Cepero-Rivera v. Fagundo

United States Court of Appeals
For the First Circuit
No. 04-1401

FRANK CEPERO-RIVERA; JENNIFER CEPERO-SALGADO,
Plaintiffs, Appellants,

v.

ENGINEER FERNANDO E. FAGUNDO, Executive Director of the
Puerto Rico Highway Authority (PRHA); HARRY DÍAZ-VEGA, Area
Director for Human Resources of PRHA; ROBERTO SANTIAGO-CANCEL,
Auxiliary Director of Human Resources of PRHA; ERIC RAMÍREZ-
NAZARIO, SAMUEL DE LA ROSA, WILLIAM VEGA, All Three Members of
the Appeals Committee of the PRHA; HOWARD PHILLIP FIGUEROA,
Auxiliary Administrative Officer of the PRHA; PUERTO RICO
HIGHWAY AUTHORITY; JOSÉ IZQUIERDO-ENCARNACIÓN, Secretary of the
Department of Transportation and Public Works,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Carter,* Senior District Judge.

Jesús Hernández-Sánchez, with whom Raúl Barrera-Morales,
Fredeswin Pérez-Caballero and Jesús Hernández-Sánchez Law Firm,
were on brief, for appellants.
Gloriana S. Hita-Valiente, with whom Llovet Zurinaga & López,
PSC, was on brief, for appellees.
Ineabelle Santiago-Camacho, with whom Beatriz Annexy Guevara
and Reichard & Escalera, were on brief, for appellee Puerto Rico
Highway Authority.

July 1, 2005

*
Of the District of Maine, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-appellant Frank

Cepero-Rivera was the Director of Labor Affairs of the Human

Resources Department of the Puerto Rico Highway Authority ("PRHA"),

until he was terminated for violations of the PRHA's Rules and

Regulations. Cepero-Rivera and his daughter, Jennifer Cepero-

Salgado, claim that Cepero-Rivera's termination was motivated by

his political affiliation in violation of his constitutional rights

pursuant to 42 U.S.C. §§ 1983 & 1985, and they now appeal the

district court's dismissal of their claims against certain

defendants, its grant of summary judgment in favor of defendant

Fernando Fagundo, and its determination that the procedures

followed in Cepero-Rivera's termination did not violate due

process. After examining the record, we reject each of appellants'

arguments, and affirm the order of the district court.

I. Facts

The chain of events leading to appellant Cepero's firing

began on September 24, 2001, when Cepero-Rivera wrote a letter to

the former PRHA Executive Director, Fernando Fagundo, requesting a

salary increase in accordance with a PRHA regulation that required

a one-step pay increase for employees who had not been given a pay

raise equivalent to one step in the pay scale over the preceding

five years. In the letter, Cepero-Rivera also stated that he

possessed a list of the salaries and fringe benefits of several

recently-appointed female employees. Based on this information, he

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alleged gender and age discrimination, and that the salary raises

given to those female employees violated the merit principle

established in the PRHA Personnel Handbook.

Cepero-Rivera did not receive the response he had hoped

for. On January 2, 2002, Fagundo sent Cepero-Rivera a letter

denying his request for a salary raise because he had received six

pay raises in as many years with the PRHA. In the same letter,

Fagundo informed Cepero-Rivera that he had ordered the PRHA's legal

department to investigate possible violations of the Puerto Rico

Penal Code and several articles of the PRHA's Disciplinary Measures

Handbook, including two alleged violations of infraction 37 of the

Handbook, which prohibits using confidential personnel records for

personal gain. Fagundo's letter outlined the underlying facts

relating to Cepero-Rivera's admitted possession of other employees'

confidential information in his September letter and a previous

instance in which he appended portions of defendant Howard

Phillip's confidential personnel records to a memorandum about

Phillip. Fagundo's letter additionally alleged insubordination and

involvement in various incidents with other PRHA employees. The

letter informed Cepero-Rivera of Fagundo's intentions to file

disciplinary measures, which could result in dismissal, and that an

informal hearing was to be held on January 18, 2002. The

January 2, 2002 letter was Cepero-Rivera's first notice of

defendants' intentions to take disciplinary measures against him.

