Rosario-Urdaz v. Velazco

United States Court of Appeals
For the First Circuit

Nos. 04-2292, 04-2293

DORCAS ROSARIO-URDAZ,

Plaintiff, Appellant/Cross-Appellee,

v.

ROMÁN VELAZCO, SECRETARY OF THE DEPARTMENT OF LABOR
AND HUMAN RESOURCES OF PUERTO RICO; VÍCTOR RIVERA-HERNÁNDEZ.

Defendants, Appellees/Cross-Appellants.

CARMEN ROSARIO-MORALES; MAIRA GONZÁLEZ; ANGEL AGOSTO,

Defendants, Appellees.
__________

JANE DOE; CONJUGAL PARTNERSHIP RIVERA-DOE,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch, Circuit Judge,

and Schwarzer,* Senior District Judge.

*
Of the Northern District of California, sitting by
designation.
 Víctor P. Miranda-Corrada with whom Roberto Busó-Aboy was on
brief for plaintiff, appellant/cross-appellee.
Celina Romany with whom Celina Romany Law Offices was on brief
for defendants, appellees/cross-appellants.
Doraliz E. Ortiz-de-León, Assistant Solicitor General,
Commonwealth of Puerto Rico, Office of the Solicitor General,
Department of Justice, with whom Salvador Antonetti-Stutts,
Solicitor General of Puerto Rico, and Mariana D. Negrón-Vargas,
Deputy Solicitor General, were on brief for defendants, appellees.

January 6, 2006
 BOUDIN, Chief Judge. The background to this litigation

under section 1983 is easily recounted. In 1996, Dorcas Rosario-

Urdaz ("Rosario-Urdaz") began work as an employee with the rank of

Employee I in the Puerto Rico Department of Labor and Human

Resources ("DLHR"). She earned career status as an Information

Representative and was rather quickly promoted to a "trust" (i.e.,

political) position in 1997. At that time, the governorship was

held by the New Progressive Party ("NPP") with which Rosario-Urdaz

is associated.

In November 2000, a new governor was elected representing

the Popular Democratic Party ("PDP"). As permitted by Puerto Rico

law, 3 P.R. Laws Ann. § 1350(8)(a) (2000), Rosario-Urdaz then

exercised her option to resume her earlier status as a career

employee effective December 29, 2000, shortly before the new

administration took power in January 2001. When the new governor

took office, she appointed, as Secretary of the DLHR, Victor

Rivera-Hernandez, who was later succeeded by Roman Velazco. In the

new administration, Carmen Rosario-Morales was Assistant Secretary

for Human Resources; she was later replaced by Gladys Rivera.

According to Rosario-Urdaz, she was made a target of

harassment after the new PDP administration came to power. She

said that her duties were reduced and given at least in part to a

former subordinate, Maira Gonzalez, a member of the PDP; that she

was harassed by Gonzalez and by another co-worker, Angel Agosto;

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and that her entire office was abolished in October 2001. Although

Rosario-Urdaz was initially given an equivalent job in another part

of the DLHR, she was discharged in March 2002.

The discharge, which is a central issue in the present

appeal, occurred after an audit in 2001 studied transfers within

the department that had occurred during a so-called freeze period

surrounding the 2000 election. The audit was conducted under the

supervision of Gladys Rivera and it concluded, as to Rosario-Urdaz,

that there were irregularities in her original 1996 appointment to

the career position of Information Representative that rendered the

appointment a nullity. Gladys Rivera's report led to Rosario-

Urdaz' discharge by Rivera-Hernandez.

Following the discharge, Rosario-Urdaz brought the

present suit in April 2002. Along with claims under Puerto Rico

law, the complaint asserted a federal claim under 42 U.S.C. § 1983

(2000), based on two different theories: first, that the alleged

harassment and the discharge were politically motivated in

violation of Rosario-Urdaz' first amendment rights, and second,

that her discharge without a prior hearing violated fifth amendment

due process rights, given that her career position is a protected

property right.

