legislative process."  Rateree, 852 F.2d at 950-51.  Voting for <br>legislation, the introduction of budget plans, and signing an <br>ordinance into law are "quintessentially legislative" functions.  <br>Bogan, 118 S. Ct. at 973. <br>  The defendants characterize their behavior, including the <br>selective layoffs and restrictions on employees, as "integral steps <br>in the legislative process" rather than "acts of implementation," <br>and they rely on the holding in Bogan in support of this claim.  <br>See 118 S.Ct. 966.  We are not persuaded.  In Bogan, the plaintiff <br>alleged that her discharge, accomplished through an ordinance <br>eliminating the city's Department of Health and Human Services (of <br>which she was the sole employee), was motivated by racial animus <br>and retaliation for filing a complaint against another employee who <br>had made racial and ethnic slurs.  The Supreme Court concluded that <br>absolute immunity applied because the ordinance "bore all the <br>hallmarks of traditional legislation."  Id. at 973.  The ordinance <br>"reflected a discretionary, policymaking decision" and it had <br>prospective impact because it eliminated a department rather than <br>a particular employee.  Id.  The entirety of the disputed action <br>was accomplished legislatively.  In the instant case, while the <br>ordinances adopted by Adjuntas reflected discretionary, <br>policymaking decisions, the defendants' alleged replacement of <br>discharged NPP members with PDP contract workers and acts of <br>political harassment did not.  Similarly, the alleged acts of <br>political discrimination were not "prospective"--that is, these <br>acts did not "reach well beyond the particular occupant of the <br>office," but instead targeted specific individuals affiliated with <br>the NPP.  Id.   <br>    We draw support for these conclusions from a two-part <br>analysis that we have adopted to determine whether an act is <br>legislative or administrative.  See Cutting v. Muzzey, 724 F.2d <br>259, 261 (1st Cir. 1984).  First, if the facts underlying the <br>decision are "generalizations concerning a policy or state of <br>affairs," the decision is legislative.  Id.  If the decision stems <br>from specific facts relating to particular individuals or <br>situations, the act is administrative.  Id.  Second, the court must <br>consider the "particularity of the impact of the state of action."  <br>Id.  "If the action involves establishment of a general policy, it <br>is legislative;" if it "single[s] out specifiable individuals and <br>affect[s] them differently from others," it is administrative.  Id.  <br>In Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-28 (1st <br>Cir. 1994), a case conceptually similar to the instant suit, we <br>applied this two-part test.  There, the director of the legislative <br>service office for the Commonwealth of Puerto Rico discharged the <br>legislative librarian, a PDP member, and replaced her with an NPP <br>activist.  We concluded that under either test the "decision to <br>replace Negron--a member of the Popular Democratic Party--with a <br>New Progressive Party activist was administrative."  Id. at 28.   <br>  Vera and Gonzlez rely on the two ordinances relating to <br>the layoff plan to support their claim that their actions were <br>legislative in nature.  The Adjuntas Municipal Assembly formally <br>enacted the mayor's layoff plan through Ordinance 25.  A subsequent <br>piece of legislation, Ordinance 20, ordered the elimination of 102 <br>specified positions in order to "enable[] the Municipality <br>Administration to readjust the 1997-98 Operating Budget to the <br>Municipality's economic reality."    <br>  Although these two ordinances provided a framework for <br>the administrative decisions of Vera and Gonzlez in implementing <br>the layoff plan, it is precisely those administrative decisions <br>that are at issue in this case.  After the enactment of Ordinance <br>20, the defendants' implementation of the layoff plan targeted <br>specific individuals.  Following the terminations, the defendants <br>hired contract employees for the same job function but under a <br>different formal title.  The replacement of NPP workers with less <br>senior PDP contract workers performing essentially the same <br>functions constituted particularized employment decisions rather <br>than general policymaking.  The defendants also targeted specific <br>individuals in the NPP and "affected them differently from others" <br>through restrictions on job amenities, such as bathroom access and <br>office furniture, and reduction of job duties.  