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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