
USCA1 Opinion

	




          October 7, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  91-2225                                 MANUEL C. PEDRO-COS,                                 Plaintiff, Appellee,                                          v.                               BLAS CONTRERAS, ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET               The opinion of this  Court issued on September 30,  1992, is          amended as follows:               On the cover  sheet on the first line of the caption, change          "Pedros" to "Pedro".               Page 3, line 5, change "remains" to "remain".               Page 4, footnote #2, change "is" to "are".               Page 4, line 4, change "affilation" to "affiliation".               Page 4, line 15, add a comma after "(en banc)".               Page 6, line 2,  add a ")" immediately following  "(1st Cir.          1956)".               PageSeptember 30, 1992                                 ___________________          No. 91-2225                                            MANUEL C. PEDROS-COS,                                 Plaintiff, Appellee,                                          v.                               BLAS CONTRERAS, ET AL.,                               Defendants, Appellants.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ___________________               Anabelle  Rodriguez,  Solicitor  General,  Reina   Colon  De               ___________________                        _________________          Rodriguez,  Deputy  Solicitor  General,  and  Carlos  Lugo  Fiol,          _________                                     __________________          Assistant Solicitor General, Department  of Justice, on brief for          appellants.                                  __________________                                  __________________                 Per Curiam.  Plaintiff, Manuel C. Pedro Cos, filed suit,                 __________            in  1986, pursuant to, inter alia, 42 U.S.C.   1983, claiming            that he was transferred  because of his political affiliation            in     violation     of     his    constitutional     rights.            Defendants/appellants,  officials  of  the  General  Services            Administration  (GSA) of  the  Commonwealth  of Puerto  Rico,            where Pedro  Cos is  employed, appeal  the denial of  summary            judgment on their claim of qualified immunity.1   Mitchell v.                                                              ________            Forsyth,  472  U.S.  511,  530 (1985)  (denial  of  qualified            _______            immunity is  immediately appealable).   We vacate  and remand            with directions  to grant summary judgment  to the defendants            on the issue of qualified immunity from damages liability.                 The relevant facts are these:                 1)   Pedro Cos is a member  of the New Progressive Party            (NPP), whose  candidate lost the governorship  of Puerto Rico            in the 1984 election.                 2)   The  defendants   are   members  of   the   Popular            Democratic  Party (PDP), whose candidate won the governorship            of Puerto Rico in the 1984 election.                 3)   Pedro Cos is a career employee of GSA for more than            20 years.  His classification  (since 1980) is Accountant VI.            From  1984 until August 1,  1986, he was  Chief of Industrial            Accounting.  According to Pedro  Cos, he prepared the monthly                                            ____________________            1.  Plaintiff failed to file any appellee brief.                                         -2-            financial statements, paid  all suppliers, and supervised  25            employees.                 4)   On August 1,  1986, Pedro Cos was  transferred to a            new  position -  Special Assistant  to the  Finance Director.            His classification and salary remain as Accountant VI.                  5)   According to  Pedro Cos, he now  supervises no one.            He no longer has  a secretary.   Almost all of his  functions            were taken away.   He now is responsible for  menial clerical            tasks.  He reconciles  the paymaster's cash with the  monthly            bank statements.  He says this takes one hour a month.  He is            also responsible for a Social Security report which, he says,            takes one hour every three months.                 6)   Pedro  Cos  has  a bachelor's  degree  in  business            administration and a master's degree  in accounting.  He also            has  taken four seminars in  the field of  accounting.  Pedro            Cos says that his present functions are not commensurate with            his  academic preparation and  his work experience.   He says            that he does  not perform any of the  duties contained in the            job description of Accountant VI.                 7)   Pedro Cos alleges that he was replaced in his prior            position with a PDP member with less academic preparation and            work experience and a classification of Accountant IV.                 8)   Pedro  Cos contends that  defendants were  aware of            his  political affiliation.    He claims  that these  actions            occurred  because  of  his  political  affiliation  and  that                                         -3-            defendants  are constantly  harrassing and  humiliating him,2            all with the intent to force him to resign.                 Appellants  deny  that   Pedro  Cos'  transfer  occurred            because of his political  affiliation, but rather pursuant to            legitimate  needs of  GSA and  in the  course of a  bona fide            reorganization, encompassing the  transfer of other employees            as well.    They also  claim  that, in  any  event, they  are            shielded  from liability  for civil  damages because,  at the            time  of  their  actions  (August  1986), the  constitutional            protection   against  a  politically  motivated  demotion  or            transfer short of dismissal was not clearly established.                 Appellants are correct in their assessment of the status            of the law as of 1986.  We have repeatedly stated that, prior            to our  decision in Agosto-De-Feliciano v.  