According to the <br>allegations, the political harassment began prior to the enactment <br>of Ordinance 25 and persisted for the remaining NPP workers after <br>the layoff of their co-workers pursuant to Ordinance 20.  Because <br>the defendants' decisions stemmed from specific facts about the <br>party affiliation of individuals and affected particular <br>individuals differently from others, these actions were <br>administrative rather than legislative.  Legislative ratification <br>does not shield the defendants from liability.   <br>  Similarly, the defendants' contention that they are <br>entitled to legislative immunity because their actions in <br>discharging the plaintiffs were taken pursuant to Puerto Rican law <br>is unconvincing.  In Forrester, 484 U.S. at 230, the Supreme Court <br>declined to extend absolute immunity to a judge sued under  1983 <br>for violating the Equal Protection Clause when he allegedly <br>discharged a probation officer based on her gender.  The Court <br>deemed it insignificant that Illinois law allowed judges to hire or <br>fire probation officers: "To conclude that, because a judge acts <br>within the scope of his authority, such employment decisions are <br>brought within the court's 'jurisdiction,' or converted into <br>'judicial acts,' would lift form above substance."  Id.  The same <br>analysis applies here -- the mandates of Puerto Rican law on layoff <br>procedures do not convert the defendants' conduct into legislative <br>acts. <br>                     III.  QUALIFIED IMMUNITY <br>  Vera and Gonzlez argue that even if they are not <br>entitled to legislative immunity, they are shielded from suit and <br>liability by the doctrine of qualified immunity.  We have no <br>jurisdiction to review this claim on appeal. <br>  The doctrine of qualified immunity protects government <br>officials who perform discretionary functions from suit and <br>liability for monetary damages under  1983.  See Roldan-Plumey v. <br>Cerezo-Suarez, 115 F.3d 58, 65 (1st Cir. 1997).  They are immune <br>when their conduct does not violate "clearly established statutory <br>authority or constitutional rights."  Mitchell v. Forsyth, 472 U.S. <br>511, 524 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 <br>(1982)).  "The contours of the right must be sufficiently clear <br>that a reasonable official would understand that what he is doing <br>violates that right." Anderson v. Creighton, 483 U.S. 635, 640 <br>(1987).  <br>  Generally, as already noted, the denial of summary <br>judgment is not appealable until after a final judgment.  See <br>Buenrostro, 973 F.2d at 41; see also 28 U.S.C.  1291 ("[t]he <br>courts of appeals . . . shall have jurisdiction of appeals from all <br>final decisions of the district courts . . . .").  Nevertheless, an <br>appeal from the pre-trial denial of qualified immunity is available <br>when the appeal is "based on a purely legal ground," but not when <br>it challenges sufficiency of the evidence.   Diaz v. Diaz-Martinez, <br>112 F.3d 1, 3 (1st Cir. 1997).  In Stella v. Kelley, we explained <br>the distinction between appealable and non-appealable immunity <br>cases: <br>    [A] summary judgment order which determines <br>  that the pretrial record sets forth a genuine <br>  issue of fact, as distinguished from an order <br>  that determines whether certain given facts <br>  demonstrate, under clearly established law, a <br>  violation of some federally protected right, <br>  is not reviewable on demand. <br> <br>63 F.3d at 74.  If the issue on appeal is "nothing more than <br>whether the evidence could support a finding that particular <br>conduct occurred, the question decided is not truly 'separable' <br>from the plaintiff's claim, and hence there is no 'final <br>decision.'"  Behrens v. Pelletier, 516 U.S. 299, 313 (1996); see <br>also Mitchell, 472 U.S. at 530.  Therefore, to decide the <br>availability of an appeal from the qualified immunity ruling of the <br>district court, we must determine whether the trial court denied <br>qualified immunity on the basis of an abstract issue of law or on <br>the existence of what it perceived as genuine issues of material <br>fact concerning the actions of Vera and Gonzlez. <br>A.  Politically-Motivated Terminations <br>  The district court identified seven plaintiffs who had <br>established a triable issue of fact as to whether they had been <br>fired because of their political affiliation and then replaced by <br>contract workers or less senior employees.  These employees <br>presented evidence that, although their positions were eliminated <br>under the layoff plan, they were effectively replaced with newly <br>hired PDP members who performed the same job functions (though <br>typically under a different title).  