Gonzalez v. Gonzalez

• Decision Date: 06 June 1974
• Docket Number: Civ. No. 461-73.
• Citation: 385 F. Supp. 1226
• Parties: Alfredo Colon GONZALEZ, Plaintiff, v. Elisa Diaz GONZALEZ, Secretary of Social Services, and Milagros Guzman, Director of Personnel, Defendants.
• Court: U.S. District Court — District of Puerto Rico

385 F. Supp. 1226

Alfredo Colon GONZALEZ, Plaintiff, v. Elisa Diaz GONZALEZ, Secretary of Social Services, and Milagros Guzman, Director of Personnel, Defendants.

Civ. No. 461-73.

United States District Court, D. Puerto Rico.

November 15, 1973.

On Motion for Reconsideration April 4, 1974.

On Motion to Amend or Set Aside June 6, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Laffitte & Dominguez, Hato Rey, P. R., for plaintiff.

Peter Ortiz, Dept. of Justice, Com. of Puerto Rico, San Juan, P. R. for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TOLEDO, Chief Judge.

This cause is before the Court pursuant to plaintiff's action for equitable relief and damages brought under Section 1983 of the Civil Rights Act, Title 42, United States Code and its jurisdictional counterpart, Title 28, United States Code, Section 1343, against the Secretary of Social Services of the Commonwealth of Puerto Rico, Elisa Diaz González and the Director of Personnel of the Commonwealth of Puerto Rico, Milagros Guzmán, in view of the termination of his employment at the Department of Social Services of the Commonwealth of Puerto Rico. Plaintiff seeks redress before this Court alleging defendants have deprived him of his rights and privileges secured by the First and Fourteenth Amendments to the Constitution of the United States.

Upon filing the complaint on May 24, 1973, plaintiff applied on May 29, 1973, for a temporary restraining order. The application was not granted and in lieu thereof an order to show cause was entered against defendants. The hearing thereon was set for August 24, 1973, but subsequently rescheduled for September 27th, October 3rd and 4th, 1973, wherein full hearings were had. Before the commencement of the hearings, the parties agreed, with the Court's approval, to consolidate the application for preliminary and permanent injunction in order to avoid further hearings on this aspect of the case. The question of damages was left for further litigation, if necessary.

The Court having held the necessary hearings, having considered the extensive documentary and testimonial evidence and having considered the post trial memorandum filed by the defendant, enters the following

FINDINGS OF FACT

1. Plaintiff has been a career employee in the civil service of the Government of Puerto Rico since September 8, 1944, and thereafter for twenty-nine uninterrupted years, having served during said years in the Office of Personnel, the Department of Labor and the Department of Social Services of the Government of the Commonwealth of Puerto Rico.

2. By March 1974, plaintiff would have accumulated thirty years of service and would be eligible to a merit pension of approximately $1,047 per month for life, pursuant to the retirement plan for government employees of the Commonwealth of Puerto Rico.¹ His present situation, where his services have been terminated, makes him ineligible for such benefits.

3. On March 1958, plaintiff, who had the status of a permanent or regular employee in the competitive service under the Personnel Act, Title 3, Laws of Puerto Rico Annotated, Section 648(c), was promoted at the request of then Secretary of Labor, Fernando Sierra Berdecía, to Executive Officer V, a position with executive functions. However, upon request of said Secretary of Labor, the then Director of Personnel of the Office of Personnel of the Commonwealth of Puerto Rico, in accordance with Title 3, Laws of Puerto Rico Annotated, Section 648(d),² determined and ordered that plaintiff continue in the competitive service.³ (Plaintiff's Exhibit 8).

4. Plaintiff continued his employment at the Department of Labor in various capacities, including serving as Director of the Bureau of Employment Security thereof, an Executive Director III position. At all times he had the status of a regular employee in the competitive service, although the positions held were of trust and confidence (executive), the non-competitive type.

5. In January 1969, the Department of Social Services was established pursuant to Act No. 171 of June 30, 1968. At the request of the then Secretary of Social Services, Efrain Santiago, plaintiff was transferred, on September 16, 1970, from the Department of Labor to the Department of Social Services, to the position of Executive Director IV, as Assistant Secretary of Administration.

