
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No. 97-1489                             NYLSA ACOSTA-OROZCO, et al.,                               Plaintiffs, Appellants,                                          v.                         CARMEN RODRIGUEZ-DE-RIVERA, et al.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Jose A. Fuste, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________                      Manuel Alvarado for appellants.                      _______________                      Roxanna   Badillo-Rodriguez,  Assistant   Solicitor                      ___________________________            General,  Commonwealth of Puerto Rico, with whom Carlos Lugo-                                                             ____________            Fiol,  Solicitor General of  the Commonwealth of  Puerto Rico            ____            and Edda  Serrano-Blasini, Deputy Solicitor  General, were on                _____________________            brief, for appellees.                                 ____________________                                  December 22, 1997                                 ____________________                      LYNCH,  Circuit Judge.  This is another in a series                      LYNCH,  Circuit Judge.                                _____________            of  cases  following  the  assumption of  power  by  the  New            Progressive Party  (NPP) in Puerto Rico in  elections held in            November 1992.   In  these cases,  plaintiffs are  government            employees  who are members  of the losing  Popular Democratic            Party  (PDP) who assert that  they were terminated or demoted            from  their jobs  because  of  their political  affiliation.1            This  court faced  an earlier  wave  of such  cases when  PDP            candidates  won election in  1984 and NPP  members complained            that  their government jobs  suffered because of  their party            membership.                      In this case, the PDP-affiliated plaintiffs are six            long-term government  employees who  were demoted from  their            civil  service positions  as Managerial  Coordinators in  the            Commonwealth's Department  of Social  Services, now  known as            the Department of the Family.   They say their duties are now            being performed  by NPP members  who have been  designated as            aides to the Regional Directors  of the agency.  The district            court granted summary  judgment for defendants on  the theory            that plaintiffs had not made out a prima facie case  and that            defendants  had  established  they would  have  taken  action            anyway for  non-political reasons, regardless  of plaintiffs'                                            ____________________            1.  See, e.g., Nieves-Villanueva v. Soto-Rivera, No.  96-1285                _________  _________________    ___________            (1st Cir. 1997);  In re Martinez-Catala, 1997 WL  693558 (1st                              _____________________            Cir.  1997); Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (1st                         _____________    _____________            Cir. 1997);  Ortiz-Pinero v.  Rivera-Arroyo, 84  F.3d 7  (1st                         ____________     _____________            Cir. 1996).                                         -2-                                          2            political affiliation.  Because we believe there are material            facts in dispute, we reverse and remand.                                          I.                                          I.                      Our review of the district court's grant of summary            judgment is  de novo.   Sears, Roebuck  & Co. v.  Goldstone &                                    _____________________     ___________            Sudalter, P.C.,  128 F.3d 10,  15 (1st Cir. 1997).   We state            ______________            the facts in  the light most favorable to  the party opposing            summary judgment.  See id. at 12.                               ___ ___                      Plaintiffs are six  career civil service  employees            of the former  Department of Social Services of  Puerto Rico,            now known as the  Department of the Family, all of  whom have            been working  at the Department  for over twenty years.   All            plaintiffs belong  to the PDP,  the party of  former Governor            Rafael Hernandez Colon, who held office for two terms between            1984 and 1992.   In a process that began in  late 1987, a new            supervisory position of  "Managerial Coordinator" was created            within  the  Department.   Between  1988  and  1992,  the six            plaintiffs  and  several  others were  promoted  to  this new            position.                      The  Managerial  Coordinator classification  was  a            middle   level   managerial  position   created   to  provide            assistance to the  several Regional Directors.   The Regional            Directors, in turn, report to  the Secretary, a member of the            Governor's  cabinet.    The  Managerial  Coordinator job  was            established  as a career  position under Puerto  Rico's civil                                         -3-                                          3            service laws, which require that such an employee be selected            strictly on merit and can only  be removed for cause.  See  3                                                                   ___            L.P.R.A.    1301,  1331-1338; Agosto-de-Feliciano v.  Aponte-                                          ___________________     _______            Roque, 889  F.2d 1209,  1213 n.3 (1st  Cir. 1989)  (en banc).            _____            The Regional  Directors,  in  contrast,  were  classified  as            "confidential employees," who are  involved in the  formation            of public  policy and render  direct services to the  head of            the department,  the Secretary  of Social  Services.   See  3                                                                   ___            L.P.R.A.   1350;  Agosto-de-Feliciano, 889 F.2d at  1213 n.3.                              ___________________            The  Central Office of  Personnel Administration  (COPA), the            agency charged with administering Puerto Rico's civil service            laws, approved  the creation  of  the Managerial  Coordinator            position.    In  approving the  position,  the  civil service            agency necessarily  concluded that political  affiliation was            not  a  necessary  prerequisite   for  holding  a  Managerial            Coordinator position.                      The  Director   of  COPA  described   the  position            generally, in a job description written in 1988, as entailing            "managerial and administrative  work of great  complexity and            responsibility  in  the  coordination and  evaluation  of the            . . . activities  of the Local Offices . . . ."   Plaintiffs'            immediate superiors were  the Regional Directors.   On paper,            according to the COPA job description, the official duties of            a Managerial Coordinator  included offering technical  advice            on  the agency's work  plans, keeping the  Regional Directors                                         -4-                                          4            and  the  Secretary  informed  of  local  office  operations,            investigating  and  reporting  on  grievances  of  employees,            monitoring  local  offices' expenses,  training  local office            supervisors, analyzing statistical reports, preparing reports            about evaluation visits  to local offices, and  other duties.            In practice,  plaintiffs' duties  as Managerial  Coordinators            ranged   widely,  and   included  coordinating   inter-agency            programs, attending  to client  complaints, substituting  for            the  Regional  Director,  planning  professional  and  social            activities,  and signing per  diem and  mileage reimbursement            checks.  Plaintiffs' positions "provid[ed] support  functions            to the Regional Directors, analogous to those of an aide."                      In  the 1992 general election, the PDP was defeated            by the  rival NPP, and  the present governor,  Pedro Rosello,            came  to  power.   Governor  Rosello  named  defendant Carmen            Rodriguez-de-Rivera   as   Secretary  of   Social   Services.            Rodriguez-de-Rivera, in  turn, hired the  Regional Directors.            In the first  month of the  new administration, the  Regional            Directors began to take away many of the duties and functions            that  the   Managerial  Coordinators  had   been  performing,            assigning  those duties  to  other  employees  who  were  NPP            activists   and  had   been   designated,     officially   or            unofficially,   as   aides   to   the   Regional   Directors.            Additionally,  the  Regional  Directors  took  away from  the            Managerial  Coordinators several  perquisites  that had  been                                         -5-                                          5            associated with  that position,  such as  parking, telephones            and office space.   Defendants were aware  of plaintiffs' PDP            political  party   affiliation,   and  the   aides  to   whom            plaintiffs' duties were assigned were all politically  active            supporters of the NPP party, newly in power.                      In February 1993, one  Managerial Coordinator wrote            defendant  Rodriguez-de-Rivera,  to  complain  that  the  new            Regional  Directors had taken away the duties and perquisites            of  her  position.    Rodriguez-de-Rivera's reaction  was  to            launch  an investigation  of the  complainant  and the  other            Managerial  Coordinators.     The  stated   purpose  of   the            investigation  was to determine  whether the creation  of the            position and  the selection  of candidates  had been  proper.            Plaintiffs contend that the real purpose of the investigation            was to provide a legal cover for the impending demotions.                      In   May   1993,    Secretary   Rodriguez-de-Rivera            dispatched Carmen Salivia, an official of the Social Services            Department, to  conduct field interviews  with the Managerial            Coordinators.     During   the  interviews,   the  Managerial            Coordinators described the  duties of their positions  -- now            being  performed by  NPP-affiliated aides  --  and said  they            reported  to the Regional  Directors.  Salivia  completed the            interviews  and  delivered  her  notes to  defendant  Enrique            Gonzalez-Polanco, Assistant Secretary in Charge of Personnel,            or to Mrs. Carmen Haddock, who worked in the office.  Salivia                                         -6-                                          6            drew no conclusions and her investigation was terminated when            she went on vacation.                      Rodriguez-de-Rivera also hired Francisco Cappas, an            outside personnel consultant, to review the matter.  Although            Salivia understood that her notes would be used in the Cappas            investigation, the interview notes were never given to Cappas            before he completed his reports.   