January 5, 1993
                UNITED STATES COURT OF APPEALS
                    For the First Circuit
                                         

No. 92-1648

                  PEDRO L. RODRIGUEZ-PINTO,

                    Plaintiff, Appellant,

                              v.

                CIRILO TIRADO-DELGADO, 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.
                                            

                                         

Hector Urgell Cuebas for appellant.
                    

Vannessa  Ramirez, Assistant  Solicitor  General, with  whom Reina
                                                                  
Colon De  Rodriguez, Deputy Solicitor General,  Department of Justice,
               
was on brief for appellees.

                                         

                                         

                 
*Of the District of Massachusetts, sitting by designation

          Stahl, Circuit Judge.   In this appeal,  plaintiff-
                               

appellant  Pedro  Rodriguez-Pinto  challenges   the  district

court's  entry of  summary judgment  in favor  of defendants-

appellees Cirilo Tirado Delgado and Rafael Rivera Gonzalez on

his claim of political affiliation-based discrimination.  For

the  reasons set forth below, we  affirm the district court's

entry of summary judgment on all of plaintiff's claims except

his  First Amendment claim  for equitable relief.   We remand

that claim for further proceedings.

                              I.
                                

                          BACKGROUND
                                    

          As always, we review  the district court's  summary

judgment ruling de novo,  reading the record in a  light most
                       

amiable to  the nonmoving  party.   See Federal  Deposit Ins.
                                                             

Corp. v.  World Univ., Inc., No. 92-1389,  slip op. at 4 (1st
                           

Cir. Oct. 22, 1992).  Plaintiff  is a career employee of  the

State Insurance Fund of the Commonwealth of Puerto Rico ("the

Fund") who, at the  time he filed his complaint,  had accrued

more than twenty-three years of public service.  He also is a

member   of  the   New  Progressive   Party  ("NPP"),   whose

gubernatorial candidate lost the general election of November

6, 1984.

          At the  time  the complaint  was  filed,  defendant

Cirilo  Tirado  Delgado  was  the  Fund's  Administrator  and

defendant Rafael  Rivera Gonzalez was the  Fund's Director of

                             -2-
                              2

Personnel.    Both  defendants  are members  of  the  Popular

Democratic  Party ("PDP"), whose  gubernatorial candidate won

the  1984  election.    Defendants were  appointed  to  their

positions subsequent  to January  2,  1985, the  day the  PDP

candidate assumed the governorship of the Commonwealth.

          Prior to the 1984  election, plaintiff was Chief of

the  Fund's Finance  Division.   Plaintiff  contends that  as

Chief, he directed, supervised, and  coordinated all Sections

of the Finance Division,  including the Pay Vouchers Section,

the  Collections  Section,  and  the  Claims  and Attachments

Section.   He further  asserts that he  coordinated "all  the

deposits of funds  pertaining to the State  Insurance Fund in

the Government Bank and other commercial banks."  

          The complaint  alleges that from July  1985 through

November 1985,  defendants did not permit  plaintiff to carry

out  the duties  of his  position.   It further  states that,

since  November 1985,  plaintiff has  been assigned  "a small

amount  of functions  belonging  to lesser  positions in  the

[Fund]. .  . ."  Plaintiff's sworn declaration,  submitted in

opposition to defendants' summary judgment  motion, clarifies

that, subsequent to the election, plaintiff was reassigned to

the  position  of  Assistant  to  the  Chief  of  the  Fund's

Collection Division.1

                    

1.  Defendants  contend  that  plaintiff's reassignment  took
place pursuant  to  a reorganization  of  the Fund  that  was
carried  out  late in  1985.    Plaintiff  asserts  that  the

