United States Court of Appeals
For the First Circuit
No. 01-1238
ROSANGELICA ACEVEDO-DELGADO,
Plaintiff, Appellee,
v.
MIGUEL A. RIVERA,
Defendant, Appellant.
____________________
No. 01-1239
ROSANGELICA ACEVEDO-DELGADO,
Plaintiff, Appellant,
v.
MIGUEL A. RIVERA, MANUEL DE J. VELEZ, ET AL.,
Defendants, Appellees.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Sigfredo Rodriguez-Isaac, Assistant Solicitor General, with whom
Roberto J. Sanchez-Ramos, Solicitor General, and Vanessa Lugo-Flores,
Deputy Solicitor General, were on brief, for Rivera and the
Administration of Juvenile Institutions.
Judith Berkan, with whom Mary Jo Mendez and Berkan/Mendez were on
brief, for Acevedo-Delgado.
June 4, 2002
COFFIN, Senior Circuit Judge. Rosangélica Acevedo-Delgado
("Acevedo") was fired from her job as director of a government-operated
group home for children in Puerto Rico after she refused to participate
in a workplace fund-raising campaign for a school voucher system.
Acevedo brought suit under 42 U.S.C. § 1983, claiming that she was
discharged based on her political affiliation and her resistance to the
fund raising, in violation of the First and Fourteenth Amendments to
the U.S. Constitution. She also brought pendent claims under Puerto
Rico law. The district court granted summary judgment for defendants
on her political affiliation claim, concluding that party allegiance
was an appropriate criterion for the job that Acevedo occupied, and it
declined to exercise jurisdiction over the Puerto Rico claims.
Although the court's summary judgment decision meant that
defendants could have fired Acevedo simply based on their political
differences, the court also ruled that she could not be dismissed for
refusing to contribute to a cause she opposed. Thus, Acevedo's other
federal claim – that defendants violated her right to be free from
coerced donations – went to trial. A jury found in her favor, awarding
$135,000 in back pay and damages.
On appeal, one defendant challenges the jury's verdict,1 claiming
that it is unsupported by either the law or facts. In a cross-appeal,
1 The appeal was brought by defendant Miguel Rivera.
Defendant Manuel de Jesus Vélez did not appeal the judgment
against him.
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Acevedo asserts that the district court erred in dismissing her
political affiliation claim. Because we affirm the judgment
incorporating the jury's verdict, we do not reach this latter
contention. We also briefly consider, but need not resolve, the
complexities of a coerced contribution claim made by an employee who is
subject to patronage dismissal.
I. Background
This case is set against the backdrop of a 1992 election campaign
promise by the New Progressive Party ("NPP") to establish an
educational voucher system in Puerto Rico. The promise initially was
fulfilled through passage of Act No. 71, which established a
governmentally financed system of vouchers to be used by students in
both private and public schools in the Commonwealth. Within a year,
however, Puerto Rico's Supreme Court declared the law unconstitutional.
See Asociacion de Maestros de Puerto Rico v. Torres, 131 P.R. Dec. 528
(1994). Undaunted, the NPP-controlled legislature passed a law in 1995
creating the Fundación Educativa para la Libre Seleccion de Escuelas
(FELSE),2 a private, nonprofit fund with the same objectives as Act No.
71. By statute, full tax credits would be given for contributions to
FELSE up to $250, effectively making such contributions cost-free.
2 In English, the organization is called the "Educational
Foundation for the Free Selection of Schools."
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According to evidence presented at trial, a plan was developed to
raise funds for FELSE from government employees, with a $2.5 million
goal that anticipated $250 from every management and confidential
employee.3 Defendants Vélez and Rivera were in charge of collections
for the Juvenile Institutions Administration ("JIA"), the agency under
whose umbrella Acevedo worked. On November 9, 1995, appellant Rivera,
the JIA administrator, sent a letter to all confidential and managerial
employees in JIA, urging that their donations to FELSE be made before
December 15th. After that deadline, Vélez, coordinator of the FELSE
effort at the agency, reported to Rivera the names of the twenty
employees who had contributed and the four who had not, including
Acevedo. Over the next few weeks, several communications updating the
agency's collection effort took place among Rivera, Vélez, and Leopoldo
Mercado, the director of FELSE's public sector campaign.
Acevedo testified that on Friday afternoon, January 12, 1996, she
received three messages on her beeper reminding her of the $250
donation. Two of them also warned that she would have to submit her
resignation to Rivera if the funds were not received. On Tuesday,
January 16, following a long holiday weekend, she received another
3 The Spanish word for non-career positions, which are
outside the civil service system, is "confianza." That term is
sometimes translated as "trust" and sometimes as "confidential."
See Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 7 n.3 (lst Cir.
2001); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52
n.2 (lst Cir. 1990).
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message requesting that the money be sent as soon as possible to
Vélez's attention. Acevedo also met with Vélez that day and was told
that she would need to resign if she failed to contribute to FELSE by
Thursday. On Friday, January 19, Vélez sent a letter to Rivera
detailing the payments he had received from the other hold-outs and
stating that Acevedo continued to refuse to participate. He wrote:
Ms. Rosangélica Acevedo refused to participate in this event
because she alleges to be too financially committed and it
is impossible for her to make any kind of contribution.
On Monday, January 22, Vélez and the agency's personnel director met
with Acevedo and requested that she turn in all government property and
prepare to leave her job. An official termination letter arrived the
next day, at which point Acevedo said her goodbyes at the group home
and left.
Acevedo filed this action shortly after her dismissal, claiming
that the NPP administration had improperly used the FELSE contribution
as a litmus test for political loyalty. She invoked two distinct
strands of First Amendment precedent to claim a constitutional
violation. Under the Elrod-Branti line of cases,4 she claimed that her
politically motivated discharge was impermissible because she was not
in a position subject to patronage dismissal. She also claimed that,
under Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223 (1976), she was
4Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427
U.S. 347 (1976).
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protected from being coerced to contribute to causes she did not
support.
As noted earlier, Acevedo's Elrod-Branti claim was resolved
through summary judgment in defendants' favor. Following the jury
verdict for Acevedo on the Abood claim, the district court rejected
defendants' post-trial motions seeking judgment as a matter of law or
a new trial. The court confirmed the damages award and provided
further relief in the form of reinstatement, attorney's fees, and
litigation costs.
Defendant Rivera challenges the court's judgment on multiple
fronts: (1) he argues that Abood does not support Acevedo's coerced-
contribution claim because the Supreme Court's decision applies only to
political contributions, while FELSE is a non-political, non-
ideological program; (2) he claims that, if Abood is deemed applicable,
he is immune from damages because the law providing relief was not
clearly established at the time of the challenged conduct; (3) he
argues that Acevedo failed to demonstrate that defendants knew of her
opposition to the FELSE program and, thus, that it was a motivating
factor in their decision to fire her; and, finally, (4) he claims error
in the court's refusal to instruct the jury to use the balancing test
established in Pickering v. Bd. of Educ. of Township High Sch. Dist.
205, 391 U.S. 563 (1968), for evaluating adverse employment actions
based on protected First Amendment activity.
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We review de novo the district court's denial of a motion for
judgment as a matter of law, Cigna Ins. Co. v. Oy Saunatec, Ltd., 241
F.3d 1, 8 (lst Cir. 2001), but review denial of a motion for new trial
only for abuse of discretion, see Interstate Litho Corp. v. Brown, 255
F.3d 19, 29 (lst Cir. 2001). We explain in the following section why
none of appellant's points warrants disturbing the court's judgment.
II. Discussion
A. Abood and Government Employment
The constitutionality of coercing contributions from public
employees was first fully aired in Abood, 431 U.S. at 217,5 which
involved a challenge by Detroit public school teachers to the
requirement that they either join a union and pay dues, or pay a
service charge, as a condition of employment. Although the Court
upheld the public sector agency shop, it ruled that the union could not
use employee funds against their will "to contribute to political
candidates and to express political views unrelated to its duties as
exclusive bargaining representative." See 431 U.S. at 234. The Court
5 Prior cases had considered similar issues involving
private employers under the Railway Labor Act, 45 U.S.C. § 152
Eleventh. See Ry. Clerks v. Allen, 373 U.S. 113 (1963);
Machinists v. Street, 367 U.S. 740 (1961); Ry. Employees v.
Hanson, 351 U.S. 225 (1956); see also Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507, 514-16 (1991) (reviewing relevant
precedent).
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emphasized that well established First Amendment principles prohibited
the union from requiring an individual "to contribute to the support of
an ideological cause he may oppose as a condition of holding a job as
a public school teacher." See id. at 235. Such expenditures must be
financed by "employees who do not object to advancing those ideas and
who are not coerced into doing so against their will by the threat of
loss of governmental employment." Id. at 236.
The Court recognized that there would at times be "difficult
problems in drawing lines between collective-bargaining activities, for
which contributions may be compelled, and ideological activities
unrelated to collective bargaining for which such compulsion is
prohibited." See id. In a subsequent decision, Lehnert, 500 U.S. at
519, the Court noted that the requisite case-by-case analysis may be
aided by three guidelines:
[C]hargeable activities must (1) be "germane" to collective-
bargaining activity; (2) be justified by the government's
vital policy interest in labor peace and avoiding "free
riders"; and (3) not significantly add to the burdening of
free speech that is inherent in the allowance of an agency
or union shop.
