
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