Cappas apparently held  no            position within the government.                      In June 1993,  Cappas submitted two letter  reports            to  Rodriguez-de-Rivera.  In the first, he concluded that the            position of Managerial Coordinator should be declared a legal            nullity  because it  had  been  improperly  created  and  was            duplicative  of  the  duties   of  the  Regional   Directors.            Specifically, he  concluded that the  Managerial Coordinators            were in reality policymaking  officials who reported directly            to the Secretary, not to the Regional Directors, and that the            position   should   therefore   have   been   classified   as            "confidential"  rather than as  a career civil  service post.            Under  Puerto  Rico law,  "confidential  employees" are  only            those  employees  who report  directly  to  the head  of  the            agency.    See 3  L.P.R.A.     1350 (aides  to  the heads  of                       ___            departments, but not aides to regional directors, included in            list  of  confidential  employees).   These  conclusions  are            facially  contrary to  the determination  made  by COPA,  the                                         -7-                                          7            civil  service agency, when  it approved the  creation of the            positions.2                        In his second report, Cappas concluded that many of            the  Managerial Coordinators  had  been improperly  promoted,            even though COPA had approved many of these promotions at the            time.  Cappas recommended that the Managerial Coordinators be            given a  hearing and -- if they could not counter his initial            assessment   --  that  they  be  demoted  to  their  previous            positions.                      In  December  1993, Rodriguez-de-Rivera  asked  the            Secretary of  Justice of  Puerto Rico for  an opinion  on the            legality  of   the  Managerial   Coordinators'  appointments,            repeating  the allegations  of the  Cappas reports.   In  May            1994,  the Secretary of Justice declined  to give an opinion,            noting  that the  legality  of  the Managerial  Coordinators'            appointments  depended  on  the  factual  accuracy  of  those            allegations, not  on any question  of law, and  referred that                                            ____________________            2.  Cappas  said  that  the   COPA  document  describing  the            position  had originally stated that the position reported to            the Secretary, but that this document was altered with liquid            paper  to state that  the position  reported to  the Regional            Directors.  Cappas drew the inference that COPA had conspired            with  the Managerial  Coordinators  to  alter the  documents.            There is  no evidence  that he  considered another  plausible            explanation  --that  the  alteration was  a  correction  of a            mistake  in  the  original  --  and  Cappas  was  unaware  of            plaintiffs'  statements  to Salivia  in the  field interviews            that they had always reported  to the Regional Directors.  Of            course,  a  reasonable  jury  could  credit  the  plaintiffs'            testimony and discredit the defendants' forgery theory.                                         -8-                                          8            issue  to COPA, whose special expertise is the administration            of Puerto Rico's civil service laws.                        Rodriguez-de-Rivera then requested  the Director of            COPA and  the Director  of the  Budget and  Management Office            (BMO)  to   determine  that   the   position  of   Managerial            Coordinator was a  nullity, sending a copy of  her letters to            Governor Rosello and his staff.  The  COPA director responded            by disputing  several of the  claims contained in  the Cappas            reports,  and  by   refusing  to  nullify  the   position  or            promotions of the Managerial Coordinators.                      In  contrast with the civil service agency, the BMO            director responded by stating that he could find no  document            authorizing budgetary approval for the position, and drew the            inference that the position was therefore illegally created.3                      In spite of  the COPA opinion,  on August 9,  1994,            Rodriguez-de-Rivera issued an  administrative order providing            "[t]hat all  positions classified as  Managerial Coordinators            in the Department are null."  Plaintiffs were not afforded an            administrative hearing prior to this declaration, or given an            opportunity  to dispute  the  allegations  contained  in  the            Cappas reports, although this had been recommended by Cappas.                                            ____________________            3.  There is no evidence that the BMO director considered the            possibility, also  plausible, that  the proper  document from            six years earlier simply had not been found.  Plaintiffs have            produced  documents that tend  to show that  the BMO approved            the Managerial Coordinator position and that there has always            been budgetary authority for salaries and expenses associated            with that position.                                          -9-                                          9            Each   of  the  plaintiffs  was  thereafter  demoted  to  the            positions they had  previously held within the agency.   