Id.
The Court later addressed similar First Amendment association
issues in the context of mandatory bar membership. In Keller v. State
Bar, 496 U.S. 1 (1990), the Court reaffirmed an earlier ruling that a
substantial state interest in regulating the legal profession and
improving the quality of legal services justifies restricting the
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practice of law to those who are members of a state bar association.
Id. at 13-14 (citing Lathrop v. Donahue, 367 U.S. 820, 842-43 (1961)).
It also ruled, however, that an integrated state bar may not "compel
members to fund 'activities of an ideological nature' that are not
germane to the state's interest justifying compelled membership." See
Romero v. Colegio de Abogados de Puerto Rico, 204 F.3d 291, 297 (lst
Cir. 2000) (quoting Keller, 496 U.S. at 14). We explicitly recognized
in Romero that the protection afforded by the First Amendment against
coerced contributions extends as well to activity that is non-
ideological and non-germane. See id. at 300-02 & n.10. Thus, in both
the union and bar settings, "the constitutionally protected right to
refuse to associate" must bend to the state's compelling interest, but
it remains a barrier to coerced association unrelated to the state's
demonstrated needs. See id. at 297.
Although this case implicates similar association issues, the
government employment setting introduces some unique considerations.
In the Abood/Keller line of cases, the issue of coerced
contributions arose in the context of a mandated association –
a union or integrated bar – that served significant state
interests and thus was deemed a permissible intrusion on the
First Amendment right not to associate. After concluding that
some compromise of an employee's First Amendment rights was
justified in both settings, the Court confronted the difficult
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question of how far the intrusion could extend. The Lehnert
criteria represent the Court's effort to limit the scope of the
intrusion to a narrow category of assessments that are linked
closely to the state's asserted interest and are not
substantially more burdensome to First Amendment rights than the
mandated association itself.
Here, there is no threshold compulsory association that has
been sanctioned as a permissible burden on employees' free
association rights to provide boundaries for a Lehnert inquiry.
Instead, however, any examination of the legitimacy of coercing
contributions from government workers runs headlong into the
political patronage cases, which allow politically motivated
discharges of policy-related employees when reasonably necessary
for an administration to effectuate its mandates. See O'Hare
Truck Serv. v. City of Northlake, 518 U.S. 712, 718-19 (1996);
Elrod, 427 U.S. at 347; Branti, 445 U.S. at 507; Flynn v. City
of Boston, 140 F.3d 42, 44-47 (lst Cir. 1998).
The primary question that arises from that collision of
principles is whether the loyalty of a confidential employee is a
sufficient state interest – like collective bargaining and regulating
the legal profession – to justify some degree of coerced contribution.
See Flynn, 140 F.3d at 47 ("[W]here the employee is subject to
discharge for political reasons under the Elrod and Branti
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cases, a superior may also – without offending the First
Amendment's free speech guarantee – consider the official's
substantive views on agency matters in deciding whether to
retain the official in a policy related position."). If so, does
discharge in such a case require establishing a connection
between the required contribution and "effective performance" of
the individual's particular job, see Branti, 445 U.S. at 518, or
may support be compelled for any, and all, policy initiatives?
Does it matter if the coerced contribution is effectively cost-
free to the employee?
We need not pursue these questions here because defendants have
not argued that they were justified in firing Acevedo for refusing to
contribute to FELSE based on the need to maintain political loyalty
among all trust and confidential employees.6 Instead, they consistently
have asserted that Acevedo was not terminated because of her opposition
to FELSE or failure to contribute. At trial, Rivera testified that the
6Defendant Rivera hints at this position in the heading to
the section of his brief on qualified immunity, asking
"[w]hether defendants were entitled to qualified immunity since
it was not clearly established that a confidential or policy-
making employee could not be required to support, follow and/or
further the public policy of the administration for which they
work." The discussion that follows does not address that point,
however, and it consequently is not before us. See United
States v. Zannino, 895 F.2d 1, 17 (lst Cir. 1990) (noting the
"settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived").
