United States Court of Appeals
For the First Circuit
No. 06-1881
TERESA TORRES-MARTÍNEZ; ISMAEL MORALES-MARRERO;
CONJUGAL PARTNERSHIP MORALES-TORRES,
Plaintiffs, Appellants,
v.
PUERTO RICO DEPARTMENT OF CORRECTIONS; MIGUEL PEREIRA, as
Administrator of the Puerto Rico Department of Corrections;
JAIME LÓPEZ-MARTÍNEZ; LOURDES ARCE; ELVIN ALICEA-IRIZARRY,
Defendants, Appellees,
JOHN DOE; JANE DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]
Before
Torruella and Lynch, Circuit Judges,
and DiClerico, Jr.* District Judge.
Rafael G. Martínez-Géigel, with whom Emilio E. Solé-De la Paz,
was on brief, for appellants.
Salvador J. Antonetti-Stutts, Solicitor General, with whom
Mariana Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, and Susana I. Peñagarícano-
Brown, Assistant Solicitor General, were on brief, for appellees.
April 24, 2007
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. Teresa Torres-Martínez
("Torres") sued Miguel Pereira (Administrator of the Puerto Rico
Department of Corrections, "Pereira"), Jaime López (Regional
Director of the Puerto Rico Department of Corrections, "López") and
other Puerto Rico Department of Corrections ("PRDOC") personnel in
their personal and official capacities (collectively, the
"Defendants") for political discrimination and violations of her
Fourteenth Amendment due process rights. She also asserted various
state-law claims. The district court granted summary judgment to
Defendants on all claims. Torres now appeals the entry of summary
judgment on her political discrimination and Fourteenth Amendment
claims against Defendants in their personal capacities. After
careful consideration, we affirm.
I. Background
Torres is a member of the New Progressive Party. She
began working for the Department of Corrections in January 1987 as
a Penal Records Technician. In 1992, Torres was appointed Director
of the Penal Records Division at the Ponce Correctional Complex at
a salary of $1,145 per month. In 1994, Torres was promoted to Head
of Personnel/Human Resources Coordinator, a "trust" position in the
Puerto Rico government,1 at a salary of $2,065 per month. In 2000,
1
A "trust" position is a job filled by political appointment in
which the holder of the job serves at the discretion of the elected
government. See P.R. Laws Ann. tit. 3, §§ 1349-1350 (2000)
(repealed 2004).
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the job classifications in PRDOC were reorganized, and Torres was
reclassified as a "Human Resources Supervisor." Torres appealed
the reclassification, and her title was restored to "Human
Resources Coordinator." In November 2000, the Popular Democratic
Party defeated the New Progressive Party in the gubernatorial
elections in Puerto Rico and took control of the government. With
the change in administration, Torres was dismissed from her trust
position and was reinstated as a career employee in the Ponce
division of PRDOC.2 López was her new supervisor. Torres's career
position was reclassified as a "Human Resources Coordinator," and
she received a salary increase to $2,256 per month. According to
Torres's job description, the Human Resources Coordinator:
performs executive level management work of
great responsibility and complexity including
planning, coordinating, directing, and
supervising a division of the Human Resources
Office or a program or activities that are
highly complex and specialized and require the
application of broad understanding of the
field of human resources. The employee may
act as technical or administrative assistant
to the Director of Human Resources in
comparable areas or functions in the
Corrections Administration or may be in charge
of supervising personnel transactions for a
region. He or she receives general
instructions from a superior and may supervise
2
Under Puerto Rico law at the time that Torres alleges
discrimination occurred, a career employee who was chosen to fill
a trust position had an absolute right to return to their career
position at the end of their term at the same salary and with the
same benefits they enjoyed before, and any benefits that may have
been awarded to the civil service position subsequently. P.R. Laws
Ann. tit. 3, § 1350(a) (2000) (repealed 2004).
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other personnel. The employee has discretion
to develop and execute the assigned tasks and
uses his or her judgment and criteria to
perform assigned work.
The job description also included twenty "work examples,"
indicating that a Human Resources Coordinator "[i]nterviews,
recommends, and selects personnel to be hired in his or her
division" and "[p]repares various complex letters and reports
related to the activities carried out in his or her division."
