
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2287                              MYRIAM E. LABORDE-GARCIA,                                 Plaintiff, Appellee,                                          v.                          PUERTO RICO TELEPHONE CO., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Jacqueline  D.  Novas  with  whom  Jose  J.  Santiago,  Jose L.            _____________________              __________________   _______          Verdiales  and Fiddler,  Gonzalez &  Rodriguez were on  brief for          _________      _______________________________          appellants.            Guillermo Ramos Luina  with whom  Harry Anduze  Montano was  on            _____________________             _____________________          brief for appellee.                                 ____________________                                     May 18, 1993                                 ____________________                       BREYER, Chief Judge.  Myriam Laborde-Garcia claims                               ___________             that  Puerto Rico's  Telephone Company,  and several  of its             officials,  deprived  her  of  her  government  job  without             providing  her  with  the procedural  protections  that  the             Federal  Constitution  requires. Cleveland  Bd. of  Educ. v.                                              ________________________             Loudermill, 470 U.S. 532 (1985).  The district court entered             __________             an injunction ordering  the Company to reinstate her, and it             denied  the  individual  defendants'  claims  of  "qualified             immunity."  The defendants appeal these orders.  28 U.S.C.               1291; Mitchell v. Forsyth, 472 U.S. 511 (1985).  We affirm.                    ________    _______                                                        I                                      Background                                      __________                       Ms.   Laborde  is   a   career  employee   of  the             Commonwealth-owned Telephone  Company, where she  has worked             since 1975.   On July 7,  1986, she was  injured in a  work-             related auto accident.  She received treatment  at the State             Insurance  Fund.   One  year later,  on  July 6,  1987,  she             returned to work.  Fourteen months  after that, on September             7,  1988, Ms. Laborde went  back to the  Fund for treatment.             In early October (the following  month) the Company wrote to             Ms. Laborde to tell  her that it was dismissing  her because             of absences related to her "prolonged illness."                                          -2-                                          2                       Ms. Laborde, almost  immediately thereafter,  told             Company  officials that they had made a mistake.  Her latest             treatment  at the Fund (in  September) was not  related to a             "prolonged illness."   Rather, she said,  the treatment (and             her  absence from  work)  resulted from  a new  work-related             accident, involving moving boxes. That accident had occurred             in  August   1988,  only  two  months   before  her  current             treatment.                       This "mistake" seemed important, for Puerto Rico's             workers' compensation law requires  an employer to "reserve"             the job of  an injured employee undergoing treatment  at the             Fund,  and to "reinstate" the employee in that job, but only             if, inter alia, at the time the worker seeks  reinstatement,                 __________             no more than "twelve months" have  "lapse[d] . . . from  the                           _____________             date of the  accident." P.R. Laws Ann., tit. 11,    7.  (See             Appendix for  complete text  of statutory provision).   More             than "twelve months" had "lapse[d]" from Ms. Laborde's first             accident; but only two  months had "lapse[d]" from the  time             of the second.                        The Company, either because it did not believe Ms.             Laborde, or  because it  thought her  factual claim  made no             difference, neither  changed its  mind  about dismissal  nor             granted Ms. Laborde a hearing at which she could dispute the                                         -3-                                          3             basis for  her dismissal.  Ms.  Laborde subsequently brought             this lawsuit.  She  claimed that the Company, in  effect, by             depriving  her of her job without any kind of prior hearing,             violated the Fourteenth Amendment's Due Process Clause.  The             district court held that Ms. Laborde was correct.  We agree.                                          II                                       The Law                                        _______                       Like the district court, we find the law clear and             in Ms. Laborde's favor.  The  Fourteenth Amendment says that             the  Commonwealth  may not  deprive  a  person of  "property             without due process  of law."   The Supreme  Court has  made             clear  that  "property" includes  the  job  of a  government             employee who  (under local  law) cannot be  dismissed except             for  "good cause."  Loudermill, 470 U.S. at 538-39; see also                                 __________                      ___ ____             Kercado-Melendez  v. Aponte-Roque,  829 F.2d  255,  262 (1st             ________________     ____________             Cir. 1987), cert. denied, 486 U.S. 1044 (1988).  The Supreme                         ____________             Court has also  made clear  that the process  "due" such  an             employee normally includes  "'some kind of hearing' prior to             . . . discharge."  Loudermill, 470 U.S. at 542.  