                             -3-
                              3

          Plaintiff  claims that, since his reassignment, the

functions and  duties  of  the  Assistant  to  the  Chief  of

Collections have not been  delegated to him, and that  he has

been  allotted only nominal tasks which take no more than ten

minutes  a day to perform.  Plaintiff further claims that the

Chief of  the Fund's Collection Division,  whom plaintiff now

is assisting, previously  was under his supervision.  He also

alleges that  defendants have  deprived him of  the following

previously-obtained   rights   and  benefits:   (1)  personal

secretary, (2) parking space,  (3) office, (4) telephone, (5)

supervision  of other  employees,  and (6)  access to  office

records and  documents.  Finally, plaintiff  contends that he

was  placed in  a  lower  salary  scale which  has  adversely

affected his ability  to obtain certain pay  raises, and that

he  is subject  to  daily ridicule  and harassment  which, in

conjunction with  the other circumstances of  his job change,

cause him to feel as if he  actually has been discharged from

his   employment.2     It   is   plaintiff's  position   that

defendants' actions were precipitated by his affiliation with

the NPP.

                    

reorganization was  a sham whose  true purpose was  to demote
employees who were  members of  the NPP and  to replace  them
with  PDP members.  Plaintiff further asserts that he was, in
fact,  replaced  by  active PDP  members,  and  that  all the
employees   who   were   demoted   pursuant   to   the   1985
reorganization were affiliated with the NPP.

2.  The record reveals, however,  that plaintiff has not left
his employment with the Fund.

                             -4-
                              4

          In  June  of  1986,  plaintiff  filed  this  action

pursuant  to, inter  alia, 42  U.S.C.    1983,  alleging that
                         

defendants had  violated rights  secured him under  the First

and  Fourteenth Amendments to the United States Constitution.

Plaintiff's  complaint  sought  both  damages  and  equitable

relief  in the  form of  temporary and  permanent injunctions

directing  defendants to  reinstate plaintiff  to his  former

employment  and  to  refrain  from acting  toward  him  in an

unconstitutional  manner.   Subsequently, defendants  filed a

motion for summary judgment, arguing that plaintiff's  claims

under    1983 were insufficiently supported  to forestall the

entry of judgment in their favor.  The district court granted

defendants' motion,  ruling (1) that  plaintiff  had not been

constructively discharged, (2) that plaintiff had not offered

sufficient  proof on his claim that,  since his transfer, his

work situation  was so  "unreasonably inferior to  the norm,"

see Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,  1218
                                       

(1st Cir. 1989) (en banc) (announcing this circuit's standard

for  evaluating  First Amendment  political affiliation-based

employment discrimination  claims where the employee  has not

been   discharged)   (hereinafter  "the   Agosto-de-Feliciano
                                                             

claim"), that it violated the First Amendment,3 and (3)  that

                    

3.  The  district court  alternatively  ruled  that  even  if
plaintiff had adequately supported his First Amendment claim,
defendants would be entitled  to qualified immunity therefrom
insofar  as  plaintiff was  seeking  civil  damages from  the
defendants in their individual capacities.

                             -5-
                              5

plaintiff  had  not  been  deprived  of  any  property  right

protected   by  the  Fourteenth   Amendment.4     On  appeal,

plaintiff challenges all of the district court's rulings.  We

discuss each in turn.

                             II.
                                

                          DISCUSSION
                                    

A.  The First Amendment
                       

1.  Plaintiff's Constructive Discharge Claim
                                            

          Plaintiff  argues that the  district court erred in

ruling that  he was not constructively  discharged.  However,

we recently  made  clear that  a  First Amendment  "claim  of

constructive discharge  due to a demotion  or transfer cannot

succeed when  a claimant, in fact, has  not left employment."

Pedro-Cos  v. Contreras, 976 F.2d 83, 85 (1st Cir. 1992) (per
                       

curiam) (surveying pertinent First Circuit authority).  Here,

the  record   reflects  that  plaintiff  has   not  left  his

employment with  the Fund.  Thus,  his constructive discharge

claim fails as a matter of law.

