889 F.2d 1209 (1st Cir. 1989), 86-1300, Agosto-de-Feliciano v. Aponte-Roque

Docket Nº:86-1300, 86-1643 and 86-1644.
Citation:889 F.2d 1209
Party Name:Maria M. AGOSTO-DE-FELICIANO, et al., Plaintiffs, Appellees, v. Awilda APONTE-ROQUE, etc., et al., Defendants, Appellants. Maria Teresa TORRES-HERNANDEZ, et al., Plaintiffs, Appellees, v. Pedro A. PADILLA, etc., et al., Defendants, Appellants. Maria Teresa TORRES-HERNANDEZ, Plaintiff, Appellant, v. Pedro A. PADILLA, etc., et al., Defendants, Appell
Case Date:December 08, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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889 F.2d 1209 (1st Cir. 1989)

Maria M. AGOSTO-DE-FELICIANO, et al., Plaintiffs, Appellees,


Awilda APONTE-ROQUE, etc., et al., Defendants, Appellants.

Maria Teresa TORRES-HERNANDEZ, et al., Plaintiffs, Appellees,


Pedro A. PADILLA, etc., et al., Defendants, Appellants.

Maria Teresa TORRES-HERNANDEZ, Plaintiff, Appellant,


Pedro A. PADILLA, etc., et al., Defendants, Appellees.

Nos. 86-1300, 86-1643 and 86-1644.

United States Court of Appeals, First Circuit

December 8, 1989

Heard Nov. 4, 1987.

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[Copyrighted Material Omitted]

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Jose Hamid Rivera with whom, Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., Hector Rivera Cruz, Secretary of Justice, Bayamon, P.R., and Rafael Ortiz Carrion,

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Sol. Gen., were on supplemental brief for defendant-appellant, Awilda Aponte-Roque.

Pedro Juan Perez Nieves with whom, Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., Hector Rivera Cruz, Secretary of Justice, Bayamon, P.R., and Rafael Ortiz Carrion, Sol. Gen., were on supplemental brief, for Pedro A. Padilla, et al.

Pedro Mirando Corrada, San Juan, with whom, Hector Urgell Cuebas and Jose Roberto Feijoo, Santurce, P.R., were on supplemental brief for plaintiffs-appellees, Maria M. Agosto-De-Feliciano, et al.

Eliezer Aldarondo Ortiz, Hato Rey, P.R., Miguel Pagan, San Juan, P.R., and Aldarondo & Lopez Bras, on supplemental brief, for Maria Teresa Torres-Hernandez.

Before CAMPBELL, Chief Judge, and COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

COFFIN, Senior Circuit Judge.

Panel decisions in these two cases were withdrawn and both cases were reheard en banc. The issues common to both are whether and under what standards the protections of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), should be available to government employees whose employment, while not terminated, was subjected to less advantageous conditions and responsibilities because of the employees' political affiliation. We convey our views on those legal questions here, and remand for application of the standard to the particular facts of each case.

These cases represent a second wave in a tide of litigation arising out of changes in political administrations in Puerto Rico. The first wave involved outright dismissals and has produced a substantial number of opinions. 1 In all of these our task was to determine, in accordance with both Elrod and Branti, (1) whether the agency in which a discharged plaintiff had served was engaged in activity whose direction or pace properly could be affected by partisan political considerations, and (2) whether the particular position of the plaintiff was a policymaking or confidential one. On the basis of these criteria, we considered whether the plaintiff's job was protected against politically motivated discharge. Here the plaintiffs have protected status, and they have not been discharged; the question at issue is what type of employer action short of dismissal will support a claim for violation of the plaintiffs' right of free political association.

I. Facts 2

In November 1984, the Popular Democratic Party (PDP) won the gubernatorial election in Puerto Rico. Defendant Awilda Aponte Roque, a member of the PDP, was then named Secretary of the Department of Public Education. Aponte in turn named defendant Maria P. Scott as director of the Department's Humacao Region.

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Plaintiffs, all members of the New Progressive Party (NPP), are officials in the Humacao Region and have been "career" employees with the Department for more than twenty years. 3

Plaintiffs' action under 42 U.S.C. Sec. 1983 alleges that political discrimination resulted in a drastic change and reduction of their duties, and that this violated the First and Fourteenth Amendments of the Constitution. The relevant testimony in their jury-waived trial may be summarized as follows. Defendant Scott assumed office on January 14, 1985. Within four days, without having met with any of the plaintiffs, including Maria Agosto de Feliciano, her immediate subordinate, and without having developed any clear reorganization plan, she issued a memorandum setting forth new "guidelines for the Department." These removed responsibilities from plaintiffs, and required plaintiffs to obtain approval for their work from other employees who were PDP members and who previously had held positions subordinate to plaintiffs. Phone calls, mimeographing, photocopying and typing were to be similarly authorized.

