
USCA1 Opinion

	




          January 5, 1993                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                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.                                          I.                                          __                                      BACKGROUND                                      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.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  The First Amendment            A.  The First Amendment            _______________________            1.  Plaintiff's Constructive Discharge Claim            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                 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                 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            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.                                         III.                                         ____                                      CONCLUSION                                      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