2.  Plaintiff's Agosto-de-Feliciano Claim5

2.  Plaintiff's Agosto-de-Feliciano Claim5
                                          

                    

4.  At  the  same  time,  the court  also  dismissed  several
pendent state claims brought by plaintiff.

5.  In   his  concurrence,  Judge   Torruella  questions  the
continuing  vitality of  Agosto-de-Feliciano in light  of the
                                            
Supreme  Court's  ruling  in  Rutan v.  Republican  Party  of
                                                             
Illinois, 110 S.  Ct. 2729 (1990).  Because we  find, as will
        
be discussed  more fully  infra, that there  exist sufficient
                               
genuine  and material factual disputes to  warrant a trial on
plaintiff's  claim  for  equitable  relief  even  under   the
arguably  more stringent  standard  set  forth in  Agosto-de-
                                                             

                             -6-
                              6

     a.  Civil Damages
                      

          Plaintiff  also  takes  issue  with   the  district

court's alternative ruling, see supra note 3, that defendants
                                     

are entitled  to qualified immunity from his  claim for civil

damages  under Agosto-de-Feliciano.6   However, we repeatedly
                                  

have  stated  that,  prior  to  our  decision  in  Agosto-de-
                                                             

Feliciano  and the Supreme Court's  decision in Rutan, 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.  See, e.g., Pedro-Cos, 976 F.2d at 85;  Valiente
                                                             

v.  Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Castro-Aponte v.
                                                          

Ligia-Rubero, 953 F.2d 1429, 1430 (1st Cir. 1992).  Here, all
            

the complained of adverse  personnel actions took place prior

to  our  decision  in  Agosto-de-Feliciano  and  the  Supreme
                                          

Court's decision in Rutan.  As a result, the district court's
                         

ruling that  defendants were entitled  to qualified  immunity

from plaintiff's claim for civil damages was plainly correct.

     b.  Equitable Relief
                         

                    

Feliciano, we do not reach this issue.
         

6.  The doctrine of  qualified immunity shields  governmental
officials performing discretionary  functions from  liability
for civil damages when their conduct does not violate clearly
established statutory  or  constitutional rights  of which  a
reasonable person  would have known.   See Rivera  v. Murphy,
                                                            
No. 92-1688, slip op.  at 7 (1st Cir. Nov.  10, 1992) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
                    

                             -7-
                              7

          Plaintiff's  claim  for   equitable  relief   under

Agosto-de-Feliciano    to     redress    perceived    ongoing
                   

constitutional violations  by defendants presents  us with  a

considerably  more  difficult issue.    As  noted above,  the

district  court  held  that   plaintiff  did  not   introduce

sufficient  proof on  this claim  to warrant  a trial.   More

specifically,  the   court  ruled  that  plaintiff   had  not

"produced enough evidence"  of a sufficiently severe  decline

in  his work conditions for a factfinder to conclude, under a

"clear  and convincing  evidence" standard,  that plaintiff's

work  situation is "unreasonably inferior to the norm for the

position."   See generally  Agosto-de-Feliciano, 889 F.2d  at
                                               

1218-20.  The court  also ruled that plaintiff had  failed to

adduce  evidence sufficient  for a  factfinder to  determine,

under  a  "preponderance  of  the  evidence"  standard,  that

defendants'  true  motivation  in  taking  their actions  was

political affiliation-based discrimination.  See id. at 1220.
                                                    

In so doing, the  court found that the allegations  set forth

in  plaintiff's   sworn  complaint  and  elaborated  upon  in

plaintiff's sworn declaration were "conclusory"  and, without

more,  were insufficient  to  defeat  defendants' motion  for

summary  judgment.  We do not share the district court's view

of plaintiff's evidence.

