
USCA1 Opinion

	




          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                                     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.                                          I.                                          __                                      Background                                      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.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                                          A                                          A                                          _                                   Summary Judgment                                   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                                          B                                          _                                Constructive Discharge                                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                                          C                                          _                                Transfer and Demotion                                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               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 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                                          D                                          _                                     Due Process                                     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.                                         III.                                         ____                                      Conclusion                                      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                    Affirmed in  part, reversed  in part, and  remanded for                    _______________________________________________________          further  proceedings  consistent herewith.   Two-thirds  costs to          further  proceedings  consistent herewith.   Two-thirds  costs to          __________________________________________   ____________________          appellant.          appellant.          _________                                          15
