Velez-Rivera v. Agosto Alicea

United States Court of Appeals
For the First Circuit

No. 04-2719

ISEUT G. VÉLEZ-RIVERA; FERNANDO PEÑA-CASTRO,

Plaintiffs, Appellants,

v.

HON. JUAN AGOSTO-ALICEA, in his personal capacity and in his
official capacity as President of the Government Development
Bank; GOVERNMENT DEVELOPMENT BANK OF PUERTO RICO;
ALBA CABALLERO-FUENTES; LILLIAM JIMÉNEZ-MONTIJO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.

Francisco R. González-Colón, with whom F.R. González Law
Office was on brief, for appellants.
Carlos A. Del Valle-Cruz, with whom Esther Crespin-Credi,
Attorneys of the Puerto Rico Department of Justice, were on brief,
for appellee Alba Caballero-Fuentes.
Ineabelle Santiago-Camacho, with whom Rafael Escalera-
Rodríguez, Michelle Taveira-Tirado, and Reichard & Escalera, were
on brief, for appellee Hon. Juan Agosto-Alicea, in his personal
capacity.
Edwin J. Seda-Fernández, with whom Patricia R. Limeres-Vargas
and Adsuar Muñiz Goyco & Besosa, P.S.C., were on brief, for
appellees Government Development Bank of Puerto Rico and Hon. Juan
Agosto-Alicea, in his official capacity.
 Irene S. Soroeta-Kodesh, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana D.
Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, were on brief, for appellee
Lilliam Jiménez-Montijo.

February 10, 2006

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 TORRUELLA, Circuit Judge. Plaintiffs Iseut G. Vélez-

Rivera ("Vélez") and Fernando Peña-Castro ("Peña") brought action

under 42 U.S.C. § 1983 for injunctive relief and compensatory and

punitive damages against defendants Juan Agosto-Alicea ("Agosto")

in his official and personal capacities, Alba Caballero-Fuentes

("Caballero"), Lilliam Jiménez-Montijo ("Jiménez"), and the

Government Development Bank of Puerto Rico ("GDB").1 Plaintiffs

allege that their employment with GDB was unlawfully terminated as

a result of their political affiliation with the New Progressive

Party ("NPP"), in violation of their First and Fourteenth Amendment

rights.

On February 19, 2004, the magistrate judge issued a

Report and Recommendation denying defendants' motion for summary

judgment. On August 24, 2005, the district court dismissed all of

plaintiffs' federal claims with prejudice and granted summary

judgment. Plaintiffs then filed a motion for reconsideration which

the district court denied on June 9, 2005. Plaintiffs now appeal.

Because we find that the district court properly granted

summary judgment against both Vélez and Peña, we affirm.

1
Plaintiff Vélez brought suit against all defendants, but
Plaintiff Peña only brought suit against GDB and Agosto. The
district judge dismissed all claims against GDB and against Agosto
in his official capacity on Eleventh Amendment grounds. Plaintiffs
have not raised this issue on appeal and so we consider it to be
waived. Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110, 114
n.1 (1st Cir. 2004).

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 I.

In the general elections of November 2000, the incumbent

NPP was defeated by the Popular Democratic Party ("PDP"). As part

of the transition to the new administration, Agosto was appointed

president of GDB on January 2, 2001. Upon taking office, Agosto

hired defendant Caballero, an independent contractor in the field

of human resources, to investigate all employment actions executed

at GDB between July 1, 2000 and December 31, 2000 to assess their

legality.2 Vélez-Rivera v. Agosto-Alicea, 334 F. Supp. 2d 72, 90-

91 (D.P.R. 2004).

On September 7, 2000 -- one day before the commencement

of the moratorium period -- plaintiff Vélez had been promoted to

Deputy Director of Human Resources at GDB, subject to a six-month

probationary period that was scheduled to expire on March 6, 2001.

Id. at 83. Although Vélez maintains that her performance was at

all times satisfactory, she received notice on February 15, 2001

that her probation period had been extended for three additional

months so that her qualifications could be reviewed. Id. Vélez

claims that at one point defendant Jiménez, GDB's Human Resources

2
As we have noted previously, "[u]nder Puerto Rico law, there is
a period of time, called the electoral moratorium period ("veda
electoral"), during which no 'movement[s] of personnel' are to take
place absent emergencies." Sánchez-López v. Fuentes-Pujols, 375
F.3d 121, 126 (1st Cir. 2004) (citing 3 P.R. Laws Ann. § 1337). The
moratorium period extends from two months prior to the election to
two months afterward. In 2000, the moratorium began on
September 8.