The defendants named in the suit were Rivera-Hernandez,

Rosario-Morales, Gonzalez and Agosto; Velazco, who succeeded

Rivera-Hernandez as secretary of the DLHR, was later added for

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purposes of reinstatement relief. Gladys Rivera was not named as

a defendant. Rosario-Urdaz sought huge damages against all four in

their personal capacity (official-capacity damage claims were made

but are barred) and reinstatement as Information Representative.

She requested a preliminary injunction to restore her to her

position pendente lite; this was denied by the district court but

this court vacated and remanded the matter for further proceedings.

Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219 (1st Cir. 2003).

In June 2004, the district court granted pending motions

to dismiss the personal capacity damage claims against all

defendants based on qualified immunity. On June 21, 2004, the

court held a bench trial on the request for reinstatement, which it

granted on the ground that termination without a prior hearing was

impermissible because the department had not shown that Rosario-

Urdaz' career appointment was void. In August 2004, the district

court issued a final judgment.

These cross appeals followed: Rosario-Urdaz to contest

the dismissal of her damage claims and the secretary to contest her

reinstatement. On the former, resolved on summary judgment, our

review is plenary, Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir.

2000); on the latter, which followed a bench trial, fact-findings

are reviewed for clear error and legal determinations de novo save

that some deference may be shown to rulings that effectively apply

abstract rules to specific events. Fed. R. Civ. P. 52(a); 9A

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Wright & Miller, Federal Practice & Procedure: Civil 2d § 2588 at

600-08 (1995).

We begin with Rosario-Urdaz' damage claims against the

defendants, which the district court dismissed based on qualified

immunity. The underlying substantive law protects government

employees from adverse action or harassment against them motivated

by hostility to their political views or affiliation. Padilla-

Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000).

Defendants did not assert that Rosario-Urdaz held a position for

which her political opinions could be treated as pertinent;

instead, they denied any violation and, in the alternative, said

that qualified immunity protected them.

We may affirm the district court's dismissal if the

claims fail on their merits at the summary judgment stage or if, on

this record, qualified immunity has been made out. Indeed, the two

inquiries now overlap in part due to the Supreme Court's direction

in Saucier v. Katz, 533 U.S. 194, 201 (2001), that qualified

immunity determinations begin with an inquiry into whether the

right asserted exists at all in relation to the facts. The

individual defendants are charged with distinct acts performed by

each and, in addition, with a joint and general effort to drive

Rosario-Urdaz from her post.

Rosario-Urdaz was deprived of her position by a single

act--Rivera-Hernandez' decision to terminate her employment on the

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professed ground that her original career appointment as

Information Representative was flawed in its inception. Rosario-

Urdaz asserts that Rivera-Hernandez was wrongfully motivated by her

party affiliation; if so, he would presumptively be liable,

Padilla-Garcia, 212 F.3d at 74--subject to qualified immunity or

other possible defenses, see, e.g., Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274 (1977).

There is no evidence that Rivera-Hernandez' action was

politically motivated. He received a report, resulting from

Gladys Rivera's audit, colorably asserting that Rosario-Urdaz was

holding a career position to which she was not entitled. He has

denied a political motive; in his deposition, he identified others

who were terminated as a result of the audit. Rosario-Urdaz has

pointed to nothing to show political motivation on Rivera-

Hernandez' part.

If anything, Rosario-Urdaz' brief on this issue tends

more to undercut her position than to support it. In a short

mustering of "evidence" against Rivera-Hernandez, the brief says he

"admitted" considering Rosario-Urdaz' party membership; so he did,

saying that it made him hesitate (i.e., in her favor) when

confronted with the recommendation against her. The brief also

conjures up an imaginary conflict between Rivera-Hernandez'

statements that he questioned Gladys Rivera actively as to the

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recommendation and his eventual reliance on the audit

recommendation.

