Montfort-Rodriguez v. Rey-Hernandez

United States Court of Appeals
For the First Circuit

No. 06-1624

DR. IVONNE MONTFORT-RODRÍGUEZ, JUANITA FLORES-DE-SIACA,
CARMEN RIVERA-RIVERA, MARÍA COSS-MARTÍNEZ,

Plaintiffs, Appellants,

v.

CESAR A. REY-HERNÁNDEZ, in his individual capacity; DR. RAFAEL
ARAGUNDE, in his official capacity as Secretary of the Department
of Education of the Commonwealth of Puerto Rico; DEPARTMENT OF
EDUCATION OF THE COMMONWEALTH OF PUERTO RICO,

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

Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.

Raúl Barrera-Morales, with whom Hernandez Sanchez Law Firm was
on brief, for appellants.
Courtney R. Carroll, with whom Roberto Sanchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eduadro A. Vera Ramirez, Eileen Landrón Guardiola and Landrón Vera,
LLP were on brief, for appellees.

October 18, 2007
 LIPEZ, Circuit Judge. Appellants are four employees of

the Puerto Rico Department of Education who claim that they were

unconstitutionally demoted in 2001 based on their political

affiliation. They brought this suit against the Department of

Education and its Secretary, César Rey Hernández ("Rey"), a member

of the Popular Democratic Party ("PDP").1 Appellants, all members

of the New Progressive Party ("NPP"), were removed from trust

positions and reassigned to their preexisting career employee

status within days after Rey assumed his position following the

PDP's 2000 electoral victory.2 The district court granted summary

judgment for defendants, concluding that appellants failed to offer

sufficient admissible evidence to establish a prima facie case of

political discrimination. Although the record is meager and the

case is therefore close, we conclude that appellants met their

burden to generate a genuine issue of material fact on the elements

of their claim. Accordingly, we vacate the judgment and remand for

further proceedings.

1
Appellants filed their action in March 2001 seeking
declaratory and injunctive relief and damages under various
provisions of federal law, including 42 U.S.C. § 1983, based on
alleged violations of the First, Fifth and Fourteenth Amendments to
the United States Constitution, as well as under the Commonwealth's
Public Service Personnel Act, P.R. Laws Ann. tit. 3, §§ 1301-1431
(2000); id. tit. 31, § 5141 (1990). The Personnel Act was repealed
in 2004 and replaced by the Public Service Human Resources
Administration Act, P.R. Laws Ann. tit. 3, §§ 1461-1468p. We apply
the law that was in effect at the time the complaint was filed.
2
Rey remains a defendant in his individual capacity, but was
replaced in his official capacity by the current Secretary, Rafael
Aragunde.
 I.

Defendant Rey took over as Secretary of Education at the

beginning of January 2001.3 Shortly thereafter, he sent letters

notifying the plaintiffs that, effective January 15, their current

trust appointments would cease and they would be reinstated to

their previous career positions;4 the letters gave no reason for

the changes. Before the transfers, plaintiff Ivonne Montfort-

Rodríguez ("Montfort") was Director of the Center of Investigations

and Ethnographic Innovations, plaintiff Juanita Flores-de-Siaca

("Flores") was Facilitator of the Education Reform Institute for

the San Juan region, plaintiff Carmen Rivera-Rivera ("Rivera") was

Director of the Puerto Rico Statewide Systemic Initiative for

Science and Mathematics, and plaintiff María Coss-Martínez ("Coss")

3
The complaint alleges that Rey was named Secretary of the
Department on or around January 2, 2001. In her deposition,
plaintiff Ivonne Montfort-Rodríguez stated that she believed –
based on news reports – that his first day at the Department was
January 8. Plaintiff María Coss-Martínez also stated in a
deposition that Rey "arrived at the Department on January 8th."
4
Puerto Rico law distinguishes between "career" employees and
"trust" or "confidential" employees. Career employees "may only be
removed from their positions for just cause and after due filing of
charges," P.R. Laws Ann. tit. 21, § 4554(b) (2001). Confidential
employees "shall be of free selection and removal," P.R. Laws Ann.
tit. 3, § 1350 (2000). Under the Personnel Act, "a career employee
who accepts a trust position has an absolute right to be reinstated
to a career position equal to the last position she held as a
career employee." González-de-Blasini v. Family Dep't, 377 F.3d
81, 84 n.1 (1st Cir. 2004) (citing P.R. Laws Ann. tit. 3, §
1350(a)).

-3-
was Director of the Physical Education Program. The reassignments

resulted in lower salaries for all four plaintiffs.

