Gierbolini Colon v. Aponte Roque

• Decision Date: 11 June 1987
• Docket Number: Civ. No. 85-1237 (JP).
• Citation: 666 F. Supp. 334
• Parties: Edgardo GIERBOLINI COLON, Plaintiff, v. Awilda APONTE ROQUE, individually and as Secretary of the Department of Education of the Commonwealth of Puerto Rico, Agustin Mercado Rosa, individually and as General Administrator of Radio and Television Services of the Department of Public Education, Defendants.
• Court: U.S. District Court — District of Puerto Rico

666 F. Supp. 334

Edgardo GIERBOLINI COLON, Plaintiff, v. Awilda APONTE ROQUE, individually and as Secretary of the Department of Education of the Commonwealth of Puerto Rico, Agustin Mercado Rosa, individually and as General Administrator of Radio and Television Services of the Department of Public Education, Defendants.

Civ. No. 85-1237 (JP).

United States District Court, D. Puerto Rico.

June 11, 1987.

Urgell, Miranda & Feijoo, San Juan, P.R., for plaintiff.

José A. Andreu Garcia, Hato Rey, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

This is an action for injunctive relief and damages brought under 42 U.S.C. section 1983, in which plaintiff alleged violation of his constitutional rights to freedom of belief and association and due process under the law. This Court has jurisdiction over the subject matter of the complaint under 28 U.S.C. sections 1331 and 1343(3).

A non-jury trial was held where both parties presented their witnesses and submitted documentary evidence. Based on the evidence submitted by the parties and after due deliberation, this Court now makes the following Findings of Fact and Conclusions of Law. Fed.R.Civ.P. Rule 52.

FINDINGS OF FACT

1. WIPR-AM & FM are owned and operated by the Department of Education of the Commonwealth of Puerto Rico. The FM station broadcasts at a frequency of 91.3 megahertz. Its programming combines public affairs, news, popular music, and fine arts programming. The AM station broadcasts at a frequency of 940 kilohertz and provides largely similar programming.

2. Plaintiff Edgardo Gierbolini has been employed with the Department of Education since June 17, 1970. He was first employed as a scriptwriter of Radio Programs and progressed through the ranks of the Department to the position of Director of the Radio Station. Gierbolini is a career employee. At the time of his demotion from the directorship of the radio station, he was a career employee under applicable Puerto Rico Civil Service law.

3. Plaintiff was appointed Interim Director of the Radio Station in January 1980, and on September 1984, was appointed Director of the Radio Station on a probationary status, with an increase in monthly salary from $840.00 to $1,381.00.

4. Plaintiff's probationary period ended on April 30, 1985.

5. Plaintiff received two evaluations during his probationary period. The first of these was performed on December 18, 1984, by the then acting General Manager of the Radio and Television Service of the Department of Education, Dr. Sigfredo Quiñones. This evaluation graded plaintiff's job performance as exceeding required levels of proficiency in all categories. The second evaluation was performed by defendant Agustín Mercado Rosa in his capacity as General Manager of the Radio and Television Service. This evaluation covered the period of February 1, 1985, to April 30, 1985. In contrast to the previous evaluation, the second was completely negative.

6. Based on Mercado's evaluation, plaintiff was separated from his position of Director of the Radio Station by letter signed by defendant and Secretary of the Department of Education, Awilda Aponte Roque on May 22, 1985. By that same letter, Gierbolini was reinstated to his former position as Scriptwriter of Radio Programs II. Plaintiff's monthly salary was reduced correspondingly from $1,381.00 to $1,165.00.

7. The Popular Democratic Party (PDP) won the general elections held in Puerto Rico on November 1984. The New Progressive Party (NPP) lost control of the executive, which it had held for the previous eight years.

8. Aponte Roque and Mercado are members of the PDP and were appointed to their respective positions of Secretary of Education and General Administrator after the elections of 1984, when Rafael Hernández Colón, the PDP's standard bearer, assumed the governorship.

9. Plaintiff is, and was at the time that he was demoted, a member of the NPP. Gierbolini's affiliation was known to defendants Aponte Roque and Mercado at the time of plaintiff's demotion from his directorship.

10. Mercado and Aponte Roque did not meet with plaintiff before or after the negative evaluation of defendant Mercado to discuss the way in which the Radio Station was operating or to inform him of the changes they wanted in the station's management.

