Figueroa-Serrano v. Ramos-Alverio

United States Court of Appeals
For the First Circuit

No. 99-1592

FELIX FIGUEROA-SERRANO, ET AL.

Plaintiffs, Appellants,

v.

HON. ANGEL RAMOS-ALVERIO, ET AL.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Chief Judge,
Selya and Lipez, Circuit Judges.

Jesús Hernández Sánchez for appellants.
Luis E. Pabón-Roca, with whom Faccio & Pabón-Roca was
on brief, for appellee Ramos-Alverio in his official capacity.
Johanna Emmanuelli-Huertas, Assistant Solicitor
General, with whom Gustavo A. Gelpí, Solicitor General, was on
brief, for appellee Ramos-Alverio in his individual capacity.
Leticia Casalduc-Rabell for appellees Members of the
Municipal Assembly of Yabucoa.

July 25, 2000
 LIPEZ, Circuit Judge. Fifty-six plaintiffs, current and

former employees of the Municipality of Yabucoa, filed a lawsuit in the

United States District Court of the District of Puerto Rico against the

Mayor of Yabucoa and eleven members of the Municipal Assembly in their

individual and official capacities. The plaintiffs are members of the

New Progressive Party ("NPP") and the defendants are members of the

Popular Democratic Party ("PDP"). Plaintiffs sued pursuant to 42

U.S.C. § 1983, alleging violations of their rights under the First,

Fifth, and Fourteenth Amendments. Specifically, the plaintiffs claim

that the adoption of an ordinance changing their status as career

employees, and their subsequent terminations or demotions, were

politically-motivated acts in violation of their constitutional rights.

The district court granted summary judgment to the defendants. We

affirm. I. Background

In November 1996, Angel Ramos-Alverio of the PDP was elected

Mayor of Yabucoa. The other defendants, also affiliated with the PDP,

were elected as members of the Municipal Assembly. Prior to the

November elections, the municipal administration had been under the

control of the NPP.

On April 2, 1997, the new Municipal Assembly enacted

Ordinance 15, which provided for the dismissal, transfer, or demotion

of municipal employees based on an evaluation of the Municipality's

needs. Mayor Ramos maintained that the layoff plan would improve the

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Municipality's finances by reorganizing its operations and personnel.

During the early stages of implementing the layoff plan,

Mayor Ramos and his staff studied the personnel needs of the

Municipality. On May 30, 1997, the Municipality informed all employees

in writing of their seniority status, explained that they would be

ranked by seniority, and gave them an opportunity to contest their

seniority. In addition, the Municipality assessed the number and type

of positions necessary to provide municipal services, made a certified

list of eligible candidates for each job classification, and indicated

how each job would be filled from the list of eligible candidates based

on seniority.

On June 2, 1997, the Municipal Assembly enacted Ordinance 17

("the 1997 Ordinance"), which repealed a prior ordinance enacted by the

NPP administration ("the 1996 Ordinance") granting career status1 to a

number of employees formerly classified as transitory.2 The 1997

Ordinance stated that the 1996 Ordinance violated Puerto Rico's

1The Autonomous Municipalities Act defines this status: "Regular
career employees are those who have entered the system after undergoing
the recruitment procedure established in this subtitle . . . . These
employees shall be entitled to permanent status and may only be removed
from their positions for just cause after due filing of charges." 21
L.P.R.A. § 4554(b).
2The Act defines transitory employees as "those who fill positions
of fixed duration in the career service . . . Transitory appointments
shall not exceed one (1) year . . . ." 21 L.P.R.A. § 4554(c).

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Autonomous Municipalities Act's requirement that municipalities adopt

regulations to ensure that personnel are hired according to their merit

and that all qualified candidates have the opportunity to compete for

career positions. Although there is an exception to open competition

for career positions under Article 12.008 of the Autonomous

Municipalities Act "[w]hen there is no appropriate list of eligibles

available for certain classes of positions and the urgency of the

service to be rendered justifies it," 21 L.P.R.A. § 4558(a)(1), the

Municipal Assembly found that "no urgency [to fill the positions]

existed" at the time that the 1996 Ordinance was enacted. The 1997

Ordinance repealed the career status of those employees covered by the

1996 Ordinance and authorized the Director of Human Resources of the

Municipality of Yabucoa to make the personnel changes necessary to

return them "to the state of law which they held prior to such

appointments."3 On June 30, 1997, the Municipality terminated some of

the plaintiffs and switched others from "career" to "transitory"

status.