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and Labor Relations Director, warned her that "she would soon be

dismissed because she was a New Progressive Party Member." On

June 15, 2001, Jiménez presided over an informal hearing in which

it was determined that Vélez did not comply with the minimum

requirements of her position at the time of her promotion. Vélez-

Rivera, 334 F. Supp. 2d at 91. On July 12, 2001, Agosto sent a

letter to Vélez informing her that her appointment was null and

void and terminating her employment. Id. at 83.

Vélez insists that she was terminated because of unlawful

political discrimination. Defendants claim -- and the district

court agreed -- that Vélez did not meet the requirements for the

position of Deputy Director of Human Resources in September 2000

and thus that her termination was appropriate because her promotion

violated GDB personnel regulations and the "merit principle."3

3
The electoral moratorium was implemented "[f]or the purpose of
guaranteeing the faithful application of the merit principle in
public service during the period before and after elections" 3 P.R.
Laws Ann. § 1337.

The "merit principle" is the requirement under Puerto Rico law
that
[t]he agencies of the personnel system are bound to offer
the opportunity to compete to any qualified person
interested in participating in public service in our
country. This participation shall be established on the
candidate's merit without discrimination on account of
race, color, sex, place of birth, age, origin or social
condition, physical or mental disability, or political or
religious beliefs.

3 P.R. Laws Ann. § 1333.

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 On February 4, 1999, plaintiff Peña signed a contract

with GDB for services including "consulting in the sale of equity

and debts of hotels, specifically, Mr. Peña [would] contribute his

experience and education in areas such as valuation, negotiation

and legal structuring of different transactions" Vélez-Rivera, 334

F. Supp. 2d at 86. On September 7, 1999, Peña signed another

service order expanding the scope of his services to "consulting in

the area of privatization." Id. He signed similar service orders

in December 1999 and July 2000, none of which were limited by

expiration dates. Id. On November 21, 2000, Peña signed a final

service order that was to replace all previous orders and that

specified an effectiveness period of November 1, 2000 to June 30,

2001. Id. On February 9, 2001, Peña was informed of the premature

cancellation of his service order. Id.

Peña alleges that his contract was terminated because of

political discrimination. His four previous service orders had

been renewed without complaint, and Peña claims that he was given

no explanation when he was fired and "replaced with two PDP members

who now perform the same services that he performed while employed

with the GDB." Brief for Appellants at 10. He also claims that

GDB's executive vice president stated publicly that "all service

orders with NPP members would be cancelled." Id. at 11.

Defendants maintain that Peña's contract was not terminated because

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of political discrimination, and that, as a contract employee, he

had no legitimate expectation of continued employment with GDB.

II.

We review a grant of summary judgment de novo, drawing

all reasonable inferences in favor of the non-moving party.

Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir.

2002). Summary judgment is properly granted if the movant can

demonstrate 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). In the summary judgment context, we

have construed "genuine" to mean "that the evidence about the fact

is such that a reasonable jury could resolve the point in favor of

the nonmoving party" United States v. One Parcel of Real Prop.,

960 F.2d 200, 204 (1st Cir. 1992). Similarly, a fact is "material"

if it is "one that might affect the outcome of the suit under the

governing law." Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d

746, 748 (1st Cir. 1994) (internal citation and quotation marks

omitted).

A.

The first issue before us is whether, as plaintiffs

contend, the district court applied the wrong pleading standard

when it granted defendants' motion for summary judgment. This

claim is meritless. Plaintiffs rely on our opinion in Gorski v.

New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1st Cir.

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2002), to remind us that "complaints alleging employment

discrimination need only satisfy 'the simple requirements of Rule

8(a).'"4 Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506,

512 (2002)). Although they have correctly stated the applicable

law, plaintiffs have completely misapplied the principle to the

facts of their case. Swierkiewicz specifically invalidated the

requirement, formerly recognized in some circuits including this

one,5 that plaintiffs plead facts establishing a prima facie case

in order to survive a motion to dismiss. Swierkiewicz, 534 U.S. at

511. Instead, Swierkiewicz requires only a short and plain

statement to "give the defendant fair notice of what the

plaintiff's claim is and the grounds upon which it rests."