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 On January 10, 2002, Cepero-Rivera sent a letter to

Fagundo responding to the allegations that he had misused

confidential personnel records and requesting more information

about the specific facts underlying the insubordination and

misconduct allegations. Cepero-Rivera's request was never answered

by defendants. On January 17, 2002, Cepero-Rivera sent Fagundo a

handwritten note stating that the January 2 letter did not state

the time of the hearing, and thus, he was handing in certain

documents "as evidence of [his] appearance in writing to the

informal hearing." On February 22, 2002, Cepero-Rivera received a

letter officially terminating his employment with the PRHA.

II. Analysis

Appellants make four distinct arguments on appeal.

First, appellants claim that district court erred in requiring

Cepero-Rivera to present a prima facie case of political

discrimination against Eric Ramírez-Nazario, Samuel De La Rosa, and

William Vega. Second, appellants argue that the district court

erred in dismissing, sua sponte, the claims against Harry Díaz-

Vega, Roberto Santiago-Cancel, and Howard Phillip Figueroa. Third,

appellants challenge the grant of summary judgment in favor of

defendant Fernando Fagundo for failure to rebut defendants'

proffered nondiscriminatory basis for Cepero-Rivera's dismissal.

Finally, Cepero-Rivera argues that the procedure leading to his

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termination did not afford him due process of law. We address each

of plaintiffs' claims in turn.

A. The District Court's Misapplication of the Prima Facie Case
Standard

Appellants contend that the district court incorrectly

applied a heightened pleading standard to Ramírez's, De la Rosa's,

and Vega's motion to dismiss. Although the district court in large

part correctly described the motion to dismiss standard, see Rivera

v. Fagundo, 301 F. Supp. 2d 103, 106 (D.P.R. 2004), it also stated

that appellants' claims should be dismissed for failure to

"establish a prima facie case of political discrimination," id. at

108. Appellees concede that appellants did not have the burden of

establishing a prima facie case in order to survive a motion to

dismiss. However, they argue that appellants nevertheless clearly

failed to meet their burden under the proper Fed. R. Civ. P.

8(a)(2) standard, and thus, the ultimate decision to dismiss should

be affirmed. We agree.

"For years, courts in this circuit [had] required

plaintiffs to satisfy a heightened pleading standard in civil

rights actions." Educadores Puertorriqueños en Acción v.

Hernández, 367 F.3d 61, 62 (1st Cir. 2004). However, in Hernández,

this court recognized that the Supreme Court's decision in

Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), "sounded the

death knell for the imposition of a heightened pleading standard

except in cases in which either a federal statute or specific Civil

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Rule requires that result." Hernández, 367 F.3d at 66. "In all

other cases, courts faced with the task of adjudicating motions to

dismiss under Rule 12(b)(6) must apply the notice pleading

requirements of Rule 8(a)(2)." Id. Since there is no federal

statute or specific Federal Rule of Civil Procedure mandating a

heightened pleading standard for civil rights actions such as the

political discrimination claims at issue in this appeal, the notice

pleading standard, not the heightened pleading standard formerly

applied in this circuit, governs motions to dismiss.

The case before us appears at first glance to present

precisely the same situation that we resolved in Hernández. As in

Hernández, the district court in this case dismissed plaintiffs'

political discrimination claims on the basis that plaintiffs failed

to establish a prima facie case. Compare Rivera, 301 F. Supp. 2d

at 108, with Hernández, 367 F.3d at 63. On this basis, in

Hernández, we remanded the case to the district court to proceed

in light of the proper standard. 367 F.3d at 68. Appellants ask

that we follow suit in the instant case.

Notwithstanding the citations to the "prima facie case"

standard, it does not, however, appear that the district court in

this case applied a heightened pleading standard. Rather, it

looked to the complaint and found that the allegations therein

failed to make out a claim against these defendants. Furthermore,

we find that remand would be unnecessary, because appellants'

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claims in question clearly fail to survive the proper Rule 8(a)(2)

notice pleading standard.

Under Rule 8(a)(2), a complaint need only include "a

short and plain statement of the claim showing that the pleader is

entitled to relief." Id. at 66. "This statement must 'give the

defendant fair notice of what the plaintiff's claim is and the

grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Under this standard, "a court confronted

with a Rule 12(b)(6) motion 'may dismiss a complaint only if it is

clear that no relief could be granted under any set of facts that

could be proved consistent with the allegations.'" Id. (quoting

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

Appellants' allegations against defendants Ramírez, De la

Rosa, and Vega are not simply vague or lacking in specificity.