          Summary judgment acts "to pierce the boilerplate of

the pleadings  and  assay  the parties'  proof  in  order  to

                             -8-
                              8

determine  whether trial  is  actually required."   Wynne  v.
                                                         

Tufts Univ. Sch. of Medicine, No. 92-1437, slip op. at 6 (1st
                            

Cir.  Oct. 6, 1992).  It is appropriate where "the pleadings,

depositions,  answers to  interrogatories, and  admissions on

file, together with affidavits, if any, show that there is no

genuine issue as  to any  material fact and  that the  moving

party  is entitled to judgment as a  matter of law."  Fed. R.

Civ.  P. 56(c); see also  Celotex Corp. v.  Catrett, 477 U.S.
                                                   

317,  323 (1986).  "In this context, `genuine' means that the

evidence is such  that a  reasonable jury  could resolve  the

point in favor of the nonmoving party."  United States v. One
                                                             

Parcel  of Real Property, 960  F.2d 200, 204  (1st Cir. 1992)
                        

(citing Anderson v.  Liberty Lobby, Inc.,  477 U.S. 242,  248
                                        

(1986)).  A  "material" fact  is one "that  might affect  the

outcome  of the suit under the governing law."  Anderson, 477
                                                        

U.S. at 248.

          The  moving  party  bears  the  initial  burden  of

averring  that the  evidence is  insufficient to  support the

nonmoving party's case.  See, e.g., Lawrence v. Northrop, No.
                                                        

92-1702,  slip op. at 3  (1st Cir. Nov.  25, 1992) (citations

omitted).  Once that  burden is met, the opposing  party must

"limn  a genuine disagreement as to some material fact."  One
                                                             

Parcel of Real Property, 960  F.2d at 204.  In so  doing, the
                       

nonmovant cannot  avoid summary judgment  merely by promising

to produce admissible evidence at trial.  Id. (citing Garside
                                                             

                             -9-
                              9

v.  Osco  Drug,  Inc., 895  F.2d  46,  49  (1st Cir.  1990)).
                     

"Instead,  the [nonmovant] must  present affirmative evidence

in order  to defeat a  properly supported motion  for summary

judgment."  Anderson, 477 U.S. at 257.
                    

          In this  case, plaintiff's  burden is more  onerous

than  that of  the  usual civil  litigant opposing  a summary

judgment motion.   Ordinarily, for the nonmovant to avoid the

entry of summary  judgment, the  record must be  such that  a

reasonable  factfinder could determine  by a preponderance of

the evidence that  the nonmovant  is entitled  to a  verdict.

See  id.  at 252.   Here,  however,  the record  must contain
        

evidence  which would  allow the  factfinder to  conclude, by

clear and convincing evidence,  that the nonmoving employee's

new position is "unreasonably inferior to the norm."  Agosto-
                                                             

de-Feliciano,  889 F.2d at 1220; see  also Anderson, 477 U.S.
                                                   

at  254  (holding  that  the clear  and  convincing  evidence

standard, when applicable, must be taken into  account at the

summary judgment stage).  Although the "unreasonably inferior

to the norm" standard is not  self-defining and its contours,

at times, may be difficult to ascertain, we have specifically

noted  some  situations  where  a factfinder  would,  in  all

likelihood,  be  entitled  to  find  an  employee's  new  job

situation to  be "unreasonably inferior."   See generally id.
                                                             

at 1219.  Included  among these are situations where  (1) the

employee   has   been  stripped   of   responsibilities  that

                             -10-
                              10

previously    were    legitimately    his/hers     and    the

responsibilities have been reassigned  to someone who was the

employee's subordinate; (2) the employee has been stripped of

both   supervisory   status  and   his/her   right  to   work

independently  on  projects  of  significance;  and  (3)  the

employee  has endured  a  sustained  and significant  general

worsening of employment conditions.  See id.
                                            