Rey testified in his deposition that when he took over as

Secretary he asked Lizzette Pillich Otero, the newly appointed

Assistant Secretary for Human Resources, to prepare a list of the

Department's trust employees so that he would "have an idea of how

many trust positions there were." Neither Rey nor Pillich examined

personnel files in compiling the list,5 and Rey testified that he

had no knowledge of the particular job responsibilities for any

plaintiff. In his deposition, Rey gave the following explanation

for generating the list and eliminating positions:

Positions in the organigram [sic] were
evaluated based on the need and based in the
necessity. In fact, we evaluated all the
organigram of the whole organization, not just
the trust positions, we re-arranged the whole
administration.6

Rey also stated in his deposition that he was unaware of

plaintiffs' political affiliations. Plaintiffs maintain that he

5
Pillich stated in her deposition that she did not see the
plaintiffs' personnel files until 2002. Another Human Resources
deponent, Hilda Cortés Figueroa ("Cortés"), testified that she
conducted a study of trust positions that consisted of identifying
"which are the positions, who holds them or held them, and the
status of the position," as well as what positions those trust
employees held in the career service.
6
At oral argument, counsel asserted that the Department,
which she said had more than 72,000 employees, was encountering
"budgetary problems" and "rumors of scandal" and was an agency "in
trouble." Appellees' brief invokes neither budget issues nor
possible scandal as a basis for a reorganization, and we likewise
found no reference in the record to such concerns.

-4-
must have known their NPP status because their involvement in the

party was common knowledge throughout the Department and their

trust positions during the prior NPP administration

circumstantially revealed their affiliation with that party.

Plaintiffs further assert that they were replaced by members of the

PDP, although that allegation is based partially on hearsay.7

The defendants' motion for summary judgment was referred

to a magistrate judge, whose Report and Recommendation concluded

that the plaintiffs' evidence was inadequate to survive defendants'

motion for summary judgment because some of the facts essential to

a finding of political discrimination – that Rey knew plaintiffs'

political affiliations and replaced them with members of his own

party – were supported only by speculation or hearsay. The

district court agreed that plaintiffs had not met their burden to

establish a prima facie case of political discrimination, having

failed to provide "admissible evidence, either direct or

circumstantial, of political discrimination on the part of

defendants." Accordingly, the court granted defendants' motion for

7
Each appellant identified her successor, but two of them
offered only hearsay knowledge of the successor's affiliation with
the PDP. Appellant Flores named her replacement as Caribel Rivera
Casanova and identified Rivera as a member of the PDP. Appellant
Coss stated in her deposition that she knew that her replacement,
Jorge Colón, is a PDP member.

-5-
summary judgment and dismissed the case with prejudice.8 The court

subsequently denied plaintiffs' motion to alter or amend judgment.9

II.

A. Standard of Review and Burden of Proof

We review the district court's summary judgment ruling de

novo, taking the record facts and all inferences to be drawn from

them in the light most favorable to the nonmoving party. Aguiar-

Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir. 2006).

Summary judgment is appropriate when the record reveals no genuine

issue as to any material fact, and the undisputed facts establish

the moving party's entitlement to judgment as a matter of law.

Fed. R. Civ. P. 56(c). A genuine issue is one that "'may

reasonably be resolved in favor of either party' at trial," Cordi-

Allen v. Conlon, 494 F.3d 245, 249 (1st Cir. 2007) (quoting Garside

v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)), and

"[s]ummary judgment 'should be granted only where . . . [further]

inquiry into the facts is not desirable to clarify the application

8
Defendants asserted a number of other grounds on which they
claimed they were entitled to summary judgment, including that
appellants held positions for which political affiliation was an
appropriate criterion. That particular argument has not been
pursued on appeal because the job descriptions necessary to
evaluate the positions are not in the record. See, e.g., Valdizán
v. Rivera-Hernandez, 445 F.3d 63, 65-66 (1st Cir. 2006) (examining
job description to determine whether political compatibility was an
appropriate qualification). Defendants may, of course, pursue this
aspect of the case on remand if they so desire.
9
Given our disposition on the summary judgment issue, we need
not further consider this ruling.

-6-
of the law,'" Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205

(1st Cir. 2006) (quoting Stevens v. Howard D. Johnson Co., 181 F.2d

390, 394 (4th Cir. 1950)).

It is well established that "[g]overnmental employees who

are not in policy-making positions of confidence are shielded from

adverse employment decisions based on their political

affiliations." Borges Colón v. Román-Abreu, 438 F.3d 1, 14 (1st

Cir. 2006); see also Rutan v. Republican Party of Ill., 497 U.S.