As a            result of  the nullification  order, each  of the  plaintiffs            suffered a loss of salary in addition to making permanent and            official their previous de facto loss of position.                      Plaintiffs say that their significant job functions            have been assumed  by other persons, all NPP  members, all in            the position of  aides to the Regional Directors.   It is our            understanding that aides to persons at  the level of regional            directors   cannot  be   classified  as   "confidential"  (or            political) employees within the Puerto Rico personnel system.            See 3 L.P.R.A.   1350.            ___                                         II.                                         II.                      In November  1994, plaintiffs filed  suit, alleging            violations  of  their  First Amendment  rights  of  political            affiliation under Elrod v. Burns, 427 U.S. 347 (1976), Branti                              _____    _____                       ______            v. Finkel, 445 U.S. 507  (1980) and Rutan v. Republican Party               ______                           _____    ________________            of Ill.,  497 U.S. 62  (1990).  Plaintiffs also  alleged that            _______            they were deprived of a property interest without due process            of  law, and that  their demotions violated  the constitution            and statutes of the Commonwealth  of Puerto Rico.  On January            27, 1997,  the district  court granted  summary judgment  for            defendants,  finding that plaintiffs  had not shown  a causal            connection  between  their  demotions   and  their  political            affiliation.     The  district  court   also  reasoned   that                                         -10-                                          10            defendants'   stated   rationale   for   the   demotions   --            departmental efficiency and respect for the personnel laws --            was sufficient  to compel  a  finding that  defendants had  a            defense under  Mount Healthy  City Sch.  Dist. v.  Doyle, 429                           _______________________________     _____            U.S. 274  (1977), even  if political  affiliation had  played            some part in their decision.                                         III.                                         III.                      Plaintiffs  have  produced evidence  sufficient  to            support a prima facie case of political party discrimination.            The First Amendment prohibits the government from demoting an            employee  for  patronage  purposes  unless  political   party            affiliation  is an appropriate requirement for that position.            See Rutan,  497  U.S.  at  64;  Nereida-Gonzalez  v.  Tirado-            ___ _____                       ________________      _______            Delgado, 990 F.2d 701, 705 (1st Cir. 1993).   A plaintiff who            _______            was  demoted  from  a  job  for  which  a  party  affiliation            requirement  is   inappropriate  "may   ordinarily  forestall            summary judgment by pointing to evidence in the record which,            if credited, would  permit a rational factfinder  to conclude            that   a  demotion  occurred  and  that  it  stemmed  from  a            discriminatory animus."  Nereida-Gonzalez, 990 F.2d at 706.                                     ________________                      There is  no dispute that plaintiffs  were demoted;            the "nullity" decree4  eliminated their supervisory positions                                            ____________________            4.  Of   course,  "a  new  administration  [cannot]  use  the            'nullity'  of appointments doctrine as a cover of discharges,            transfers,  and  discrimination  based  solely  on  political            affiliation."   Santiago-Negron  v.  Castro-Davila, 865  F.2d                            _______________      _____________            431, 436 (1st Cir. 1989).                                         -11-                                          11            altogether   and  returned  them   to  the  jobs   they  held            previously,  which are  of lower  rank  and salary.   As  the            subjects  of demotion, "which  involve reductions in  pay and            official rank,"  Agosto-de-Feliciano, 889 F.2d  at 1218  n.8,                             ___________________            plaintiffs  plainly need not  establish that their  new "work            situation  [is] unreasonably  inferior to  the  norm for  the            position"  such that  "the new  work  conditions would  place            substantial pressure on even one  of thick skin to conform to            the prevailing political view."  Id. at 1218.5                                             ___                                            ____________________            5.  The  "unreasonably   inferior"  doctrine   of  Agosto-de-                                                               __________            Feliciano   was   expressly   limited    to   complaints   of            _________            discrimination short  of actual  demotion.   See id.  at 1218                                                         _______            n.8.    Thus  we  need  not  consider whether  that  doctrine            survives  the Supreme  Court's extension  of First  Amendment            protections  against  patronage   dismissals  to  "promotion,            transfer, recall, and hiring decisions."   Rutan, 497 U.S. at                                                       _____            79.  "It  is an interesting question whether  some vestige of            [the 'unreasonably  inferior' rule]  survives Rutan,  thereby                                                          _____            providing  a sort of . . . intermediate First Amendment haven            for employees wounded by slings and arrows less damaging than            those  [official  actions]  described by  the  Rutan  court."                                                           _____            Nereida-Gonzalez,  990 F.2d at  705.   That question  must be            ________________            answered another day.                 The  Rutan Court  suggested  in dicta  that  any adverse                      _____            action  against a  public  employee,  no  matter  how  minor,            violates the First  Amendment if it is in  retaliation for an            employee's  exercise of First  Amendment rights.   See Rutan,                                                               ___ _____            497 U.S. at 76 n.8 ("The First Amendment . . . protects state            employees . . . from even an act of retaliation as trivial as            failing  to hold  a  birthday party  . . .  when intended  to            punish  [them] for  exercising [their]  free  speech rights."            (internal quotation marks and citation omitted)).  We do  not            regard such  colorful  rhetoric  as  necessarily  foreclosing            something like the "unreasonably inferior" rule for personnel            actions short of demotions or transfers.  The Rutan Court was                                                          _____            concerned with "deprivations  less harsh than  dismissal that            nevertheless press state employees and  applicants to conform            their  beliefs  and   associations  to  some   state-selected            orthodoxy,"  id. at 75,  a formulation similar  to Agosto-de-                         ___                                   __________            Feliciano's  standard that  "the  new  work conditions  would            _________                                         -12-                                          12                      Viewed  in   the  light   most  favorable   to  the            plaintiffs, the  summary judgment  record amply  demonstrates            that  a rational factfinder could conclude that the demotions            stemmed from a  discriminatory animus.  In this  case, it was            uncontested for summary judgment purposes that the plaintiffs            were  all members of the  adverse party, that their superiors            knew  this,  and  that  their  duties  were given  to  active            supporters of  the party  in power.   Of course,  the Supreme            Court has cautioned that the mere fact that an adverse action            was  taken after an employee exercises First Amendment rights            is not enough by itself to establish a prima facie case.  See                                                                      ___            Board  of County  Comm'rs v.  Umbehr, 116  S. Ct.  2342, 2352            _________________________     ______            (1996).   "Merely juxtaposing  a protected characteristic  --            someone  else's politics  --  with  the  fact  plaintiff  was            treated  unfairly is  not enough  to  state a  constitutional            claim."  Correa-Martinez v. Arrillaga-Belendez,  903 F.2d 49,                     _______________    __________________            58 (1st Cir. 1990) (citation omitted).                      Nevertheless, a plaintiff  need not produce  direct            evidence  of discriminatory  treatment (a  so-called "smoking            gun")   to  establish  a  prima  facie  case  of  politically            discriminatory demotion.   We have reversed entry  of summary            judgment in  favor of  defendants in  cases where  plaintiffs                                            ____________________            place  substantial pressure  on  even one  of  thick skin  to            conform  to  the  prevailing  political  view."    Agosto-de-                                                           ______________            Feliciano,  889 F.2d at 1218.  We leave the resolution of any            _________            conflict in the  standard for such adverse  personnel actions            to some future case.                                         -13-                                          13            have produced sufficient evidence  of a discriminatory animus            through circumstantial evidence.   See, e.g., Rivera-Ruiz  v.                                               _________  ___________            Gonzalez-Rivera,   983  F.2d  332,   335  (1st   Cir.  1993);            _______________            Rodriguez-Pinto v.  Tirado-Delgado, 982 F.2d  34, 39-40  (1st            _______________     ______________            Cir.  1993); Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43                         _______________    ____________            (1st Cir.  1992).  In  Anthony v. Sundlun, 952  F.2d 603 (1st                                   _______    _______            Cir. 1991), this court noted:                      [T]he  appellants' argument  seems  to be                      that political  favoritism must be proved                      by   direct  evidence.      We  disagree.                      Victims  of   heavy-handed  uses  of  the                      spoils system are  not limited to redress                      in only those (relatively rare) instances                      in which a "smoking gun" can be produced.                      To the exact contrary, we have held, time                      and again,  that circumstantial  evidence                      alone can support a finding of  political                      discrimination.            Id. at 605 (citing cases).            ___                      In this  case, plaintiffs presented much  more than            the  mere fact  that they  were demoted  by supervisors  of a            different party.   First, the  reason given for  the supposed            nullity of the Managerial Coordinators' appointments was that            their positions were  improperly classified as  civil service            rather  than "confidential"  positions.   This  suggests that            defendants  believed it  was  appropriate  to take  political            party affiliation into  account in deciding to  eliminate the            Managerial  Coordinators and transfer their duties to the new            aides to  the Regional  Directors.   Indeed, that is  exactly            what plaintiffs  say happened: their  duties were transferred                                         -14-                                          14            to NPP members.  This  happened although a jury could readily            find the  position was  appropriately classified  as a  civil            service position.                        Second, a reasonable  jury could find Rodriguez-de-            Rivera's reaction to the initial complaint from a  PDP member            that  her  rights under  the  civil service  laws  were being            violated -- to launch an investigation of  the complainant --            to be evidence of political discrimination.                        Third, the conduct of that investigation, including            the failure to apprise Cappas of the Managerial Coordinators'            statements  that they  reported  to the  Regional  Directors,            could   support  a  reasonable  inference  that  it  was  not            conducted fairly, but rather was simply intended to provide a            legal  pretext  for  a foreordained  decision  to  demote the            plaintiffs.                       Fourth, the failure to afford  plaintiffs a hearing            to  contest the allegations  concerning the alleged "nullity"            of their  appointments and promotions  could likewise  fairly            imply  that the Department  was uninterested in  the truth of            the controversy.                        Finally,  Rodriguez-de-Rivera's  disagreement  with            the advice of  COPA, Puerto Rico's civil  service commission,            casts   serious  doubt  on  the  supposed  "nullity"  of  the            plaintiffs' appointments or promotions and an inference could                                         -15-                                          15            be  drawn that  her  decision  was in  fact  motivated by  an            unlawful patronage objective.                                         IV.                                         IV.                      The  district  court  did  not  rest  its  decision            entirely  on  its  view  of  plaintiffs'  prima  facie  case,            however,  but decided  that defendants  had  established that            they  would  have   taken  the  same  action   regardless  of            plaintiffs' political  affiliation  for  what  it  considered            "credible policy reasons" of departmental  efficiency.  This,            the district  court  reasoned, established  a  valid  defense            under  Mount  Healthy.   The  district  court noted  what  it                   ______________            considered "a logical inconsistency" in plaintiffs' claims of            political  discrimination.    Observing that  the  record was            unclear  whether every Managerial Coordinator was a member of            the PDP, the district court reasoned that political diversity            among the Managerial Coordinators undercut plaintiffs' claims            of political discrimination.6  The district court added that,                                            ____________________            6.  Of  course,  political  diversity  among  the  Managerial            Coordinators would  not doom plaintiffs'  claim.   Defendants            cannot  prevail simply  by showing  that  a desire  to reward            their  political supporters, rather  than a desire  to punish            their political opponents,  underlay their decision.   Either            motive may  produce unlawful  results.   The First  Amendment            condemns  "the coercion of belief that necessarily flows from            the knowledge  that one must  have a sponsor in  the dominant            party  in order to retain one's job."   Branti v. Finkel, 445                                                    ______    ______            U.S. 507, 516 (1980).  That coercion is equally unlawful when            it is directed toward apolitical career employees as  when it            is  directed  towards  a party's  political  opponents.   See                                                                      ___            Bennis  v. Gamble, 823 F.2d 723, 731-32 (3d Cir. 1987).  That            ______     ______            a  party  chooses to  reward  its  followers with  good  jobs            inevitably  affects those who  are not followers  and who see                                         -16-                                          16            alternatively, if the positions  were filled exclusively with            PDP  members, that "would  indicate that the  position served            some  political purpose,  and was thus  a 'de  confianza,' or            trust position," as the Cappas report had claimed.                      The burden  of persuasion  is on  the Secretary  to            establish a Mount  Healthy defense.  "Summary  judgment would                        _____  _______            have  been warranted  . . . only  if defendants'  evidentiary            proffer compelled  the finding that  political discrimination            did  not  constitute a  'but  for' cause  for  the demotion."            