Acosta-Orozco v. Rodriguez-de-Rivera

• Decision Date: 05 November 1997
• Docket Number: ACOSTA-OROZCO,No. 97-1489,RODRIGUEZ-DE-RIVERA,97-1489
• Citation: 132 F.3d 97
• Parties: Nylsa, et al., Plaintiffs, Appellants, v. Carmen, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 97

132 F.3d 97

Nylsa ACOSTA-OROZCO, et al., Plaintiffs, Appellants, v. Carmen RODRIGUEZ-DE-RIVERA, et al., Defendants, Appellees.

No. 97-1489.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1997.

Decided Dec. 22, 1997.

Manuel Alvarado, San Juan, PR, for appellants.

Roxanna Badillo-Rodriguez, Assistant Solicitor General, Commonwealth of Puerto Rico, Catano, PR, with whom Carlos Lugo-Fiol, Solicitor General of the Commonwealth of Puerto Rico, San Juan, PR, and Edda Serrano-Blasini, Deputy Solicitor General, Guaynabo, PR, were on brief, for appellees.

Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

This is another in a series of cases following the assumption of power by the New Progressive Party (NPP) in Puerto Rico in elections held in November 1992. In these cases, plaintiffs are government employees who are members of the losing Popular Democratic Party (PDP) who assert that they were terminated or demoted from their jobs because of their political affiliation. ¹ This court faced an earlier wave of such cases when PDP candidates won election in 1984 and NPP members complained that their government jobs suffered because of their party membership.

In this case, the PDP-affiliated plaintiffs are six long-term government employees who were demoted from their civil service positions as Managerial Coordinators in the Commonwealth's Department of Social Services, now known as the Department of the Family. They say their duties are now being performed by NPP members who have been designated as aides to the Regional Directors of the agency. The district court granted summary judgment for defendants on the theory that plaintiffs had not made out a prima facie case and that defendants had established they would have taken action anyway for non-political reasons, regardless of plaintiffs' political affiliation. Because we believe there are material facts in dispute, we reverse and remand.

I.

Our review of the district court's grant of summary judgment is de novo. Sears, Roebuck & Co. v. Goldstone & Sudalter, P.C., 128 F.3d 10, 15 (1st Cir.1997). We state the facts in the light most favorable to the party opposing summary judgment. See id. at 12.

Plaintiffs are six career civil service employees of the former Department of Social Services of Puerto Rico, now known as the Department of the Family, all of whom have been working at the Department for over twenty years. All plaintiffs belong to the PDP, the party of former Governor Rafael Hernandez Colon, who held office for two terms between 1984 and 1992. In a process that began in late 1987, a new supervisory position of "Managerial Coordinator" was created within the Department. Between 1988 and 1992, the six plaintiffs and several others were promoted to this new position.

The Managerial Coordinator classification was a middle level managerial position created to provide assistance to the several Regional Directors. The Regional Directors, in turn, report to the Secretary, a member of the Governor's cabinet. The Managerial Coordinator job was established as a career position under Puerto Rico's civil service laws, which require that such an employee be selected strictly on merit and can only be removed for cause. See 3 L.P.R.A. §§ 1301, 1331-1338; Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1213 n. 3 (1st Cir.1989) (en banc). The Regional Directors, in contrast, were classified as "confidential employees," who are involved in the formation of public policy and render direct services to the head of the department, the Secretary of Social Services. See 3 L.P.R.A. § 1350; Agosto-de-Feliciano, 889 F.2d at 1213 n. 3. The Central Office of Personnel Administration (COPA), the agency charged with administering Puerto Rico's civil service laws, approved the creation of the Managerial Coordinator position. In approving the position, the civil service agency necessarily concluded that political affiliation was not a necessary prerequisite for holding a Managerial Coordinator position.

The Director of COPA described the position generally, in a job description written in 1988, as entailing "managerial and administrative work of great complexity and responsibility in the coordination and evaluation of the ... activities of the Local Offices...." Plaintiffs' immediate superiors were the Regional Directors. On paper, according to the COPA job description, the official duties of a Managerial Coordinator included offering technical advice on the agency's work plans, keeping the Regional Directors and the Secretary informed of local office operations, investigating and reporting on grievances of employees, monitoring local offices' expenses, training local office supervisors, analyzing statistical reports, preparing reports about evaluation visits to local offices, and other duties. In practice, plaintiffs' duties as Managerial Coordinators ranged widely, and included coordinating inter-agency programs attending to client complaints, substituting for the Regional Director, planning professional and social activities, and signing per diem and mileage reimbursement checks. Plaintiffs' positions "provid[ed] support functions to the Regional Directors, analogous to those of an aide."

