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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