The court also requested <br>additional evidence from other plaintiffs so that it could <br>determine whether they had established a triable issue of fact on <br>political motivation.  In making these rulings, the court concluded <br>that the law on politically-motivated terminations was clearly <br>established.   <br>  Vera and Gonzlez concede that the law on politically- <br>motivated terminations is clearly established.  They argue, <br>however, that they are guilty of nothing more than "develop[ing] a <br>layoff plan and evaluat[ing] the positions to be eliminated <br>according to the objective criteria of seniority."  In their brief, <br>defendants list twenty-one "uncontested facts [regarding the layoff <br>process and procedures] that directly demonstrate that Mayor Vera <br>and Ms. Gonzlez acted reasonably."  They conclude that they acted <br>with "objective reasonableness," and they assert that "[t]he <br>district court erred, therefore, in looking at defendants' <br>allegedly politically discriminatory motive . . . . [R]easonability <br>from an objective point of view is the norm to apply in this case."  <br>  Defendants misunderstand the nature of the claim that <br>they face in this case.  For a subset of constitutional torts, <br>motivation or intent is an element of the cause of action.  In Tang <br>v. State of Rhode Island, Department of Elderly Affairs, 120 F.3d <br>325, 325 (1st Cir. 1997), the plaintiff alleged that she had <br>suffered racial discrimination and retaliation in her position as <br>nutritionist for the state government. The district court found the <br>majority of facts in dispute and deferred hearing the defendants' <br>motion for qualified immunity until completion of the trial.  Id. <br>at 326.  The defendants appealed.  In concluding that we lacked <br>jurisdiction because the appeal was based on a dispute over motive <br>and other factual matters, we responded to the defendants' <br>contention that subjective intent is irrelevant to qualified <br>immunity:  "[T]he Harlow-Anderson objective test does not <br>automatically resolve a qualified immunity defense in favor of the <br>defendant in a case of alleged racial discrimination or retaliation <br>. . . . a wholly objective test would wipe out many, if not most, <br>of these claims."  Id. at 327.  <br>  The reasoning in Tang applies to the claims of Vera and <br>Gonzlez that the district court erred in considering evidence of <br>their motivation.  The plaintiffs allege that they were terminated <br>because of their political affiliation, a constitutional claim that <br>has no meaning absent the allegation of impermissible motivation.  <br>The district court recognized this fact, concluding that the <br>"Defendants' emphasis on the fact that their conduct was <br>'objectively reasonable' because they acted pursuant to Puerto Rico <br>Law 81 in the Layoff Plan . . . is not sufficient to meet their <br>burden under the relevant legal standard and to grant them <br>qualified immunity."  Acevedo-Garcia, 30 F. Supp. 2d at 149.  That <br>was so, the court continued, because "Plaintiffs have proffered <br>evidence of a triable issue of fact regarding a potentially <br>discriminatory application of the Layoff Plan."  Id.  There was no <br>error in this analysis. <br>  Interestingly, we suggested in a footnote in Tang that <br>the Supreme Court might clarify the relevance of motivation in <br>considering a qualified immunity defense to a charge of retaliatory <br>motive when it heard Crawford-El v. Britton, 118 S. Ct. 1584 <br>(1998), a case then scheduled for argument, in which the defendant <br>correction officer was charged with diverting the property of the <br>plaintiff prisoner with an intent to retaliate against him for <br>exercising his First Amendment rights.  See id. at 1587.  As noted <br>by Chief Justice Rehnquist in his dissent in Crawford-El, that <br>clarification did not occur.  Instead, the Supreme Court confined <br>its ruling to a disapproval of the requirement of the Court of <br>Appeals, District of Columbia Circuit, that in claims of a <br>constitutional tort requiring proof of the actor's unconstitutional <br>motive, the plaintiff must present clear and convincing evidence of <br>that motive.  The Court did not address the second question <br>presented in the petition on which the Court granted certiorari: <br>    In a First Amendment retaliation case against <br>  a government official, is the official <br>  entitled to qualified immunity if she asserts <br>  a legitimate justification for her allegedly <br>  retaliatory act and that justification would <br>  have been a reasonable basis for the act, even <br>  if evidence - no matter how strong - shows the <br>  official's actual reason for the act was <br>  unconstitutional? <br> <br>Given the lack of an answer to this question, Chief Justice <br>Rehnquist concluded that "[u]nder the Court's view, only a <br>factfinder's ultimate determination of the motive with which he <br>acted will resolve this case."  