The parties                                __________             here  agree that  the  Puerto Rico  Telephone  Company is  a             government employer,  Kauffman v. Puerto Rico  Tel. Co., 841                                   ________    _____________________             F.2d 1169, 1173 (1st Cir. 1987), and that it can dismiss Ms.                                         -4-                                          4             Laborde, a permanent  employee, only for  cause.  P.R.  Laws             Ann.,   tit.  3,     1336(4).    The  Company,  through  its             officials, has  told Ms. Laborde  that she cannot  return to             work.  They did not, and have not yet, provided her with any             significant  opportunity for  a hearing.   Hence,  they have             deprived her  of "property"  without the "process"  that the             Federal Constitution requires.  Loudermill, 470 U.S at 546.                                             __________                       The   defendants  make  three   arguments  to  the             contrary.   First, they say  that, under Puerto  Rico's law,             Ms. Laborde  lost her job  when she did not  appear at work;             the workmen's compensation statute  provides only a right to             "reinstatement" (after an  absence caused  by a  job-related             injury).    The Federal  Constitution,  they  add, does  not             protect rights to "reinstatement" because such  'rights' are             only expectations  of employment, which  may or  may not  be             fulfilled.  See Board of Regents v. Roth, 408 U.S. 564,  576                         ___ ________________    ____             (1972) (due process clause "is  a safeguard of the  security             of interests  that person  has already acquired  in specific             benefits"); cf.  Kauffman, 841 F.2d  at 1173 (where employee                         ___  ________             is illegally  hired, property  right in employment  is never             created).                        As  a matter  of Commonwealth law,  however, this             argument  seems  wrong,  for  the statute  itself  does  not                                         -5-                                          5             separate "discharge" from "reinstatement;" rather, it speaks             both of "reserv[ing]" the job of an employee under treatment             and   "reinstat[ing]"   that   employee   (under   specified             conditions) on request.   See P.R. Laws Ann., tit. 11,    7;                                       ___             Carron-Lamoutte v. Tourism  Co. of Puerto Rico,  92 J.T.S 97             _______________    ___________________________             (1992); In Re  Hotel Da  Vinci, Inc., 797  F.2d 33, 35  (1st                     ____________________________             Cir. 1986), citing Rojas v. Mendez & Co., 84 J.T.S. 3 (1984)                         ______ _____    ____________             (employer cannot validly discharge employee missing work due             to  medical treatment  during twelve-month  period following             disability); but see Union Tronquistas de Puerto Rico, Local                          _______ _______________________________________             901 v. Emery Air Freight Corp., 596 F.Supp. 829, 833 (D.P.R.             ___    _______________________             1984)  (referring  to  separate  steps  of  "discharge"  and             "reinstatement").                         Regardless,  as  a  matter  of  federal  law,  the             argument is wrong because the workmen's compensation statute             so  narrows  the  government's   discretion  to  refuse   to             reinstate Ms.  Laborde (during  the relevant  twelve months)             that   it  provides   her  with   a  "legitimate   claim  of             entitlement" to  that continued employment. That  is to say,             local law's narrowing of the employer's discretion to decide             not  to reinstate  means that  Ms. Laborde  could reasonably             have believed, and  relied upon her  belief, that local  law             would likely permit her  to remain employed.  Based  on this                                         -6-                                          6             reasonable expectation created by local law, Ms. Laborde had             a  federally  protected  "property"  interest  in  continued             employment. See Roth, 408  U.S. at 577 (to "have  a property                         ___ ____             interest  in a  benefit," a person  must "have  a legitimate             claim of entitlement to it"); id. at 578 (implying existence                                           __             of  "property"  in  renewal  of  employment   if  employer's             discretion to choose not to renew had been narrowed); Bishop                                                                   ______             v.  Wood, 426 U.S. 341, 344-45 (1976); cf. Kentucky Dept. of                 ____                               ___ _________________             Corrections  v.   Thompson,  490  U.S.  454,  463-65  (1989)             ___________       ________             (liberty interest created if  prison inmate could reasonably             expect  that visit  would  be allowed  absent occurrence  of             listed conditions).   Thus, whether one  views the Company's             actions  as  taking  away  Ms.  Laborde's  present  job,  as             refusing to reinstate her,  or (realistically) as doing both             at  the same time, the  Company deprived Ms.  Laborde of the             sort of "property" that the Constitution protects.                       Second, the  defendants argue  that they  need not             have given Ms. Laborde any further hearing because a hearing             could not have  helped her.  Cf. Carey v.  Piphus, 435  U.S.                                          ___ _____     ______             247, 266-67  (1978) (recovery limited to  nominal damages in             cases  where employer  refuses  hearing but  dismissal still             clearly  justified).   