62, 64-65 (1990). Given that defendants do not argue on appeal

that plaintiffs were policymakers whose job responsibilities

require political compatibility with the PDP administration, we

focus on whether a jury could infer from the evidence that Rey knew

of the plaintiffs' political affiliation and replaced them because

of it.10 See Marrero-Gutierrez v. Molina, 491 F.3d 1, 9 (1st Cir.

2007) ("To establish a prima facie case, a plaintiff must show that

party affiliation was a substantial or motivating factor behind a

challenged employment action."); Vazquez-Valentín v. Santiago-Díaz,

385 F.3d 23, 30 (1st Cir. 2004) (noting requirement of "'sufficient

direct or circumstantial evidence from which a jury reasonably may

infer that plaintiff['s] constitutionally protected conduct – in

10
Although plaintiffs were denominated trust employees, that
label alone does not subject them to patronage dismissal. See
Morales-Santiago v. Hernández-Pérez, 488 F.3d 465, 468 n.4 (1st
Cir. 2007) ("[M]any, though not all, trust positions are
policymaking positions into which a newly elected administration
may place members of its party without violating the First
Amendment.") (citing cases).

-7-
this case, political affiliation with the NPP – was a "substantial"

or "motivating" factor behind [her] dismissal'" (quoting Acevedo-

Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993))), vacated and

remanded on other grounds, 126 S. Ct. 1329 (2006); González-de-

Blasini v. Family Dep't, 377 F.3d 81, 85 (1st Cir. 2004).

Plaintiffs have the burden of proving the link between their

adverse treatment and their politics. Peguero-Moronta v. Santiago,

464 F.3d 29, 45 (1st Cir. 2006).

With these parameters in mind, we consider the evidence

thus far developed by the parties.

B. Assessing the Prima Facie Showing of Political Discrimination

Defendants urge us to accept the magistrate judge's

conclusion that the evidence presented by plaintiffs is inadequate

to show either Rey's knowledge of their politics or a deliberate

decision to remove them based on their NPP status. Defendants

further assert that even the plaintiffs' evidence reveals that the

jobs they previously held were modified after their departures –

demonstrating that the motivation behind the transfers was not

impermissible political discrimination, but a permissible

streamlining of the department's operations. They specifically

invoke the "changeover defense," which relies on the prerogative of

newly elected officials to make politically neutral changes to

improve departmental operations after a careful study of existing

personnel and business practices. Members of the outgoing

-8-
administration's political party inevitably will be affected by

such changes. See, e.g., Borges Colón, 438 F.3d at 6 (noting that

the effect of a new administration's policy choices may fall most

heavily on the party that has lost power); Agosto-de-Feliciano v.

Aponte-Roque, 889 F.2d 1209, 1220-21 (1st Cir. 1989) (en banc).

Although the changeover defense ultimately may prevail,

our close review of the record reveals an adequate circumstantial

basis for concluding both that Rey was aware of plaintiffs'

political allegiance to the NPP and that plaintiffs were replaced

with PDP loyalists. Most significantly, the record lacks evidence

of a considered appraisal of jobs and responsibilities that could

substantiate a changeover defense. On this record – given both its

contents and its gaps – we believe a jury reasonably could find

political discrimination.

1. The Evidence of Political Affiliation

Although plaintiffs have produced no direct evidence that

Rey was aware of their affiliation with the NPP, the record

contains circumstantial evidence that could support such a

finding. Pillich testified that she believed all of the trust

positions on the list that she compiled for Rey, including those

held by plaintiffs, were occupied by individuals appointed by the

prior administration "because the last administration was there for

eight years." This statement supports the inference that Pillich

assumed the individuals in those positions probably were affiliated

-9-
with the former NPP administration. This is particularly so given

that Pillich further indicated that political affiliation with the

newly elected PDP administration "may be one" of the factors

necessary for those trust positions to ensure that the individuals

in the jobs could "collaborate . . . in th[e] educational project"

of the new administration.11 Although Pillich emphasized that

political affiliation was not a "determining" factor, her testimony

at least suggests that plaintiffs were identified as NPP members

and were subject to removal for that reason.12 It is a small

11
As noted earlier, we do not in this appeal consider the
defense that political affiliation was an appropriate criterion for
appellants' positions. However, testimony in the record suggesting
that appellants' supervisors were aware of, and considered, their
affiliation is also relevant to assessing the prima facie case of
political discrimination.
12
The appendix on appeal, which was provided by the appellees,
contained only partial deposition transcripts. We requested
several original exhibits from the district court, but these, too,
consisted of excerpts from the depositions. The portions of
Pillich's deposition on which we rely are reproduced below:

