April 22, 1993    UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

No. 92-2084

                     CARMEN NEREIDA-GONZALEZ,

                      Plaintiff, Appellant,

                                v.

                  CIRILO TIRADO-DELGADO, ET AL.,

                      Defendants, Appellees.

                                             

                           ERRATA SHEET

     The  opinion of  the  Court issued  on  April 14,  1993,  is
corrected as follows:

     On  page  11,  4  lines  from  bottom     change  "jury"  to
"factfinder"

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-2084

                     CARMEN NEREIDA-GONZALEZ,

                      Plaintiff, Appellant,

                                v.

                  CIRILO TIRADO-DELGADO, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                                        

                                             

                              Before

                       Breyer, Chief Judge,
                                          

               Torruella and Selya, Circuit Judges.
                                                  

                                             

     Hector Urgell Cuebas for appellant.
                         
     Vannessa Ramirez,  Assistant  Solicitor General,  with  whom
                     
Reina Colon de Rodriguez, Acting Solicitor General, was on brief,
                        
for appellees.

                                             

                          April 14, 1993

                                             

          SELYA,  Circuit  Judge.     In  this  case,  plaintiff-
          SELYA,  Circuit  Judge.
                                

appellant Carmen Nereida-Gonzalez (Nereida), a veteran government

employee displeased  by a  series of adverse  employment actions,

sued  two of  her  superiors.   The  district court  granted  the

defendants'  motion for summary  judgment.  Nereida  appeals.  We

affirm  in   part,  reverse  in  part,  and  remand  for  further

proceedings.

                                I.
                                  

                            Background
                                      

          We limn the facts in the light most advantageous to the

summary judgment  loser, consistent with record  support, as Fed.

R. Civ.  P. 56 requires.   See, e.g.,  Amsden v. Moran,  904 F.2d
                                                      

748, 749 (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991).
                                      

          Appellant, a known member  of the New Progressive Party

(NPP), started working for the Commonwealth of Puerto Rico in the

1960s.   By 1984,  she occupied  a career  position in  the State

Insurance  Fund (SIF), a government agency.1  In November of that

year, the incumbent NPP  governor lost the gubernatorial election

to a member of the rival Popular Democratic Party (PDP).   Hot on

the  heels of the change in command two PDP loyalists, defendants

Cirilo  Tirado-Delgado   (Tirado)  and  Rafael   Rivera  Gonzalez

(Rivera),  received  high-level  SIF  appointments     Tirado  as

Administrator of the SIF, Rivera as Director of Personnel.

                    

     1Appellant  served as executive  assistant to SIF's Director
of  Administrative Services.  The defendants  did not urge below,
and have not  contended on appeal, that political  affiliation is
an appropriate criterion for this position.

                                3

          Once ensconced at the  agency, the defendants allegedly

informed  appellant that  she  would be  demoted  because of  her

political affiliation.  The  prophecy soon became a reality.   By

letter dated  June 20,  1985, Rivera  advised appellant that  her

position  was   being  eliminated  as  part   of  a  departmental

reorganization  and that, consequently, she was being transferred

to a different SIF position  as assistant to the Director  of the

Systems and Procedures Office.  Rivera's letter acknowledged that

"[t]his transfer represents a demotion."

          Although  the  defendants now  struggle to  portray the

reassignment as a lateral transfer, the record bears out Rivera's

initial characterization  of  the  move.   The  base  salary  for

appellant's  new  position ($1565  per  month) was  significantly

lower than the  base salary  for her former  position ($1915  per

month).  The terms of her employment provided that, until the gap

was closed, she would continue to be paid at her accustomed rate,

but the difference between her new base salary and her actual pay

would  absorb any raises or bonuses she otherwise would have been

eligible to collect.  Thus, while appellant's pay was not reduced

outright,  it was effectively frozen and her ability to earn more

money was  circumscribed.  This  situation lasted at  least until

February 3, 1987,  when Tirado informed appellant by letter that,

in terms of salary and classification, her new position was being

upgraded to the level of her previous position.