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termination decision stemmed from several earlier episodes that caused
him to lose trust in her.7
Defendants' chosen defense thus eliminates from the coerced-
contribution calculus the complications presented by political
patronage principles, and the basic principle underlying Abood and its
progeny – that a public employee's job may not be conditioned on a
coerced contribution to a cause she may oppose – is thus left as the
applicable guidepost. As framed by the evidence and the judge's
instructions, the jury's task was to assess the circumstances and the
credibility of the witnesses to ascertain the actual motivation for the
discharge: was it improperly based on Acevedo's refusal to contribute
to FELSE, or was it a legitimate discharge based on unsatisfactory
performance that diminished her superiors' trust in her?8 Appellant
7Defendants took this approach despite the district court's
finding on summary judgment that Acevedo was in a position
subject to patronage dismissal. At oral argument, counsel
continued to eschew the political loyalty justification, noting
that Acevedo's termination was at worst "unfair" – but not
unconstitutional – because all that defendants knew about her
refusal to contribute was what she had told them – that she
could not afford to do so.
8 The judge instructed the jurors as follows:
Plaintiff claims that she was dismissed for her
failure to contribute $250 to the "Fundación Educativa
para la Libre Seleccion de Escuelas," FELSE . . .
because she did not believe in this program.
The defendants claim that the plaintiff was an
employee holding a position of trust and confidence,
subject to be dismissed at will, and that she was
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contends that the jury lacked evidentiary support for concluding that
Acevedo was, in fact, terminated based on her refusal to support FELSE
in violation of her First Amendment rights. We turn to that issue
after a preliminary review of appellant's claimed entitlement to
immunity.
B. Qualified Immunity
Appellant asserts that he is entitled to qualified immunity
because FELSE is non-ideological in nature and Acevedo's termination
took place before it was established that coercing contributions for
non-ideological activities is barred by the First Amendment. We find
this position wholly unsupportable. The conclusion is inescapable that
the compelled contributions to FELSE served political and ideological
objectives. The very reason for defendants' intensive fund-raising was
the NPP campaign promise, and the appropriateness of school vouchers
has for some time generated national debate. Although FELSE itself may
be an independent, non-partisan agency – a factual finding made by the
district court that we need not examine – it has an undeniably
ideological purpose. Indeed, this is an apt illustration of the
dictionary definition of "ideology": "a body of doctrine . . . with
reference to some political and social plan . . . along with the
dismissed because she lost the trust and confidence of
the Administrator of Juvenile Institutions, not
because of her failure to contribute to FELSE.
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devices for putting it into operation." See The Random House
Dictionary of the English Language (2d ed. 1987) 950.
The unlawfulness of coercing contributions to ideological causes
was well established before the conduct challenged here occurred, and
appellant's attempt to invoke qualified immunity is therefore
unavailing. See Abood, 431 U.S. at 235-36; Wash. Legal Found. v. Mass.
Bar Found., 993 F.2d 962, 977 (lst Cir. 1993) (citing, inter alia,
Lehnert, Keller, and Abood) ("Compelled support of an organization
engaging in expressive activities may also burden First Amendment
rights.").
C. Evidence of motive
Appellant contends that the evidence presented at trial did not
permit a finding that he knew of plaintiff's substantive objections to
the FELSE program. He points to the letter he received from Vélez
explaining that Acevedo refused to contribute because she could not
afford to do so, and asserts that a discharge based simply on her
inability to pay would not be unconstitutional. In response, Acevedo
maintains that her actual motivation is immaterial, be it ideological
or financial; she contends that defendants violated the Constitution if
they fired her for refusing to support an ideological cause, whatever
her reason for declining to do so.
We agree with appellant that the record lacks direct evidence
showing that defendants knew of Acevedo's substantive opposition to the
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voucher program. This does not help appellant's cause, however,
because, as Acevedo argues, a constitutional violation occurs when an
individual's employment is conditioned on paying for ideological
activity, regardless of the reason for the employee's refusal to
participate, unless the compelled association is justified by an
important government interest.
In Abood, the Supreme Court ruled that employees could object to
ideological expenditures without identifying the specific causes to
which they objected because forced disclosure would compromise an
employee's "freedom to maintain his own beliefs without public
disclosure," 431 U.S. at 239 n.39, 241 & n.42; see Schneider v. Colegio
de Abogados de Puerto Rico, 917 F.2d 620, 635 (lst Cir. 1990) ("[A]
primary feature of a constitutional system [of mandatory fees] is that
dissenters be able to trigger refunds by means of general objections so
that they need not make public their views on specific issues.").
Particularly in the absence of a government interest justifying
financial coercion, requiring an employee to confess her views would
place an undue burden on the individual's exercise of her First
Amendment rights.9 In this case, therefore, the jury needed to
9The Supreme Court has noted that strong opposition to an
ideological cause heightens the burden imposed by compelling
speech. See Lehnert, 500 U.S. at 522 ("The extent of one's
disagreement with the subject of compulsory speech is relevant
to the degree of impingement upon free expression that
compulsion will effect.").