Q. [I]n the case of the plaintiffs, was their political
affiliation necessary to occupy their positions?
A. Their political affiliation?
Q. Yes.
A. If they believe in the educational project and the
Secretary had the faculty to . . . hire people that he
knew that may collaborate with him in that educational
project of that new administration . . . which he
proposed in his government program.
. . .
Q. . . . That is, when it was talked about political need
it was . . . that it was not needed, that is, that it was
not a requirement, that is what you mean?
A. No, no, no. No, that is not what I want to say. That
it was not determining.
. . .

-10-
inferential step from Pillich's testimony to Rey's own knowledge.

That is, we think it fair to infer that Rey, a PDP political

appointee who asked Pillich to generate the list of trust employees

as soon as he took over the Department, shared Pillich's

assumptions regarding the affiliations of all trust-classified

incumbents.13

A. But if they held positions in the service of trust, it
is assumed that . . . to hold positions in services of
trust you have to work . . . you have to substantially
collaborate in the implementation of the public policy,
because otherwise . . .
Q. Then it was . . . That is why the political
affiliation was one of the factors.
A. That is not my answer.
Q. No, but I ask you, I ask you . . .
A. I am telling you . . .
. . .
A. I repeat that it was not a determining factor . . .
Q. But it was one of the factors.
. . .
A. Well, if it [was] not determining you should
understand that no.
Q. That it is one of the factors or that
(unintelligible).
A. That it may be one.
Q. Okay. Do you know if they had confidential
information, in their positions, as part of their
performance in their positions, they had . . . obtained
confidential information?
A. No, I don't know.
Q. Well, that being the case, I am not going to present
any more questions.

In her deposition, Cortés, the other Human Resources representative
who surveyed the trust positions, stated that she was not aware of
the plaintiffs' duties, but noted in response to questioning: "I
don't believe the political affiliation is a requisite for any
position."
13
In his deposition, Rey stated: "I asked for an inventory of
the trust positions to have an idea of how many trust positions

-11-
 Taken in the light most favorable to plaintiffs,

Pillich's deposition testimony also inferentially supports

plaintiffs' allegation that all of the NPP trust employees

identified on the list that she compiled were replaced by PDP

members who could be counted on to "collaborate" in the new

administration's "educational project." Pillich insisted that

loyal party members were needed to support plaintiffs' positions.

Interestingly, defendants offered no evidence to rebut such an

implication, despite the fact that such evidence would probably be

obtainable from the replacements identified by the plaintiffs.

Unlike cases in which we have noted the plaintiffs' failure to

provide the names of their replacements, see, e,g., Vázquez-

Valentín, 385 F.3d at 38; Figueroa-Serrano v. Ramos-Alverio, 221

F.3d 1, 8 (1st Cir. 2000), the plaintiffs here have done so.

2. Circumstantial Evidence of Motivation

In seeking to justify plaintiffs' removals as part of a

natural transition from one administration to the next – the

changeover defense – defendants attempt to downplay the

significance of the plaintiffs' political affiliation and that of

their successors. This effort falters on the record before us.

Plaintiffs were reassigned to their lower level career positions,

without explanation, about a week after Rey assumed the Secretary's

there were." He explained that the purpose of the list was "[t]o
get to know the trust positions, their importance and to be able to
have them available."

-12-
role. Although Rey stated in his deposition that the positions in

the organization were evaluated based on need, the record contains

no evidence – other than Rey's bald assertion that "we re-arranged

the whole administration" – of a considered plan to restructure the

Department of Education. Both Rey and Pillich acknowledged that,

at the time the changes were made, they knew neither what

plaintiffs' duties were nor how well they had performed their

jobs.14 See Agosto-de-Feliciano, 889 F.2d at 1221-22 ("In

evaluating the changeover defense, the factfinder should take into

account, inter alia, whether the actions occurred precipitately or

after some opportunity for appraisal, whether they seem connected

with previously announced goals, and whether they flowed from an

organizational or procedural study." (footnote omitted)).

The quick terminations, with no attention to either job

functions or performances, are strongly suggestive of pure

political motivation. See id. at 1222 n.12 ("[C]hanges made within

days of a new administration's ascent to power ordinarily would be

more likely to reflect an improper political housecleaning than

would changes made months later, after the new officials have had

14
Rey said that he had not examined the plaintiffs' personnel
files because "the duties of the director of the Department of
Education are more complex than that." Although he signed the
letters in which plaintiffs were informed of their removals, he
said he had no knowledge of who recommended that the plaintiffs be
transferred. Pillich testified that she began her position as
Assistant Secretary for Human Resources on January 9; three of the
plaintiffs' reassignment letters are dated January 12. The fourth
is undated but contains the same termination date of January 15.

