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
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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
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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
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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.
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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.
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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
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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-
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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.
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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.
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