United States Court of Appeals
For the First Circuit
No. 05-1864
EVELYN CRUZ-GÓMEZ,
Plaintiff, Appellee,
v.
VÍCTOR RIVERA-HERNÁNDEZ, SHEILA ROBLES-BÁEZ;
CONJUGAL PARTNERSHIP RIVERA-ROBLES; ROMÁN M. VELASCO,
SECRETARY OF THE DEPARTMENT OF LABOR AND HUMAN RESOURCES
OF PUERTO RICO;
Defendants Appellants,
LUIS PIÑOT-ARECCO, JANE DOE; CONJUGAL PARTNERSHIP
PIÑOT-DOE; GLADYS RIVERA-MEDINA,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Hansen,* Senior Circuit Judge.
Celina Romany-Siaca, for appellants.
Marie Elsie López-Adames, with whom González López & López
Adames, was on brief, for appellee.
April 7, 2006
*
Of the Eighth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. This is an interlocutory
appeal in a political discrimination case brought pursuant to 42
U.S.C. § 1983 (2000). Defendant-Appellant Víctor Rivera-Hernández
("Rivera") here appeals the district court's opinion and order
denying his motion for summary judgment. We dismiss for lack of
appellate jurisdiction.
I. Background
Plaintiff-Appellee Evelyn Cruz-Gómez ("Cruz") was hired
on February 1, 1993 as Legal Consultant V, a trust position, by the
Puerto Rico Department of Labor ("PR-DOL").1 Cruz was appointed to
this position by the New Progressive Party ("NPP") administration
in power in Puerto Rico at the time.
In December 1995 or January 1996, at Cruz's request, the
Central Office for Labor and Personnel Matters reclassified her
position as "Director of the Bureau of Legal Affairs," a career
position. Cruz thereafter occupied the career position of Director
of the Bureau of Legal Affairs. In this job, she performed the
1
Public employees in Puerto Rico are categorized as "career" or
"trust/confidential" employees. Colón-Santiago v. Rosario, No. 05-
1238, 2006 U.S. App. LEXIS 4045, at *3 n.1 (1st Cir. Feb. 21,
2006). Trust employees are those who "intervene or collaborate
substantially in the formation of the public policy, [and] . . .
advise directly or render direct services to the head of the
agency." P.R. Laws Ann. tit. 3, § 1350. They are of "free
selection and removal." Id. § 1350. Career employees, by
contrast, are "selected strictly on merit and can be removed only
for cause." Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,
1213 n.3 (1st Cir. 1989) (citing 3 P.R. Laws Ann. §§ 1301,
1331-1338).
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same functions she had performed as a trust employee. The NPP was
still in power at the time of this change. Furthermore, in 2000,
PR-DOL implemented a Qualification Plan, as a result of which
Cruz's status as a career employee was certified and confirmed.
On November 5, 2000, general elections were held in
Puerto Rico, and Governor Sila María Calderón of the Popular
Democratic Party ("PDP") was elected. In January 2001, Rivera was
appointed by Governor Calderón as the new Secretary of Labor of the
Commonwealth and remained as such until June 2003.
Although Cruz had occupied the career position of
Director of the Bureau of Legal Affairs since late 1995 or early
1996, she claims that her life at PR-DOL changed dramatically after
the PDP victory in 2000 and the installation of Rivera as the head
of PR-DOL. In particular, she states that she began to experience
discrimination at the hands of her colleagues. For example, she
claims that Rivera and Luis Piñot-Arecco ("Piñot"), one of her
supervisors, continuously harassed her by requesting a series of
complicated but useless reports to be completed in short periods of
time. They consistently raised questions about her whereabouts,
and Piñot restricted her to a specific work schedule. Furthermore,
personnel from Rivera's office, instead of interacting with her,
simply ignored her presence and authority as head of the Bureau of
Legal Affairs.