11. The testimony of Gierbolini's previous supervisors, Dr. Elsie Calero and Dr. Sigfredo Fontanez, established that, as Interim Director and Director of the Radio Station, Gierbolini efficiently fulfilled his duties in all of the areas for which he was evaluated, including those areas in which Mercado negatively evaluated him on April 30, 1985.

12. One of the reasons given by Mercado for his low evaluation of plaintiff was that Gierbolini permitted a spiritualist session at the Radio Station during working hours, had done nothing to stop it, and did not disciplined the participants. However, the following was established through plaintiff's testimony as well as through the testimony of both defendants: (1) Gierbolini rendered a report to Mercado on the incident, including the names of the persons involved, with copy to the grievance committee of the Department of Education; (2) defendant Aponte Roque received a copy of said report; (3) it was not in Gierbolini's power to take disciplinary action against the participants in the spiritualist session; and (4) neither defendants, nor anybody else in the Department of Education, took, or had taken to the date of the trial, any type of disciplinary action against any of the participants in the spiritualist session.

13. The grievance committee submitted a report to defendants on the spiritualist session where it found that said session was part of a "special" which was to be aired through the station. With such a finding, the authorities did not deem the activity improper.

14. Another of the reasons given by Mercado for his evaluation of plaintiff Gierbolini was the latter's alleged involvement with the disappearance of certain public address equipment. However, when the equipment arrived to the Radio Station in 1977, plaintiff was only a Scriptwriter II and neither received nor had any responsibility for the equipment. Gierbolini nevertheless submitted a report to Mercado on the matter at Mercado's request. Mercado's request came after Gierbolini had been removed as Director of the Radio Station. The memorandum requesting this report was the only communication of any of the defendants with plaintiff on the matter of the missing equipment.

15. Mercado testified that another of the reasons why he did not think that Gierbolini was doing a proper job was that he did not keep adequate working hours. However, in his formal evaluation of plaintiff, Mercado evaluated Gierbolini as fulfilling his duties as to attendance, which, according to the evaluation form, includes promptness and punctuality.

16. Mercado also testified to some alleged problems with personnel management which were attributable to plaintiff. These allegations remained unsubstantiated by the testimony at trial.

17. The Court finds Mercado's claims of Gierbolini's lack of leadership, managerial abilities, and otherwise incompetence for the job to be not credible. Based on the testimony of witnesses Dr. Elsie Calero and Dr. Sigfredo Fontanez, the Court is of the opinion that Gierbolini was performing perfectly adequate job as Director of the Radio Station. Furthermore, defendants never instructed plaintiff, either in writing or personally, as to any objections to Gierbolini's management of the Radio Station, despite Mercado's stated preference for documentation of all operational aspects of the Radio and Television service.

18. Defendant's sole purpose in concocting the negative evaluation was to remove Gierbolini as Director of the Radio Station because, as a member of the NPP, Gierbolini did not share defendants' political affiliation.

19. Credible testimony showed that Gierbolini objected in writing to Mercado's negative evaluation and that Aponte Roque knew of this letter prior to removing Gierbolini as Director of the Radio Station. She did not however respond to Gierbolini regarding these objections nor did she ever meet with Gierbolini to discuss them.

20. Plaintiff Gierbolini was never given a hearing prior to his removal as Director of the Radio Station.

21. Because of his removal as Director of the Radio Station, Gierbolini suffered a reduction in salary, great humiliation and considerable mental pain and anguish.

CONCLUSIONS OF LAW

Section 1983 of Title 42 of the United States Code, provides in part

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subject, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to deprivation of any rights, priviledges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Plaintiff alleged violation of two rights: the right to be free from deprivation of property without due process of law under the fourteenth amendment, and the right to freedom of association and belief under the first amendment.

A. Fourteenth Amendment Claim

Plaintiff averred that he was deprived of his property, i.e., his position as Director of the Radio Station, without due process of law. This claim depends on whether Gierbolini had a property right to continue in that position. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). Only once the property right is established would the question arise of what process, if any, was due. Almost hornbook law by now, for the purposes of procedural due process claims in public employment cases, "Property interests are not created by the Constitution, `they are created and their dimensions are defined...