United States Court of Appeals
For the First Circuit
No. 08-1284
CARLOS CALDERÓN-GARNIER,
Plaintiff, Appellant,
v.
HON. ANABELLE RODRÍGUEZ, in her personal capacity as former
Secretary of the Puerto Rico Department of Justice;
HON. ROBERTO SÁNCHEZ-RAMOS, in his personal and official
capacity as acting Secretary of Justice; PEDRO GOYCO-AMADOR,
in his personal and official capacity of Prosecutor General
of the Department of Justice; CRUZ ESTEVES DE GONZÁLEZ, in
her personal and official capacity as District Attorney of
the Puerto Rico Department of Justice; HON. SILA MARÍA CALDERÓN,
in her personal capacity as former Governor of Puerto Rico;
JOHN DOE, unknown persons who acted or conspired violating
Plaintiff's constitutional rights and caused damages,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]
Before
Lynch, Chief Judge,
Torruella, and Selya, Circuit Judges.
Israel Roldán-González, for appellant.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, with
whom Maite D. Oronoz-Rodríguez, Acting Solicitor General, and
Ileana M. Oliver-Falero, Acting Deputy Solicitor General, were on
brief for appellees Sánchez-Ramos, Goyco-Amador, Esteves de
González and Sila María Calderón.
Eliezer A. Aldarondo, with whom Eileen Landrón-Guardiola,
Eduardo Vera-Ramírez, Luis A. Rodríguez-Muñoz, Landrón & Vera, LLP,
Roberto J. Sánchez-Ramos, Secretary of Justice, and Maite Oronoz-
Rodríguez, Acting Solicitor General, were on brief for appellee
Hon. Anabelle Rodríguez.
August 24, 2009
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TORRUELLA, Circuit Judge. Plaintiff Carlos Calderón
Garnier ("plaintiff"), a former prosecutor for the Puerto Rico
Department of Justice, appeals from a grant of summary judgment
below in favor of his former supervisors: Anabelle Rodríguez, Sila
María Calderón, Pedro Goyco-Amador, Cruz Estevez de González, and
Roberto Sánchez-Ramos (collectively "defendants"). Plaintiff
alleges that the Puerto Rico Department of Justice terminated his
twelve-year appointment as an Assistant District Attorney because
of plaintiff's political views and activities. Plaintiff proceeded
on several theories below, including a due process claim pursuant
to 42 U.S.C. § 1983, and several claims under Puerto Rico law. The
district court granted summary judgment in favor of the defendants
on the federal claims, and dismissed the Puerto Rico claims without
prejudice. Only plaintiff's due process claim is before us. After
careful consideration of the record, we affirm the district court's
grant of summary judgment.
I. Background
We present the relevant facts in the light most favorable
to the party opposing summary judgment. See Rodi v. Southern New
England School of Law, 532 F.3d 11, 13 (1st Cir. 2008).
Plaintiff was appointed Assistant District Attorney in
March 1995 by Commonwealth Governor Pedro J. Rosselló, a member of
the New Progressive Party ("NPP"). Plaintiff was promoted and
reappointed to a twelve-year term in 1999.
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In 2001, defendant Sila María Calderón of the Popular
Democratic Party ("PDP") became Governor of Puerto Rico. Beginning
in late 2001, plaintiff was required to work on-call shifts that
lasted twenty-four hours, seven days per week. Plaintiff alleges
that these shifts were assigned in a politically discriminatory
fashion. Plaintiff, along with other prosecutors, made a formal
written complaint to defendants Rodríguez and Goyco, then acting
Prosecutor General, in November 2002.
In January 2003, plaintiff sent subpoenas to several
government agencies and municipal personnel in connection with an
investigation into sabotage of United States Navy property.
Plaintiff alleges that defendant Estevez de González accused him of
undertaking a politically motivated investigation and warned him to
end the investigation. In April 2003, plaintiff also investigated
a claim that government and municipal employees had vandalized
United States property and had beaten a federal employee. Shortly
thereafter, plaintiff was removed from the investigation by order
of defendant Rodríguez. On October 30, 2003, plaintiff conducted
a silent protest at the Conference of the Public Ministry; he was
prevented by defendant Goyco from making a presentation and showing
a poster at the conference.
On November 24, 2003, plaintiff was notified by Puerto
Rico Department of Justice attorney Yanira Sierra Ramos ("Sierra")
that an investigation into plaintiff's silent protest and work
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performance was being conducted at the behest of defendant
Rodríguez. Sierra was appointed "Inspector General" of the
investigation. On December 23, 2003, as a result of this
investigation, Rodríguez, who was then Secretary of Justice, issued
a letter suspending plaintiff. The suspension was premised on a
violation of P.R. Laws Ann. tit. 3, § 93(b), which (though since
repealed) provided in pertinent part that:
A complaint against any prosecuting attorney
may be filed under oath by any citizen or at
the request of the Secretary of Justice,
before the Department of Justice. After it is
filed, the Secretary shall order an
investigation of the alleged facts. Based on
the results of such investigation, the
Secretary may dismiss said complaint or
proceed to prefer charges and notify the
prosecuting attorney, in writing therefore,
stating the reasons and grounds therefor and
giving him the opportunity to be heard.