They point  to a  recent Commonwealth             Supreme Court case, Santiago v.  Kodak, 92 J.T.S. 11 (1992),                                 ________     _____                                         -7-                                          7             which  held that  the  Workmen's Compensation  Act does  not             protect  a person who concededly did not report the relevant             accident until after the employer dismissed him.  They claim                            _____             that, like the  plaintiff in Santiago,  Ms. Laborde did  not                                          ________             report her accident until after her dismissal.                       Santiago, however, does not obviate the need for a                       ________             hearing in this case.  Unlike the plaintiff in Santiago, Ms.                                                            ________             Laborde  does  not  concede  that  she  did not  report  the             accident  until  after  she  was dismissed.    Instead,  Ms.             Laborde says that she reported her  second accident when she             sought  treatment at the  Fund on September  7, 1988, before                                                                   ______             her  employer  dismissed  her.    She  adds  that  the  Fund             initially  mixed up  its paperwork,  but later  amended that             paperwork to reflect the  occurrence of her second accident.             These facts,  if proven, might  well bring her  case outside             the scope  of Santiago's holding.   Santiago, by emphasizing                           ________              ________             the  need  to  determine  the facts,  does  not  avoid, but,             rather, reinforces the need for a hearing.                       Third,  the individual  defendants  say  they  are             entitled to  "qualified immunity,"  because, at the  time of             the relevant  events, their federal  legal obligations  were             unclear.  See  Anderson v. Creighton,  483 U.S. 635,  638-41                       ___  ________    _________             (1987)   (state  actors   have  qualified   immunity  unless                                         -8-                                          8             precedent would have  alerted reasonable person  that action             would   infringe    "clearly   established"   constitutional             principle); Harlow v. Fitzgerald, 457 U.S. 800 (1981).  They                         ______    __________             correctly point out  that the Supreme  Court of Puerto  Rico             did not decide until  1992 (after the events here  in issue)             that  Commonwealth   employees  have  a  right   to  a  pre-             termination   hearing  where   accident-related,  time-limit             issues  are  in  dispute.   Carron-Lamoutte,  92  J.T.S  97.                                         _______________             Carron-Lamoutte,   however,   simply  applied   pre-existing             _______________             federal  constitutional requirements.   In  1985, Loudermill                                                               __________             made clear that permanent government employees possessed the             federal  right to  a  pre-discharge hearing.    In 1987,  in             Kauffman,  this circuit applied  Loudermill to Puerto Rico's             ________                         __________             Telephone Company,  making clear that the  company must give             its career employees  pre-discharge hearings (unless illegal             hiring  meant they had never  become career employees in the             first place).   See Kauffman,  841 F.2d at  1173.  Thus,  in                             ___ ________             1988, the basic law governing Ms. Laborde's claims was clear             and in her favor.                       We concede  that defendants, in an  effort to show             that Ms. Laborde  did not possess constitutionally-protected             property, have  succeeded in creating an  argument (based on             their interpretation of the workmen's  compensation statute)                                         -9-                                          9             that is complicated, counterintuitive, and ultimately wrong.             We also concede  that one who understood that  argument, but             had  not yet  worked out  the proper  legal response,  might             doubt whether or not the Constitution protected Ms. Laborde.             Yet,  we do not believe  that the potential  existence of an             unusual, sophisticated, and ultimately wrong legal argument,             is sufficient, legally speaking, to muddy what, for immunity             purposes,  would  otherwise amount  to  clear legal  waters.             Were that not so, given the ingenuity of the bar, "qualified             immunity"  would become  absolute  in that  it would  become             available in virtually any case argued by a creative lawyer.             We conclude  that the Company's legal  obligation to provide             Ms. Laborde with an appropriate hearing before depriving her             of her  job was  clear in 1988.   And, the  district court's             denial of  the defendants' claims of  qualified immunity was             legally correct.                       The Telephone  Company  itself makes  one  further             argument.  It says that  it is a special kind of  government             entity, namely a  "municipal corporation."    It points  out             that  a "municipal corporation"  cannot be ordered  to pay a             Section  1983  damage award  based  on  the actions  of  its             officials  unless those  actions  are alleged  to have  been             taken  pursuant  to an  official  policy  or custom  of  the                                         -10-                                          10             corporation.  