3Defendants claim that there is no connection between the 1997
Ordinance adopted on June 2, 1997, and the layoff plan (Ordinance 15),
adopted earlier on April 2, 1997. We find this claim implausible. The
layoff plan required that all terminations occur on the basis of
seniority. Because career versus transitory status affects the
seniority ranking process, a prior grant of career status to a group of
employees would affect implementation of the layoff plan. This
relationship is the most obvious reason for the Municipal Assembly's
enactment of the 1997 Ordinance two months after it passed the
ordinance providing for the layoff plan.

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 The plaintiffs claim that they were discharged or demoted to

transitory status because of their political affiliation; that the

defendants had a policy of terminating NPP employees and replacing them

with members of the defendants' party, the PDP; and that the

Municipality continued to hire new employees from the PDP party

following their terminations. The plaintiffs do not present any

evidence of new hires. They cite the sworn statement of plaintiff Juan

A. Ramos-Fontanez that Mayor Ramos "used to say that he was going to

clean City Hall of most NPP employees . . . ."

The defendants argue that the 1997 Ordinance and the

subsequent personnel actions corrected the prior administration's

illegal conversion of a group of employees from transitory to career

status. They note that the 1996 Ordinance breached the merit principle

system and violated Puerto Rico personnel laws. The defendants also

maintain that they have not hired or appointed any new employees to

fill the job classifications affected by the layoff plan.

We review the grant of summary judgment de novo. See EEOC v.

Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997). We draw all reasonable

inferences in favor of the nonmoving party. See Champagne v. Servistar

Corp., 138 F.3d 7, 8 (1st Cir. 1998). II. Claims Against the

Defendants in their Individual Capacities

Officials performing legislative functions have absolute

immunity from suit and liability under section 1983. See Agromayor v.

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Colberg, 738 F.2d 55, 58 (1st Cir. 1984). Absolute immunity extends to

local legislators as well as to their state and federal counterparts.

See Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). Legislative

immunity prevents the threat of lawsuits from inducing officials to act

"with an excess of caution or otherwise to skew their decisions" in

performing their legislative duties. Forrester v. White, 484 U.S. 219,

223 (1988). This rationale applies with particular force "in local

government, where prestige and pecuniary rewards may pale in comparison

to the threat of civil liability." Bogan, 523 U.S. at 52.

A. The Alleged Illegality of the 1997 Ordinance

The plaintiffs contend that absolute immunity does not apply

to the defendants because the 1997 Ordinance was not a "legitimate

legislative act." According to the plaintiffs, the 1997 Ordinance

"illegally stripped the plaintiffs' of their career (tenured)

employment status, and also illegally demoted the plaintiffs to

transitory job status." They claim that "an illegal legislative act

cannot be said to be a legitimate legislative action." We reject this

argument.

There is no support in the case law for plaintiffs' claim

that the legislative act must be "legitimate" for absolute immunity to

apply. In Colon Berríos v. Hernández Agosto, 716 F.2d 85, 91 (1st Cir.

1983), we held that "[l]egislative activities otherwise entitled to

immunity in a § 1983 suit do not lose the full protection of that

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immunity merely because plaintiffs allege that such activities violate

their constitutional rights." Similarly, in Acevedo-Cordero v.

Cordero-Santiago, 958 F.2d 20, 22 (1st Cir. 1992), we noted that "[t]he

doctrine of absolute immunity provides a complete bar to civil

liability for damages, regardless of the culpability of the actor . .

. ." See also Rateree v. Rockett, 852 F.2d 946, 951 (7th Cir. 1988)

("[A] legislator may vote for legislation for seemingly improper

reasons; nevertheless, the rule of absolute immunity shields this

conduct."). When the Supreme Court stated in Tenney v. Brandhove, 341

U.S. 367, 376 (1951), that an act was protected by legislative immunity

only if it occurred within the "sphere of legitimate legislative

activity," it was referring to the nature of the act (i.e., whether it

is legislative rather than administrative), not to the legality or

legitimacy of the act.