In the 1992 general election, the PDP was defeated by the rival NPP, and the present governor, Pedro Rosello, came to power. Governor Rosello named defendant Carmen Rodriguez-de-Rivera as Secretary of Social Services. Rodriguez-de-Rivera, in turn, hired the Regional Directors. In the first month of the new administration, the Regional Directors began to take away many of the duties and functions that the Managerial Coordinators had been performing, assigning those duties to other employees who were NPP activists and had been designated, officially or unofficially, as aides to the Regional Directors. Additionally, the Regional Directors took away from the Managerial Coordinators several perquisites that had been associated with that position, such as parking, telephones and office space. Defendants were aware of plaintiffs' PDP political party affiliation, and the aides to whom plaintiffs' duties were assigned were all politically active supporters of the NPP party, newly in power.

In February 1993, one Managerial Coordinator wrote defendant Rodriguez-de-Rivera, to complain that the new Regional Directors had taken away the duties and perquisites of her position. Rodriguez-de-Rivera's reaction was to launch an investigation of the complainant and the other Managerial Coordinators. The stated purpose of the investigation was to determine whether the creation of the position and the selection of candidates had been proper. Plaintiffs contend that the real purpose of the investigation was to provide a legal cover for the impending demotions.

In May 1993, Secretary Rodriguez-de-Rivera dispatched Carmen Salivia, an official of the Social Services Department, to conduct field interviews with the Managerial Coordinators. During the interviews, the Managerial Coordinators described the duties of their positions--now being performed by NPP-affiliated aides--and said they reported to the Regional Directors. Salivia completed the interviews and delivered her notes to defendant Enrique Gonzalez-Polanco, Assistant Secretary in Charge of Personnel, or to Mrs. Carmen Haddock, who worked in the office. Salivia drew no conclusions and her investigation was terminated when she went on vacation.

Rodriguez-de-Rivera also hired Francisco Cappas, an outside personnel consultant, to review the matter. Although Salivia understood that her notes would be used in the Cappas investigation, the interview notes were never given to Cappas before he completed his reports. Cappas apparently held no position within the government.

In June 1993, Cappas submitted two letter reports to Rodriguez-de-Rivera. In the first, he concluded that the position of Managerial Coordinator should be declared a legal nullity because it had been improperly created and was duplicative of the duties of the Regional Directors. Specifically, he concluded that the Managerial Coordinators were in reality policymaking officials who reported directly to the Secretary, not to the Regional Directors, and that the position should therefore have been classified as "confidential" rather than as a career civil service post. Under Puerto Rico law, "confidential employees" are only those employees who report directly to the head of the agency. See 3 L.P.R.A. § 1350 (aides to the heads of departments, but not aides to regional directors, included in list of confidential employees). These conclusions are facially contrary to the determination made by COPA, the civil service agency, when it approved the creation of the positions. ²

In his second report, Cappas concluded that many of the Managerial Coordinators had been improperly promoted, even though COPA had approved many of these promotions at the time. Cappas recommended that the Managerial Coordinators be given a hearing and--if they could not counter his initial assessment--that they be demoted to their previous positions.

In December 1993, Rodriguez-de-Rivera asked the Secretary of Justice of Puerto Rico for an opinion on the legality of the Managerial Coordinators' appointments, repeating the allegations of the Cappas reports. In May 1994, the Secretary of Justice declined to give an opinion, noting that the legality of the Managerial Coordinators' appointments depended on the factual accuracy of those allegations, not on any question of law, and referred that issue to COPA, whose special expertise is the administration of Puerto Rico's civil service laws.

Rodriguez-de-Rivera then requested the Director of COPA and the Director of the Budget and Management Office (BMO) to determine that the position of Managerial Coordinator was a nullity, sending a copy of her letters to Governor Rosello and his staff. The COPA...