January 5, 1993

                United States Court of Appeals
                    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  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 &amp; Co.  v. Wells Fargo Alarm Services, 907
                                                        

F.2d 1274, 1277 (1st Cir. 1990).

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                              2

                          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.

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          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
                                      

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

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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.

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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

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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

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                              7

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).

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                          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.
                               

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