Id. at 1602. <br>  Chief Justice Rehnquist's assessment of the law after <br>Crawford-El confirms the rightness of the district court's <br>consideration of motivation in rejecting the qualified immunity <br>defense of the defendants.  Because we reject the defendants' legal <br>argument that the district court erred in considering motivation, <br>we are left with a denial of summary judgment based on their <br>motivation.  In Stella v. Kelley, we held that we "lack the power <br>to inquire into . . . the fact-based question of what the evidence <br>does (or does not) show concerning whether the selectmen's actions <br>violated the asserted right -- a question that depends, in this <br>case, on the selectmen's motives . . . ."  63 F.3d 71, 75 (1st Cir. <br>1995).  The evidence relating to the defendants' motivation in <br>terminating plaintiffs is a factual matter and thus cannot form the <br>basis of an appeal from the denial of summary judgment.  See <br>Guilloty-Perez v. Fuentes-Agostini, 196 F.3d 293, 294 (1st Cir. <br>1999). <br>B.  Politically-Motivated Changes in Work Conditions <br>    and Responsibilities <br> <br>  A second group of plaintiffs complain of loss of job <br>function, relocation to remote or inferior offices, and restricted <br>access to bathroom breaks and facilities.  These plaintiffs claim <br>that the miserable working conditions created by their supervisors <br>amounted to a constitutional violation.   <br>  In denying summary judgment for the defendants on their <br>political harassment claims, the district court discussed the <br>relevant law on political discrimination based on changes in work <br>conditions and responsibilities.  Specifically, it noted that we <br>have left unresolved the relationship between our holding in <br>Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. <br>1989), that politically-motivated changes in work conditions and <br>responsibilities which make a plaintiff's situation "unreasonably <br>inferior to the norm for the position" violate constitutional <br>rights, and the Supreme Court's later decision in Rutan v. <br>Republican Party of Illinois, 497 U.S. 62, 75 (1990), that <br>"promotions, transfers, and recalls after layoffs based on <br>political affiliation" are examples of impermissible "deprivations <br>less harsh than dismissal that nevertheless press state employees <br>and applicants to conform their beliefs and associations to some <br>state-selected orthodoxy."  Acevedo-Garcia, 30 F. Supp. 2d at 156.  <br>Although the Rutan Court did not explicitly address the issue of <br>changed work conditions and responsibilities as examples of <br>deprivations less harsh than dismissal, it noted in dicta that, <br>"the First Amendment . . . already protects state employees not <br>only from patronage dismissals but also from 'even an act of <br>retaliation as trivial as failing to hold a birthday party for a <br>public employee . . . when intended to punish her for exercising <br>her free speech rights.'"  Id. at 76 n.8 (citations omitted).  It <br>is not clear if this language in Rutan proscribes application of <br>the "unreasonably inferior to the norm" standard of Agosto-de- <br>Feliciano to politically-motivated changes in work conditions and <br>responsibilities, or whether that doctrine survives Rutan, <br>"providing a sort of . . . intermediate First Amendment haven for <br>employees wounded by slings and arrows less damaging than those <br>[official actions] described by the Rutan court."  Nereida-Gonzlez <br>v. Tirado-Delgado, 990 F.2d 710, 705 (1st Cir. 1993).  In Acosto- <br>Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 n.5 (1997), we <br>noted the possible conflict between these two cases and stated that <br>"we leave the resolution of any conflict in the standard for such <br>adverse personnel actions to some future case." <br>  Despite noting that "it is unclear how the First Circuit <br>views the Rutan dicta as affecting its "unreasonably inferior" <br>standard, the district court rejected the qualified immunity <br>defense of the defendants to the political harassment claims of the <br>plaintiffs, concluding that "a finder of fact could determine that <br>the plaintiffs here put forth clear and convincing evidence [as <br>required by Agosto-de-Feliciano], that their positions are <br>'unreasonably inferior to the norm.'" Acevedo-Garcia, 30 F. Supp. <br>2d at 156-58.  