Rather, they consist entirely of speculation about possible future

conduct by the defendants. Defendants are members of PRHA's

Appeals Committee, which is to hear the administrative complaints

Cepero-Rivera filed as a result of the actions taken against him.

Cepero-Rivera claims that these defendants "will entertain a

pending appeal . . . and will carry out the public policy of

discrimination because of their political ideology against

plaintiff and are ready to rubber stamp the decision of co-

defendant Fagundo." Rivera, Amended Complaint, ¶ 10 (emphasis

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added). To date, the only proceedings that have taken place on

this matter before the Appeals Committee, have been:

"(1) attempts by Cepero-Rivera to consolidate
both complaints, which were denied; (2) a
request by the PRHA for Cepero-Rivera's
counsel to withdraw, because of conflict of
interest issues; (3) a request by
Cepero-Rivera to stay the administrative
proceedings pending resolution of this case;
and (4) a hearing called by Ramírez for the
sole purpose of recusing himself from both
complaints because he appeared as a defendant
in this case."

Rivera, 301 F. Supp. 2d at 107-08.

To prevail in a § 1983 claim, plaintiffs "must allege

facts sufficient to support a determination (i) that the conduct

complained of has been committed under color of state law, and (ii)

that [the alleged] conduct worked a denial of rights secured by the

Constitution or laws of the United States." Romero-Barceló v.

Hernández-Agosto, 75 F.3d 23, 32 (1st Cir. 1996) (citations

omitted). As an additional corollary, only those individuals who

participated in the conduct that deprived the plaintiff of his

rights can be held liable. Cf. Febus-Rodríguez v.

Betancourt-Lebrón, 14 F.3d 87, 91-92 (1st Cir. 1994) (finding that

there is no § 1983 liability on the basis of respondeat superior,

and thus, "[a] supervisor may be found liable only on the basis of

his own acts or omissions"); Wilson v. City of N. Little Rock, 801

F.2d 316, 322 (8th Cir. 1986) (finding, in a § 1983 action against

police officers, that "[l]iability may be found only if there is

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personal involvement of the officer being sued"). As the district

court correctly recognized, defendants "Ramírez, De la Rosa, and

Vega have not taken any action adverse to plaintiff, nor did they

have anything to do with Fagundo's and PRHA's decision to terminate

Cepero-Rivera from his employment." Rivera, 301 F. Supp. 2d at

108. Since these defendants clearly played no part in any action

taken against plaintiff, we have no difficulty concluding that "it

is clear that no relief could be granted under any set of facts

that could be proved consistent with the allegations" against these

defendants. Hernández, 367 F.3d at 66 (internal quotations

omitted). Thus, this unusual attempt to rope in defendants whose

only actions against defendant might come at some point in the

future fails the notice pleading standard. We therefore affirm the

district court's dismissal of the claims against defendants

Ramírez, De la Rosa, and Vega.

B. Dismissal of the Claims against Díaz, Santiago and Phillip

Unlike their co-defendants on the Appeals Committee,

defendants Díaz, Santiago, and Phillip did not seek Rule 12(b)(6)

dismissal of the claims against them. Nevertheless, the district

court dismissed the claims against Díaz, Santiago, and Phillip sua

sponte. We find that the court's sua sponte dismissal was in

error, but that the error was harmless because the court should

have granted defendants' motion for summary judgment.

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 Sua sponte dismissal is rarely appropriate, and should

not have been entered under these circumstances. "Sua sponte

dismissals are strong medicine, and should be dispensed sparingly."

Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002) (quoting

González-González, 257 F.3d 31 at 33). "The general rule is that

'in limited circumstances, sua sponte dismissals of complaints

under Rule 12(b)(6) . . . are appropriate,' but that 'such

dismissals are erroneous unless the parties have been afforded

notice and an opportunity to amend the complaint or otherwise

respond.'" Id. (quoting Futura Dev. of P.R., Inc. v. Estado Libre

Asociado de P.R., 144 F.3d 7, 13-14 (1st Cir. 1998)). Because the

plaintiffs in this case were not given notice or an opportunity to

amend their complaint, sua sponte dismissal was in error.