          The demotion  damaged appellant's pride as  well as her

pocketbook.   Her  new job,  unlike her old  one, did  not entail

                                4

supervisory  responsibilities.   What  is more,  even the  modest

functions  and duties  corresponding to  the new  job title  were

placed beyond her reach as she was asked to perform only clerical

tasks.   As a final  indignity, although the defendants abolished

appellant's  former position  on  paper, its  functions  remained

essentially intact and were performed by an employee with ties to

the PDP.

          Asserting that she had been  constructively discharged,

or,  alternatively,  demoted because  of  her  exercise of  First

Amendment  rights,  and  contending  that the  adverse  personnel

actions  undertaken  at  defendants'  direction  deprived her  of

property without due process of law, appellant brought suit under

42 U.S.C.   1983  (1988).  She sought  both equitable relief  and

money  damages.  The district court gave her cold gruel, entering

summary judgment in defendants' favor on all claims.  This appeal

followed.

                               II.
                                  

                            Discussion
                                      

                                A
                                 

                         Summary Judgment
                                         

          Summary judgment exists to  "pierce the boilerplate  of

the  pleadings and assay the parties' proof in order to determine

whether trial is actually  required."  Wynne v. Tufts  Univ. Sch.
                                                                 

of  Medicine, 976  F.2d 791,  794 (1st  Cir. 1992),  petition for
                                                                 

cert.  filed, 61 U.S.L.W. 3586 (U.S. Feb. 3, 1993) (No. 92-1334).
            

Such   a  disposition   is   appropriate  when   "the  pleadings,

                                5

depositions, answers to interrogatories,  and admissions on file,

together  with  the 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).   A genuine issue exists when there is evidence sufficient

to  support rational resolution of  the point in  favor of either

party.  See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
                                                  

248 (1986); United States  v. One Parcel of Real  Property, Etc.,
                                                                

960 F.2d 200,  204 (1st Cir.  1992).  A genuinely  disputed issue

concerns  a material  fact  if  the  fact  carries  with  it  the

potential  to affect the outcome of the suit under the applicable

law.  See Anderson,  477 U.S. at 248; Rivera-Muriente  v. Agosto-
                                                                 

Alicea,  959 F.2d  349,  352 (1st  Cir.  1992).   This  framework
      

remains  intact when  qualified  immunity  issues  are  presented

despite the potential of such defenses, in other ways, to "create

strange procedural configurations."  Amsden, 904 F.2d at 752.
                                           

          Because  the granting  of summary  judgment necessarily

involves  applying  a legal  standard  to  facts which  must,  by

definition, be  undisputed, appellate review of  a district court

order under  Rule 56 is  plenary.   See Wynne, 976  F.2d at  794;
                                             

Amsden, 904 F.2d at 752.
      

                                B
                                 

                      Constructive Discharge
                                            

          We  need  not   tarry  over  appellant's  most   touted

initiative:  her claim that she  was constructively discharged in

reprisal for the free exercise of her First Amendment rights.  We

                                6

have ruled, squarely and recently, that a "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)
         

(collecting cases); accord Rodriguez-Pinto v. Tirado-Delgado, 982
                                                            

F.2d  34,  37  (1st Cir.  1993).    In  this instance,  appellant

concedes that she never  left the SIF payroll.   Accordingly, her

constructive discharge claim fails as a matter of law.

                                C
                                 

                      Transfer and Demotion
                                           

          Next, appellant  claims  that she  was transferred  and

demoted for the same  (impermissible) reason:  to punish  her for

exercising  prerogatives  of   free  association  and   the  like

guaranteed to her by the First Amendment.   Because this claim is

scissile, its component parts are best treated separately.

     The Claim for Money Damages
                                

          Insofar  as  appellant's First  Amendment transfer-and-

demotion claim is one for  compensatory damages, we conclude that

the  doctrine of  qualified  immunity bars  recovery.   Qualified

immunity  shields  government officials  performing discretionary

functions  from  civil liability  for  money  damages when  their

conduct  does  not  violate "clearly  established"  statutory  or

constitutional  rights of  which a  reasonable person  would have

known.   Harlow v.  Fitzgerald, 457  U.S. 800,  818 (1982).   The
                              

determination is time-critical.  See, e.g., Goyco de Maldonado v.
                                                              

Rivera, 849 F.2d 683, 684 (1st Cir. 1988).  Here, the key actions
      

                                7

of which appellant  complains occurred before  1989.  This  court

had not yet decided Agosto-De-Feliciano v. Aponte-Roque, 889 F.2d
                                                       

1209 (1st Cir. 1989) (en banc)  and the Supreme Court had not yet

decided  Rutan v. Republican Party  of Illinois, 110  S. Ct. 2729
                                               

(1990).  As  we explain  below, this chronology  gets the  grease

from the goose.