There are four charges against Rosario-Morales: that she

deprived Rosario-Urdaz of prior duties, assigned Gonzalez to the

same office with some of those duties, transferred all of the

personnel of Rosario-Urdaz' then-existing office incident to its

closing, and ordered an earlier audit of personnel transactions

occurring in August 2000--just before the pre-election freeze

became effective. The earlier audit had no effect on Rosario-

Urdaz;1 the other three charges pose the only issue of general

importance in this case.

Rosario-Urdaz does not claim that Rosario-Morales is

responsible for her termination; this occurred as a result of

actions taken by Gladys Rivera and Rivera-Hernandez after Rosario-

Morales left the department at the end of 2001. Instead, the three

incidents involve reassignments of duties and of personnel to

different offices. None of these changes resulted in Rosario-

Urdaz' discharge or reduction in salary. Two of them, perhaps all

three depending on what duties Rosario-Urdaz retained, are

commonplace personnel decisions likely to be shielded by qualified

immunity if objective reasonableness overcomes imputed motive.

1
Rosario-Urdaz was apparently transferred back to career
status during the freeze period itself--how is unexplained--and the
audit in question is not the one later conducted by Gladys Rivera
that led to Rosario-Urdaz' ultimate termination for reasons having
nothing to do with the freeze.

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 This is the rub. Traditionally--search and seizure is

the best example--the Supreme Court has said that private motive is

irrelevant if the defendant had objective probable cause or, for

qualified immunity purposes, a reasonable officer might have so

believed, even if wrongly. Harlow v. Fitzgerald, 457 U.S. 800,

818-19 (1982). By contrast, in cases involving first amendment

rights, some of our decisions have left open the possibility that

an objectively reasonable action could still be denied qualified

immunity if improperly motivated. See Mihos v. Swift, 358 F.3d 91,

103-07 (1st Cir. 2004); Tang v. Rhode Island, 120 F.3d 325, 327

(1st Cir. 1997).2

In all events, even if the existence of a political

motivation underlying an objectively reasonable employment decision

were enough to preclude qualified immunity, Rosario-Urdaz must make

a threshold showing that she was adversely affected by these

personnel decisions. Padilla-Garcia, 212 F.3d at 74. Employment

actions short of outright dismissal or demotion are redressable if

improperly motivated, Rutan v. Republican Party of Ill., 497 U.S.

62, 75-76 (1990), but only if the employment action resulted in

conditions "unreasonably inferior" to the norm for that position,

2
These cases note, without resolving, the tension between
specific-intent constitutional violations and the requirement that
qualified immunity be decided on a purely objective basis. Tang
expressed the hope that the Supreme Court would shed light on this
question, 120 F.3d at 328; in the event, it did not. See Crawford-
El v. Britton, 523 U.S. 574 (1998); id. at 602 (Rehnquist, J.,
dissenting).

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Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218-19 (1st

Cir. 1989) (en banc).3

The personnel decisions of which Rosario-Urdaz complains

do not rise to this level. Gonzalez once had an altercation with

Rosario-Urdaz; allegedly Gonzalez had thrown food at Rosario-Urdaz

when the latter, then Gonzalez' supervisor, reprimanded Gonzalez

for eating outside of the lunch hour. Gonzalez was reprimanded and

transferred. Nor can one make a federal law suit out of Gonzalez'

transfer back by Rosario-Morales several years later, whatever

private motive Rosario-Morales may have had (Gonzalez was a PDP

supporter) and even though this was distasteful to Rosario-Urdaz.

Agosto-de-Feliciano, 889 F.2d at 1217.