B. The Nature of the 1997 Ordinance

Absolute immunity does not apply to administrative or

executive functions. The touchstone is the nature of the contested

action, not the job title of the official who is sued. See Forrester,

484 U.S. at 227 ("[I]mmunity is justified and defined by the functions

it protects and serves, not by the person to whom it attaches."). The

official's motive or intent is irrelevant to the determination of

whether an action is legislative or administrative. See Bogan, 523

U.S. at 54.

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 The 1996 Ordinance granted career status to two general

classes of municipal workers: 1) employees who had held a temporary

position for three years or more; and 2) employees who had held a

temporary position for at least six months but not more than three

years and who had received certification from the director of the

relevant municipal agency of satisfactory work performance. The 1997

Ordinance authorized the Municipality's Director of Human Resources to

"return the employees named to a career status pursuant to [the 1996

Ordinance] to the state of law which they held prior to such

appointments." Rather than specifying the names of affected employees

on some selective basis, the 1997 Ordinance invalidated generally all

personnel actions taken pursuant to the 1996 Ordinance.

We have little difficulty concluding that the 1997 Ordinance

was legislative in nature. The acts of voting for legislation and

signing an ordinance into law are "quintessentially legislative" in

form. Bogan, 523 U.S. at 55. The defendants' actions were also

legislative in substance. The 1997 Ordinance sought to correct an

enactment deemed illegal by the Municipal Assembly. The repeal of an

illegal act is "a field where legislators traditionally have power to

act." Tenney, 341 U.S. at 379. Indeed, the Municipal Assembly had an

obligation to ensure that the Municipality's ordinances and related

personnel actions conformed to applicable Puerto Rico law. The

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individual defendants are entitled to absolute immunity for the

enactment of the 1997 Ordinance.4

III. Claims Against the Defendants in their Official Capacities

The plaintiffs also brought suit against the defendants in

their official capacities pursuant to section 1983, alleging violations

of their First and Fourteenth Amendment rights.5 Municipalities are

liable for constitutional violations resulting from their official

policies and customs. See Monell v. Department of Soc. Servs., 436

U.S. 658, 690 (1978). Enactments by a municipal legislature are

official policies. See Pembaur v. City of Cincinnati, 475 U.S. 469,

480 (1986)("[E]ven a single decision by [a legislative] body

unquestionably constitutes an act of official government policy.").

A. Fourteenth Amendment: Due Process

The plaintiffs claim that the 1997 Ordinance deprived them

of their property interest in continued employment as career employees

without proper notification or an informal due process hearing. The

district court held that the plaintiffs' career status was void because

4
On appeal, the plaintiffs do not challenge whether legislative
immunity applies to the actions taken by the defendants in enacting
Ordinance 15, the legislation authorizing the layoff plan, nor could
they. The Municipal Assembly enacted Ordinance 15 as part of a
policymaking decision to restructure municipal services to increase
efficiency and streamline costs. The layoff plan affected all 362
municipal employees based on their job classification and seniority.
5
Although the plaintiffs also alleged Fifth Amendment violations,
the district court did not address those allegations because the
plaintiffs failed to present a developed argument.

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it was granted in violation of law. Without career status, plaintiffs

lacked a property interest in their employment under Puerto Rican law

and thus could not prevail on their Fourteenth Amendment claim. We

agree.

Under the Due Process Clause of the Fourteenth Amendment,

persons who possess a property interest in continued public employment

cannot be deprived of that interest without due process of law. At a

minimum, due process rights entitle such individuals to "notice and a

meaningful opportunity to respond" prior to termination. Kercado-

Meléndez v. Aponte-Rogue, 829 F.2d 255, 263 (1st Cir. 1987). The

Constitution does not create property interests; instead, "they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law

. . . ." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Once a

legislature has conferred a property interest in public employment, "it

may not constitutionally authorize the deprivation of such an

interest . . . without appropriate procedural safeguards." Arnett v.

Kennedy, 416 U.S. 134, 167 (1974).