Aponte-Roque, 889                                ___________________     ____________            F.2d 1209 (1st Cir. 1989) (en banc), and the Court's decision            in  Rutan v. Republican Party of Illinois, 110 S. Ct. (1990),                _____    ____________________________            the law was not so well settled that reasonable people should            have  been aware that such constitutional protection existed.            Valiente  v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Aviles-            ________     ______                                   _______            Martinez v. Monroig, 963  F.2d 2, 6 (1st Cir.  1992); Castro-            ________    _______                                   _______            Aponte v. Ligia-Rubero, 953 F.2d  1429, 1430 (1st Cir. 1992);            ______    ____________            Balaguer-Santiago v. Torres-Gaztambide,  932 F.2d 1015,  1016            _________________    _________________            (1st Cir. 1991);  Roque-Rodriguez v. Lema Moya, 926 F.2d 103,                              _______________    _________                                            ____________________            2.  This alleged constant harassment and humiliation are  not            further described.                                         -4-            108 (1st Cir. 1991);  Nunez-Soto v. Alvarado, 918  F.2d 1029,                                  __________    ________            1030 (1st Cir. 1990).                 The district court declined to grant summary judgment on            the ground of qualified immunity, however.  It concluded that            the contention  that Pedro  Cos' present position  was almost            entirely devoid  of duties and responsibilities  coupled with            his allegation that the defendants' purpose was to secure his            resignation raised a material  question of fact regarding his            actual   duties  and  whether   his  transfer  constituted  a            constructive discharge.   The court pointed  out that we  had            recognized   the  constitutional  dimension  of  a  claim  of            constructive discharge in Alicea  Rosado v. Garcia  Santiago,                                      ______________    ________________            562  F.2d 114  (1st Cir. 1977),  long before  the defendants'            actions  in this  case,  thus precluding  them from  claiming            qualified immunity.                 We respectfully disagree with  the district court.  Even            assuming  that Pedro Cos'  description of his  present job is            accurate,  we  conclude  that  his claim  of  a  constructive            discharge  fails as a matter of law.   As explained in Alicea                                                                   ______            Rosado,            ______                      [a]  "constructive  discharge"  has  been                      defined as "an  onerous transfer,  having                      the  purpose  and effect  of  forcing the                                    __________                      transferred   employee    to   quit   the                      employment."                                         -5-            Id.  at  119 (quoting  Newspaper  Guild of  Boston  v. Boston            ___                    ___________________________     ______            Herald-Traveler  Corp., 238  F.2d 471,  472 (1st  Cir. 1956))            ______________________            (emphasis added).                      [T]he "burden imposed  upon the  employee                      must cause, and  be intended to cause,  a                      __________                              _                      change  in  his  working   conditions  so                      _________________________________________                      difficult or unpleasant  as to force  him                      _________________________________________                      to resign."                      _________            Id.  (quoting Crystal  Princeton Refining  Co., 222  N.L.R.B.            ___           ________________________________            1068, 1069 (1976)) (emphasis added).                 Pedro Cos  is still employed and drawing his full salary            from  GSA.    He has,  in  fact,  not  resigned or  left  his            employment.   No discharge,  constructive  or otherwise,  has            occurred.  As we stated in Alicea Rosado,                                        _____________                      [b]efore  a "constructive  discharge" may                      be found, entitling  the employee to quit                      working altogether  rather than accepting                      a transfer which  he thinks is  violative                      of his constitutional  rights, the  trier                      of fact  must be  satisfied that the  new                      working  conditions  would  have been  so                      difficult or unpleasant that a reasonable                      person in the employee's shoes would have                      felt compelled to resign.            Id.  A claim of  constructive discharge due to a  demotion or            ___            transfer cannot  succeed when a  claimant, in  fact, has  not            left employment.   Cf. Smith  v. Bath Iron  Works Corp.,  943                               ___ _____     ______________________            F.2d 164,  167  (1st Cir.  1991)  (because claimant  did  not            resign until  6 months after last  episode of discrimination,            she cannot  prevail under  a constructive  discharge theory).            Indeed,  we point out that in the  case of Newspaper Guild v.                                                       _______________            Boston Herald-Traveler Corp., 238 F.2d  at 472, which was the            ____________________________                                         -6-            source  of  our   much  quoted  definition  of   constructive            discharge,  the claim of  constructive discharge was rejected            precisely because  the employee had not  left his employment,            but continued to  work and draw  his full salary on  the less            desirable 1:00 a.m. shift to which he had been transferred.                 The order of the  district court denying the defendants'            motion  for  summary judgment  on  their  claim of  qualified            immunity from damages liability is vacated and  we remand for            entry of summary judgment in defendants' favor on this issue.                 Vacated and remanded.                 _____________________             6, line 10, add a ")" immediately following "(1976)".                                          -7-