          Before 1989,  that is,  throughout the period  when the

present defendants allegedly acted  to appellant's detriment,2 it

was  a  subject of  much  conjecture  whether the  constitutional

prohibition  against  politically motivated  firings  extended to

other personnel actions, such as refusals to hire, demotions, and

failures to  promote.    See  Rodriguez-Pinto, 982  F.2d  at  38;
                                             

Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992); Roque-
                                                                 

Rodriguez v. Lema  Moya, 926  F.2d 103, 107-09  (1st Cir.  1991);
                       

Nunez-Soto  v. Alvarado, 918 F.2d 1029, 1030 (1st Cir. 1990).  In
                       

the absence of a clearly established  right on the part of public

employees   even civil  servants   to engage in  politics without

fear of demotion, the irresistible conclusion is that the instant

defendants are  entitled to don the cloak  of qualified immunity.

Therefore, the  lower  court appropriately  scotched  appellant's

                    

     2The  record is  tenebrous  as to  whether petty  harassment
(e.g.,  shortstopping of responsibilities)  continued after 1989.
     
But, it is  apparent that,  by then, the  major hardships  (e.g.,
                                                                
reduced compensation) had been ameliorated.  Thus, there seems to
be little  basis for  arguing that, in  1989, Agosto-De-Feliciano
                                                                 
stripped the cloak of qualified immunity from the defendants vis-
a-vis  any  remnants  of   the  alleged  mistreatment  thereafter
occurring,  and, indeed, appellant  has made no  such argument on
appeal.

                                8

claim for compensatory damages at the summary judgment stage.3

     The Claim for Equitable Relief
                                   

          The remaining  furculum of appellant's  First Amendment

transfer-and-demotion claim  has  more  meat on  its  bones.    A

primary purpose of providing officials with qualified immunity is

to  ensure that  fear  of  personal  liability  will  not  unduly

influence or inhibit  their performance of  public duties.   See,
                                                                

e.g.,  Anderson v. Creighton,  483 U.S. 635,  638 (1987); Harlow,
                                                                

457 U.S.  at 814; Carlson v.  Green, 446 U.S. 14,  21 n.7 (1980).
                                   

This  purpose is achieved when the official is held harmless from

personal  liability.  Not  surprisingly, then, qualified immunity

confers  immunity only  from  individual-capacity suits,  such as

suits  for   money  damages,  that  have   been  brought  against

government actors.   Here,  Nereida  sued  the   defendants  both

individually  and  in  their official  capacities.    As  we have

explained,   the  doctrine   of  qualified   immunity  sets   the

individual-capacity claims to  rest.  But, the  official-capacity

claims  are qualitatively  different:   when a  plaintiff sues  a

state official  in the latter's official capacity,  as opposed to
                                        

the  latter's  personal capacity,  the  underlying rationale  for
                       

qualified immunity has no bite.

          An  official  capacity  suit  is, in  reality,  a  suit

against  the governmental  entity, not  against the  governmental

                    

     3Appellant has not asserted  that her claim for compensatory
damages should  proceed against the defendants  in their official
capacities, and we do  not consider, therefore, whether sovereign
immunity would bar the  maintenance of such an action  in federal
court.

                                9

actor.   See  Kentucky v.  Graham, 473  U.S. 159,  165-66 (1985);
                                 

Brandon v. Holt, 469  U.S. 464, 471-72 (1985); Monell v. New York
                                                                 

City  Dep't  of Social  Servs., 436  U.S.  658, 690  n.55 (1978);
                              

American Policyholders Ins.  Co. v. Nyacol Prods., Inc.,     F.2d
                                                       

   ,      (1st  Cir.  1993)  [No.  92-1949,  slip  op.  at  7-8];

Northeast Fed. Credit Union v. Neves, 837 F.2d 531, 533 (1st Cir.
                                    