According to several plaintiffs, defendant Scott explained that her actions stemmed from the recent political change. When plaintiffs wished to meet with her to discuss their problems, she insisted upon including her "confidence group"--PDP members who previously had been subordinate to plaintiffs. Plaintiffs twice complained by letter to defendant Aponte of being deprived of some of their functions, which had been reassigned to lower level personnel, and of their inability to communicate with defendant Scott. Aponte's only response was to indicate that she was referring the matter to Scott.

We now summarize the evidence with regard to the specific changes in the plaintiffs' responsibilities:

Maria Agosto de Feliciano. Her prior job description consisted of some 26 responsibilities. Although the list appears somewhat inflated by bureaucratic jargon, it is nonetheless obvious that as the Assistant Regional Director she had varied supervisory and other responsibilities, including representation of the regional director in all activities in which the director is unable to participate. She also was in charge of the office in the regional director's absence. After defendant Scott's arrival on the scene, Agosto's duties were confined to the special education program and to signing checks. She no longer oversaw general supervisors.

Virginia Diaz Diaz. She served as liaison between the Department of Public Education and private schools, coordinated the teaching practice program in the Project School without grades, and directed a regionwide committee on school organizations. After defendant Scott's arrival, she continued to work with schools without grades and private schools, but no longer directed the school organizations committee. In addition, she had to ask defendant Scott or Scott's secretary for permission to use a telephone, to make photocopies, or to have typing done.

Luz Camacho de Ortiz. Her prior list of responsibilities included some 23 items, ranging from surveying needs, developing work plans, and evaluating curricula and training, to managing vocational education and supervising student organizations. After defendant Scott's arrival, she was deprived of her former supervisory duties and had the sole functions of working in connection with talented students and of supervising an elementary school science program for which she had inadequate background.

Vincente Vasquez Castro. His prior job description included 21 items of rather broad responsibilities in the areas of vocational education and student services. Evaluation of personnel, curriculum revision,

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budget distribution, development of new techniques, and oversight of programs relating to school needs, transportation, and scholarship were some of them. After defendant Scott's arrival, he no longer supervised; such responsibilities were assigned to a former subordinate, a PDP member. Vasquez's sole function was partial responsibility for the school transportation program. 4

Defendants advanced several arguments to the district court. They challenged the contention that the changes in plaintiffs' duties were politically motivated, asserting that their knowledge of plaintiffs' political affiliation was evidenced only by plaintiffs' self-serving testimony. Defendant Scott testified that the jobs held by plaintiffs had always been subject to reshaping and reassignment of duties by her predecessors, that plaintiffs' remaining responsibilities were indeed substantial ones, and that she was in the midst of a process of determining the needs of her region and, when a complete analysis had been made, she would begin "adding functions pertinent to the position[s]."

The district court held that plaintiffs had established a prima facie case of political discrimination and that the defendants had not submitted a "credible justification." 631 F.Supp. 1082 (D.P.R.1986). It granted an injunction reinstating plaintiffs to their former duties. It observed that neither defendant had raised the defense of qualified immunity, and awarded, against both defendants, compensatory damages for emotional and mental distress in the amount of $60,000 for each plaintiff, and punitive damages in the same amount for each plaintiff.

Defendants filed this appeal, making the following arguments: 1) plaintiffs have no cause of action under the First or Fourteenth Amendments; 2) defendants are entitled to qualified immunity; 3) the district court's findings of fact are erroneous; 4) the award of damages is excessive; and 5) the injunctive relief is overly broad.

II. A Legal Standard for Adjudicating Allegedly Partisan

Reallocation of Duties and Changes in Working

Conditions of Civil Service Employees


The difficulties in determining whether a government employee is protected from a politically motivated discharge are considerable. See cases listed in note 1. As the facts of Agosto de Feliciano v. Aponte Roque illustrate all too well, however, the difficulties facing courts in cases involving employer action less final and definitive than dismissal are potentially enormous. They arise from the need to sift out the chaff of minor irritants...

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