-13-
a chance to evaluate how to reorganize their departments to best

meet their policy goals."). Indeed, the record permits an

inference that the defendants mistakenly believed they could demote

all NPP trust employees without regard to their policymaking

functions. Moreover, the evidence was equivocal as to whether the

nature of plaintiffs' positions changed after they were removed,

permitting a jury to conclude on this record that the personnel

actions were made for political reasons rather than to improve

efficiency. There was some evidence of task realignment:

Montfort's former secretary testified in her deposition that the

office functioned differently "[b]ecause now it's the director who

makes the decisions . . . not like it was done before." In

addition, Flores stated that the Institute that she led "doesn't

operate as before." However, Flores also observed that her old

work team is carrying out the same functions that she performed.

Her secretary agreed, testifying that Flores's successor does not

do things the same way as Flores, but that "[s]he has the same

functions."15

The absence of evidence of a comprehensive or carefully

studied effort at reform distinguishes this case from a number of

others in which we have rejected claims of political discrimination

following a change in administration. For example, in Aguiar-

15
We found nothing in the record concerning possible changes
in the work performed by the successors to Coss and Rivera.

-14-
Carrasquillo, the defendant had directed an investigator to conduct

an audit of all recent employment actions to evaluate their

compliance with department regulations. We concluded there that it

did not matter that NPP members were heavily affected:

[I]f uniformly applied personnel practices,
predicated on legitimate reasons, result in
terminations, those terminations are not
unconstitutional because those affiliated with
one political party are disproportionately
impacted. It is in the nature of a change in
administration that job actions by the new
party will have a disparate impact on members
of the outgoing party.

445 F.3d at 26 (quoting Sánchez-López v. Fuentes-Pujols, 375 F.3d

121, 140 (1st Cir. 2004) (internal quotation marks omitted)).

Similarly, in Vázquez-Valentín, the challenged reassignments

occurred following defendants' review of the personnel files of all

1,300 or so municipal employees. 385 F.3d at 26; see also Vélez-

Rivera v. Agosto-Alicea, 437 F.3d 145, 149 (1st Cir. 2006)

(affirming summary judgment for defendants where an independent

contractor conducted an audit to assess the legality of all

personnel transactions during a particular period); González-de-

Blasini, 377 F.3d at 84 (affirming summary judgment for defendants

where their office conducted an audit of its Human Resources

Department following the change in administration).

3. Summary of Evidence

In sum, the admissible evidence and the plausible

inferences that a jury could draw from it suffice to meet

-15-
appellants' burden to show a genuine factual dispute as to whether

Rey knew of their NPP affiliation and replaced them with his

political allies based solely on that association. The deposition

testimony of Rey and Pillich, when viewed in context, renders this

case more circumstantial than speculative. See, e.g., Peguero-

Moronta, 464 F.3d at 46 ("[W]here 'the plaintiffs were all members

of the adverse party . . . their superiors knew this, and . . .

their duties were given to active supporters of the party in

power,' we found there was ample evidence for the plaintiffs' case

to avoid summary judgment." (quoting Acosta-Orozco v. Rodriguez-de-

Rivera, 132 F.3d 97, 101 (1st Cir. 1997))); González-de-Blasini,

377 F.3d at 86 (recognizing that a "'prima facie case for political

discrimination may be built on circumstantial evidence'" so long as

plaintiffs have "generated 'the specific facts necessary to take

the asserted claim out of the realm of speculative, general

allegations'" (quoting Kauffman v. P.R. Tel. Co., 841 F.2d 1169,

1173 (1st Cir. 1988))). The evidence here, "though thin, point[s]

in different directions; that is, it tend[s] to support conflicting

inferences. Summary judgment cannot be predicated on so

vacillatory a record." Mandel, 456 F.3d at 207; see also In re

Varrasso, 37 F.3d 760, 764 (1st Cir. 1994) (holding that a court

faced with competing plausible inferences may not make its choice

"under the banner of summary judgment").

-16-
 The judgment of the district court is therefore vacated,

and the case is remanded for further proceedings consistent with

this opinion. We take no view of the propriety of summary judgment

on a more fully developed record. Costs are taxed in favor of the

appellants.

So ordered.

-17-