Rosario-Urdaz says that the office in which she was

operating was regarded by the new administration as a nest of NPP

supporters; Rosario-Morales says in her deposition that the office

had been performing poorly and that the decision to close the

office and transfer employees elsewhere (some of whom were PDP

members) was made for operational reasons which she described in

her deposition. Whether or not political differences played some

part in the decision to close the office and reassign employees,

3
Agosto-de-Feliciano was decided before the Supreme Court
decision in Rutan rejecting as too stringent another circuit's
requirement that such actions be the "substantial equivalent of a
dismissal," 497 U.S. at 75-76. We follow previous panels in
assuming that the "unreasonably inferior" standard is still viable.
See Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 n. 5
(1st Cir. 1997).

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the fact remains that Rosario-Urdaz was reassigned to a position of

the same rank and salary and has not shown "unreasonably inferior"

conditions.

The only charge that gives us any pause is Rosario-Urdaz'

brief statement that she lost duties after the new administration

took over. In certain circumstances--say, utterly depriving an

employee of work indefinitely for political reasons--this might

make out a claim. See Agosto-de-Feliciano, 889 F.2d at 1219-20.

But Rosario-Urdaz' brief provides no detail whatsoever as to why

her change of duties was so reprehensible or even what the change

in duties entailed.

As to Gonzalez and Agosto, they were not supervisors but

co-workers. Unless they carried on a substantial campaign of

harassment, instigated or knowingly tolerated by superiors, their

acts would not constitute the mis-exercise of government power at

which section 1983 is aimed. Guzman v. City of Cranston, 812 F.2d

24, 26 (1st Cir. 1987); see also Woodward v. City of Worland, 977

F.2d 1392, 1400 (10th Cir. 1992), cert. denied, 509 U.S. 923

(1993). There is no evidence that what they did was either

instigated or tolerated by Rivera-Hernandez, Rosario-Morales, or

anyone else in authority.

Gonzalez criticized Rosario-Urdaz in a letter to Rivera-

Hernandez, implying that she was not cooperating with the new

administration and saying that a restructuring was needed; the

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letter had strong political coloration but Gonzalez was entitled to

her opinion, and this was not an adverse employment decision. As

for Agosto, on one occasion he told Rosario-Urdaz that the prior

administration was a bunch of crooks; for this he was reprimanded

by Rivera-Hernandez, who wrote Agosto a letter "emphatically

reject[ing]" this behavior and warning that it could not be

repeated "under any circumstances."

A single insult by a co-worker with no supervisory power

is not political discrimination by one exercising official

authority. Cf. Webber v. Int'l Paper Co., 417 F.3d 229, 236-37

(1st Cir. 2005). Rosario-Urdaz says that the incidents must be

considered as a whole and the joint action of the defendants

comprised a "witch hunt" directed against her. Incidents can take

color from, and cumulate with, other incidents, and conspiracy can

sometimes be inferred from parallel or interrelated actions.

Nothing in the disparate incidents before us suggests any such

conspiracy.

We turn now to the cross-appeal by the DLHR secretary,

objecting to the district court's bench-trial finding of a due

process violation in Rosario-Urdaz' termination and the court's

resultant reinstatement order. The reinstatement calls for

official action, but the secretary does not challenge the district

court's authority to order it. The secretary asserts only that

there was no due process violation because Rosario-Urdaz was not

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properly appointed as a career employee and therefore never had a

property interest in her job.

The parties agree that if Rosario-Urdaz was a career

employee under Puerto Rico law, then she had a right in the present

circumstances to a due process hearing from the state before

termination. Cf. Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173

(1st Cir. 1988). The parties also assume that under Puerto Rico

law, a serious flaw in the process of Rosario-Urdaz' original

appointment, however many years earlier, permits the secretary to

discharge her summarily. Finally, they assume that if the flaw is

established in the federal court proceeding, this nullifies the

appointment both under state law and for purposes of due process

protection, although the secretary concedes that the burden is upon

the secretary to show the nullifying flaw.

Whether this is a good way to operate a civil service

system or to frame federal due process protections might be

debated. However, the Supreme Court, e.g., Town of Castle Rock v.