Puerto Rican law grants a property interest in employment to

career employees. See Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169,

1173 (1st Cir. 1988). The Autonomous Municipalities Act mandates that

career employees "shall be entitled to permanent status and may only be

removed from their positions for just cause after due filing of

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charges." 21 L.P.R.A. § 4554(b). However, in order to possess a

protected property interest the plaintiffs must have a valid claim to

career status. Puerto Rican law mandates that "Acts executed contrary

to the provisions of law are void except when the law preserves their

validity." 31 L.P.R.A. § 4.

We addressed the issue of an illegal grant of career status

in Kauffman, 841 F.2d at 1173-75. Plaintiffs were hired by the Puerto

Rico Telephone Company, a public corporation, in violation of company

regulations adopted pursuant to the Puerto Rico Public Service

Personnel Act requiring that the company first consider qualified

internal employees to fill vacancies. Id. at 1170-71. We held that

because the "plaintiffs were hired in violation of [regulations

promulgated under order of the Puerto Rico Supreme Court to comply with

the Personnel Act], they obtained their career positions 'on the basis

of standards foreign to that category,' and, therefore, could not, upon

termination, benefit from the 'property' status of such positions."

Id. at 1174 (quoting Colón v. Mayor of Municipality of Ceiba, 112

D.P.R. 740 (1982)).

The Municipal Assembly of Yabucoa must have granted the

plaintiffs career status in accordance with applicable Puerto Rican law

if they are to have a property interest in their jobs. The Autonomous

Municipalities Act requires that, "The municipal public service shall

be governed by the merit principle to ensure that those who serve the

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Municipal Government are the fittest." 21 L.P.R.A. § 4551. The Act

also specifies procedures for hiring "career" employees. A Municipal

Selection Committee interviews all eligible candidates, submits a list

to the Mayor of the five most qualified candidates, and the Mayor makes

the final selection decision. See 21 L.P.R.A. § 4558. Pursuant to

Article 12.008 of the Autonomous Municipalities Act, "[S]pecial

alternate recruitment and selection procedures may be used when it

becomes impractical to attend to the municipal service needs with

appointments made subject to the ordinary procedure established in this

subtitle." 21 L.P.R.A. § 4558(a). These special procedures are

"mechanisms of exception" and can be used only when: 1) there is no

appropriate list of eligible candidates and the urgency of the service

to be rendered justifies special procedures; and 2) to fill non-skilled

or semi-skilled transitory positions. Id. Only the first exception is

at issue in this case.

By its terms, the 1996 Ordinance offers three justifications

for the grant of career status to large numbers of transitory

employees. First, the Ordinance cites the “special alternate

recruitment and selection procedures” of Article 12.008 of the

Autonomous Municipalities Act, which can be used “when it becomes

impractical to attend to the municipal service needs” by following the

normal procedure for hiring career employees. 21 L.P.R.A. § 4558(a).

This justification fails for the obvious reason that the 1996 Ordinance

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did not involve the recruitment and selection of new employees to

attend to the service needs of the Municipality. Instead, the

Ordinance simply changed the employment status of an existing group of

workers who were already addressing the service needs of the

Municipality.

Second, the 1996 Ordinance invoked Law 56 of August 16, 1989,

an amendment to the Puerto Rico Public Service Personnel Act. The

Ordinance states that by this “Law . . . regular career status shall be

granted to thousands of State Government employees who have held

temporary positions and who meet the requirements set forth in said law

as of July 1, 1996.” This precedent is not helpful to the plaintiffs

because Law 56 applied only to the employees of the Commonwealth of

Puerto Rico, not the employees of the autonomous municipalities. In

fact, the autonomous municipalities are exempt from the provisions of

the Puerto Rico Public Service Personnel Act pursuant to Section 4577

of the Autonomous Municipalities Act. See 21 L.P.R.A. § 4577.