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Cruz states that the most significant change came when
Rivera's Assistant Secretary for Human Resources, Gladys Rivera-
Medina ("Rivera-Medina"), suddenly concluded, after Cruz had
already served in the same position for more than four years, that
Cruz's change in classification from a trust to a career employee
was null and void given the fact that it was not preceded by the
competition process required for career positions. On August 13,
2002, because it had been determined that Cruz's employment was
null and void, Rivera, without any sort of pre-termination hearing,
removed Cruz from her position as Director of the Bureau of Legal
Affairs.2
As a result of her termination, Cruz, on July 24, 2003,
filed a complaint in the United States District Court for the
District of Puerto Rico seeking compensatory and punitive damages
and reinstatement to her prior position. She alleged violation of
her rights under the First and Fourteenth Amendments of the United
States Constitution. Specifically, she claimed that her political
affiliation with the NPP, which was known to Rivera and the other
defendants she named, all of whom were affiliated with the PDP, was
the reason that she was terminated.
2
Rivera simply provided Cruz with a termination letter. Before
Rivera gave Cruz this letter, he requested an opinion from the
Central Office for Labor and Personnel Matters on the propriety of
terminating Cruz. In his request, he stated his own opinion on the
propriety of any termination. The Central Office, in its response,
confirmed that Rivera's opinion was correct.
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On January 31, 2005, Rivera filed a motion for summary
judgment, requesting dismissal on the grounds a) that Cruz failed
to show that she was the subject of political discrimination; b)
that Cruz was not entitled to monetary damages from Rivera in his
official capacity; c) that Cruz's right to due process under the
First and Fourteenth Amendments was not violated given her failure
to demonstrate the existence of a cognizable property interest
and/or a legitimate claim of entitlement in continued employment;
d) that Rivera was not liable under the respondeat superior
doctrine; and e) that Rivera was entitled to qualified immunity
given that he had sufficient grounds to believe Cruz's employment
was null and void.
On February 28, 2005, Cruz filed a response in opposition
to the summary judgment motion, alleging that she had established
her case for political discrimination and violation of rights under
the First and Fourteenth Amendments and that Rivera's actions were
not protected by qualified immunity.
On April 18, 2005, the district court found that Cruz was
not entitled to monetary damages from Rivera in his official
capacity as a result of Eleventh Amendment immunity. However, the
court denied the remainder of Rivera's motion, stating that
disputed factual issues still remained and therefore summary
judgment could not be granted. In particular, the court noted,
first, that contrary to Rivera's argument that Cruz failed to show
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that her political affiliation was a motivating factor behind her
termination, Cruz had "put forward specific allegations which, if
proved at trial, may be probative of discriminatory animus and
suffice for the purpose of establishing a prima facie case of
discrimination." Second, in assessing Rivera's proffered
justification for Cruz's dismissal -- that Cruz was fired solely
because of the nullity of her appointment, not as the result of any
political discrimination -- the court noted that it was "unable to
weigh the import of the Qualification Plan ratification" (which
allegedly confirmed Cruz's career status) since neither party
discussed the Qualification Plan in depth. The court also noted
that Rivera neither conceded nor denied that Cruz satisfied each of
the requirements in P.R. Laws Ann. tit. 3, § 1351 (2004), under
which an employee may be reclassified as a career employee without
being subject to the normal competitive process.3 This particular
deficiency, making it unclear whether Cruz's career appointment
violated the Puerto Rico Personnel Act, led the court to decline to
enter summary judgment on both Cruz's First Amendment and due
process claims. Third, with regard to Rivera's claim of qualified
immunity, the court noted that there was a disputed factual issue
3
The district court noted, for instance, that the record made no
mention of whether Cruz took or passed a test to qualify her for
her position. The record was equally unclear as to whether changes
"in the functions or in the organizational structure of the agency"
justified Cruz's reclassification, as § 1351 requires.
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as to whether Rivera's actions were motivated by Cruz's political
affiliation.4
On May 10, 2005, Rivera filed a Notice of Interlocutory
Appeal, contesting the district court's denial of his summary
judgment motion.
II. Discussion
On appeal, Rivera rehashes the same arguments he made
before the district court in support of his summary judgment
motion. For example, he argues that Cruz failed to bring forth
evidence from which a reasonable juror could conclude a) that the
decision to remove her from her employment was somehow related to
her political affiliation; b) that she had a cognizable property
interest in continued employment; and c) that Rivera was liable
under the respondeat superior doctrine. Although these claims may
be meritorious, we clearly have no jurisdiction to address them.
