United States Court of Appeals
For the First Circuit
No. 09-2635
ELSIE RODRIGUEZ-SANCHEZ, et al.,
Plaintiffs, Appellants,
v.
MUNICIPALITY OF SANTA ISABEL, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Frank D. Inserni Milam, with whom Carlos J. Morales Bauza was
on brief, for appellants.
Jorge Martínez-Luciano, with whom Johanna M. Emmanuelli-
Huertas was on brief, for Municipality of Santa Isabel.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Irene S. Soreta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief, for Enrique H.
Questell-Alvarado and Natalie Rodríguez-Cardona.
September 29, 2011
LIPEZ, Circuit Judge. Sixty-one terminated employees of
the Municipality of Santa Isabel challenge the district court's
entry of summary judgment against them on their claims for
deprivation of due process and political discrimination, brought
under 42 U.S.C. § 1983. After careful consideration of the record,
we affirm.
I.
A. Factual Background
In the Puerto Rico general elections of November 2004,
Enrique Questell-Alvarado ("Questell"), a member of Puerto Rico's
New Progressive Party ("NPP"), was elected Mayor of the
Municipality of Santa Isabel ("the Municipality"). He took office
on January 10, 2005. In February 2005, Mayor Questell appointed
Natalie Rodríguez-Cardona ("Rodríguez") to be director of the
city's Human Resources Department.
Prior to Mayor Questell's election, the Popular
Democratic Party ("PDP") had been in power in Santa Isabel for
eight consecutive years. The 2004 mayoral election was hotly
contested, as Mayor Questell bested the incumbent, PDP-affiliated
Mayor, Ángel Sánchez. The tension between the parties carried over
into the transition process, culminating in Mayor Questell filing
a writ of mandamus in a Puerto Rico court in December of 2004 to
compel the outgoing Mayor's participation in the transition.
At the time of Mayor Questell's election, the appellants
were all employed by the Municipality of Santa Isabel. Twenty-one
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of the appellants were employed in career positions, akin to civil
service employment, while the remainder were temporary or
transitory employees, or were employed under Puerto Rico's Law 52,
which authorizes the Commonwealth of Puerto Rico to fund municipal
employee salaries in order to subsidize locally managed programs
and ameliorate unemployment. See Acevedo-Feliciano v. Ruiz-
Hernández, 447 F.3d 115, 117 (1st Cir. 2006).
In January 2005, Mayor Questell hired an independent
accounting firm to evaluate the state of Santa Isabel's budget.
The firm produced a "Transition Report" in February1 that
evaluated the Municipality's financial status at the close of the
2004-2005 fiscal year. That report indicated that 82% of the
Municipality's budget was consumed by payroll and benefits for
municipal employees, leaving only 18% of the budget for other
expenditures. The report further indicated that the outgoing
administration had spent more than the allocated 50% of the
Municipality's budget for the first half of the 2004-2005 fiscal
year, in violation of Puerto Rico law, and that, having
underestimated expenses and overestimated revenue, the outgoing
administration left the Municipality with the functional equivalent
of 27% of that budget. According to audits performed by the Puerto
1
The Transition Report is not itself in the record, but an
October 5, 2005, letter from the accounting firm to Mayor Questell
summarizes its findings and sets the date of the report's
presentation at February 15, 2005. In his affidavit, Mayor
Questell confirmed that he received the Transition Report on
February 15.
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Rico Comptroller's Office, the Municipality had accumulated a
budgetary deficit of $7,261,639. The audits also showed that Santa
Isabel had more municipal employees during the 2004-2005 fiscal
year than in any of the six previous fiscal years.
In response to the report, the defendants began
terminating individual employees as early as March 30, 2005. In
June 2005, the contracts of numerous temporary employees expired
and were not renewed. That same month, the Santa Isabel Municipal
Legislature passed Municipal Ordinance #28 ("Ordinance 28"), which
approved a broad plan to lay off, transfer, or demote municipal
employees in accordance with the needs of the Municipality and the
availability of municipal funds. Ordinance 28 mandated that "the
least efficient employees will be the first to be dismissed" unless
the Municipality lacked valid information about employee
performance. If such information was lacking, Ordinance 28
required employee terminations to be based exclusively on
seniority. Mayor Questell signed Ordinance 28 into law on June 27,
2005, at which time it was posted on bulletin boards in every
department of the Municipality.