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determine only whether Acevedo was terminated for her refusal to
contribute to FELSE. As detailed above, the evidence of repeated,
explicit warnings that she would need to tender her resignation if she
failed to make the donation – the validity of which the jury evidently
accepted – was more than adequate to substantiate Acevedo's First
Amendment claim.
Moreover, the judge instructed the jury that it had to determine
"whether defendants dismissed plaintiff . . . for failure to contribute
to FELSE because she did not believe in that program." The court
repeated this description of the jury's fact-finding mission multiple
times, telling the jurors, for example, that "public employees may not
be compelled to make financial contributions for the implementation of
government programs to which they are opposed as a condition of
employment," and that, to prevail on her association claim, "plaintiff
Rosangélica Acevedo must demonstrate that her failure to contribute
$250 to FELSE because she did not believe in that program played a
substantial role in her dismissal." The jury verdict form incorporated
the same inquiry.10
As we have explained, these instructions overstated the
plaintiff's burden. The jury nonetheless found in her favor, and we
think its judgment reflects the logical inference that, if she was
10The form asked whether plaintiff was dismissed "for her
refusal to contribute to Fundación de Libre Seleccion de
Escuelas because she did not believe in that program."
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fired for her failure to contribute, it was on account of her
opposition to the program. Defendants unquestionably knew that the
favored tax treatment would make a FELSE contribution cost-free for
Acevedo. It was thus unlikely that defendants believed plaintiff did
not contribute simply because she could not afford to do so. In
launching the campaign within the JIA, Rivera had written a letter to
all trust and managerial employees referring to the "commitment" of the
government to support the voucher program, and defendants closely
monitored the donations from each trust employee within the agency.
Rivera testified that he expected every trust employee to contribute to
FELSE because "we have a responsibility to fulfill any public policy
approved in the Commonwealth." The jurors likely inferred from these
facts that defendants viewed plaintiff's recalcitrance as a statement
against the administration's pro-voucher policy, leading to the
conclusion that her dismissal occurred for that reason.
Whether that rationale was directly supported by the record is of
no consequence, however, because of the strong foundation for the
general finding that Acevedo's discharge resulted from her refusal to
participate in the FELSE fund-raising campaign. We thus reject
appellant's claim that the record does not support the verdict.
D. The Pickering Instruction
Lastly, appellant challenges the district court's refusal to
instruct the jury to follow the First Amendment balancing test set out
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in Pickering, 391 U.S. at 564. That test typically is applied when an
employee suffers adverse employment action based on his speech, and it
involves "a balancing of the employee's interests 'as a citizen, in
commenting upon matters of public concern' against 'the interest of the
State, as an employer, in promoting the efficiency of the public
service it performs through its employees,'" Flynn, 140 F.3d at 47
(quoting Pickering, 391 U.S. at 568). Pickering is inapposite to this
case, which does not involve an asserted state interest that allegedly
was compromised by an employee's statements. Rivera simply denies
having fired Acevedo for her refusal to contribute; he advances no
argument to justify having done so. Cf. Marshall v. Allen, 984 F.2d
787, 797 n.8 (7th Cir. 1993) ("[T]he defendants' primary defense on the
merits of this case appears to be that [plaintiff's] speech had nothing
to do with his dismissal. In light of this, defendants have waived a
Pickering analysis.").11 Consequently, the district court did not err
in declining to instruct the jury under Pickering.
III. Conclusion
11Given appellant's failure to identify a state interest
justifying Acevedo's termination, we need not consider whether
the Pickering analysis applies to freedom of association, as
well as freedom of speech, claims. See Tang v. R.I. Dept. of
Elderly Affairs, 163 F.3d 7, 11 n.4 (lst Cir. 1998) (noting
circuit split on applicability of Connick v. Myers, 461 U.S.
138, 140, 142 (1983), which incorporated the Pickering test, to
association claims).
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Although the facts of this case place it at the intersection of
the Elrod-Branti and Abood strands of First Amendment jurisprudence,
defendants have not sought to justify compulsory contributions to FELSE
– or Acevedo's termination – by asserting an important state interest.
Instead, they have denied that her refusal to contribute caused her
termination. The jury rejected this defense, and that determination
was supported by sufficient evidence in the record. FELSE's objectives
unquestionably are ideological in nature, and Abood therefore
prohibited defendants from linking Acevedo's tenure to her willingness
to contribute. The bar against coerced contributions to ideological
activities was well established at the time of the acts in question,
and appellant is therefore not entitled to qualified immunity.
For the foregoing reasons, the judgment of the district court is
affirmed.
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