Nevertheless, we find that the error is harmless because

the district court should have granted Díaz's, Santiago's and

Phillip's motion for summary judgment. In its decision, the

district court dismissed the claims against Díaz, Santiago, and

Phillip in the course of its analysis of "Defendants' Motion for

Summary Judgment." Rivera, 301 F. Supp. 2d at 110-11. The court

found that "Cepero-Rivera had failed to establish a prima facie

case against Díaz, Santiago, and Phillip by failing to demonstrate

that they were personally and directly involved in the alleged

violation of his rights." Id. at 111. Having found that the

appellants failed to meet this summary judgment threshold, the

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district court should have granted summary judgment in favor of

these defendants. However, at this point, the court erroneously

chose to grant sua sponte dismissal instead. Nevertheless, we

find, for the same reasons alluded to by the district court, that

appellants' failed to establish a prima facie case, and thus,

summary judgment should have been granted.

With regard to defendants Díaz, Santiago, and Phillip,

appellants alleged in their complaint that:

8. Co-defendant Santiago Cancel, [sic]
planned along with co-defendant Howard Phillip
Figueroa to provoke an incident with
plaintiff, which took place as follows: Co-
defendant Phillip Figueroa went to plaintiff's
office to provoke him, informing the latter
that he was coming to see him under the
instructions of co-defendant Santiago Cancel.
Co-defendant Phillip Figueroa asked plaintiff
Why [sic] he did not resign and leave his
position to a PDP attorney.
9. Co-defendant Harry Díaz Vega, Area
Director for Human Resources of the PRHA,
talked to plaintiff several times, criticizing
him because plaintiff was protesting for the
illegal action taken by co-defendant Fagundo
in appointing some female personnel with a
high salary and in violation of the merit
system. Also, he told plaintiff the new
administration's goals, which was [sic] to
have employees in key positions, loyal to the
PDP and pointed to plaintiff that he was from
the NPP and that he should join the PDP.
Plaintiff refused and replied "I'd rather be
dead."

Rivera, Amended Complaint, paras. 8-9. Nothing in appellants'

Opposition to [Defendants'] Motion for Summary Judgment or in the

record significantly adds to these allegations. The district court

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described these claims as a "general and unsubstantiated

'conspiracy theory,'" and found that Cepero-Rivera had failed to

show how these defendants played any role in the alleged violation

of his rights. Rivera, 301 F. Supp. 2d at 111. Cepero-Rivera

claims that these defendants "all conspired with Fagundo to provoke

Cepero-Rivera into confrontations in order to justify his

dismissal." Id. However, even assuming -- as we must on summary

judgment -- that these confrontations occurred exactly as Cepero-

Rivera recounts them, they played little if any role in creating

the primary basis cited for Cepero-Rivera's dismissal: his alleged

use of confidential documents. Furthermore, Cepero-Rivera makes no

other claim as to how defendants Díaz, Santiago and Phillip played

any role in the actual termination decision or process.

In order for appellants to succeed on their claim of

political discrimination, they must demonstrate that the defendants

were involved in the alleged deprivation of their rights -- in this

case, Cepero-Rivera's dismissal from the PRHA. Imposition of

liability requires that "the conduct complained of must have been

causally connected to the deprivation." Gutiérrez-Rodríguez v.

Cartagena, 882 F.2d 553, 559 (1st Cir. 1989) (internal quotations

omitted). In this case, the allegations against Díaz, Santiago,

and Phillip could help build a prima facie case against Fagundo,

who the record suggests was involved in the decision to terminate

Cepero-Rivera's employment. However, since appellants have made no

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allegation, and we see no reason to infer, that defendants Díaz,

Santiago and Phillip were involved in the decision to dismiss

Cepero-Rivera, or that their alleged attempts to provoke Cepero-

Rivera led to his discharge, summary judgment should have been

granted in favor of these defendants. Furthermore, we note that

these defendants would also be entitled to summary judgment for the

same reasons we explain below with regard to defendant Fagundo.

Therefore, the district court's sua sponte dismissal, though in

error, did not prejudice the appellants, and we do not disturb the

final disposition reached by the district court with regard to

these defendants.