          Even if the plaintiff has established the existence

of at least one genuine and material issue  of fact under the

aforementioned standard, s/he is not necessarily entitled  to

go  to trial.    Instead, the  record  also must  permit  the

factfinder  to conclude  by a  preponderance of  the evidence

that the  changes in the nonmoving  employee's work situation

were motivated  by discrimination  on the basis  of political

affiliation.   See id. at 1220.  Assuming the nonmovant meets
                      

that burden, "an  employer then  may seek to  establish by  a

preponderance  of the  evidence that  the changes  would have

been made regardless of  political affiliation."  Id. (citing
                                                     

Mt. Healthy City  Bd. of  Educ. v. Doyle,  429 U.S. 274,  287
                                        

(1977); Cordero v. DeJesus-  Mendez, 867 F.2d 1, 5  (1st Cir.
                                   

1989); Kercado-Melendez  v. Aponte-Roque,  829 F.2d  255, 264
                                        

(1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988)). 
                             

          Reading the  record in the light  most favorable to

plaintiff,  we  believe  there  exist  genuine  and  material

questions of  fact which,  if resolved in  plaintiff's favor,

                             -11-
                              11

could result in his prevailing at trial.  First of all, we do

not agree  with the  district court that  the allegations  in

plaintiff's sworn complaint, as  elaborated upon in his sworn

declaration, are "conclusory."   Rather, our review reveals a

series of  factual assertions  that are probative  of whether

defendants are discriminating against  plaintiff on the basis

of his political affiliation.7

          More  importantly, we  find that  plaintiff's sworn

allegations, if believed, could allow a reasonable factfinder

to  find  for  plaintiff.     We  note  that   the  following

allegations  by plaintiff  have in  no way  been conclusively

rebutted:

     (1) that prior to his reassignment, plaintiff      
         directed,   supervised,  and   coordinated  the
     Fund's      Finance Division;     

     (2) that since his reassignment, plaintiff has been
         assisting a person who previously was under his
         supervision;

     (3) that since his reassignment, plaintiff has not 
         been delegated the functions and duties of his 
         new job title;

     (4) that since his reassignment, plaintiff only has
         been assigned clerical tasks which take ten    
         minutes a day to perform;

     (5) that since his reassignment, plaintiff has been
         deprived of his supervisory status;

     (6) that since his reassignment, plaintiff has been
         placed in a lower pay scale where he no longer 
         can obtain certain pay raises;

                    

7.  The assertions at  issue are  set forth in  Section I  of
this opinion.

                             -12-
                              12

     (7) that plaintiff is a known member of the NPP;

     (8) that plaintiff's prior position was filled by  
         members of the PDP; and

     (9) that everyone who was demoted during the 1985  
         reorganization was affiliated with the NPP.

Simply put, we view sworn allegations (1)-(6) as a sufficient

evidentiary  basis for  a  reasonable factfinder  to find  by

clear   and  convincing  evidence  that  plaintiff's  current

position   is   "unreasonably   inferior   to   the   norm."8

Similarly,   we  believe   that  allegations   (7)-(9)  could

constitute an adequate foundation for that same factfinder to

conclude by  a preponderance of the  evidence that defendants

were motivated  by discrimination  on the basis  of political

affiliation.   Accordingly, we  find that the  district court

should  not  have  entered summary  judgment  on  plaintiff's

Agosto-de-Feliciano claim insofar  as that claim was  seeking
                   

equitable relief.9 

                    

8.  We note the similarity  between these allegations and the
examples of situations that we previously indicated should go
to the jury.  See Agosto-de-Feliciano, 889 F.2d at 1219.
                                     

9.  In their brief, defendants go to  great lengths to assert
a "changeover"  defense.  See  generally Agosto-de-Feliciano,
                                                            
889 F.2d at 1220-22.  In  so doing, they argue that plaintiff
was transferred as part of a legitimate reorganization of the
Fund in  1985.  See  supra note  1.   As stated,  defendants'
                          
changeover  defense may  articulate a  legitimate reason  for
plaintiff's reassignment.   However,  it makes no  attempt to
explain why the reorganization took place along the political
lines  alleged  by  plaintiff.    Accordingly,  there  remain
genuine  issues  of  material fact  as  to  whether the  1985
reorganization was pretextual.  See id. at 1221-22.
                                       