Third, the Ordinance states that the Municipality “has been

forced to appoint numerous temporary employees due to the fact that it

does not have eligibility logs and because originally it was not

contemplated that such appointments would have to be consecutively

renewed pursuant to the service needs.” The Ordinance states further

that the Municipality “has established the public policy of doing

justice to these temporary employees by granting appointments as

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regular career employees.” If the Municipality underestimated its

needs for career employees, and hence created “de facto” career

employees by renewing the status of transitory employees on a regular

basis, it should have addressed the problem by following the mandated

procedures of the Autonomous Municipalities Act for the recruitment and

hiring of career employees. See 21 L.P.R.A. § 4558. It could not

respond to this problem by ignoring those procedures and relying on a

contrived crisis to confer career status on its transitory employees.

The Municipality unmistakably enacted the 1996 Ordinance in

contravention of the Autonomous Municipalities Act. The grant of

career status to the plaintiffs was therefore void. Without career

status, the plaintiffs do not have a constitutionally protected

property interest in continued employment, and they cannot prevail on

their due process claim under the Fourteenth Amendment.6

B. First Amendment

Public employees who do not hold confidential policy-making

positions are protected from adverse employment actions based on

political affiliation. See Branti v. Finkel, 445 U.S. 507, 517-19

6The district court did not address the urgency exception of
Article 12.008. Instead, it concluded that the 1996 Ordinance was
illegal because it did not provide for the publication of available
career positions, open competition for career positions, evaluation by
the Municipal Selection Committee, or a probationary work period. We
do not disagree with the district court. We have simply addressed the
argument of the plaintiffs that compliance with those requirements
cited by the district court was unnecessary because of the “crisis”
alluded to in the 1996 Ordinance.

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(1980); see also Rutan v. Republican Party of Illinois, 497 U.S. 62, 75

(1990)(extending the prohibition on patronage dismissals to include

promotion, transfer, recall, or hiring decisions). The freedoms of

belief and association of public employees "constitute the core of

those activities protected by the First Amendment." Elrod v. Burns,

427 U.S. 347, 356 (1976).

To prevail on a free speech claim, a public employee must

show that she engaged in constitutionally-protected conduct and that

this conduct was a substantial factor in the adverse employment

decision. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977); see also Padilla-García v. Guillermo Rodríguez, 212 F.3d

69, 73 (1st Cir. 2000)(emphasizing that the protected conduct need only

be a factor in the employment decision, not the motivating factor).

The plaintiffs claim that Mayor Ramos's alleged statement that he

intended to rid the Municipality of NPP employees, coupled with the

competing political persuasions of the plaintiffs and defendants,

constitute enough evidence of a First Amendment violation to withstand

a motion for summary judgment. The district court rejected plaintiffs'

political discrimination claim because it was "based solely upon

conclusory statements" and "lack[ed] any specific evidence." We agree.

In Kauffman v. Puerto Rico Telephone Co., 841 F.2d at 1172-

73, we concluded that the plaintiffs could not withstand summary

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judgment against them based on "general and unsupported allegations"

that the defendants belonged to the rival political party (the PDP) and

that the plaintiffs lost their jobs directly after the defendants

assumed management positions. Further, we noted that the plaintiffs'

most viable claim, the allegation that similarly situated PDP members

were not fired, lacked factual support. See id. at 1172. Although the

Kauffman plaintiffs had "more than sufficient time to discover specific

information, such as the names of [similarly situated individuals from

the rival political party who were not fired], the plaintiffs failed to

provide the district court with information that would suggest that

[their political discrimination claim had] any factual support." Id.

Similarly, the plaintiffs here have failed to adduce specific

facts indicating that the Municipality of Yabucoa discharged them based

on party affiliation. Like the plaintiffs in Kauffman, they rely on

generalized assertions of the defendants' affiliation with the rival

political party and the enactment of the 1997 Ordinance following the

November 1996 elections. The only specific evidence that they offer is

the sworn statement of a single plaintiff that Mayor Ramos voiced his

intention to rid City Hall of NPP employees. They have failed to

provide names or other specific factual information supporting their

claim that the Municipality replaced them with new hires from the PDP.

This meager showing is patently insufficient to generate a genuine

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issue of material fact on a causal connection between the political

affiliation of the plaintiffs and the adverse employment actions

alleged.

IV. Conclusion

For the reasons stated herein, we affirm the district court's

grant of summary judgment for the defendants.

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