6. Plaintiff had accepted the Secretary of Social Services' offer to join his administration subject and conditioned to retaining his regular status in the competitive service and getting a raise in salary. Consequently, it was agreed by and between plaintiff and the former Secretary of Social Services that his recruitment at the Department of Social Services would be as Executive Director IV and that it would not impair his status in the competitive service in the Government of the Commonwealth of Puerto Rico. The former Secretary of Social Services had talked about the matter with the former Director of Personnel who expressed there would be no problem in appointing plaintiff in the position of Executive Director IV, in the competitive service.

7. Upon plaintiff's arrival at the Department of Social Services on September 16, 1970, he signed the proper form known as OP-15. The form was prepared stating that plaintiff's position as Executive Director IV was to be included in the non-competitive service. Plaintiff was informed, upon noticing the foregoing and bringing it out to the attention of the pertinent officer of the mentioned administration, that he had to sign the form as filled out, if he wanted to get paid promptly.

8. Subsequently, plaintiff brought the matter to the attention of the former Secretary of Social Services, Efrain Santiago. Mr. Santiago, in view of the situation, formally requested, by letter of October 8, 1971, to the Director of Personnel, Frank Romero, that plaintiff's position be included in the Competitive Service. The request was granted on October 27, 1971 by the Director of Personnel under Section 648(d) of Title 3, Laws of Puerto Rico Annotated; thus granting plaintiff competitive status in the civil service in the Government of the Commonwealth of Puerto Rico. Although no mention was made in the Secretary of the Department of Social Services' letter to the Director of Personnel, as to the conditions upon which plaintiff had originally agreed to accept the position of Executive Director IV, with functions of Assistant Secretary of Administration, but contrarywise the Secretary's request seemed to be based on a recognition to plaintiff's outstanding performance and loyalty, the testimonial evidence introduced at trial reveals that the change was requested to satisfy the promise made to the plaintiff when he advanced to the former Secretary of Social Services the conditions upon which he would accept the then being offered position.⁴

9. After plaintiff was reinstated to a competitive status (October 27, 1971), the Office of Personnel of the Commonwealth of Puerto Rico established a new category for Assistant Secretaries in the agencies and administrations of the Government of the Commonwealth of Puerto Rico. Memorandum 4-71 of the Office of Personnel, dated December 21, 1971. Plaintiff was offered this new classification, but refrained from accepting the same because, although at a higher salary, it entailed a non-competitive status.

10. Throughout his career as a public servant, plaintiff has received numerous promotions, merit awards and acknowledgements for proficiency in the performance of his duties. In plaintiff's record of twenty-nine years of service, there is no one single disciplinary action or reprimand.

11. Plaintiff is a member of the New Progressive Party that was in office from 1969 to 1972.

12. As a result of the Popular Democratic Party winning the Elections held in the Commonwealth of Puerto Rico in 1972 and taking the administration of the Government in January, 1973, defendants Elisa Diaz González and Milagros Guzmán were appointed Secretary of Social Services and Director of Personnel, respectively, in substitution of the former Administrators.

13. When defendant Elisa Diaz González took office as Secretary of Social Services, plaintiff placed his functions of Assistant Secretary of Administration at her disposal but reminded her that as Executive Director IV, he was in the competitive service and was willing and able to serve the Department in other functions and duties. Plaintiff further informed defendant Elisa Diaz González, that he was eligible for a merit pension in March 1974. On January 12, 1973, plaintiff was assigned to work under the supervision of Irma Ramírez with functions to be subsequently assigned. When plaintiff moved to his assigned office quarters there was neither a desk nor office facilities available to him.

14. On March 1, 1973, plaintiff was relieved from his duties as Assistant Secretary of Administration and assigned new duties at the Area of Administration for Social Treatment Centers. Plaintiff's functions and duties were described in an OP-16 form mentioned in the memorandum suscribed by defendant Elisa Diaz González. Plaintiff's official title or classification as Executive Director IV in the competitive service remained unchanged, and his monthly salary of $1,655 remained the same.

15. Plaintiff's new functions and duties, as described in the OP-16, under the supervision of the Assistant Secretary for the Centers of Social Treatments was not one of trust and confidence, nor one that carried policy-making decisions.

16. In early January 1972, defendant Elisa Diaz González had several conversations with plaintiff. During one of these conversations, said defendant advised plaintiff that he could not remain occupying the functions of Assistant Secretary of Administration because he was too identified with the New Progressive Party.

17. On March 30, 1973, defendant Elisa Diaz González requested from defendant Milagros Guzmán...