     Moreover,   in  presenting  us   with  their  changeover
argument, defendants do  not deny or  attempt to explain  why

                             -13-
                              13

B.  The Due Process Clause
                          

          Plaintiff's  final  argument is  that  the district

court erred  in granting  defendants summary judgment  on his

claim,  as  set  forth   generally  in  his  complaint,  that

"plaintiff's  property interests are being adversely affected

by defendants['] actions . . . in  violation of [plaintiff's]

rights  to due  process under  the Fourteenth Amendment.  . .

."10  We disagree with plaintiff's contention.

          Plaintiff's due process claim depends on his having

been deprived of a property right without due process of law.

See Cleveland Bd. of  Educ. v. Loudermill, 470 U.S.  532, 538
                                         

(1985).   To establish such  a right, "a  person clearly must

have more that  an abstract need  or desire for  it.   [S/h]e

must have more than  a unilateral expectation of it.   [S/h]e

                    

plaintiff (1) has not been delegated the functions and duties
of his new  job title,  (2) is assigned  only clerical  tasks
which  take  ten minutes  a  day to  perform,  or (3)  is now
assisting   a   former  subordinate.     Nor   do  defendants
conclusively refute  plaintiff's claim that  he now  is in  a
lower pay scale.  Accordingly, defendants' changeover defense
does  not provide us with  an alternative basis for affirming
the district  court's entry of  summary judgment in  favor of
defendants  on  plaintiff's  Agosto-de-Feliciano   claim  for
                                                
equitable relief. 

10.  On appeal, plaintiff alleges for the first time that the
property  interests  of   which  he  was   unconstitutionally
deprived were the right to remain Chief of the Fund's Finance
Division and the  right to  remain in the  same salary  scale
regardless of his reassignment.

                             -14-
                              14

must, instead, have a legitimate claim of entitlement to it."

Board   of  Regents  v.  Roth,  408  U.S.  564,  577  (1972).
                             

Moreover,   a  property   right   is  not   created  by   the

Constitution, but  is created  and defined in  dimension "`by

existing   rules  or   understandings  that   stem   from  an

independent source such as state law.'"  Loudermill, 470 U.S.
                                                   

at 538 (quoting Roth, 408 U.S. at 577). 
                    

          In  the proceedings below,  plaintiff's attempts at

explication  of  his  due  process  claim  consisted  of  the

aforementioned paragraph in his complaint and two  paragraphs

in  his memorandum of law in opposition to defendants' motion

for summary judgment, wherein he  recaps the paragraph in his

complaint and  points out, irrelevantly, that  defendants are

not claiming qualified immunity on his due process claim.  In

fact, plaintiff never  clearly identified the property  right

or rights of which he allegedly  was deprived.11  Nor did  he

attempt  (1)  to identify  the source  of  any such  right or

rights; (2) to explain  how the right or rights  are entitled

to constitutional protection; (3)  to specify the facts which

allegedly support his due  process claim; or (4) to  cite any

legal authority tending to strengthen his claim.  In light of

                    

11.  At  one  point  in   his  memorandum  in  opposition  to
defendants' summary judgment  motion, plaintiff  seems to  be
asserting that he was deprived of continued public employment
to which he was legitimately, and therefore constitutionally,
entitled.  See Roth, 408 U.S.  at 577.  As the district court
                   
noted,  this  argument  fails  for  the  simple  reason  that
plaintiff has remained employed by the Fund.   