(internal citation and quotation marks omitted). Id. at 512.

Plaintiffs allege that the district court applied the

heightened pleading standard in two separate instances. First,

when it granted summary judgment for Agosto because Peña had failed

to allege any material fact showing "deliberate indifference," an

element of "supervisory liability." Brief for Appellants at 21.

Second, when the district court found that Agosto was protected

4
Rule 8(a) requires only that a pleading should entail "a short
and plain statement of the claim showing that the pleader is
entitled to relief". Fed. R. Civ. P. 8(a).
5
Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 15 (1st Cir.
1989).

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under the doctrine of qualified immunity because his actions with

regard to Vélez were "objectively reasonable."

We see no evidence that the heightened pleading standard

was applied. Under the overruled standard, the district court

would have required heightened specificity at the pleading stage,

which did not occur in this case. By contrast, the district court

correctly applied the appropriate standard of review to defendants'

summary judgment motion when it found no genuine issue as to any

material fact. The court's analysis of supervisory liability and

qualified immunity relied upon the appropriate standards because,

although specificity is not required at the pleading stage, it is

required at the summary judgment stage. Swierkiewicz specifically

distinguished the two doctrines, explaining that "[t]his simplified

notice pleading standard relies on liberal discovery rules and

summary judgment motions to define disputed facts and issues and to

dispose of unmeritorious claims." Swierkiewicz, 534 U.S. at 512.

In other words, notice pleading is sufficient for a claim to

survive a motion to dismiss, but plaintiffs bear a heavier burden

at the summary judgment stage.

B.

The second issue before us is whether there is a genuine

issue of material fact as to defendants' liability under 42 U.S.C.

§ 1983 that would make a grant of summary judgment inappropriate in

this case.

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 Plaintiffs bring this action pursuant to 42 U.S.C.

§ 1983, alleging unlawful political discrimination resulting in

loss of employment, in violation of their First and Fourteenth

Amendment rights. In order to establish liability under § 1983,

plaintiffs "must show by a preponderance of the evidence that: (1)

the challenged conduct was attributable to a person acting under

color of state law; and (2) the conduct deprived the plaintiff of

rights secured by the Constitution or laws of the United States."

Johnson v. Mahoney, 424 F.3d 83, 89 (1st Cir. 2005).

Political Discrimination

Both plaintiffs allege political discrimination in

violation of their First Amendment rights. It is axiomatic that

"the First Amendment protects 'non-policymaking' public employees

from adverse employment actions based on their political

affiliation or opinion." González-Piña v. Rodríguez, 407 F.3d 425,

431 (1st Cir. 2005). Under Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977), allegations of political

discrimination in employment are judged according to a burden-

shifting regime. Plaintiffs bear the initial burden to show that

"political discrimination was the substantial or motivating factor

in a defendant's employment decision." Cepero-Rivera v. Fagundo,

414 F.3d 124, 132 (1st Cir. 2005) (internal citation and quotation

marks omitted). Defendants then must demonstrate that (i) they

would have taken the same action in any event; and (ii) they would

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have taken such action for reasons that are not unconstitutional.

See Mt. Healthy, 429 U.S. at 286-87.

Vélez asserts that defendants were "well aware" of her

affiliation with NPP. Vélez-Rivera, 334 F. Supp. 2d at 83. She

maintains that she was qualified for her promotion, that her

performance as Deputy Director of Human Resources was at all times

"exemplary," and that she was never given a satisfactory

explanation for the prolongation of her probation. Id. She claims

further that defendant Jiménez warned her that she would be

dismissed because of her NPP affiliation. Id. at 91. However, she

acknowledged in her deposition that she never mentioned her

political beliefs to anyone at GDB, and that she did not know how

anyone at GDB had become aware of them. Nevertheless, she inferred

such knowledge because of a general feeling that she was treated

"differently" by co-workers. Id. at 84. She also admitted that

she had no knowledge of any organization of pro-NPP GDB employees.

Id.

Drawing all inferences for Vélez, we do not find the

facts to weigh heavily in her favor. Nevertheless, we assume,

arguendo, that she has made a prima facie case for political

discrimination in order to consider defendants' explanation for her

termination within the Mt. Healthy framework.