C. Summary Judgment in Favor of Defendant Fagundo

The remaining individual defendant in this case is PRHA

Executive Director Fernando Fagundo, who ordered the investigation

leading to Cepero-Rivera's dismissal. We now consider appellants'

challenge to the district court's grant of summary judgment in

favor of defendant Fagundo.

We review the district court's entry of summary judgment

de novo, viewing all facts in the light most favorable to the

nonmoving party and granting all reasonable inferences in that

party's favor. See, e.g., Torres v. E.I. Dupont De Nemours & Co.,

219 F.3d 13, 18 (1st Cir. 2000). Summary judgment is appropriate

"if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

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there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). We will also uphold summary judgment where "the

nonmoving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation," Rivera-Cotto

v. Rivera, 38 F.3d 611, 613 (1st Cir. 1994) (internal quotation

omitted).

Claims of political discrimination are subject to the

burden-shifting analysis developed after Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Under that

analysis, "a plaintiff bears the initial burden of showing that

political discrimination was the substantial or motivating factor

in a defendant's employment decision. The defendant must then show

that the decision would have been the same even in the absence of

the protected conduct." Avilés-Martínez, 963 F.2d at 5 (internal

citations omitted). Because "Fagundo acted under color of state

law, belongs to an opposing political party, is the one directly

responsible for Cepero-Rivera's dismissal, and it is alleged that

Cepero-Rivera's political affiliation was the basis for his

actions," the district court found that appellants' claims against

Fagundo established a prima facie case. Rivera, 301 F. Supp. 2d at

111.

Once plaintiffs establish a prima facie case, "[t]he

burden then shifts to the defendant official to articulate a

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nondiscriminatory basis for the adverse employment action, and

prove by a preponderance of the evidence that the adverse action

would have been taken regardless of any discriminatory political

motivation."1 LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996);

see also Rodríguez-Ríos v. Cordero, 138 F.3d 22, 24 (1st Cir.

1998). In this case, defendants had little difficulty laying out

the nondiscriminatory reasons for Cepero-Rivera's dismissal.

Defendants contend, and appellants do not deny, that Cepero-

Rivera's letter of September 24 stated that he possessed a list of

female employees' salaries and fringe benefits. Even viewed in the

light most favorable to appellants, we cannot but conclude that

this letter gave Fagundo every reason to believe that Cepero-Rivera

had improperly obtained this information from personnel files in

violation of PHRA regulations. Defendants also allege, and Cepero-

Rivera does not deny, that he had previously attached forty-eight

pages of Phillips' personnel file to a letter in which he argued

1
We stress that under the Mt. Healthy burden shifting scheme,
unlike Title VII cases, the burden of persuasion actually shifts to
defendants after plaintiff establishes a prima facie case. See
Acevedo-Díaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993). Under Title
VII, once the plaintiff establishes a prima facie case, the
employer need only submit enough evidence to raise a genuine issue
of material fact - i.e., only the burden of production shifts to
the employer. Id. However, in a First Amendment political
discrimination case, in which the Mt. Healthy scheme is applicable,
"the burden of persuasion shifts to the defendant, [and] the
plaintiff-employee will prevail unless the fact finder concludes
that the defendant has produced enough evidence to establish that
the plaintiff's dismissal would have occurred in any event for
nondiscriminatory reasons." Id.

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that Phillips was mentally unstable -- an impermissible use of

confidential personnel information under PRHA regulations. In

addition, defendants allege, and Cepero-Rivera does not deny, that

he refused to recognize the appointment of Santiago as his direct

supervisor, which defendants characterize as insubordination. Like

the district court, we find that, given the seriousness of Cepero-

Rivera's violations of PRHA regulations, defendants easily meet

their burden of showing, by a preponderance of the evidence, that

Cepero-Rivera would have been dismissed regardless of his political

affiliation. See Larou, 98 F.3d at 661. Once Cepero-Rivera made

the misstep of claiming physical possession of confidential

personnel records, it is difficult to see how a supervisor in

Fagundo's position could have done anything less than order an

investigation, potentially resulting in the employee's dismissal.

Nevertheless, at this point, "the plaintiff[s] may

discredit the proffered nondiscriminatory reason, either

circumstantially or directly, by adducing evidence that

discrimination was more likely than not a motivating factor."

Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 77 (1st Cir.

2000). Appellants' efforts in this regard fail to convince us that

discrimination was more likely than not a motivating factor in

Cepero-Rivera's dismissal. Appellants offer nothing to directly

undermine the credibility of the proffered nondiscriminatory

reasons for Cepero-Rivera's dismissal. Their only attack on the

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substance of these allegations is the contention that when Cepero-

Rivera said he had "in [his] power a list of the[se] employees

. . . with their salaries and fringe benefits," he meant only that

he had a copy of the office telephone book, from which he could

deduce his female employees' salaries. Even accepting Cepero-

Rivera's explanation, we find that the explanation is so

implausible that it should not have caused any doubt in the minds

of the PRHA officials considering his termination. Having been

told by Cepero-Rivera himself, when he thought it suited his

interest, that he possessed a list of salaries and fringe benefits

of the organization's female employees, we do not see why his

employers should believe Cepero-Rivera's later explanation that he

had meant only that he had made such a list himself by guessing at

salary and benefits from the office phonebook, especially in light

of his earlier use of portions of Phillip's confidential

information. Thus, although on summary judgment we assume Cepero-

Rivera's explanation to be genuine, it does not undermine

defendants proffered nondiscriminatory basis.

In their brief, appellants contend that defendants'

proffered reasons for Cepero-Rivera's dismissal were "nothing but

an excuse to justify the real reason, which was politically

motivated." However, they offer only meager evidence to support

that contention. Appellants allege that Fagundo once asked Cepero-

Rivera when he was leaving his position, since a new administration

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had taken office. However, they do not offer any evidence that

this incident was anything more than a mistake as to Cepero-

Rivera's status as a career employee. Nor do they assert that

there was any follow-up conversation or point to other indicia of

animus toward Cepero-Rivera on the part of Fagundo. Appellants

also state that Phillip suggested that Cepero-Rivera should resign

and leave his post to a PDP employee, and that Díaz suggested that

Cepero-Rivera change his party affiliation to the PDP. This type

of evidence can serve to show that the proffered nondiscriminatory

basis for an employee's dismissal was only pretext. However,

given the gravity of the charges against Cepero-Rivera, and the

fact that they are based on his own admissions that he possessed

confidential personnel information, this evidence fails to

demonstrate that political discrimination was more likely than not

a motivating factor in his dismissal.

Appellants' arguments that the charges against Cepero-

Rivera were time-barred also fail to convince us that defendants'

reasons for Cepero-Rivera's dismissal were mere pretext,

particularly as they do not reach the primary charge of personnel

file misuse. Appellants' only remaining arguments address

irregular procedures followed in the course of his dismissal.

However, these arguments do not relate to the grounds for Cepero-

Rivera's dismissal. We consider these arguments in our discussion

of his due process claims.

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D. Due Process Claims

Appellants additionally claim that Cepero-Rivera's

dismissal violated his procedural due process rights. There is no

dispute between the parties that Cepero-Rivera was a career

employee, and as such was entitled to "notice and a meaningful

opportunity to respond prior to termination." Figueroa-Serrano v.

Ramos-Alverio, 221 F.3d 1, 5-6 (1st Cir. 2000) (quotations

omitted). Before a career employee is discharged, he is "entitled

to oral or written notice of the charges against him, an

explanation of the employer's evidence, and an opportunity to

present his side of the story." Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985). "To require more than this

prior to termination would intrude to an unwarranted extent on the

government's interest in quickly removing an unsatisfactory

employee." Id.

The process leading up to Cepero-Rivera's termination

began with Fagundo's January 2, 2002 letter in response to Cepero-

Rivera's September 24, 2001 letter arguing for a salary increase

and alleging gender bias in favor of female employees. In addition

to responding to his request and allegations, the letter informed

Cepero-Rivera: (1) that he was under investigation for possible

violation of PRHA regulations, because he had used confidential

personnel documents for personal benefit; (2) that Fagundo intended

to file charges against him that could result in the termination of

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his employment; (3) that he had the right to a pre-termination

