Kauffman v. Puerto Rico Telephone Co.

• Decision Date: 04 November 1987
• Docket Number: No. 87-1503,87-1503
• Citation: 841 F.2d 1169
• Parties: Bessie A. KAUFFMAN, et al., Plaintiffs, Appellants, v. PUERTO RICO TELEPHONE COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1169

841 F.2d 1169

Bessie A. KAUFFMAN, et al., Plaintiffs, Appellants, v. PUERTO RICO TELEPHONE COMPANY, et al., Defendants, Appellees.

No. 87-1503.

United States Court of Appeals First Circuit.

Heard Nov. 4, 1987.

Decided Feb. 3, 1988.

Pedro Miranda Corrada, San Juan, P.R., with whom Hector Urgell Cuebas was on brief for plaintiffs, appellants.

Manuel Alvarado, Hato Rey, P.R., with whom Zuleika Llovet, San Juan, P.R., Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera-Cruz, Secretary of Justice, and Rafael Ortiz-Carrion, Sol. Gen., were on brief for defendants, appellees Lausell, Navarro, Molina and Ramos.

Jay A. Garcia Gregory with whom Emily Arean Diaz and Fiddler, Gonzalez & Rodriguez, San Juan, P.R., were on brief for defendants, appellees Puerto Rico Telephone Authority and Puerto Rico Telephone Co.

Before COFFIN, BOWNES and SELYA, Circuit Judges.

COFFIN, Circuit Judge.

The plaintiffs, ten former employees of the Puerto Rico Telephone Company ("PRTC"), appeal from a summary judgment entered by the United States District Court for the District of Puerto Rico in favor of the defendants, PRTC, the Puerto Rico Telephone Authority ("PRTA"), and certain individual PRTC officials. The plaintiffs claimed that the defendants discharged them because of their affiliations with the New Progressive Party ("NPP"), in violation of the First Amendment, and that the defendants' failure to provide them with notice and hearing prior to dismissal violated their rights to due process. For the reasons set forth herein, we affirm the district court's judgment for defendants.

I.

The undisputed facts are set forth fully in the opinion of the district court. Kauffman v. Puerto Rico Telephone Co., 674 F.Supp. 952, 954-56 (D.P.R.1987). We summarize them as follows:

PRTA is a public corporation organized and operated pursuant to P.R.Laws Ann. tit. 27, Secs. 401-24 (1985). PRTA is the sole shareholder of PRTC, a quasi-public corporation, incorporated under Delaware law. In 1982, the Puerto Rico Supreme Court held that PRTC is an instrumentality of the Government of Puerto Rico and must comply with Puerto Rico's Public Service Personnel Act, P.R.Laws Ann. tit. 3 Secs. 1301-1431 (1978 & Supp.1986). Torres-Ponce v. Jimenez, 113 P.R.Dec. 58 (1982) (official English translation: No. R-81-161, slip. op. (P.R. June 2, 1982)). As a result, PRTC promulgated "Personnel Regulations for Managerial Employees" ("the regulations"), pursuant to P.R.Laws Ann. tit. 3, Sec. 1338. ¹ These regulations became effective in April 1983, before the plaintiffs were hired. Section 8.4 of the regulations ("regulation 8.4" or "section 8.4"), governing recruitment and hiring, provides:

1. The PRTC shall have as [a] rule when considering the filling of vacancies that arise to consider first the internal employees of the Company following the rules of publication and free competition for all the employees who comply with the requisites, and provided that the internal candidates are suitable to fill the vacancy. The opportunities are [to be] published through a personnel requisition which shall contain the following information: position title, minimum requirements, placement level in the salary structure, time limits to file applications, department and work area and any other information indispensable [such] as the type of competition and testing.

2. Should there not exist internal candidates to cover the vacancy or vacancies, or when the Company deems that it is convenient and practical, [it] shall proceed [to] external recruitment.

3. To attract to the Company the most capable persons by means of external recruiting, the opportunities of employment shall be divulged by the most proper of means of communication in each case.

Adequate means shall be considered among others, the following: bulletin boards, publications, daily newspapers, professional magazines, private or public employment agencies and other means that may reach persons who may be interested.

The plaintiffs were hired between July 1983 and September 1984 to work in various posts at the PRTC as "career" employees. Section 8.4 of the regulations governed their recruitment and hiring.