By applying the Agosto-de-Feliciano standard, the <br>court implicitly concluded that the right of the plaintiffs to be <br>protected from politically-motivated changes in work conditions and <br>responsibilities was established clearly enough to reject the <br>qualified immunity defense of the defendants.   <br>  Arguably, the defendants could have appealed from this <br>implicit legal conclusion of the district court relating to the <br>clarity of the right protecting the plaintiffs from politically- <br>motivated changes in work conditions and responsibilities.  In <br>Behrens v. Pelletier, the Supreme Court held that "summary judgment <br>determinations are appealable when they resolve a dispute <br>concerning an 'abstract issu[e] of law' relating to qualified <br>immunity -- typically, the issue whether the federal right <br>allegedly infringed was 'clearly established.'"  516 U.S. 299, 313 <br>(1996)(internal citations omitted).  The defendants failed to frame <br>such an issue.  Instead, they persisted in their argument that <br>their conduct, viewed objectively, was reasonable and that any <br>consideration by the district court of evidence of a proscribed <br>political motive was inappropriate.  For the reasons already <br>stated, that argument is wrong.  The district court's denial of <br>summary judgment for the defendants on their immunity defense to <br>the political harassment claims of the plaintiffs rests, in part, <br>on what the district court reasonably perceived to be triable <br>issues of fact about the defendants' political motivation.  We have <br>no jurisdiction to consider such rulings on appeal. <br>                     IV.  MUNICIPAL LIABILITY <br>  In addition to suing Vera and Gonzlez in their personal <br>capacities, the plaintiffs sued the municipality of Adjuntas.  The <br>Supreme Court decision in Monell v. Department of Soc. Servs., 436 <br>U.S. 658, 690-91 (1978) authorizes  1983 relief against <br>municipalities where "the action that is alleged to be <br>unconstitutional implements or executes a policy statement, <br>ordinance, regulation, or decision officially adopted and <br>promulgated by that body's officers."  In moving for summary <br>judgment, the defendant alleged that the plaintiffs had not offered <br>sufficient evidence that the alleged constitutional violations were <br>municipal policy.  The district court denied summary judgment, <br>finding that the "evidence [was] sufficient to show that the <br>alleged harassing conduct is so 'well settled and widespread' as to <br>attribute the custom or policy of harassment to the Municipality," <br>and that the comments of municipal supervisors that the harassment <br>was targeted at NPP employees provides the necessary "'affirmative <br>link' between the harassing conduct and the policy of political <br>discrimination."  Acevedo-Garcia, 30 F. Supp. 2d at 152.   <br>  We will not evaluate this denial of summary judgment <br>because we do not have jurisdiction to do so.  In Swint v. Chambers <br>County Comm'n, 514 U.S. 35, 43 (1995), a unanimous Supreme Court <br>held that the denial of summary judgment based on municipal <br>liability is not immediately appealable.  The rationale supporting <br>immediate review of some qualified immunity decisions does not <br>extend to a municipality's defenses to  1983 claims.  In qualified <br>immunity, "[t]he entitlement is an immunity from suit rather than <br>a mere defense to liability; and like an absolute immunity, it is <br>effectively lost if a case is erroneously permitted to go to <br>trial."  Mitchell, 472 U.S. at 526.  Thus, pre-trial qualified <br>immunity decisions are immediately appealable as collateral orders <br>when the immunity claim presents a legal issue that can be decided <br>without considering the correctness of the plaintiff's version of <br>the facts.  See Johnson, 515 U.S. at 313-15.  The Swint Court ruled <br>that, unlike the qualified immunity entitlement, municipal defenses <br>under  1983 are not a right to immunity from trial but a "mere <br>defense to liability." Swint, 514 U.S. at 43.  As such, the <br>collateral order doctrine does not apply and a municipality's <br>defenses to suit may only be reviewed after a final judgment on the <br>merits.  Id. <br>                          V.  CONCLUSION <br>  For all of the reasons set forth above, we dismiss the <br>appeal in part for want of appellate jurisdiction and, as to the <br>remainder, affirm the district court's denial of summary judgment.</pre>

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