United States Court of Appeals
For the First Circuit
No. 04-1494
MANUEL CARDONA-MARTÍNEZ; CARMEN MÁRQUEZ-PARRILLA
Plaintiffs, Appellants,
v.
ÁNGEL D. RODRÍGUEZ-QUIÑONES; MIGDALIA MOLINA; ADA GUEVARA;
LAUDELINO RIVERA; OLGA RODRÍGUEZ-VIERA; RAMÓN AYALA-SANTIAGO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Fredeswin Perez-Caballero, with whom Hernandez Sanchez Law
Firm and Jesus Hernandez-Sanchez were on brief, for appellants.
Javier I. Arbona Azizi, with whom Quiñones, Sánchez &
Guzmán, P.S.C. was on brief, for appellees.
April 6, 2006
STAHL, Senior Circuit Judge. Manuel Cardona-Martínez and
Carmen Márquez Parrilla bring this appeal challenging the judgment
entered in favor of the defendants below in this political
discrimination case. Cardona and Márquez are members of the New
Progressive Party (NPP), which was until November 2000 the ruling
party in the Commonwealth of Puerto Rico. In 2000, the NPP
administration was ousted when the Popular Democratic Party (PDP)
won the November gubernatorial election. With the resultant change
in the Puerto Rican administration in January 2001 came a rotation
of the membership of the managerial echelon at various executive
agencies. Like a spate of others decided in the course of the past
few years, this case arises out of that shake-up. See, e.g.,
Rodríguez-Marín v. Rivera-Gonzalez, 438 F.3d 72 (1st Cir. 2006);
Borges Colón v. Román-Abreu, 438 F.3d 1 (1st Cir. 2006);
Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145 (1st Cir. 2006);
Rosario-Urdaz v. Velazco, 433 F.3d 174 (1st Cir. 2006).
Cardona and Márquez allege that they were demoted and
suffered other professional indignities after the change of regime,
and brought these political discrimination claims under the First
and Fourteenth Amendments. The district court rendered judgment as
a matter of law after the close of the plaintiffs' case-in-chief,
finding, inter alia, that the plaintiffs could not prove unlawful
political discrimination because the positions from which they were
removed were political positions. We affirm.
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I.
Appellants here were, both before and after the 2000
elections, employees of the Regulations and Permits Administration,
known by its Spanish acronym, ARPE.1 The Puerto Rican career
service recognizes two relevant categories of employees at state
agencies like the ARPE: those who hold positions of trust and
confidence, who are generally in the style of policy-makers and
advisers and who are political appointees, see 3 P.R. Laws Ann. §
1350 (2000); and those who hold career positions, see id. § 1352,
who make up the bulk of the remainder of the public sector. In
hiring the former, a potential employee's political affiliation is
typically a vital consideration, while as to the latter, Puerto
Rican law dictates that political affiliation is neither a relevant
nor a permissible consideration. See id. § 1333.
Cardona and Márquez have each held both trust and career
positions, but for a significant period prior to the election, each
held a trust position. Puerto Rican law gives departing trust
employees who came out of the career service the right to reclaim
a career position equivalent to the career position they last held.
See id. § 1350(8)(a); see also Rosario-Urdaz, 433 F.3d at 176. Our
cases have noted other instances in which trust employees have made
1
This appeal was brought after the district court granted
judgment as a matter of law in favor of the defendants, and so we
recite the facts as presented by the plaintiffs, drawing any
inferences in their favor.
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such a move prior to an election in which an opposing party may
win, and made it at the latest date possible before the election.
See, e.g., Rodriguez-Marin, 438 F.3d at 75; Velez-Rivera, 437 F.3d
at 149. Puerto Rico has imposed a moratorium on such shifts during
the two months prior to and the two months after an election, see
3 P.R. Laws Ann. § 1337, which means that these shifts into career
positions tend to take place in August or early September before a
November election. Accordingly, in August 2000, as the elections
approached, both Cardona and Márquez moved from their trust
positions into career positions.
Each briefly took a significant pay cut and reduction in
assigned duties. Crucial to this case, however, both were quickly
promoted to positions designated as career posts but carrying
salaries commensurate with their old trust-position salaries.
In November 2000, the PDP won the Commonwealth-wide
gubernatorial election, and in January 2001, the new administration
took over. Roughly one year later, toward the end of January 2002,
appellants both received letters signed by the new (PDP-affiliated)
administrator of their division of the ARPE removing them to new
positions. Each was given a brief informal hearing on the question
of his or her reassignment. Cardona was moved from his recently
acquired position as a class-II Administrative Facilitator, with a
$4,000 monthly salary, to a statistician's job with a salary closer
to $1,700. Márquez received a similar letter, informing her that
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she would lose her position as Manager of Services and Process,
with its monthly salary of $4,300, and would resume work as an
Internal Service Representative at a monthly rate of $2,500.
The appellants brought suit in the United States District
Court for the District of Puerto Rico under 42 U.S.C. § 1983 and
the First and Fourteenth Amendments, alleging that their demotions
and reductions of pay and perquisites were unconstitutional because
motivated by political animosity.2 Named as defendants are various
members of the new cadre of trust employees appointed to run the
ARPE. The case went to trial on January 29, 2004, and plaintiffs
concluded presentation of their case-in-chief on February 12, 2004.