hearing; and (4) that an informal hearing would take place on

January 18, 2002 in the Office of the Legal Counsel's library,

where he could present his version of the facts and show cause as

to why disciplinary measures should not be instituted against him.2

On January 10, Cepero-Rivera responded with a letter in which he

answered a number of the allegations against him and requested more

information about others. He also requested that the informal

hearing scheduled for January 18 be continued to a later date. No

one in the PRHA administration responded to this letter, and on

January 17, Cepero-Rivera addressed a note to Fagundo asserting

that the January 2 letter did not state the time of the hearing,

and "[t]hus, [he was] handing in these documents as evidence of

[his] appearance in writing to the informal hearing." Cepero-

Rivera did not attend the January 18 informal hearing, and on

February 22, Executive Director Fagundo sent a letter officially

discharging Cepero-Rivera from his position.

Appellants claims that this procedure was

constitutionally deficient in a number of ways. First, appellants

2
Cepero-Rivera claims this notice was deficient for, among other
reasons, its failure to state the time of the scheduled hearing.
However, he does not claim to have made any attempt to find out the
time of the hearing. In fact, it seems the first time he mentioned
the failure to specify a time was in the note he wrote to Fagundo
the day before the scheduled hearing, in which he stated that he
would not attend. Like the district court, we assume that this
information could have been easily obtained, and we do not consider
its omission to be a fatal flaw in the notice provided.

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seem to claim that Cepero-Rivera was not provided sufficient notice

of the facts underlying the allegations for which he might be

dismissed. After a thorough review of the record, we find that

appellants overstate this claim. At the outset, we note that the

principal allegations against Cepero-Rivera related to his use of

confidential personnel documents, which, in one instance, he

appended to a memorandum regarding defendant Phillip and, in the

other, he stated he possessed in his letter of September 24, 2001.

These facts underlying the violation of the PRHA's Disciplinary

Measures Handbook infraction 37 -- the only infraction that

defendants claim allows for termination after a single violation --

were clearly laid out in Fagundo's January 2 letter. Although we

agree that the factual underpinnings of the accompanying

allegations lacked the specificity included in the most serious

allegations, we do not find that they fall below the constitutional

baseline. See, e.g., Brasslett v. Cota, 761 F.2d 827, 836 (1st

Cir. 1985) (finding no due process violation even where an employee

was notified of the possibility of discharge during the same "one

hour conference" that constituted his informal hearing).

Nor do we see any merit in Cepero-Rivera's claims

regarding his request for a continuance. At no time did Cepero-

Rivera assert that he could not attend the informal hearing on the

scheduled date. Rather, his request was apparently based entirely

on his belief that he needed more specific facts in order to craft

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a defense. However, in his zeal to defend himself, Cepero-Rivera

may have misunderstood the nature of a pre-termination hearing.

Due process requires only that the pre-termination hearing fulfill

the purpose of "an initial check against mistaken decisions --

essentially, a determination of whether there are reasonable

grounds to believe that the charges against the employee are true

and support the proposed action." Loudermill, 470 U.S. at 545-46.

As evidenced by his own thorough written responses to the

allegations against him, Cepero-Rivera was given ample notice of

the bases for the termination proceedings against him.

Although the PRHA failed to make any response to Cepero-

Rivera's request for a continuance, common sense and Cepero-

Rivera's own note of January 17 indicate that he knew that the

hearing was still set for January 18. In fact, in that note,

Cepero-Rivera stated that he was submitting his case in writing

rather than appear in person at the informal hearing. Cf.

Mercado-Alicea v. P.R. Tourism Co., 396 F.3d 46, 53 (1st Cir. 2005)

(finding that where plaintiff failed to attend his informal hearing

after multiple reschedulings, defendants "did not violate

[plaintiff's] due process rights when his inability to present his

side of the story was due to his failure to participate"). While

it is regrettable that the PRHA did not respond to Cepero-Rivera's

request for a continuance and for additional facts, we have

explained that "the Constitution requires only an initial check

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against erroneous decisions, not that the state follow best

practices." O'Neill v. Baker, 210 F.3d 41, 49 n.10 (1st Cir.

2000). In this case, Cepero-Rivera was given an opportunity to

attend an informal pre-termination hearing; he simply chose to

present his arguments in writing. Due process requires nothing

more from his employer at that stage.

III. Conclusion

For the foregoing reasons, we affirm the decision of the

district court.

Affirmed.

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