Torres claims that between 2000 and 2004, a number of her official
duties were performed by López and some of her co-workers. In
particular, Torres claims that she no longer "[made] request[s] for
personnel needs," "wr[ote] relocation or transfer letters,"
"wr[ote] requests [for] merit steps," or "[gave] orientation to new
employees." Torres conceded that these functions are not
exclusively assigned to her job, and that López could have
performed some of these functions in his job. However, Torres
claims that she was "left without duties," and resorted to
performing clerical work.
Torres filed suit against Defendants in the United States
District Court for the District of Puerto Rico on October 25, 2004.
Defendants filed a motion for summary judgment on February 10,
2006, arguing that Torres had failed to make out a case of
political discrimination or due process violations, and that in any
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case, they were entitled to qualified immunity. The district court
granted summary judgment to Defendants on April 3, 2006.3
II. Discussion
Torres appeals the district court's grant of summary
judgment on her political discrimination and due process claims.4
We review a grant of summary judgment "de novo, construing the
record in the light most favorable to the nonmovant and resolving
all reasonable inferences in that party's favor." Rochester Ford
Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002).
Federal Rule of Civil Procedure 56 provides that summary judgment
may be granted if "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). "A 'genuine' issue is one
that could be resolved in favor of either party, and a 'material
fact' is one that has the potential of affecting the outcome of the
case." Calero-Cerezo v. United States DOJ, 355 F.3d 6, 19 (1st
Cir. 2004). Furthermore, "[a]s to issues on which the summary
judgment target bears the ultimate burden of proof, she cannot rely
on an absence of competent evidence, but must affirmatively point
to specific facts that demonstrate the existence of an authentic
3
We do not reach the immunity issues because the district court
correctly awarded summary judgment to the defendants on the First
Amendment claim, and the Due Process claim fails to state a claim
at all.
4
Torres also argues that if either of these claims is reinstated,
her supplemental state-law claims should also be reinstated.
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dispute." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315
(1st Cir. 1995).
A. Political Discrimination
Employment decisions with respect to civil servants in
"career" positions may violate the First and Fourteenth Amendments
if they are motivated by an employee's "exercise of
constitutionally protected First Amendment freedoms," such as
membership in or activism on behalf of a political party. Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84
(1977). To establish a prima facie case of political
discrimination, a plaintiff must "show that his conduct was
constitutionally protected, and that this conduct was a
'substantial factor' -- or to put it in other words, that it was a
'motivating factor'" in an adverse employment decision. Id. at
287. In order to be redressable, an alleged adverse employment
decision must result "in conditions 'unreasonably inferior' to the
norm for that position." Rosario-Urdaz v. Velazco, 433 F.3d 174,
178 (1st Cir. 2006). The plaintiff bears the burden of persuasion
on the prima facie case. Peguero-Moronta v. Santiago, 464 F.3d 29,
45 (1st Cir. 2006). Once a plaintiff has made out a prima facie
case of political discrimination, the burden then shifts to the
state to show "by a preponderance of the evidence that it would
have reached the same decision as to [plaintiff's employment] even
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in the absence of the protected conduct." Mt. Healthy, 429 U.S. at
287.
Torres has not established a prima facie case of
political discrimination because the evidence she submitted fails
to show that she suffered an "adverse employment decision." We
begin by noting that throughout the period during which Torres
alleges she was subject to political discrimination, Torres
maintained her position, the same or a substantially similar title,
and her salary. In fact, Torres received a salary increase that
was awarded to all career employees. Thus, Torres's claim is not
based on her termination or any loss of benefits.
Torres claims instead that she was subject to a more
"subtle" form of discrimination in that Defendants completely
deprived her of any work duties. See, e.g., Rodríguez-Pinto v.
Tirado-Delgado, 982 F.2d 34, 40 (1st Cir. 1993) (finding that
plaintiff had made out a prima facie case of political
discrimination where "since his reassignment, plaintiff only has
been assigned clerical tasks which take ten minutes a day to
perform"). However, Torres provides almost no evidence to support
this allegation, and many of her own statements contradict it. In
Torres's own deposition, she claimed that López stripped her of
only four of over twenty-seven duties. The evidence and
depositions that Torres submitted in connection with her Opposition
to Defendant's Motion for Summary Judgment add little more to her
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claims. Gerardina Rosario Borrero, a secretary in Torres's office,
stated that López began conducting job candidate interviews.
