United States Court of Appeals
For the First Circuit
No. 03-2345
MIGDALIA GONZÁLEZ-DE BLASINI,
Plaintiff, Appellant,
v.
FAMILY DEPARTMENT, as an agency of the Commonwealth
of Puerto Rico; YOLANDA ZAYAS, Secretary of the
Family Department in her official capacity and personal
capacity; VICTOR MALDONADO, Human Resources Director,
in his official and personal capacity,
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
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Godwin Aldarondo-Girald, with whom Aldarondo-Girald Law Office
was on brief, for appellant.
Camelia Fernández-Romeu, Assistant Solicitor General, with
whom Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth
Pamias-Velázquez, Deputy Solicitor General, were on brief, for
appellees.
August 2, 2004
TORRUELLA, Circuit Judge. Plaintiff-appellant Migdalia
González de Blasini ("González") appeals from an order of the
district court granting co-defendants Yolanda Zayas's ("Zayas") and
Víctor Maldonado's ("Maldonado") motion for summary judgment. We
affirm.
I. Factual Background
We review the entry of summary judgment on all claims de
novo, viewing the facts in the light most favorable to the party
opposing summary judgment, in this case González. Aponte-Matos
v. Toledo-Dávila, 135 F.3d 182, 185 (1st Cir. 1998). Summary
judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c).
González is a member of the New Progressive Party
("NPP"), which was the political party in power in Puerto Rico
before the 2000 general elections. After the elections, a new
administration under the Popular Democratic Party ("PDP") assumed
control of the government. Both defendants are members of the PDP.
At all relevant times, Zayas was the Secretary of the Family
Department of the Commonwealth of Puerto Rico ("Family
Department"), and Maldonado was its Human Resources Director.
Following the change in administration, the Family Department
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conducted an audit of its Human Resources Office covering personnel
transactions from July 1, 1998, through December 31, 2000.
González began working for the Family Department in 1972.
As of January 1993, she held a career position classified as Local
Service Director I. On January 22, 1993, González was promoted to
the trust position of Regional Director III. During her time in
the trust position, the position of Local Service Director I was
eliminated and replaced by the position of Director of Integral
Services I. González occupied her trust position into 2000. On
June 21, 2000, González requested reinstatement to a career
position pursuant to the Puerto Rico Personnel Act (the "Personnel
Act"), 3 P.R. Laws Ann. §§ 1301-1431.1
In a memorandum dated July 20, 2000, the Family
Department's Human Resources Office stated that the position of
Executive Director I was most similar to the position of Director
of Integral Services I which was presently occupied.
Notwithstanding the memorandum's finding, on September 1, 2000, the
Executive Secretary of the Family Department reinstated González to
a career position as Executive Director IV, which, as its
designation suggests, provides greater compensation and involves
more responsibility than Executive Director I.
1
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.
See 3 P.R. Laws Ann. § 1350(a).
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According to the complaint, beginning in January 2001,
González began receiving less work and responsibility. She also
overheard co-workers make what she deemed to be derogatory comments
about her. On February 2, 2001, González met with Zayas to discuss
her situation at work. Zayas informed González that she had been
improperly reinstated to the Executive Director IV position and
that she would have to be placed in a different position. Zayas
also allegedly told González that she needed González's position
for "an employee of her trust." Zayas ordered González to vacate
her office and exhaust any accumulated vacation leave. González
went on vacation for ten days. When she returned, she was not
immediately assigned a new office or duties. After several days,
she met with Maldonado, the Human Resources Manager. Maldonado
informed González that she would be transferred to the career
position of Executive Director I because she had been improperly
promoted to Executive Director IV. The demotion was made
retroactive to September 1, 2000. On April 4, 2001, González began
working in the Executive Director I position. On April 21, 2001,
González's request for early retirement was approved.
González filed the present complaint against the Family
Department seeking monetary damages. She alleged violations under
42 U.S.C. §§ 1981, 1983, and 1986 of the First, Fifth and
Fourteenth Amendments to the United States Constitution as well as
Article II, §§ 1, 6, and 7 of the Constitution of the Commonwealth
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of Puerto Rico. González alleged that she had a property right
protected under the due process clause of the Fourteenth Amendment
to her career position as Executive Director IV, and that
defendants unconstitutionally discriminated against her on the
basis of her political affiliation in violation of the First
Amendment.2
On May 1, 2003, Zayas and Maldonado filed a motion for
summary judgment and the district court granted the motion for
summary judgment, mooted the remaining motions, and dismissed all
claims against Zayas and Maldonado. This appeal followed.