As of June 2005, the Municipality did not have a reliable
system for evaluating the job performance of its career employees.
The previous Mayor had signed into law an ordinance "to enact the
implementation of an evaluation and motivation system for Santa
Isabel municipal employees." According to a certification signed
by Mayor Questell, however, the evaluation system had never been
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used. A municipal audit conducted in 2005 further confirms this
fact.
On August 1, 2005, in conformance with the procedural
requirements of Ordinance 28, the Municipality's Human Resources
Department provided each career employee with a written calculation
of his or her years of service based on a review of the employee's
personnel file.2 The notice explicitly referenced Ordinance 28,
and it advised employees of their right to submit a request for
corrections to the calculation. Nineteen municipal employees,
including six plaintiffs in this case, exercised this right. The
Human Resources Department produced an amended seniority list,
copies of which were posted on bulletin boards at Santa Isabel's
City Hall.
On September 1, 2005, Mayor Questell ordered Rodríguez to
perform an evaluation of the existing positions within the
Municipality and to submit her recommendation as to the number of
positions that could be eliminated in order to alleviate the
budgetary deficit. On September 12, Rodríguez informed Mayor
Questell by letter that eighty-five job posts could be eliminated
from within the Municipality. The letter stated that this number
was aggregated from information provided by the managers or
directors of nine municipal departments when asked about the
positions whose elimination would cause "the less severe impact" on
2
It is undisputed that Mayor Questell did not have any
involvement in the review of personnel files or in this
notification process.
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the provision of municipal services. It did not identify the
employees who occupied the positions that would be eliminated, but
merely stated how many of each type of municipal job the department
managers considered expendable.
On September 15, Mayor Questell ordered Rodríguez to
eliminate forty-six of the eighty-five positions recommended.
According to an affidavit signed by Rodríguez, she did not have any
personal involvement in deciding which jobs within the Municipality
would be eliminated. Mayor Questell did not review any personnel
files or make any individualized determinations before issuing this
order, nor did he discover the identities of the terminated
employees until their termination letters had been prepared.3
Within each job type, Mayor Questell ordered that the dismissals
were to be based strictly on seniority.
On October 17, the Municipality approved a municipal
ordinance that amended Ordinance 28 by allowing the Municipality to
consider other alternatives to employee terminations if financially
viable. The next day, as rumors of imminent layoffs spread, a
group of municipal employees politically affiliated with the PDP,
including many of the plaintiffs in this case, gathered in front of
Santa Isabel City Hall to protest. Several NPP-affiliated
3
The order from Mayor Questell employed the same position-
focused identification convention as had the recommendation letter
by Rodríguez. For example, Mayor Questell ordered the termination
of three Nurse positions (three had been recommended), eleven
Office Clerk I positions (twenty-two had been recommended), and
zero Janitor positions (six had been recommended).
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employees who remained inside City Hall mocked and laughed at the
protesters.
On the day of the protests, written termination notices
were provided to the selected career employees of the Municipality,
including the plaintiffs. The notices advised that the
terminations were to take effect in 30 days. They also informed
employees of their right to appeal the termination to the Puerto
Rico Appellate Commission of the Human Resources System. Nineteen
career employees appealed their terminations through this process.4
B. Procedural History
In June 2006, the sixty-one appellants, along with
thirty-seven other plaintiffs, filed this civil rights suit in
federal district court, pursuant to 42 U.S.C. § 1983. The
complaint alleged that the defendants had unconstitutionally
terminated the plaintiffs on account of their political affiliation
with the PDP, and had failed to provide those plaintiffs who had
been career employees, including twenty-one of the appellants here,
with a pre-termination hearing to which they were constitutionally
entitled. The plaintiffs also brought supplemental state tort
claims under articles 1802 and 1803 of the Puerto Rico Civil Code,
P.R. Laws Ann. tit. 31, §§ 5141-5142.5
4
The outcome of those appeals is not reflected in the record.