When such charges have been proven, the
Secretary of Justice shall submit a report,
which shall include determinations,
conclusions and recommendations from such
procedures, to the Governor of Puerto Rico.
Based on said report, the Governor shall
determine the action to be taken.
The plaintiff requested by letter dated January 5, 2004,
that an informal administrative hearing be held. The case was then
assigned to an examining officer ("examiner"). The examiner
notified plaintiff by certified letter dated January 10 that a
hearing was scheduled for January 21. Plaintiff did not appear at
that hearing. The examiner had received no return confirmation
card, and suspecting that plaintiff may not have received the
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original notice, rescheduled the hearing for February 2.
Meanwhile, on January 30, plaintiff's attorney, Rafael Sánchez
Hernández, called the examiner by phone to say that he was
representing plaintiff and that plaintiff was undergoing treatment
for "emotional exasperation" by the State Insurance Fund. Sánchez
Hernández told the examiner that plaintiff would not be able to
attend the hearing and that the State Insurance Fund had advised
him to take rest while he received psychiatric treatment. The
examiner told the attorney to put plaintiff's statement in writing.
On February 3, after considering statements in writing
and arguments from plaintiff's lawyer regarding plaintiff's
treatment, the examiner issued a new resolution rescheduling the
hearing for February 9. The February 3 resolution alerted the
plaintiff to several alternatives available for presenting his
case: in writing, in person, or through counsel. A new resolution
on February 6 moved the new hearing to February 13 because of a
scheduling conflict. Plaintiff's attorneys also stated that they
had not yet received the February 3 resolution. The examiner had
by this time already heard and rejected plaintiff's argument that
hearings should be postponed while he was under the care of the
State Insurance Fund.
Plaintiff did not appear on February 13, but his
attorneys did. They argued that plaintiff had not been able to
confront the evidence against him and requested copies of all
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documentary proof in the file containing the charges against him.
The examiner rejected these requests stating that due process only
requires an informal pre-termination hearing. Plaintiff was given
a final deadline of February 19 to submit in writing his version of
the facts. Plaintiff failed to submit any facts by the deadline.1
On April 2, 2004, the examiner issued a resolution
summarizing her findings and recommended dismissal. On May 12,
2004, based on that recommendation, defendant Sila María Calderón,
who was then Governor, dismissed plaintiff for "insubordination or
abandonment of duties, improper and reprehensible conduct and
incompetence or professional inability manifest in the performance
of functions and duties," in violation of P.R. Laws Ann. tit. 3,
§ 93(a) and pursuant to procedure and authority in § 93(b). The
letter of dismissal made clear that plaintiff was entitled to an
appeal with the Personal Administration System Appeal Boards within
thirty days of notification of dismissal.
Plaintiff filed this federal action on May 11, 2005. On
January 6, 2008, the district court granted summary judgment in
1
Of dubious importance and uncertain history in this appeal is a
two-line letter by plaintiff's psychiatrist dated February 19,
2004. The letter, which was entered into the record below only in
Spanish, is inadmissible. Neither this court nor the district
court may rely on evidence not in English. See 1st Cir. Loc. R.
30(d) ("The court will not receive documents not in the English
language unless translations are furnished."); see also 48 U.S.C.
§ 864 ("All pleadings and proceedings in the United States District
Court for the District of Puerto Rico shall be conducted in the
English language.").
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defendants' favor, denying plaintiff's claims under § 1983. It
then declined to exercise supplemental jurisdiction over the Puerto
Rico law claims.
Plaintiff appeals the district court's dismissal of his
due process claim.
II. Discussion
A. Standard of Review
This court reviews a grant of summary judgment de novo.
See Insituform Techs., Inc. v. Am. Home Assur. Co., 566 F.3d 274,
276 (1st Cir. 2009). "Nevertheless, '[w]e may affirm the district
court's decision on any grounds supported by the record.'" Meuser
v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting
Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008)). "In
reviewing a grant of summary judgment, this court 'constru[es] the
record in the light most favorable to the nonmovant and resolv[es]
all reasonable inferences in the party's favor.'" Id. at 44
(quoting Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32,
38 (1st Cir. 2002)). Summary judgment is appropriate only when
"there is no genuine issue as to any material fact" and the "movant
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). The nonmovant "may not rely merely on allegations or
denials in its own pleading; rather, its response must . . . set
out specific facts showing a genuine issue for trial." Fed. R.
Civ. P. 56(e).
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B. Due Process of Law
Plaintiff's sole federal claim is filed pursuant to
§ 1983, which grants a civil remedy for denial of federal
constitutional rights under the color of state law. Plaintiff
seeks to vindicate his federal procedural due process rights, as
guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution, which both provide that no person shall be
deprived "of life, liberty, or property, without due process of
law." U.S. Const. Amend. V, XIV.