II. Analysis
A. The Political Discrimination Claim
When alleging a claim of political discrimination, a
plaintiff bears the burden of producing sufficient evidence,
whether direct or circumstantial, that she engaged in
constitutionally protected conduct and that political affiliation
2
On June 14, 2002, the Family Department filed a motion to
dismiss, arguing that it was entitled to sovereign immunity under
the Eleventh Amendment of the United States Constitution. The
district court granted the motion and dismissed the complaint
against the Family Department and Zayas and Maldonado in their
official capacities on November 21, 2002. This appeal was filed on
September 2, 2003. In her appellate brief, González argued that
the Family Department did not have sovereign immunity pursuant to
the Eleventh Amendment. As defendants pointed out at oral
argument, we do not have jurisdiction to review the partial
judgment because the time to appeal has expired. See Fed. R. App.
P. 4(a)(1)(A)(stating that, in a civil case, the notice of appeal
must be filed with the district court clerk within 30 days of the
date when the judgment is entered).
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was a substantial or motivating factor behind the challenged
employment action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977); Cosme-Rosado v. Serrano-Rodríguez, 360 F.3d
42, 47 (1st Cir. 2004). The plaintiff must point "to evidence on
the record which, if credited, would permit a rational fact finder
to conclude that the challenged personnel action occurred and
stemmed from a politically based discriminatory animus." LaRou v.
Ridlon, 98 F.3d 659, 661 (1st Cir. 1996)(quoting Rivera-Cotto v.
Rivera, 38 F.3d 611, 614 (1st Cir. 1994)(internal quotations
omitted)).
The district court found that González failed to provide
any evidence that establishes a genuine issue of material fact as
to whether her political affiliation was a substantial or
motivating factor behind the alleged adverse employment action. In
the view of the district court, González did not even establish
that her political affiliation was known to the defendants.
We agree with the district court that González has not
met the burden of showing that her political affiliation was a
substantial or motivating factor for the challenged employment
action. González has adduced no evidence that the defendants knew
she was a member of the NPP. She attempts to bolster her political
discrimination cause of action by alleging that Zayas and Maldonado
must have been aware of her political affiliation because she was
a well-known supporter of the NPP in the community, had held a
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previous trust position under the NPP administration, and was
allegedly demoted shortly after the PDP assumed power. González
points to Zayas's statement that she wanted González's office and
position to go to an employee of her trust as indication of a
causal link between her political beliefs and the change in her
employment conditions.
This evidence is insufficient to show that political
affiliation was a substantial factor in the challenged employment
action. Compare Cosme-Rosado, 360 F.3d at 48 (finding that the
mayor's stated intention to "rid the town of NPP activists" was not
enough to show that political affiliation was motive) with Padilla-
García v. Rodríguez, 212 F.3d 69, 75-76 (1st Cir. 2000)(where
evidence showed that defendants knew of plaintiffs' party
affiliation, plaintiff was conspicuous party member and witnesses
testified as to defendant's desire to humiliate plaintiff there was
genuine issue of material fact to warrant denial of summary
judgment). While "we recognize that a prima facie case for
political discrimination may be built on circumstantial evidence,"
González has not generated "the specific facts necessary to take
the asserted claim out of the realm of speculative, general
allegations." Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st
Cir. 1988). We therefore affirm the district court's dismissal of
plaintiff's political discrimination claim.
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B. The Due Process Claim
González's second claim is that she has a
constitutionally protected property right to her position as
Executive Director IV and that she was deprived of this right
without due process of law. The district court held that González
did not have a property interest in the Executive Director IV
position because it was obtained in violation of Puerto Rico law.
We agree.
Under the Fourteenth Amendment, a public employee who
possesses a property interest in continued employment cannot be
discharged without due process of law. See Santana v. Calderón,
342 F.3d 18, 23 (1st Cir. 2003); Figueroa-Serrano v. Ramos-Alverio,
221 F.3d 1, 5-6 (1st Cir. 2000). The Constitution does not create
property interests; "they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law." Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972); see also Santana, 342 F.3d at 23-24. "In
order to establish a constitutionally protected property interest,
a plaintiff must demonstrate that she has a legally recognized
expectation that she will retain her position . . . ." Santana,
342 F.3d at 24.
Under Puerto Rico law, career employees have a property
interest in their continued employment. See Figueroa-Serrano, 221
F.3d at 6; Kauffman, 841 F.2d at 1173. However, "public employees
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hired for career positions in violation of the Puerto Rico
Personnel Act, or agency regulations promulgated thereunder, may
not claim property rights to continued expectations of employment
because their career appointments are null and void ab initio."