5
The plaintiffs' complaint encompassed numerous other claims
that were dismissed at an early stage of the litigation pursuant to
Federal Rule of Civil Procedure 12(b)(6). Additionally, the claims
of nine plaintiffs were dismissed because they failed to attend
scheduled depositions. Those dismissals are not before us.
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In due course, the defendants moved for summary judgment
on all counts against all plaintiffs. The district court granted
that motion in part. In its opinion and order, the district court
held that the due process claims of the plaintiffs who had been
career employees were foiled by the Parratt-Hudson doctrine.6 The
court characterized the defendants' failure to provide those
plaintiffs with a pre-termination hearing as a "random and
unauthorized deprivation." It then reasoned that the plaintiffs'
claims could not succeed because they had failed to show that the
available post-deprivation remedies were inadequate. The court
also rejected the political discrimination claims of all but
twenty-three plaintiffs because they had not shown that Mayor
Questell, who made the ultimate decision to terminate their
employment, knew of their political affiliation. The court denied
the motion with respect to the political discrimination claims of
the twenty-three plaintiffs whose political affiliation Mayor
Questell admitted to knowing in his deposition.7
6
As we recently noted, "Parratt–Hudson provides that, where
'a deprivation of a property interest is occasioned by random and
unauthorized conduct by state officials, . . . the due process
inquiry is limited to the issue of the adequacy of postdeprivation
remedies provided by the state.'" San Gerónimo Caribe Project,
Inc. v. Acevedo-Vilá, No. 09-2566, 2011 WL 2436607, at *5 (1st Cir.
June 17, 2011) (alteration in original) (quoting Chmielinski v.
Massachusetts, 513 F.3d 309, 315 (1st Cir. 2008)). See generally
Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S.
527 (1981).
7
Those plaintiffs reached a settlement agreement with the
defendants shortly thereafter.
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This appeal followed. After the appeal was docketed, but
before oral argument, five appellants requested the voluntary
dismissal of their appeal, which we granted.
II.
Summary judgment is appropriate when "the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see also, e.g., Leavitt v. Corr. Med. Servs., Inc., 645
F.3d 484, 496 (1st Cir. 2011). "A disputed fact is 'material' only
if its existence vel non has the potential to change the outcome of
the suit." Nolan v. CN8, No. 10-2239, 2011 WL 3795606, at *5 (1st
Cir. Aug. 29, 2011). At this stage, we view the record evidence in
the light most favorable to the non-movant. Id. If a movant has
averred that there is an absence of evidence to support the cause
of action, the burden shifts to the non-movant to establish,
through "definite, competent evidence," an issue worthy of trial.
Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)
(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991) (internal quotation mark omitted)). Our review is de novo,
and we may accordingly affirm the entry of summary judgment on any
ground apparent from the record. E.g., Méndez-Aponte v. Bonilla,
645 F.3d 60, 64 (1st Cir. 2011).
A. Due Process
As noted, twenty-one appellants held career positions
with the Municipality prior to their termination. Under the laws
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of Puerto Rico, career employees have a property interest in
maintaining their employment that is protected by the Fourteenth
Amendment to the United States Constitution. Colón-Santiago v.
Rosario, 438 F.3d 101, 108 (1st Cir. 2006). Depending on context,
employees often, but not always, may not be deprived of continued
employment without notice and a meaningful opportunity to be heard
in advance of the termination. See generally Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542-43 (1985). Here, the
parties all agree that the appellants were not afforded a pre-
termination hearing.
However, pre-termination hearings are not always
required. We have held that pre-termination hearings are not
required by due process where a bona fide government reorganization
plan bases dismissals on factors unrelated to personal performance.
Whalen v. Mass. Trial Ct., 397 F.3d 19, 25 (1st Cir. 2005); see
also Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir. 1989). Because
such a plan is aimed at positions of employment rather than at
individual employees, a pre-termination hearing would be a futile
exercise. Whalen, 397 F.3d at 25; Hartman v. City of Providence,
636 F. Supp. 1395, 1411 (D.R.I. 1986) ("[S]ince there are no
charges against the employee . . . there would be no occasion for
a hearing, and it would be idle to hold one." (quoting Kusza v.