Defendants maintain that they would have reached the same

decision to terminate Vélez absent any political discrimination

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because she was unqualified for her promotion. The formal job

announcement for Deputy Director of Human Resources, posted

August 9, 2000, required that applicants possess a masters degree

and at least five years' experience in human resources

administration, two of which must have been supervisory, and one of

which must have pertained to "personnel transactions." Vélez-

Rivera, 334 F. Supp. 2d at 84. Vélez maintains that she was judged

qualified for her promotion by the GDB's Classification and

Compensation Specialist in 2000. Id. at 89. However, after

careful examination of her employment history, the district court

found that Vélez did not meet the minimum requirements. Vélez's

employment history reflects that the majority of her work

experience was in the field of labor relations, not human

resources. Vélez does not dispute defendants' claim that the two

fields are categorically different and entail different activities.

At the time of her promotion, her relevant qualifications for her

promotion included only the following: one year, five months, and

27 days as a human resources administrator at the Puerto Rican

Association for the Well-Being of the Family; and an additional

eight months in the field of human resources as Director of

Administration at the Office of the Governor, where she served in

a supervisory capacity. Id. at 84-85. The district judge found,

and Vélez does not dispute, that she had no other experience

relevant to the formal requirements of the position of Deputy

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Director of Human Resources at GDB. By our calculations, her years

spent in the field of human resources amount to less than half of

what was required by the formal job announcement for her position.

After defendants have put forth a nondiscriminatory

justification for the challenged action, "the plaintiff[s] may

discredit the proffered nondiscriminatory reason, either

circumstantially or directly". Padilla-García v. José Guillermo

Rodríguez, 212 F.3d 69, 77 (1st Cir. 2000). Accordingly, Vélez

alleges that the district court failed to address "the facts that

discredit the defendants' proffered nondiscriminatory reason" for

terminating her. From her perspective, those facts include the

statement by defendant Jiménez to Vélez that she would "soon be

dismissed because she was an NPP member" and the GDB Classification

and Compensation Specialist's classification of Vélez as

"qualified" at the time of her promotion. Only the first of these

warrants discussion. Despite the fact that Jiménez presided over

Vélez's informal hearing, she was not the decisionmaker with regard

to Vélez's employment. Jiménez's employment at GDB began five days

after Vélez was first notified of her impending dismissal, and

regardless of any comments she might have made, the district court

found no evidence that Jiménez exercised any influence whatsoever

over Vélez's dismissal. Vélez-Rivera, 334 F. Supp. 2d at 91-92.

The second prong of a successful Mt. Healthy defense

requires an additional showing -- that defendants "would have

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reached the same decision" as to her termination even "in the

absence of the protected conduct." Mt. Healthy, 429 U.S. at 287.

In Sánchez-López, we held that even if an employment

action was illegal, the second prong of Mt. Healthy was only

satisfied "[i]f defendants demonstrated that they in fact have a

practice of taking corrective action against all employees [whose

appointments violate Puerto Rico law] or could otherwise show that

they would have taken the corrective action anyway." 375 F.3d at

131.

However, recently in Cepero-Rivera, we found both prongs

of the Mt. Healthy defense to be satisfied where an employee of the

Puerto Rican Highway Authority (PRHA) alleged political

discrimination and defendants offered the legitimate

nondiscriminatory explanation that the employee had violated

certain PRHA regulations. 414 F.3d at 132-33. It was clear that

defendants would have reached the same decision in the absence of

discrimination because under the circumstances, "it is difficult to

see how a supervisor . . . could have done anything less" than

order an investigation leading to his termination. Id. at 133.

Similarly, in Texas v. Lesage, 528 U.S. 18 (1999), the

Supreme Court held that defendants were entitled to summary

judgment where a student alleged a discriminatory basis for the

denial of his admission to a graduate program and defendants put

forth a defense, under Mt. Healthy, that his grades, test scores,

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and recommendations were not as strong as those of successful

applicants. Id. at 19. Sánchez-López distinguishes Lesage because

there, "it was undisputed that the plaintiff did not otherwise meet

the admission criteria." Sánchez-López, 375 F.3d at 132.

