Alicea Rosado v. Garcia Santiago

• Citation: 562 F.2d 114
• Decision Date: 16 February 1977
• Docket Number: No. 76-1429,76-1429
• Parties: Israel ALICEA ROSADO, Plaintiff, Appellee, v. Ramon GARCIA SANTIAGO et al., Defendants, Appellants. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 114

562 F.2d 114

Israel ALICEA ROSADO, Plaintiff, Appellee, v. Ramon GARCIA SANTIAGO et al., Defendants, Appellants.

No. 76-1429.

United States Court of Appeals First Circuit.

Heard Feb. 16, 1977.

Decided Sept. 13, 1977.

Ronaldo Rodriguez Ossorio, Asst. Sol. Gen., with whom Roberto Armstrong, Jr., Acting Sol. Gen., San Juan, P. R., was on brief, for defendants, appellants.

Harvey B. Nachman, Santurce, P. R., with whom Law Offices of Harvey B. Nachman, Santurce, P. R., was on brief, for plaintiff, appellee.

Before VAN OOSTERHOUT, ^* INGRAHAM, ^** and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff-appellee Alicea Rosado has been employed by the Commonwealth of Puerto Rico for nearly twenty years. From 1965 to 1975 he was District Director of the Barranquitas Office of the Department of Social Services and was classified as a Social Worker V. The Commonwealth began participating in the federal food stamp program in 1974 and Barranquitas was selected as one of the first distribution sites. Administrative difficulties beset the program from the outset and in May 1975 Alicea was summoned by his regional supervisor, Mr. Jesus Jiminez, to explain the situation. At Jiminez' request Alicea subsequently submitted a letter detailing his criticisms of how the program was being administered locally and in San Juan. The letter suggested that "irregularities" (in Spanish, "irregularidades") existed in the program which were resulting in a backlog in the processing of applications and creating a danger of overpayments and underpayments. The letter also suggested a number of possible remedies, including doubling the number of social workers. Copies of the letter were sent to Alicea's superiors, including the Secretary of Social Services in San Juan, the appellant Ramon Garcia Santiago.

After receiving the letter, the Secretary summoned Alicea and his supervisors to a meeting which took place June 20, 1975. According to the Secretary and one of the supervisors who testified at trial, Alicea was unable to explain what "irregularities" attended the food stamp program beyond pointing to routine administrative problems. When cautioned to be more careful in his choice of terms in the future, Alicea reportedly grew angry and shouted disrespectfully at the Secretary. Alicea's version of the meeting has the Secretary angry from the outset, purportedly in a fit of pique at Alicea's mild criticisms of his agency. According to Alicea, the Secretary berated him at length, accusing him of trying to sabotage his administration.

About a month after the meeting Alicea, who was on sick leave, received a letter from the Secretary informing him that he was being transferred to Bayamon to handle adoption matters effective August 1, 1975. Alicea wrote immediately to the Secretary requesting an explanation but never received a reply. Although his illness ended shortly after receiving the letter, Alicea never reported to Bayamon. A month after he was scheduled to begin work at Bayamon, Alicea filed the present action in the district court. He alleged that the transfer violated his first and fourteenth amendment rights and prayed for an injunction and damages. In February 1976, six months after the effective date of Alicea's transfer, the district court determined that the Secretary's action violated Alicea's first amendment rights. The court found that the only reason for the transfer was that plaintiff wrote the letter. It went on to find,

"There was need of extra personnel in Bayamon but Barranquitas did not have enough personnel either. If transfer of social workers to Bayamon was necessary, there were others who were qualified, but there was no one in the Barranquitas office qualified under Personnel regulations to fill the post of District Director. As of the date of the trial no one has been permanently assigned to the Barranquitas office as District Director. . . .

"The transfer was a demotion, and by reason of Plaintiff's circumstances, is in effect a discharge. . . .

" . . . Not only was the transfer a demotion and/or a discharge, it was also punitive. It was ordered solely for the purpose of reprimanding Plaintiff."