                             -15-
                              15

these omissions, it is  apparent that plaintiff presented his

due  process claim  to  the district  court  in only  a  most

perfunctory manner.   And, it is well  settled that arguments

made  in  a perfunctory  manner  below are  deemed  waived on

appeal.  See, e.g., World Univ., Inc., slip op. at 13 (citing
                                     

Buenrostro  v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992)); see
                                                             

also McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13,
                                               

22  (1st Cir. 1991)  ("[T]heories not raised  squarely in the

district  court cannot  be  surfaced for  the  first time  on

appeal.") (citations omitted), cert.  denied, 112 S. Ct. 1939
                                            

(1992);  cf.  Kensington  Rock  Island  Ltd.  Partnership  v.
                                                         

American Eagle Historic Partners, 921 F.2d 122, 125 (7th Cir.
                                

1990)  ("`A party  opposing  a summary  judgment motion  must

inform  the trial judge of the reasons, legal or factual, why

summary judgment should  not be entered.   If it does  not do

so, and loses  the motion,  it cannot raise  such reasons  on

appeal.'")  (quoting Liberles  v.  County of  Cook, 709  F.2d
                                                  

1122, 1126 (7th Cir. 1983)).  

          Obviously,  the  district  court  made  significant

efforts  to discern and address the merits of plaintiff's due

process claim.12   In  this instance,  however, we  prefer to

                    

12.  The  district court  construed plaintiff's claim  as one
for the deprivation of  the right to continue as Chief of the
Fund's Finance  Division and/or  the right  to remain  in the
same salary scale regardless  of reassignment, and then found
that  plaintiff had  no such right  or rights.   In  fact, it
appears that  the district court's construction  of his claim
provided the  basis for  plaintiff's due process  argument on

                             -16-
                              16

avoid the constitutional ruling.13   See, e.g., El  Dia, Inc.
                                                             

v. Hernandez Colon, 963  F.2d 488, 494 (1st Cir.  1992) ("`It
                  

has long been  a basic tenet of the federal  courts to eschew

the decision  of cases  on constitutional grounds  unless and

until  all   other  available  avenues  of  resolution  [are]

exhausted.'") (quoting Aggarwal v.  Ponce School of Medicine,
                                                            

745 F.2d 723, 726  (1st Cir. 1984)).  Nonetheless,  we affirm

the  district  court's  entry  of  summary  judgment  against

plaintiff on his due process claim.

                             III.
                                 

                          CONCLUSION
                                    

          For  the  reasons  herein  stated,  we  affirm  the

district  court's  entry  of  summary judgment  in  favor  of

defendants  on plaintiff's  constructive discharge  claim and

plaintiff's  Agosto-de-Feliciano claim for civil damages.  We
                                

also affirm the court's entry of summary judgment in favor of

defendants  on plaintiff's  due process  claim.   However, we

reverse and remand for  further proceedings the court's entry

                    

appeal.  

13.  We  may,  of  course,  "`affirm  the  entry  of  summary
judgment on any independently sufficient ground made manifest
by the  record.'"  World Univ., Inc.,  slip op. at 4 (quoting
                                    
Quintero  de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st
                                     
Cir. 1992)).

                             -17-
                              17

of  summary judgment  in favor  of defendants  on plaintiff's

Agosto-de-Feliciano claim for equitable relief.
                   

          Affirmed in  part, reversed in part.   Remanded for
                                                             

further proceedings consistent with this opinion.
                                                 

                              "Concurrence follows"

                             -18-
                              18

          TORRUELLA,  Circuit Judge (Concurring).  Although I
                                   

concur with the  majority I  am of the  view that  Agosto-de-
                                                             

Feliciano v. Aponte-Rogue, 889 F.2d  1209 (1st Cir. 1989) (en
                         

banc), particularly its  so-called "changeover" defense,  see
                                                             

ante  at 13 n.9,  no longer reflects  the law of  the land as
    

articulated by the Supreme Court in Rutan v. Republican Party
                                                             

of Illinois,  110 S.  Ct. 2729 (1990).   I  therefore do  not
           

consider Agosto-de-Feliciano authoritative circuit precedent.
                            

                             -19-
                              19