Gonzales, 125 S. Ct. 2796, 2803 (2005), makes the issue whether

there is a protectible property right turn on state law, and the

parties' view of Puerto Rico law is supported by precedent. Colón-

Pérez v. Mayor of the Municipality of Ceiba, 112 P.R. Dec. 740, 12

P.R. Offic. Trans. 934, 940 (P.R. 1982) (flawed appointment "void"

under Puerto Rico law); Kauffman, 841 F.2d at 1173 (same).

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 At the bench trial on reinstatement, Rosario-Urdaz'

counsel presented evidence of her appointment to a career position

and her termination from this position without a hearing, and

counsel then rested Rosario-Urdaz' case in chief. The DLHR then

presented Rosario-Urdaz' personnel file and one witness, Gladys

Rivera, who described the audit of Rosario-Urdaz' appointment which

underpinned the discharge. The first reason offered for finding

the original appointment void was Rosario-Urdaz' alleged lack of

the required experience to qualify for the appointment.

The evidence is that the position of Information

Representative requires a bachelor's degree and "one year of

experience in functions of similar nature and complexity to those

carried out by a Writer of Information"--a term that the parties

treat as equivalent to Information Representative. Rosario-Urdaz

had the degree; as to the required experience, Rosario-Urdaz'

personnel file contained a verification that she met the

requirement because she had "two (2) years and four (4) months of

experience in functions of a nature and complexity similar to those

held by an Information Writer."

Gladys Rivera asserted that the verification was not

supported by anything in the file and that an "equivalency study"

revealed that Rosario-Urdaz' prior position overlapped in some

respects with the position of Information Representative but that

overlap was not enough to establish equivalency. It followed

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(Gladys Rivera argued) that lacking equivalency, Rosario-Urdaz did

not have the specified experience for her career position.

Surprisingly, Gladys Rivera also testified at the bench

trial that she had never examined the requirements or duties of an

Information Writer. This, from the district court's point of view,

undermined her testimony as to Rosario-Urdaz' lack of equivalent

experience and also contradicted, at least implicitly, the letter

that Gladys Rivera had drafted for Rivera-Hernandez explaining why

Rosario-Urdaz was being terminated. The district court's refusal

to credit Gladys Rivera's opinion as sufficient to establish

Rosario-Urdaz' lack of the experience qualifications was within its

discretion. EIMSKIP v. Atl. Fish Mkt., Inc., 417 F.3d 72, 76 (1st

Cir. 2005).

The termination letter and Gladys Rivera's testimony gave

an alternative ground for treating the appointment as a nullity,

namely, the inference that Rosario-Urdaz short-circuited the

requisite merit process to receive the position. The inference

rested on the facts that in 1995 the DLHR had begun the process of

determining Rosario-Urdaz' qualifications a month before the job

announcement was publicly posted and that Rosario-Urdaz resigned

from her former position three days before she was to be

interviewed for the Information Representative position.

The district court did not discuss this alternative

ground, but the inference is not very compelling and the district

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court was not obliged to accept it. The timing of the equivalency

study could indicate that Rosario-Urdaz anticipated applying for a

job she expected to become available; her early resignation could

have reflected confidence that she would succeed in her

application. Just what happened is quite obscure.

The DLHR accepted that it had the burden of proof to show

that a decade-old appointment, valid on its face, was instead a

nullity. Conceivably, Rosario-Urdaz might have shed light on the

matter; but the defense deposed her and apparently adduced nothing

to support its position. Had it given Rosario-Urdaz a pre-

termination hearing, the DLHR's own fact-finding might have

resolved the issue; as it is, the matter was left to the district

judge to resolve and we cannot say that his decision was wrong.

To sum up, we affirm both the dismissal of Rosario-Urdaz'

damage claims for political discrimination and the grant of

injunctive relief restoring her to her career position. Each side

shall bear its own costs on this appeal.

It is so ordered.

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