1988).   Consequently,  when a  plaintiff seeks  equitable relief

from a  defendant in  his capacity  as an  officer of  the state,

qualified immunity  is not a viable defense.   See, e.g., Wood v.
                                                              

Strickland, 420 U.S. 308, 314 n.6 (1975) (stating that  "immunity
          

from   damages  does  not   ordinarily  bar  equitable  relief");

Rodriguez-Pinto,  982 F.2d  at  38-40 (vacating  summary judgment
               

with  respect  to claims  for  equitable redress  notwithstanding

defendants' qualified immunity).  So  it is here.  To the  extent

that  appellant,  on  First Amendment  grounds,  seeks  equitable

relief such as reinstatement in her  former position, the defense

of qualified immunity does not obtain.

          Absent the interposition of qualified immunity, we must

look  to what  rights  we  now believe  the  law  conferred on  a

government worker  at the  time in  question, rather  than merely

seeking to ascertain what rights were clearly established at that

time.  See  Rodriguez-Pinto, 982 F.2d  at 38-40.   We begin  this
                           

probe by  gauging the  respective gravitational pulls  exerted by

Agosto-De-Feliciano and Rutan as they palpitate in this case.  
                             

          In  Agosto-De-Feliciano, we  determined that  the First
                                 

Amendment's proscription of patronage dismissals as formulated by

                                10

the Court  in Elrod v. Burns,  427 U.S. 347 (1976)  and Branti v.
                                                              

Finkel, 445  U.S. 507 (1980),  encompasses situations in  which a
      

government  employer's  actions   fall  short  of  discharge   or

constructive discharge but nonetheless  result in an altered work

situation "unreasonably inferior to the norm" for the position in

question.    Agosto-De-Feliciano,  889  F.2d  at  1218  (internal
                                

quotation marks  omitted).  We coupled  this substantive standard

with a  procedural requirement  that the plaintiff  establish the

change  in conditions "by clear and convincing evidence."  Id. at
                                                              

1220.

          Shortly  after  we  decided   Agosto-De-Feliciano,  the
                                                           

Supreme  Court cast further illumination on the issue.  In Rutan,
                                                                

110  S.  Ct.   at  2739,  the  Court  extended  the  Elrod/Branti
                                                                 

principles to government employment decisions  concerning hiring,

promotion,  transfer, and recall of  public employees.   It is an

interesting  question whether some vestige of Agosto-De-Feliciano
                                                                 

survives  Rutan, thereby providing a  sort of halfway  house   an
               

intermediate  First  Amendment  haven  for  employees wounded  by

slings and arrows less damaging than those described by the Rutan
                                                                 

Court.   But if there are  cases that elude Rutan  yet still come
                                                 

within  Agosto-De-Feliciano's reach   a matter  which we need not
                             

decide   instances of actual demotion are  not among them.  While

Rutan's precise contours may arguably be indistinct,  it is clear
     

that Rutan's doctrinal influence  suffuses situations in which an
          

employee has actually been demoted.

          Under  Rutan, then,  a plaintiff  who  has held  a non-
                      

                                11

policymaking job  in the  public sector 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 politically  based

discriminatory animus.  Nereida passes this test.

          There  can be  no  disputing that  the record  contains

evidence sufficient to justify a trier in finding that a demotion

occurred. Under the NPP-led regime, appellant occupied a position

with supervisory and coordinating functions.  When the new regime

settled  in, she  was shifted  to a  less lustrous position  in a

lower  pay  bracket.   Her affidavit  also  relates that  she was

effectively deprived of raises and similar due-course increments,

divested of supervisory powers,  and assigned "only nominal tasks

. .  . of a clerical  nature."  These facts,  if proven, together

with defendants' contemporaneous characterization of her transfer

as  a  step  down, would  unquestionably  permit  a finding  that

appellant was, in fact, demoted.