Jirau-Bernal v. Agrait,  37 F.3d 1, 4 (1st Cir. 1994).  Here,            ____________    ______            there  are  significant  disputes  of  material  fact   which            preclude a finding on summary judgment for defendants.                      Defendants'  evidence   that  their   decision  was            motivated by a concern for departmental efficiency that would            have  resulted in  the same  personnel  action regardless  of            plaintiffs' political affiliation  is both  disputed and  far            from  conclusive.  First, Cappas's finding that the existence            of the Managerial  Coordinators interrupted the free  flow of            the  agency hierarchy  was based  on  a view  that plaintiffs            reported  to  the  Secretary, not  to  her  subordinates, the            Regional Directors.   Plaintiffs  have successfully  put this            conclusion into doubt  through their sworn statements  to the                                            ____________________            their upward mobility in the agency thwarted in very concrete            ways.  Here, plaintiffs say  their duties were assumed by NPP            members.    Rutan  expressly discussed  the  effect  on First                        _____            Amendment rights  of employees  left in  such dead-end  jobs.            See Rutan, 497 U.S. at 73.            ___ _____                                         -17-                                          17            contrary.   Second, plaintiffs, in their affidavits, say that            their duties and  responsibilities have  been transferred  to            new aides to the Regional Directors associated with the  NPP.            If  this is  true, it  calls into  question the  Department's            "efficiency"  rationale,  as   the  addition  of   new  aides            undercuts  any argument that the positions were eliminated to            save departmental resources.                      Of course, defendants'  contention that plaintiffs'            demotions were the result of a valid concern for departmental            efficiency and regularity -- even if political discrimination            was a  "substantial factor"  in the decision  -- is  a viable            defense at trial.  To establish that defense, defendants must            show  that the  allegedly bona  fide  reasons underlying  the            demotions  were  sufficient  by  themselves  to  justify  the            decisions.    After Rutan,  it  is clear  that  if defendants                                _____            thought  that  plaintiffs'   political  beliefs  alone  would            prevent  them from carrying out the department's policy, that            is  not  an  acceptable   reason  for  the  demotions.     "A            government's  interest in securing employees who will loyally            implement its policies  can be adequately served  by choosing            or  dismissing certain high-level  employees on the  basis of            their political  views."   Rutan, 497  U.S. at  74 (citations                                       _____            omitted).7   On the other  hand, if defendants  can establish                                            ____________________            7.  The  posture of  this  case  makes  it  inappropriate  to            conduct   a   full-scale   examination   of   the   so-called            "changeover"  or  "reorganization"   defense  established  by                                         -18-                                          18            that  plaintiffs opposed  departmental policy  and that  they            actively  attempted  in fact  to  thwart  it, that  could  be            sufficient to establish a Mount Healthy defense.  See  Rutan,                                      _____________           ___  _____            497   U.S.  at  74  ("A  government's  interest  in  securing            effective  employees can be  met by discharging,  demoting or            transferring staff members whose work is deficient.").                      There  appears to be  lurking in the  wings of this            case, but not  on stage, a suggestion by  the defendants that            if the plaintiffs were removed for  political reasons, and if            their duties continued and were assigned to NPP members, that            those  duties  nevertheless  fall  within  the   Elrod-Branti                                                             _____ ______            exception because those duties are sensitive enough to make a            political  affiliation  requirement  appropriate.    However,            defendants  did not raise the Elrod-Branti exception issue in                                          _____ ______            their  responsive pleading  or in  their  motion for  summary            judgment.    The district  court  mentioned  the Elrod-Branti                                                             _____ ______            exception  despite the defendants'  failure to articulate it,            but did  not resolve the  issue.  Rather, the  district court            rested its  decision  on its  view  that plaintiffs  had  not            established  a prima  facie case.    The issue  has not  been                                            ____________________            Agosto-de-Feliciano, 889 F.2d  at 1220-22 in light  of Rutan.            ___________________                                    _____            However, we can say that,  after Rutan, a public employer may                                             _____            not assign tasks to supporters  of the party in power because            it believes, solely on the basis of their  party affiliation,            that  such employees will more loyally implement its policies            -- notwithstanding language in Agosto-de-Feliciano that might                                           ___________________            be read to support such a decision.  