Kauffman, 841 F.2d at 1173; see also De Feliciano v. De Jesús, 873
F.2d 447, 452-55 (1st Cir. 1989). The Personnel Act sets up a
merit system for career employees. See generally 3 P.R. Laws Ann.
§ 1333. Under this system, career employees must, among other
requirements, pass a competitive examination to be eligible for
appointment or promotion to a career position. See, e.g., Ramos-
Meléndez v. Valdejully, 960 F.2d 4, 6 (1st Cir. 1992)(holding that,
if the plaintiff held a career position to which he was appointed
without taking a competitive examination, he held the position
illegally). The issue before us, then, is whether González's
appointment to the Executive Director IV position, after her tenure
in the trust position ended, complied with Puerto Rico law.
In their motion for summary judgment, Zayas and Maldonado
argued that the transfer violated the Personnel Act in two ways:
(1) González had been improperly reinstated under Puerto Rico law
which forbids any transfer of public service personnel two months
prior to and two months after an election; and (2) González was
improperly reinstated to a career position three levels higher than
that to which she was entitled.
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We agree with the district court's holding that
González's reinstatement did not violate the ban on transfers of
public service personnel two months prior to and two months after
an election. See 3 P.R. Laws Ann. § 1337. González was reinstated
to the Executive Director IV position on September 1, 2000, more
than two months before the elections were held on November 6, 2000.
The reinstatement on September 1, 2000, was therefore outside the
prohibited period.
González's reinstatement to the position of Executive
Director IV, however, did violate the Personnel Act. González was
reinstated to a position higher than that to which she was
entitled. She was entitled, under the statute, to reinstatement in
a position equal to the one she last held as a career employee.
See 3 P.R. Laws Ann. § 1350(a) (when a trust employee transfers
back to a career position, she "shall have the absolute right to be
reinstated in a regular [career] position equal to the last
position she held while in the Career service . . . ."). While she
was in a trust position from January 1993 to September 2000,
González's original position was eliminated and eventually
reclassified as Director of Integral Services I due to an amendment
in Puerto Rico law. When González requested reinstatement to her
career position in June 2000, Director of Integral Services I was
occupied. A memorandum prepared by the Family Department's Human
Resources Office on July 20, 2000, recommended that González be
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reinstated to Executive Director I, because this position was the
most similar to her last career position. Because Executive
Director I was designated as equal to her prior career position,
her property interest under Puerto Rico law was in the Executive
Director I position. See Kauffman, 841 F.2d at 1173. Thus,
González was entitled to reinstatement to Executive Director I, not
Executive Director IV.3 In order to be properly appointed to the
Executive IV position, González had to be appointed pursuant to 3
P.R. Laws Ann. § 1334(2). See id. ("Transfers may be made from one
position to another in the same class . . . provided the employee
meets the requirements for the position to which [she] was
transferred."). Under the Personnel Act, a transfer such as
Gonzalez's is improper, and plaintiff has presented no evidence to
create a genuine issue of material fact as to its legality. See
DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) ("Once the
moving party has properly supported [its] motion for summary
judgment, the burden shifts to the nonmoving party, with respect to
each issue on which [it] has the burden of proof, to demonstrate
that a trier of fact reasonably could find in [its] favor.")(citing
3
There is some uncertainty in the record regarding González's
transfer to a trust position in October 2000 and subsequent
reinstatement to the Executive Director IV position in December
2000. Because we find that González's original September 1, 2000
reinstatement to Executive Director IV was improper, any subsequent
transfers would be tainted by the September reinstatement (at least
during the period in question). We therefore need not reach the
question of whether any subsequent transfers occurred.