However, Rosario Borrero admitted that this was within the purview
of López's job description, and stated only that she felt that
López "should make [Torres] aware [of the interviews] because she
is the human resources coordinator." Rosario Borrero also added
that López was supposed to ask Torres for copies of employee
evaluations in writing, but that instead he would often verbally
ask the employee's supervisor for the evaluation. Another
employee, Luis A. Blasini Rodríguez, indicated that he had heard
rumors that Torres was not properly introduced at meetings, that
Torres was no longer participating in "new appointments," and that
the human resources office generally was no longer copied on salary
change reports. Carmen M. Martínez Bernard stated only that Torres
would assist her with her work when Torres did not have her own
work to do. Finally, Gilda M. Santiago Franceschi stated that she
believed that López was hiring employees without Torres's
participation. Notably, Torres does not claim that any of the
duties of which she was allegedly deprived were exclusive to her
position,5 and she admits that all of these duties were part of
López's job description as well.
5
In fact, Torres explicitly stated in her brief before this court
that "Plaintiff agrees that the duties taken away from her could be
performed by, and fell within the authority of, other employees,
including that of defendant-appellee [López]." Appellant's Br. at
18.
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Thus, making all possible inferences in favor of Torres,
the most that she has shown is that her boss exercised his
prerogative to perform three or four duties which he shared with
her. This is not a case where Torres states that her duties have
been "substantially narrowed." Agosto-de-Feliciano v. Aponte-Roque,
889 F.2d 1209, 1219 (1st Cir. 1989) (en banc). Nor does Torres
claim that "all [her] work duties had been assigned to others" for
a substantial period of time. Díaz-Gandía v. Dapena-Thompson, 90
F.3d 609, 615 (1st Cir. 1996) (finding that such a claim might
constitute an adverse employment decision for the purposes of the
Veterans Reemployment Rights Act of 1968) (emphasis in original);
see also Acevedo-Luis v. Pagán, 478 F.3d 35 (1st Cir. 2007) (noting
plaintiff's allegations that he was subject to an adverse
employment decision because "he was assigned no substantive tasks,
had no one to supervise, was given no office space, and had only a
few menial duties" for three and a half years). Rather, López's
decision to exercise more of his duties left Torres with most of
her original job functions and perhaps an occasional spell of free
time. These perceived slights and alleged alterations in duties
are not enough to demonstrate that Torres's working conditions were
"substantially inferior" to those she enjoyed before the alleged
political discrimination. See Rosario-Urdaz v. Velazco, 433 F.3d
174, 179 (1st Cir. 2006) (finding no adverse employment decision
where an employee claimed she was deprived of a few employment
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duties). Because Torres did not suffer a cognizable "adverse
employment decision," the district court was correct to grant
Defendants summary judgment on the political discrimination claim.
B. Due Process Violation
The Fourteenth Amendment provides that no state shall
"deprive any person of . . . property, without due process of law."
Torres does not claim to have been deprived of state employment,
her title, or her salary; she claims only to have been deprived of
duties pertaining to her position. Thus, "[t]he threshold question
we must first address is whether [Torres] had a property interest"
in her job duties. Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145,
155 (1st Cir. 2006). We look to "an independent source such as
state law" to determine whether Torres had such an interest.
Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 6 (1st Cir. 2000)
(internal quotation marks omitted) (quoting Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972)); see also Duriex-Gauthier
v. López-Nieves, 274 F.3d 4, 11 (1st Cir. 2001) ("The due process
claim turns on whether Duriex-Gauthier had a property interest in
his job, which is a question of Puerto Rican law."). The Puerto
Rico Supreme Court has said that public employees have no property
interest in their job duties. Consejo de Educación Superior de la
Universidad de P.R. v. Rosselló González, 137 P.R. Dec. 83, 110
(1994); see also Rosado de Vélez v. Zayas, 328 F. Supp. 2d 202, 212
(D.P.R. 2004) ("[U]nder Puerto Rico law, public employees have a
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property interest in their continued employment, not in the
functions they perform."); accord Ruiz-Casillas v. Camacho-Morales,
415 F.3d 127, 134 (1st Cir. 2005). Therefore, in allegedly taking
away some of Torres's job duties, Defendants have not deprived
Torres of any property interest. As such, plaintiffs have failed
to state a claim of denial of due process. See Kauffman v. P.R.
Tel. Co., 841 F.2d 1169, 1176 (1st Cir. 1988).
III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
Affirmed.
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