See Monell v. Dep't of Soc. Servs. of the City                           ___ ______    ________________________________             of New York, 436 U.S. 658, 690-91 (1978).  It  contends that             ___________             the court's order directing it to reinstate Ms. Laborde with                                                                     ____             back  pay constitutes a "damage award."  And, it claims that             _________             Ms. Laborde's  complaint is  deficient in  that it  fails to             allege  the existence  of  an official  policy, pattern,  or             practice which  would justify  this damage award,  as Monell                                                                   ______             requires.                        Assuming much in defendant's favor for the sake of             argument, we find a  short, conclusive answer to  this claim             in the fact that the complaint does properly allege that the             Company itself  (whether or not a  municipal corporation) is             responsible  for  the violation  of  the  Constitution.   It             claims  that all  of  the individual  defendants "were  duly             appointed officials and/or employees of [the Company];" that             each  of the  individual  defendants was  "charged with  the             administration" of the Company's employment regulations; and             that each  of the individual defendants acted, at all times,             "within  the  scope of  their  employment  as agents  and/or             employees of [the Company]."  These allegations amount to an             assertion  that the  actions  of the  individual  defendants             represented   Company  policy,  for  which  the  Company  is             responsible.   We  do  not read  the complaint's  conclusory                                         -11-                                          11             statement that plaintiff's "dismissal"  violated "applicable             laws . . . and . . . regulations" as alleging the contrary.              Moreover,  the   record  before  us   contains  considerable             evidence  that the  employees'  actions  represent  official             Company policy; and it contains no evidence to the contrary.             See  Monell, 436 U.S. at 690 ("Local  governing bodies . . .             ___  ______             can be sued directly under   1983 for monetary, declaratory,             or  injunctive relief where . . . the action that is alleged             to be  unconstitutional implements or executes [an official]             policy statement . . . or decision . . . .")                       Finally, we  note that the district  court has not             yet calculated back pay  or other damages.  We  realize that             the way in  which Puerto Rico  law applies to  the facts  as             eventually determined  (whether or not  it permits dismissal             on  such facts)  may  affect such  calculations. See,  e.g.,                                                              ___   ____             Carey  v. Piphus, 435  U.S. at 260  & n. 15  ; Hernandez-Del             _____     ______                               _____________             Valle  v. Santa-Aponte, 575  F.2d 321, 324  (1st Cir. 1978);             _____     ____________             Brewer v. Chauvin,  938 F.2d 860, 862 & n.2,  864 & n.4 (8th             ______    _______             Cir.  1991); City  of Chicago  v. Dep't  of Labor,  737 F.2d                          ________________     _______________             1466, 1471-73 (7th Cir. 1984).   We express no opinion as to             the  proper outcome of the  question of Puerto  Rico law nor             can we  do so before the  facts are finally  determined.  We             here hold only that federal law clearly required the Company                                         -12-                                          12             to  provide Ms. Laborde with fair pre-termination procedures             --  procedures  that  would  have  given  her  a  reasonable             opportunity to  present facts,  and make  arguments, showing             that she was entitled  to keep her job.  The  district court             held the same, and its determinations are therefore                       Affirmed.                       ________                                         -13-                                          13                                       Appendix                                       Appendix                                       ________                       "In the  case of  working disability  according to             the provisions of this chapter, the employer  shall be under             obligation  to  reserve the  job  filled by  the  laborer or             employee at the time the accident occurred, and to reinstate             him therein,  subject to the following  conditions: (1) that             the  laborer  or  employee  demand  reinstatement  from  his             employer in his job  within the period of fifteen  (15) days             counted  from the date the laborer or employee is discharged             from  treatment, provided such demand  is not made after the             lapse  of twelve months from  the date of  the accident; (2)             that the laborer or employee be mentally  and physically fit             to fill said job  at the time he demands  reinstatement from             his employer; and (3) that said job still exists at the time             laborer or  employee demands reinstatement.   (The job shall             be  understood to exist when the  same is vacant or is being             filled by another laborer or employee....)"             P.R. Laws Ann., tit. 11,   7 (Article 5-A of the Puerto Rico             Workers' Accident Compensation Act).                                                        -14-                                          14