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Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986)). We therefore
affirm the district court's order on these grounds.4
C. Scope of the Summary Judgment Record
At the same time they moved for summary judgment,
defendants filed a motion requesting leave to accept the documents
submitted in support of the motion for summary judgment in the
Spanish language pursuant to Local Rule 108.5 González filed a
motion in opposition to the filing of documents in support of
motion for summary judgment, arguing that the documents were in
Spanish and all but one did not involve or mention González. She
argues that the district court erred in accepting documents
supporting defendants' motion for summary judgment filed in the
Spanish language. Defendants argue that it was within the district
court's discretion to accept the documents in Spanish until English
language translations were filed. See D.P.R. R. 108.1.6
4
Further, because plaintiff has failed to establish a genuine
issue of material fact as to whether defendants violated any of
plaintiff's rights, we need not reach the issue of qualified
immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001)(stating
that whether a constitutional violation occurred is the first step
in the qualified immunity inquiry).
5
Local Rule 108.1 stated:
All documents not in the English language
which are presented or filed in this Court,
whether evidence or otherwise, shall be
accompanied at the time of presentation or
filing by an English translation thereof,
unless the court shall otherwise order.
6
This rule is now codified as Local Rule 43. See D.P.R. R. 43.
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It is well settled that "federal litigation in Puerto
Rico [must] be conducted in English." Estades-Negroni v. Assocs.
Corp. of N. Am., 359 F.3d 1, 2 (1st Cir. 2004). "In collecting a
record for summary judgment a district court must sift out non-
English materials, and parties should submit only English-language
materials." Id.; see also United States v. Rivera-Rosario, 300
F.3d 1, 6 (1st Cir. 2002). A violation of the English language
requirement "will constitute reversible error whenever the
appellant can demonstrate that the untranslated evidence has the
potential to affect the disposition of an issue raised on appeal."
Rivera-Rosario, 300 F.3d at 10.
There was sufficient evidence in the record in English to
sustain a finding that González was reinstated in violation of the
Personnel Act. The evidence submitted in Spanish therefore does
not affect the disposition of this case.
The main document in issue is the internal audit
conducted by the Family Department. The record before the district
court did not contain an English translation of the audit. An
English translation of the audit does appear in the appendix to
González's appellate brief. Since the audit did not appear in
English on the record before the district court when it decided the
motion for summary judgment, we cannot now take the English
translation of this audit into account. See Estades-Negroni, 359
F.3d at 2. The memorandum prepared by the Family Department's
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Human Resources Office on July 20, 2000, which was in the summary
judgment record in an English translation, recommended that
plaintiff be reinstated to Executive Director I, because Executive
Director I was the most similar to plaintiff's last career
position.
The district court should not have considered any
documents before it that were in the Spanish language. Because
there was sufficient evidence in the record in English to support
the district court's holding that no genuine issue of material fact
remained, however, we may affirm the judgment of the district
court.
D. The State Claims
González assigns error to the district court's dismissal
without prejudice of her causes of action under Puerto Rico law
when it issued a general order dismissing all claims. In its
opinion and order, the district court discussed only González's
federal claims. The district court then dismissed González's
action with prejudice.
Under 28 U.S.C. § 1367, "district court may decline to
exercise supplemental jurisdiction" if "the district court has
dismissed all claims under which it has original jurisdiction." 28
U.S.C. § 1367(c); see Claudio-Gotay v. Becton Dickinson Caribe,
Ltd., 2004 WL 1557905, *4 (1st Cir. July 13, 2004). We review a
district court's decision not to exercise supplemental jurisdiction
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for abuse of discretion. See Pejepscot Indus. Park, Inc. v. Maine
Cent. R. Co., 215 F.3d 195, 200 (1st Cir. 2000). "As a general
principle, the unfavorable disposition of a plaintiff's federal
claims at the early stages of a suit . . . will trigger the
dismissal without prejudice of any supplemental state-law claims."
Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.
1995). To the extent that the federal action was dismissed with
prejudice, we construe it as holding that González is at liberty to
bring her unadjudicated claims before the Commonwealth courts, but
her federal claims are forever barred. See 28 U.S.C. § 2106
(allowing appellate courts to modify judgments as may be just under
the circumstances). We can discern no abuse of discretion in the
district court's dismissal of the action after ruling against
González on the federal claims.
III. Conclusion
For the reasons stated herein, we affirm the district
court's grant of summary judgment for the defendants.
Affirmed.
"Concurrence follows"
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BOUDIN, Chief Judge, (Concurring in the judgment). The
panel opinion persuades me that the grant of summary judgment
should be sustained. But my reservations as to certain of the
quotations from, and glosses upon, two prior decisions dealing with
the issue of Spanish language documents under 48 U.S.C. § 864
(2000) are so firm as to preclude an unqualified concurrence in the
panel opinion.
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