Maximonis, 70 A.2d 329, 331 (Pa. 1950) (internal quotation mark
omitted))). Accordingly, "[w]here a reorganization or other cost-
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cutting measure results in dismissal of an employee no hearing is
due." Duffy, 892 F.2d at 147.
Because the district court based its decision on the
Parratt-Hudson doctrine, neither party has argued that the nature
of the reorganization plan in this case provided an alternative
ground for concluding that no pre-termination hearings were
necessary. Nevertheless, in arguing that the dismissals at issue
were driven by the financial crisis in the Municipality and not by
political considerations, the appellees have set forth in the
summary judgment record the facts necessary to support the
reorganization exception, and the appellants have had a full
opportunity to challenge them. Given that our review on summary
judgment is plenary, Méndez-Aponte, 645 F.3d at 64, that we can
affirm on any basis apparent in the record, and that the
applicability of the reorganization exception in this case is so
plain, we choose to apply it.
There is no disputing that Santa Isabel was in a dire
financial situation when Mayor Questell assumed office, with an
accumulated budget deficit in excess of $7,000,000, or that the
situation was attributable in large part to the size of the
municipal workforce. Nor is there any question that the layoff
plan, in fact, alleviated that situation. According to an audit
conducted in 2008, the Municipality's accrued deficit decreased by
nearly $4,000,000 in the first two years under Mayor Questell's
administration. The audit also shows that, over that two-year
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period, the total number of municipal employees decreased by
roughly 25% while the municipality's payroll was cut almost in
half. The need for, and the benefits from, Ordinance 28 are
manifest.
Of course, an incoming administration may not use a
systematic reorganization to effectuate otherwise impermissible
terminations. Borges Colón v. Román-Abreu, 438 F.3d 1, 6 (1st Cir.
2006). In this instance, the plaintiffs' accompanying political
discrimination claim makes clear that they view the seniority-based
layoff plan as a stratagem to oust employees hired by, and thus
affiliated with, the outgoing PDP administration. We have
encountered similar claims numerous times, often as a result of
administration changes following elections in Puerto Rico. Id.
However, there is no evidence of pretext here. The
appellants emphasize various record evidence that is insufficient,
both individually and cumulatively, to create a triable issue. For
example, the appellants point to Rodríguez's deposition testimony,
in which she stated that the Municipality had approximately fifty
more employees in June of 2008 than it did at the time of the
layoffs in 2005, and that she does not recall the Municipality
instituting a hiring freeze immediately following the layoffs.
This evidence is incomplete and equivocal, at best. First, an
absolute increase in the number of municipal employees over a
three-year period, with no distinction drawn between career
employees, temporary or contract employees, or even Commonwealth-
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funded employees under Law 52, does not indicate that the layoffs
in 2005 were needless or pretextual. Moreover, as noted above, the
Comptroller's auditing report from 2008 confirms that the absolute
number of municipal employees decreased in each of the first two
years under Mayor Questell. Rodríguez's comment does not, as the
plaintiffs contend, demonstrate that "in spite of the alleged
financial crisis, the Municipality continued to hire new employees
throughout 2005, 2006, 2007, and 2008."
Second, Rodríguez explained in her deposition that she
does not recall whether the Municipality instituted a hiring freeze
because the positions that were subject to Ordinance 28 were
removed from the municipal budget entirely. In other words, the
positions at issue no longer existed within the Municipality, so
there were no open positions to fill. Thus, Rodríguez's failure to
recall whether a hiring freeze was implemented is not probative of
whether the Municipality conducted any hiring in 2005. The only
record evidence that directly speaks to municipal hiring in 2005 is
Mayor Questell's unequivocal assertion in his deposition that, in
2005, "we were not hiring and there was a reduction in all
[departments], including mine in particularly [sic]."
Likewise, the appellants suggest that the defendants' use
of a seniority ranking only for the positions selected for layoffs,
instead of an across-the-board seniority ranking, shows that
certain defendants were targeted for layoffs and that seniority was
not, in fact, the basis for the termination decisions. We
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disagree. In general, one would expect a bona fide administrative
reorganization plan to focus on particular positions that would be
eliminated. A layoff plan based exclusively on seniority, without
regard to the jobs the terminated employees performed, would pose
considerable challenges, including the possibility of added expense
and inefficiency by requiring the Municipality to re-train more
senior employees in new roles based on the needs of the public.