Orders of the district court denying pretrial motions for summary
judgment typically are not appealable at the time they are entered.
4
In its opinion, the district court did not explicitly address
Rivera's respondeat superior claim. This, however, does not matter
for the purposes of this interlocutory appeal. As we discuss in
greater depth below, if the district court had addressed Rivera's
respondeat superior claim at the summary judgment stage and decided
it adversely to him, he would not be able to appeal the court's
decision now. Alternatively, if the court had addressed Rivera's
claim and decided it in his favor, he would not have brought this
appeal. At no point, however, does Rivera argue that this appeal
would have been unnecessary if the district court had properly
considered his claim. We therefore decline to consider this
possibility.
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Díaz v. Martínez, 112 F.3d 1, 3 (1st Cir. 1997). Such orders are
not "final decisions" in the sense required by 28 U.S.C. § 1291
(conferring appellate jurisdiction over "final decisions" of the
district courts). See 28 U.S.C. § 1291 (2000); Vélez-Díaz v.
Vega-Irizarry, 421 F.3d 71, 77 (1st Cir. 2005).
One of Rivera's arguments, however, gives us reason to
pause -- namely, the argument that the court erred in not finding
that he was entitled to qualified immunity for his actions. This
presents a more difficult jurisdictional question, as the denial of
a claim of qualified immunity at the summary judgment stage is, in
limited instances, subject to an interlocutory appeal. As we wrote
in Díaz, "where . . . a defendant seeks the shelter of qualified
immunity by means of a pretrial motion and the . . . court denies
the requested relief, a different result sometimes obtains." Díaz,
112 F.3d at 3. More specifically, if the pretrial rejection of the
qualified immunity defense is based on a "purely legal" ground,
then the denial may be challenged through an interlocutory appeal.
Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003). What
cannot be appealed is a district court's rejection of the defense
based on the court's determination that "the pretrial record sets
forth a 'genuine' issue of fact for trial." Johnson v. Jones, 515
U.S. 304, 319-20 (1995); see also Vélez-Díaz, 421 F.3d at 77;
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Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 39-40 (1st Cir.
2004).5
To determine, then, whether or not we have jurisdiction
to consider Rivera's qualified immunity claim, we must examine the
grounds upon which the district court, in its order denying summary
judgment, rejected Rivera's qualified immunity argument. The
district court -- after laying out the "trifurcated inquiry" for
determining whether qualified immunity is available to a particular
defendant under § 1983, see Hatch v. Dep't for Children, 274 F.3d
12, 20 (1st Cir. 2001), and running through the first two prongs of
the analysis -- stated explicitly, with regard to the third prong,
that "[b]ecause there remains a disputed factual issue as to
whether Defendants' actions were motivated by Plaintiff's political
affiliation, Defendants' motion for summary judgment on this ground
is denied."6
5
We should point out that there does exist an exception to the
Johnson rule. A denial of qualified immunity because of factual
issues is still reviewable if qualified immunity is warranted on
the plaintiff's version of the facts together with facts that are
not disputed, Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996);
Rodríguez-Rodríguez, 391 F.3d at 40. No such situation, however,
is presented here.
6
Even if the district court was mistaken in its determination
that a disputed factual issue remained, we still would not have
jurisdiction to hear this appeal. See Rodríguez-Rodríguez, 391
F.3d at 40 (noting that "Johnson makes clear that this class of
legal rulings is not immediately appealable even if the district
court is mistaken in thinking that there was a genuine issue").
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Clearly, then, the district court declined to enter
summary judgment on Rivera's qualified immunity claim based on its
determination that "the pretrial record set[] forth a 'genuine'
issue of fact for trial." Johnson, 515 U.S. at 320. Accordingly,
pursuant to Johnson and its progeny, the district court's decision
regarding Rivera's qualified immunity claim may not be challenged
through an interlocutory appeal. Thus, as with Rivera's other
appellate claims, we do not have jurisdiction.
III. Conclusion
For the reasons stated above, we dismiss the appeal for
lack of appellate jurisdiction.
Dismissed.
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