          Appellant has  likewise adduced sufficient  evidence of

discriminatory  animus.     According  to   her  affidavit,   the

defendants  told her  outright  that she  would  "be demoted  and

assigned  to  another  position without  any  responsibilities or

duties"  because of her NPP affiliation.  This direct evidence of

discriminatory animus, although denied by defendants, is adequate

to ward off summary judgment on the point.  Cf. Fed. R. Evid. 801
                                               

(d)(2)(A)  (statements  of  party-opponent  made  in   either  an

individual  or  a  representative  capacity  are  not  considered

                                12

hearsay).    In  this  case,  moreover,  the  direct  evidence is

buttressed by other facts of record from which a factfinder could

reasonably  conclude that:  (1)  appellant was a  known member of

the  NPP; (2)  she was  transferred on the  premise of  what some

evidence indicates was a sham reorganization; and (3) a number of

other  personnel actions  allegedly  occurred at  about the  same

time, all of which  involved insinuating PDP members  into career

positions previously  held  by NPP  members.   On  this  scumbled

record, a reasonable factfinder,  drawing inferences favorable to

appellant  and  making credibility  determinations in  her favor,

could  easily   conclude  that   the  defendants  acted   out  of

discriminatory animus.4

          Because  our  canvass of  the  record reveals  evidence

which,  if credited,  would  warrant a  reasonable factfinder  in

concluding  that appellant  was  entitled  to reinstatement  and,

perhaps, other  equitable redress,5 the district  court swept too

broadly in entering summary judgment across the board.

                    

     4To be sure, even  if a plaintiff adduces evidence  that her
job  loss  was  politically  motivated, her  employer  may  still
prevail by demonstrating that the employee would have been ousted
anyway,  say,  for  unsatisfactory   work  performance  or  as  a
legitimate  casualty  of a  bona  fide reorganization.    See Mt.
                                                                 
Healthy City Sch. Dist. Bd. of  Educ. v. Doyle, 429 U.S. 274, 287
                                              
(1977); Agosto-De-Feliciano, 889 F.2d at 1220; Hartman v. City of
                                                                 
Providence, 636 F. Supp. 1395, 1416-17 (D.R.I. 1986).  But, since
          
the record before us reflects  genuine questions of material fact
as to why Nereida was demoted, the  defendants' explanations must
be tested in the crucible of a trial.

     5Given the myriad factual uncertainties that dot the record,
we leave to the court below three related questions:  (1) whether
a  job still exists into which appellant might be reinstated, (2)
whether appellant can collect back pay, and (3) if so, the amount
thereof.

                                13

                                D
                                 

                           Due Process
                                      

          Appellant also assigns error  anent the handling of her

due  process claim   a  claim which was  presumably foreclosed by

the entry of  summary judgment  but which the  court below  never

specifically mentioned  in its opinion.   Pressing an  analogy to

Rodriguez-Pinto,  982  F.2d  at   41,  defendants  suggest   that
               

appellant  waived   this  argument  by  failing   to  advance  it

straightforwardly  in the district court.  We find that the claim

was  adequately  preserved and,  therefore,  direct  the district

court to consider it on remand.

          While we could, of  course, search to ascertain whether

summary  judgment  might  be  affirmable  "on  any  independently

sufficient ground made manifest by  the record," One Parcel,  960
                                                           

F.2d  at 204,  we see  no  reason to  decide an  issue which  the

district court  appears to  have overlooked, especially  since we

must  remand the case for further consideration of another claim.

See  supra Part  II(C).   Accordingly,  we  vacate the  entry  of
          

summary judgment  as it pertains  to the  due process claim.   We

intimate  no opinion as to the ultimate resolution of this aspect

of the case.

                               III.
                                   

                            Conclusion
                                      

          We  need  go no  further.   For  the reasons  stated we

affirm  the  district  court's   entry  of  summary  judgment  on

appellant's  constructive  discharge  claim  and  on  her   First

                                14

Amendment  claims  against  the defendants  in  their  individual

capacities;  we reverse  the  district court's  entry of  summary

judgment  on  appellant's  First  Amendment claim  for  equitable

redress against the defendants  in their official capacities; and

we vacate the order  for summary judgment insofar as  it purports

to  foreclose  appellant  from  further prosecution  of  her  due

process claim.

          Affirmed in  part, reversed  in part, and  remanded for
                                                                 

further  proceedings  consistent herewith.   Two-thirds  costs to
                                                                 

appellant.
         

                                15