Following eight years of NPP administration, the Popular Democratic Party (PDP) won the November 1984 general election and its candidates took office in January, 1985. The new Governor then appointed defendant Miguel Lausell as Executive Director of PRTA and President of PRTC. Miguel Lausell, in turn, appointed defendants Rafael Navarro, Armando Ramos, and Elsie Molina to the respective positions of Vice President in charge of Employee Relations, Personnel Director, and Recruitment Manager. These PRTC officers were all members of the PDP.

Shortly thereafter, Rafael Navarro learned of allegations that fifty-two employees, including the plaintiffs, had been hired in violation of the regulations. Other employees at PRTC voiced protests that these fifty-two had been hired from outside the company without the requisite attention given to internal recruitment. Upon investigating the matter, the Employment Relations Division of PRTC learned that the plaintiffs "had all been recruited from outside PRTC without giving internal employees first consideration for the job vacancies and without ever publishing the job openings, either internally or externally." Kauffman, at 956.

The plaintiffs and the other forty-two employees were dismissed from their jobs pursuant to letters signed by defendant Rafael Navarro and hand delivered by defendants Armando Ramos and Elsie Molina. The letters all contained identical first paragraphs stating:

After conducting an investigation of the files and records, it has been determined that your recruitment was performed in violation of the PRTC Regulation for Managerial Personnel and the merit principle, this violation renders your appointment illegal. Therefore, you are permanently terminated from employment with the Company, effective February 22, 1985. ²

The plaintiffs filed their complaint against the defendants on March 25, 1985, alleging violations of the First, Fifth, and Fourteenth Amendments as well as certain provisions and regulations of the Puerto Rico Personnel Act. They sought reinstatement, damages, and punitive damages from defendants pursuant to 42 U.S.C. Sec. 1983 ("section 1983"). After the parties submitted cross-motions for summary judgment and oppositions thereto, the district court, in an opinion and order dated January 23, 1987, granted summary judgment for the defendants.

II.

A. Standard of Review

Although in reviewing the propriety of a grant of summary judgment, we examine the record in the light most favorable to the losing side, e.g., Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987), we observe the Supreme Court's recent pronouncements that to defeat a summary judgment motion, the non-moving party must demonstrate the existence of a genuine issue of material fact pertaining to those factual issues on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Moody v. Maine Central Railroad Co., 823 F.2d 693, 694 (1st Cir.1987). Moreover, "the existence of some alleged factual dispute will not defeat a summary judgment motion; 'the requirement is that there be no genuine issue of material fact.' " Kennedy v. Josephthal & Co., Inc., 814 F.2d at 804 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original)); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975). ³ Thus, summary judgment is proper when, after adequate time for discovery, the party against whom judgment is sought fails to show sufficient basis for the establishment of an essential element of its case. Moody, 823 F.2d at 694 (citing Celotex, 106 S.Ct. at 2552-53). We assess the plaintiffs' arguments according to these principles.

B. The First Amendment Claim

In their cross-motions for summary judgment, the defendants claimed that the plaintiffs were terminated because they were hired in violation of section 8.4 of the regulations. The plaintiffs alleged, on the other hand, that they would not have been fired but for their affiliations with the NPP. The district court held that the plaintiffs had failed to generate a genuine issue of material fact regarding their claim that their discharges were politically motivated. We agree.

In order to establish a prima facie section 1983 claim that their terminations constituted patronage dismissals violative of their First Amendment rights under Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the plaintiffs would have had to prove, at trial, that affiliation with the NPP was the substantial or motivating factor underlying their dismissals. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Kercado-Melendez v. Aponte-Rogue, 829 F.2d 255, 264 (1st Cir.1987); Rosaly v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). ⁴ Thus, to survive defendants' motion for summary judgment, the plaintiffs were required to show the existence of a factual dispute on this issue. See Celotex, 106 S.Ct. at 2552-53. The district court concluded that the plaintiffs' political discrimination claims were based upon "mere conclusory statements" that their firings were politically motivated and that the record was lacking any specific evidence "to raise a question of fact that 'but for' political affiliation they would not have been dismissed." Kauffman, at 959.

The plaintiffs claim that the district court erred in failing to give due weight to sworn allegations in their complaint and to "detailed statements of facts" in the nature of affidavits attached to their summary judgment motion. We have carefully reviewed the record and have found only the...