The facts in this case are similarly clear-cut, placing

Vélez squarely in Lesage and Cepero-Rivera territory. It is

undisputed that Vélez was dramatically underqualified for her

promotion. It is undisputed that Caballero was hired to assess the

legality of all personnel transactions that occurred between July 1

and December 31, 2000. Plaintiffs characterize this audit as

"selective" because they claim that each of the relevant employment

actions involved NPP members, but this allegation is entirely

unsupported and it is, in any event, of no moment. Even if all of

the personnel actions during the relevant period involved NPP

members, official review of such employment decisions does not

support a claim of discrimination. As we have observed,

[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
administrations that job actions by the new
party in power will have a disparate impact on
members of the outgoing party.

Id. at 140. We conclude that defendants have discharged their

burden under the second prong of Mt. Healthy by demonstrating that

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they would have reached the same conclusion with regard to her

employment in the absence of discrimination.

Defendants have mounted a successful Mt. Healthy defense

with regard to Vélez and we affirm the district court's grant of

summary judgment with regard to her First Amendment claim.

Plaintiff Peña also alleges politically-motivated

employment termination in violation of his First Amendment rights.

Specifically, he claims that his employment service contract was

prematurely terminated because of his political affiliation with

the NPP. Peña claims that defendants knew of his political

affiliation in part because he was the leader of an association of

NPP-affiliated GDB employees. Vélez-Rivera, 334 F. Supp. 2d at 86.

He claims that he was given no explanation for the cancellation of

his contract and that such cancellation was arbitrary because his

service orders had been renewed four times previously. Id. He

also alleges that GDB Executive Vice President José V. Pagán

publicly and privately stated that all service order contracts with

NPP members would be cancelled. Id. Finally, he claims that

subsequent to his termination, he was "replaced" by two PDP members

who now perform substantially the same tasks that he performed

while employed by the GDB. Brief for Appellants at 10.

The district court found, and Peña does not disagree,

that several of Peña's allegations are unsubstantiated by the

evidence on record. Peña stated in his deposition that he never

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directly heard Pagán say anything about cancelling contracts with

NPP members, but rather he admits that he "heard a 'rumor' from his

supervisor, who supposedly heard it from someone else." Id.

Similarly, although Peña claims to have been a leader of NPP

members at GDB, his deposition reflects that he does not know which

employees are members or what the group's activities might be. Id.

Finally, Peña has provided no support for his allegation that two

PDP-affiliated individuals replaced him at GDB.

In our review of a grant of summary judgment, "we do not

consider conclusory allegations, improbable inferences, and

unsupported speculation." Emmanuel v. Int'l Bhd. of Teamsters,

Local Union No. 25, 426 F.3d 416, 419 (1st Cir. 2005) (internal

citation and quotation marks omitted). Peña has failed to

challenge the district court's analysis and characterization of the

evidence regarding his allegations of political discrimination, and

he has not demonstrated that political discrimination was a

substantial or motivating factor in his premature contract

termination. We do not find his allegations to be persuasive, and

thus we affirm the district court's grant of summary judgment with

regard to Peña's First Amendment claim.

Due Process

Both plaintiffs also allege the deprivation of their

property interests in violation of their Fourteenth Amendment

rights to the due process of law. The threshold question we must

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first address is whether each had a property interest in their

employment. We have held that while the process "due" a government

employee is determined by federal law, the preliminary inquiry as

to the existence of a property interest is determined by state or

commonwealth law. Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d

742, 750 (1st Cir. 1995). To determine whether an employment

interest is a property interest in Puerto Rico, we normally first

ask whether the position in question is a "trust position"6 or a

"career position." Career positions are considered permanent and

thus "career employees have a property interest in their continued

employment." González-De-Blasini v. Family Dept., 377 F.3d 81, 86

(1st Cir. 2004). By contrast, Puerto Rico law establishes that

trust employees "shall be of free selection and removal," i.e.,

removable with or without cause. 3 P.R. Laws Ann. § 1350; see also

Laureano-Agosto v. García-Caraballo, 731 F.2d 101, 103 (1st Cir.

1984).

Defendants do not suggest that Vélez was a trust

employee. Rather, they contend -- and the district court agreed --

that because she was promoted in violation of GDB personnel

policies, she had no reasonable expectation of continued

employment. We have previously held that "under Puerto Rico law

any property right associated with a career position is rendered

6
"Trust positions" are sometimes also called "confidential
positions."