See Agosto-de-Feliciano,                                                 ___ ___________________            889 F.2d at 1221.                                         -19-                                          19            fairly briefed on appeal.   This court does not decide issues            on  appeal that  have  not been  properly  raised before  the            district court.  See McAleer v. Smith, 57  F.3d 109, 115 (1st                             ___ _______    _____            Cir. 1995).  Although the issue of the Elrod-Branti exception                                                   _____ ______            is  somewhat related to  the Secretary's contention  that the            positions  were illegally created in part because they should            have been classified as "confidential" positions under Puerto            Rico law, it is by no  means the same argument.  See  Roldan-                                                             ___  _______            Plumey,  115 F.3d at 64-65 (rejecting government's claim that            ______            political affiliation requirement is permitted despite Puerto            Rico's classification of position as "confidential.").                      Until the contours  of the case  are clear, we  are            reluctant,  as we  have  been  invited to  do,  to engage  in            further analysis  of the effects  of Rutan  on the  so-called                                                 _____            "changeover"  or  "reorganization"  defense  as  outlined  in            Agosto-de-Feliciano, 889 F.2d at 1220-22.            ___________________                      Finally,   we  note   that,   if  plaintiffs   were            originally classified appropriately  as career civil  service            employees,  their claims  under the  Due  Process Clause  and            under  the constitution  and  laws  of  Puerto  Rico  survive            independently  of their First Amendment claim.  If plaintiffs            reported to the Regional Directors,  as they claim, they were            apparently classified  appropriately as career  employees and            are therefore protected against political discharge under the            civil service laws of Puerto  Rico.  See 3 L.P.R.A.     1301,                                                 ___                                         -20-                                          20            1331-1338.    The  Puerto Rico  legislature  may,  of course,            establish  a  civil  service  system  that  provides  greater            protection against  political discrimination  than the  First            Amendment.  Plaintiffs may have claims under the Constitution            of Puerto  Rico as  well.  Cf.  Jimenez-Fuentes, 807  F.2d at                                       ___  _______________            249-250  (Torruella,  J.,  dissenting)  (noting that  Supreme            Court  of   Puerto  Rico  grants  broad   protection  against            political discrimination, perhaps broader than this circuit's            interpretation  of the  First Amendment);  Raffucci-Alvarado,                                                       _________________            816 F.2d at 822-23 (Torruella, J., dissenting) (same).                      Likewise,  because  of plaintiffs'  tenured  status            under Puerto Rico law, their summary demotions could raise  a            claim under the Due Process Clause if their appointments were            proper.  See  Cleveland Bd. of Educ. v.  Loudermill, 470 U.S.                     ___  ______________________     __________            532,  542  (1985)  (guaranteeing  procedural  protections  to            public  employees  with  a  property  interest  in  continued            employment under state law); Rivera-Ruiz v.  Gonzalez-Rivera,                                         ___________     _______________            983 F.2d 332, 334 (1st  Cir. 1993) (noting that, under Puerto            Rico  law, the  existence of  a  property right  in continued            public  sector employment  is dependent  on  the legality  of            plaintiffs' appointments  under Puerto  Rico's civil  service            laws).  That Due Process claim is not dependent on the merits            of  plaintiffs'  First Amendment  claims;  the  inquiries are                                         -21-                                          21            distinct.8   See  Nieves-Villanueva v.  Soto-Rivera, No.  96-                         ___  _________________     ___________            1285, slip op. at 16 (1st Cir. 1997).                      The  judgment of the district court is vacated, and                                                             _______            the  case is remanded for further proceedings consistent with                         ________            this opinion.                                            ____________________            8.  We  take the case  as we find  it -- with  defendants not            articulating a defense based on the Elrod-Branti exception --                                                _____ ______            and so  we also do not delve into  a question, not briefed by            any of the parties, as to whether the Due Process analysis is            altered  in  any  way  if  defendants  may  validly  cause  a            reclassification  of a position from a civil service position            to  one  in  which  political  affiliation  is  a  legitimate            requirement,  and how,  under  the laws  of  Puerto Rico,  an            agency may accomplish this.                                         -22-                                          22
