878 F.2d 1 (1st Cir. 1989), 88-1989, Caro v. Aponte-Roque

Docket Nº:88-1989.
Citation:878 F.2d 1
Party Name:Angel L. CARO, et al., Plaintiffs, Appellees, v. Awilda APONTE-ROQUE, etc., Defendant, Appellant.
Case Date:June 15, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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878 F.2d 1 (1st Cir. 1989)

Angel L. CARO, et al., Plaintiffs, Appellees,

v.

Awilda APONTE-ROQUE, etc., Defendant, Appellant.

No. 88-1989.

United States Court of Appeals, First Circuit

June 15, 1989

Heard Feb. 28, 1989.

Luis N. Blanco Matos, Federal Litigation Div., Dept. of Justice, with whom Rafael Ortiz Carrion, Sol. Gen., and Vannessa Ramirez, Asst. Sol. Gen., were on brief, for defendant, appellant.

Jesus Hernandez Sanchez with whom Antonio Hernandez Sanchez, San Juan, P.R., and Hernandez Sanchez Law Firm were on brief, for plaintiffs, appellees.

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Before BREYER, TORRUELLA and SELYA, Circuit Judges.

BREYER, Circuit Judge.

Before 1985, the twenty-three plaintiffs in this "political discharge" case worked for Puerto Rico's Department of Education, in "transitory," i.e., non-permanent, positions. Seventeen held jobs with the title "Executive Director;" the remaining six held jobs with such titles as "Special Assistant," "Executive Functionary," "Teacher Assistant," "Food Supervisor," "General Supervisor," and "Docent Personnel Director." All plaintiffs belonged to the New Progressive Party ("NPP"). In 1985, after the election of a new Governor, the new Secretary of Education, who was a member of the Popular Democratic Party ("PDP"), removed the plaintiffs from the jobs listed above, reassigning some of them to other permanent, but apparently less desirable, positions. The plaintiffs sued the Secretary claiming that her dismissals (1) violated the First Amendment's prohibition against dismissing employees because of their political party affiliation, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and (2) violated the Fourteenth Amendment's prohibition against taking "property" without "due process of law," see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The Secretary asserted a defense of "qualified immunity," see Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and moved for summary judgment. See Anderson, 107 S.Ct. at 3040; Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The district court denied summary judgment (1) in respect to all plaintiffs on the First Amendment claim, and (2) in respect to the "Executive Directors" on the Fourteenth Amendment claim. The Secretary appeals. After examining the record, we find that we agree with the first, but not the second, determination.

I.

The First Amendment Claims

The single question that we must decide is whether the plaintiffs, in opposing the Secretary's motion for summary judgment, demonstrated the existence of a "genuine" and "material" issue of fact warranting the district court's proceeding to trial on the "qualified immunity" question. Fed.R.Civ.P. 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Daury v. Smith, 842 F.2d 9, 11 (1st Cir.1988); Perez De la Cruz v. Crowley Towing and Transportation Co., 807 F.2d 1084, 1086 (1st Cir.1986), cert. denied, 481 U.S. 1050 (1987); Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 929 (1st Cir.1983). See also Unwin v. Campbell, 863 F.2d 124, 130-33 (1st Cir.1988) (court should examine evidence in respect to factual issues on interlocutory appeal of a denial of summary judgment). We believe the plaintiffs here have sufficiently demonstrated a...

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