The defendants subsequently moved for judgment as a matter of law
under Rule 50 of the Federal Rules of Civil Procedure. The
district court granted the defendants' motion.
The district court opinion granted judgment on the basis
of three interrelated conclusions. The first was that Cardona and
Márquez held their most recent positions illegitimately; the second
was that the positions they held, while designated as "career"
positions for purposes of the Puerto Rican career service, were
nevertheless in fact the type of politically sensitive positions
that the First Amendment permits to be filled on the basis of
2
Márquez also stated a First Amendment claim arising out of an
incident in which she was reprimanded after speaking critically
about the new administration on the radio, but on appeal does not
press any issues related to that claim.
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political affiliation; and the third was that the plaintiffs had
not put forward evidence of discriminatory intent on the part of
the defendants. The court ruled that the state's interest in
filling the vacated positions with supporters of the incoming
party's policies, taken together with the weakness of the evidence
presented at trial of any politically discriminatory motive on the
part of the defendants, meant that "a reasonable jury could not
conclude that Plaintiffs have met their burden establishing a cause
of action for political discrimination in violation of the First
Amendment of the United States Constitution pursuant to 42 U.S.C.
Section 1983." Cardona and Márquez timely appealed.
II.
Federal Rule of Civil Procedure 50(a) permits a party to
move for judgment as a matter of law before the case has been
submitted to the jury. In deciding a Rule 50 motion, a district
court "must examine the evidence, and inferences to be drawn
therefrom, in the light most favorable to the non-movant." Mangla
v. Brown Univ., 135 F.3d 80, 82 (1st Cir. 1998) (citing
Rolón-Alvarado v. Municipality of San Juan, 1 F.3d 74, 76 (1st Cir.
1993)). Judgment as a matter of law may be granted when a party
has been fully heard on an issue and has presented "no legally
sufficient evidentiary basis for a reasonable jury to find for that
party on that issue . . . ." Fed. R. Civ. P. 50(a)(1); see also
Mangla, 135 F.3d at 82 (judgment as a matter of law may be granted
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"only if the evidence, viewed from this perspective, is such that
reasonable minds could not differ as to the outcome" (quoting
Rolón-Alvarado, 1 F.3d at 77)). We review the disposition of the
motion de novo, applying the same standard. Mangla, 135 F.3d at
82.
On appeal, plaintiffs have challenged two of the district
court's three determinations. The first challenge is to the
district court's conclusion that the promotion of Cardona and
Márquez to higher level positions in the career service within days
of their transfers from trust to career positions was illegitimate.
The second challenge is to the district court's conclusion that no
evidence of political discrimination had been adduced. Left
unchallenged, however, is the district court's determination that
the positions to which Cardona and Márquez were promoted were
(despite being designated "career positions" by the Puerto Rican
career service) policymaking positions.3 The import of that
conclusion appears to have eluded appellants' counsel, and the
failure to challenge the determination is fatal to appellants'
claims. While the general rule is that the dismissal of a public
3
There may be a passing gesture at the point in the brief, but
if so, it is insufficient to alert us to any error in the district
judge's determination. "[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990). Appellants have not indicated, for example, what
duties they had in the career positions from which they were
ejected, and without that information, we are in no position to
review the determination of the district judge.
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employee on the basis of the employee's political affiliation
"infringes First Amendment freedoms of belief and association,"
Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 239 (1st Cir.
1986) (en banc), a vital exception to the rule is that politically
motivated dismissals of public employees holding certain
politically sensitive positions are both permissible and necessary
in a system of representative democracy. See id. (quoting Elrod v.
Burns, 427 U.S. 347, 367 (1976)). The question a court must ask in
deciding whether a post may be filled on the basis of political
affiliation is whether such affiliation "is an appropriate
requirement for the effective performance of the public office
involved." Id. at 240 (quoting Branti v. Finkel, 445 U.S. 507, 518
(1980)). Although the designation of a position as a trust or
career post under the Puerto Rican career service regime is a
factor relevant to the determination whether the federal
constitution permits political affiliation to be taken into account
in making hiring and firing decisions with respect to the position,
it is not determinative. Id. at 246.
Here, the district court concluded that the stipulated
and uncontested facts indicated that the job positions to which the
appellants were promoted just before the election were political
positions, and that denying the incoming administration the power
to fill the positions with members of it own party would frustrate
the efforts of the victors of the recent election to carry out the
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policy initiatives that it was their duty and mandate to implement.
We need take no view as to whether this was in fact a correct
conclusion on the evidence presented at trial. By failing to make
the argument that the district court erred on this point,
appellants have waived it and have effectively conceded the point.
See King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997); see
also Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 147 n.3
(1st Cir. 2004). The conceded point is dispositive of this appeal:
the appellants are bound by the district court's unchallenged
conclusion that the First Amendment did not bar the defendants from
removing them from their positions on the basis of their political
affiliation, and so the district court's grant of judgment as a
matter of law must stand.
III.
For the foregoing reasons, the entry of judgment by the
district court is affirmed.
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