The court ordered Alicea reinstated at Barranquitas, with his seniority rights, etc., intact. The court conducted further proceedings in May 1976 on the issue of damages. It found it to be "unworthy of belief" that one in the position of responsibility held by the Secretary "would have acted upon the information he had in the manner he did", and that "in demoting and/or discharging" the plaintiff, he "did so deliberately and maliciously to punish the Plaintiff for exercising his constitutionally protected right of freedom of expression". Because appellant acted "purposely and with malice in depriving the Plaintiff of his federally protected rights", the court ruled, citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), that any qualified immunity was negated. The court awarded damages of $7,479 to compensate Alicea for wages lost "as a result of the action taken against him." The court also awarded $10,000 for "moral damages and mental distress", and another $10,000 for punitive and exemplary damages. And finally it awarded attorney's fees in the amount of $3,000.

We are persuaded that the district court did not err in its application of first amendment principles in this case. Subject to the state's paramount interest as an employer, in promoting the efficiency of the public services it performs through its employees, a public employee has a right, protected by the first amendment, to comment upon matters of public concern related to his employment. Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974). See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We need not decide whether a purely private letter to one's superior is so protected; here the letter, while not publicized, was circulated among a number of members of the department, and the court found that the Secretary "was concerned with the publication of the letter or its falling into the hands of the media." Had Alicea leveled his criticisms with malice or knowledge that they contained falsehoods, he might constitutionally be punished. Pickering, supra at 574-75; Hanneman v. Breier, 528 F.2d 750, 755 (7th Cir. 1976). But it was not established that Alicea acted in bad faith. Nor, alternatively, were there showings by the Secretary that there was a strong need for confidentiality regarding the administration of the food stamp program which had been breached by the letter, cf. Hanneman, supra at 754-55, or that the letter caused a "significant interference with the efficient operation of the department", Jannetta, supra at 1337, such as might be true if Alicea had launched a personal attack upon his superiors or co-workers. Pickering, supra at 468-70, cf. Sprague v. Fitzpatrick, 546 F.2d 560, 564-65 (3d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977). The Spanish word, "irregularidades", may, to be sure, connote derelictions and fraud; but it was not applied to the Secretary or to other officials. Alicea seems to have meant that inefficiency and other agency problems would encourage fraudulent practices by food stamp recipients. The district judge, who could appraise "irregularidades" from the Spanish viewpoint could not understand the Secretary's reaction to the letter which had been written at the suggestion, in the first instance, of Alicea's superior. The letter was not so threatening to discipline, nor otherwise disruptive, as to interfere with departmental efficiency.

Furthermore, we find adequate support in the record for the district court's findings that the transfer was solely in retaliation for the letter. The Secretary's testimony was, to say the least inconsistent. He attempted to justify the transfer both on grounds that a Social Worker V was needed in Bayamon to handle adoption matters and that Alicea was incompetent and immoral. The Secretary, of course, was entitled, insofar as the United States Constitution is concerned, to transfer Alicea for any reason, or for no reason, so long as he did not act to punish protected expression. However, as the latter charges were neither substantiated nor had been officially leveled although some were, if true, so serious as to have required immediate dismissal the court was entitled to disregard them as contrivances. Nor do we see that the letter reflected on its face Alicea's ineptness or incompetency, as the Secretary claims. The first amendment does not protect an employee who has revealed his incompetencies in writing, as by submitting an inept report. But such was not the case here. The court was warranted in concluding that the Secretary had taken unreasonable offense at what was written and had acted to punish Alicea solely for that reason. ¹ See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); cf. Tinker v. Des Moines Community School District, 393 U.S. 503, 509, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). As we do not find clear error in the findings, they must stand. Fed.R.Civ.P. 52(a).

We leave undisturbed the district court's award of attorney's fees. The court based the award on the alleged "bad faith" of the Secretary but we do not rest our affirmance on that ground, and doubt that we could properly do so. As we repeatedly have said, there is no parallel between the "obstinacy" standard prevailing in local Puerto Rican actions and the American common law " bad faith" standard. See, e. g., F. F. Instrument Corp. v. Union de Tronquistas de Puerto Rico, 558 F.2d 607, 610 n. 3 (1st Cir. 1977); Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256, 262 (1st Cir.), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). However, since the entry of judgment in this case Congress has provided that a district court, in its...