Moreover, because the appellants have failed to adduce evidence
showing that Mayor Questell had knowledge of the identities or
political affiliations of the workers in each position, the
suggestion that particular positions were selected for elimination
in order to target the appellants on the basis of their political
affiliation is speculative and unsupported. See Méndez-Aponte, 645
F.3d at 64 ("We ignore any conclusory allegations, improbable
inferences, and unsupported speculation." (quoting Del Toro Pacheco
v. Pereira, 633 F.3d 57, 62 (1st Cir. 2011) (internal quotation
marks omitted))).
The strongest evidence in favor of the plaintiffs' claim
of pretext is the admission by Rodríguez that she did not employ
any of the alternatives to termination identified in the amendment
to Ordinance 28 once the administration had settled on a particular
layoff plan.8 Even that evidence is insufficient, however. The
amendment to Ordinance 28 required the defendants to consider
8
These alternatives included the transfer of employees to
similar posts in programs not affected by the reduction in force,
retraining, work schedule reduction, furlough, and demotion.
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alternatives to termination only if they viewed the use of such
alternatives to be financially feasible. The record is devoid of
evidence that would support the conclusion that the defendants'
insistence upon proceeding with terminations was the product of a
political motive, and it provides no ground for us to second-guess
the defendants' appraisal of what approaches were or were not
financially feasible. "The mere fact that the impact falls mainly
on members of the party which has lost power is not, of course,
sufficient to warrant federal court interference with the policy
choices of a new administration which reflects the voters' choice
that changes are desirable." Borges Colón, 438 F.3d at 6.
In short, the evidence in the summary judgment record is
insufficient to allow a reasonable jury to conclude that Ordinance
28 was anything other than a bona fide reduction in force in
response to the Municipality's financial troubles. Accordingly,
the defendants' failure to provide pre-termination hearings did not
deprive plaintiffs of due process.
B. Political Discrimination
All of the appellants claim that the termination
decisions constituted impermissible political discrimination, in
violation of the First and Fourteenth Amendments. A triable claim
of political discrimination under 42 U.S.C. § 1983 requires, among
other things, evidence that political affiliation was a substantial
or motivating factor in the conduct being challenged. See Del Toro
Pacheco, 633 F.3d at 63. Even if a plaintiff makes a prima facie
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showing that the government acted from politically discriminatory
motives, a defendant may avoid liability by proving that he or she
inevitably would have taken the same action without regard to
politics. See generally Mt. Healthy Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977). "Thus, even if the defendant's actions
were motivated in part by the plaintiff's protected conduct, the
defendant can still prevail if he or she can show that the
protected conduct was not the 'but-for' cause of the adverse
action." Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 767 (1st
Cir. 2010). More specifically, "when a new administration decides
to reorganize or take other cost-cutting measures after winning an
election and thereby eliminates the jobs of the plaintiffs, the
defendants' decision will be upheld if they can demonstrate that
the reorganization would have occurred regardless of the political
affiliation of the plaintiffs." Acevedo Cordero v. Cordero
Santiago, 764 F. Supp. 702, 709 (D.P.R. 1991).
In the present case, the district court concluded that
the appellants had failed in their burden of producing evidence
sufficient to show that the termination decisions were politically
motivated. It held that, with the exception of the twenty-three
plaintiffs identified earlier, the plaintiffs had failed to
establish that Mayor Questell was aware of the political
affiliation of the affected employees. We need not separately
address that conclusion. Our determination in the due process
analysis that the reorganization was bona fide, and thus not
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pretextual, necessarily means that the defendants have satisfied
their burden of showing that Ordinance 28 would have been
implemented irrespective of the political affiliation of those who
were terminated. See Duffy, 892 F.2d at 147 ("[B]ecause the
district court determined that the reorganization was valid for
purposes of Mt. Healthy, another finding on that point under due
process was unnecessary."). The success of that defense obviates
the need for additional analysis of the record evidence.
III.
For the foregoing reasons, the district court's entry
of summary judgment is affirmed.
So ordered.
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