Being fired from a job can only constitute a deprivation
of "life, liberty, or property" if the worker had a property
interest in the job; thus, plaintiff's "federal constitutional
claim depends on [his] having had a property right in continued
employment." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
538 (1985). If an employee has a property interest in her job and
it is determined that the due process clause applies, "'the
question remains what process is due.'" Id. at 541 (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
"The fundamental requirement of due process is the
opportunity to be heard 'at a meaningful time and in a meaningful
manner.'" Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The
Supreme Court has stated that "the pretermination hearing need not
definitively resolve the propriety of the discharge," but need only
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be "an initial check against mistaken decisions -- essentially, a
determination of whether there are reasonable grounds to believe
that the charges against the employee are true and support the
proposed action." Loudermill, 470 U.S. at 545-46. This pre-
termination process, especially when there is a "comprehensive"
post-termination procedure in place, need not be "elaborate." Mard
v. Town of Amherst, 350 F.3d 184, 192 (1st Cir. 2003); see also
Swank v. Smart, 898 F.2d 1247, 1256 (7th Cir. 1990) (comparing pre-
and post-termination due process requirements). It "'need only
include oral or written notice of the charges, an explanation of
the employer's evidence, and an opportunity for the employee to
tell his side of the story.'" O'Neill v. Baker, 210 F.3d 41, 48
(1st Cir. 2000) (quoting Gilbert v. Homar, 520 U.S. 924, 929
(1997)).
C. Plaintiff's Due Process Claim is Unavailing
a. Process Afforded
As a preliminary matter, assuming plaintiff has a valid
property interest in his job, there is little question here that
the process provided to plaintiff was sufficient. Plaintiff was
presented with notice of the charges against him. He requested and
was offered an informal hearing. The examiner granted requests for
extensions of time and accommodated plaintiff's attorneys'
schedules. The examiner repeatedly made clear that plaintiff could
present his version of events in person, in writing, or through his
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attorneys. Taken together, these provisions clearly rise to the
requisite level of "oral or written notice of the charges, an
explanation of the employer's evidence, and an opportunity for the
employee to tell his side of the story." Gilbert, 520 U.S. at 929.
Plaintiff also argues that his health prevented him from
taking advantage of the process afforded by Puerto Rico.2 We do
not doubt that at some point a health condition could prevent an
individual from meaningfully presenting her side of the story; on
this thin record, however, we need not reach this question.3 There
is nothing in the record to suggest plaintiff was so incapacitated
that he could not communicate with his lawyer to make arguments on
his behalf. It is true that plaintiff's counsel informed the court
that plaintiff could not be present because the State Insurance
Fund recommended that he rest while receiving treatment. However,
this fact, standing alone, does not establish that plaintiff was
not given a meaningful opportunity to present his version of events
-- due process does not impose a strict requirement that plaintiff
2
Plaintiff states that he was receiving medical therapy for the
"emotional exasperation caused by all the illegal and
discriminatory acts of [defendants]."
3
We note that in a different context -- equitable tolling on
account of mental illness in civil actions -- we held that a
plaintiff suffering from hallucinations and paranoia, had "rais[ed]
a genuine issue of fact as to whether [her] mental condition
rendered her incapable of rationally cooperating with any counsel,
and/or pursuing her claim on her own during the limitations
period." Nunnally v. MacCausland, 996 F.2d 1, 6-7 (1st Cir. 1993)
(per curiam). A plaintiff's inability rationally to participate in
the process was thus dispositive.
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must be present at a pre-termination hearing. See Cepero-Rivera v.
Fagundo, 414 F.3d 124, 135 (1st Cir. 2005) (holding no due process
violation where plaintiff presented his arguments in writing rather
than appearing in person). Moreover, at the February 13 hearing,
counsel presented legal arguments on plaintiff's behalf. In
addition, plaintiff was given a final opportunity to present his
side of the story in writing on February 19, but failed to do so.4
To the extent that plaintiff was unsatisfied with the proceedings,
this case resembles Mercado-Alicea v. P.R. Tourism Co., where a
worker repeatedly failed to participate in a pre-termination
hearing that was rescheduled several times. 396 F.3d 46, 53 (1st
Cir. 2005) ("The district court correctly found that defendants did
not violate [plaintiff's] due process rights when his inability to
present his side of the story was due to his failure to
participate.").
In sum, plaintiff has shown no genuine issue as to any
material fact that would cause us to doubt whether plaintiff had a
meaningful opportunity to participate in a pre-termination hearing.
4
Even if we were to consider the February 19 note from
plaintiff's psychiatrist, it does not establish why plaintiff could
not respond in writing to the charges against him.
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III. Conclusion
For the foregoing reasons, we hold that the district
court correctly granted the defendants' summary judgment motion and
correctly dismissed the Puerto Rico law claims without prejudice.5
Affirmed.
5
We note plaintiff's claim that Rodríguez was without authority
when she issued a letter suspending plaintiff. We need not reach
this claim as it is made pursuant to Puerto Rico law and does not
implicate his due process claim.
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