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null and void if a violation of the Personnel Act attends the

filling of such a position." Kauffman v. Puerto Rico Tel. Co., 841

F.2d 1169, 1173 (1st Cir. 1988). The district judge found that GDB

employment regulations are subject to the Puerto Rico Personnel

Act, and that therefore a violation of GDB personnel policies

constitutes a violation of the Puerto Rico Personnel Act. Vélez-

Rivera, 334 F. Supp. 2d at 89. Vélez does not challenge this

finding, and we affirm the district court's grant of summary

judgment as to her Fourteenth Amendment claim.

Peña also alleges a violation of his Fourteenth Amendment

right to due process. The parties do not dispute that his contract

was terminated prematurely. However, we have long distinguished

between garden-variety contract breach and those property

deprivations that rise to the Constitutional level. Redondo-Borges

v. U.S. Dept. of Hous. and Urban Dev., 421 F.3d 1, 10 (1st Cir.

2005); Jiménez v. Almodóvar, 650 F.2d 363, 370 (1st Cir. 1981)

("mere breach of contractual right is not a deprivation of property

without constitutional due process of law . . . . Otherwise,

virtually every controversy involving an alleged breach of contract

by a government or a governmental institution or agency or

instrumentality would be a constitutional case.") (internal

citation and quotation marks omitted).

The district court held that because Peña has not made a

colorable claim for political discrimination, the termination of

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his contract was a garden-variety contract breach "for which Puerto

Rico law provides a sufficient and adequate remedy." Vélez-Rivera,

334 F. Supp. 2d at 89. We disagree with the district court's

analysis on this point, but we are in agreement as to the result.

There can be no doubt that "[u]nder the Fourteenth

Amendment, a state is prohibited from discharging a public employee

who possesses a property interest in continued employment without

due process of law." Santana v. Calderón, 342 F.3d 18, 23 (1st

Cir. 2003). We have held that a contractual agreement can give

rise to a property interest. Id. at 24 ("A legitimate expectation

of continued employment may derive from a statute, a contract

provision, or an officially sanctioned rule of the workplace.").

Thus, the relevant question is whether Peña's contract did in fact

create such a protected interest.

Peña's fixed term contract was set to expire on June 20,

2001. He received notice of termination on February 9, 2001. At

that time he was contractually entitled to more than five

additional months of employment. In Perry v. Sindermann, 408 U.S.

593 (1972), the Supreme Court held that an interest in a benefit is

a property interest "if there are such rules or mutually explicit

understandings that support his claim of entitlement to the

benefit." Id. at 601. At least one of our sister circuits has

found a legitimate interest in continued employment where a

contract provides for a fixed term of employment services. See San

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Bernardino Physicians' Servs. Med. Group, Inc. v. County of San

Bernardino, 825 F.2d 1404, 1408 (9th Cir. 1987). Property

interests are not created by the Constitution, but rather "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 of State Colls. v. Roth, 408 U.S. 564, 577

(1972). We need not reach this issue, because even if Peña did

have a property interest in his employment for the remaining five

months on his contract, his claim fails as to the second

requirement for a prima facie case under § 1983 -- that his rights

were violated by state officials acting under color of state law.

Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir. 1999).

It is well-established that "only those individuals who

participated in the conduct that deprived the plaintiff of his

rights can be held liable." Cepero-Rivera, 414 F.3d at 129. Peña

claims that Agosto canceled his contract. However, in his

deposition, Peña admitted that the letter terminating his contract

was not signed by Agosto. The letter was in fact signed by Amaury

Díaz, Finance Director of GDB. Peña has not alleged any facts to

substantiate his claim that Agosto was directly involved with his

contract termination. Thus, Agosto could only be liable to Peña

under a theory of supervisory liability. In § 1983 cases,

"supervisors are not automatically liable for the misconduct of

those under their command. A plaintiff must show an affirmative

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link between the subordinate officer and the supervisor, whether

through direct participation or through conduct that amounts to

condonation or tacit authorization." Carmona v. Toledo, 215 F.3d

124, 132 (1st Cir. 2000) (internal citation and quotation marks

omitted). In this case, Peña has failed to allege any link between

Agosto and whoever canceled his contract, whether Díaz or another,

unnamed individual.

Accordingly, we affirm the district court's grant of

summary judgment as to Peña's claim under the Fourteenth Amendment.

III.

For the foregoing reasons, we affirm the district court's

grant of summary judgment as to all claims brought under § 1983 by

both Vélez and Peña.

Affirmed.

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