Kauffman v. Puerto Rico Telephone Co.

• Citation: 674 F. Supp. 952
• Decision Date: 23 January 1987
• Docket Number: Civ. No. 85-701 HL.
• Parties: Bessie A. KAUFFMAN, et al., Plaintiffs, v. PUERTO RICO TELEPHONE CO., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

674 F. Supp. 952

Bessie A. KAUFFMAN, et al., Plaintiffs, v. PUERTO RICO TELEPHONE CO., et al., Defendants.

Civ. No. 85-701 HL.

United States District Court, D. Puerto Rico.

January 23, 1987.

COPYRIGHT MATERIAL OMITTED

Ramón García García, Hato Rey, P.R., for plaintiff Annie Ceide.

José Ramón Pérez Hernández, Héctor Urgell, Pedro Miranda, Old San Juan, P.R., for plaintiffs.

Fiddler, González & Rodríguez, San Juan, P.R., for defendant P.R. Telephone Co.

Saldaña, Rey, Morán & Alvarado, Santurce, P.R., for defendants Lausell, Navarro, Molina & Ramos.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiffs, eleven former employees of the Puerto Rico Telephone Co. ("PRTC"), filed this action under 42 U.S.C. sect. 1983 against their former employer PRTC; the Puerto Rico Telephone Authority ("PRTA"); Miguel Lausell, Executive Director of PRTA and President of PRTC¹; Rafael A. Navarro, Vice President in charge of employee relations at PRTC; Elsa Molina, Personnel Director of PRTC, and Armando Ramos, Recruitment Manager of PRTC. Plaintiffs claim to have been discharged from their jobs because of their political affiliation in violation of the First Amendment and without notice or a pretermination hearing in violation of the Due Process Clause.

Before the Court are cross-motions for Summary Judgment. Plaintiffs base their claim for summary judgment on the undisputed fact that they were discharged by defendants without notice or hearing. Defendants counter that judgment should be granted in their favor because all plaintiffs, with the exception of Annie Ceide had been illegally hired and, as a result, had no property interest in their jobs and no right to due process. Concerning the claim of Annie Ceide, defendants maintain she has no cause of action for violation of due process because she was given notice of her termination and afforded an opportunity to be heard on the charges against her prior to termination. Defendants also assert that plaintiffs have failed to support a First Amendment claim for political discrimination.

Defendants' Motion for Summary Judgment against all plaintiffs except Annie Ceide is GRANTED. Annie Ceide's Motion for Summary Judgment on the claim to due process is GRANTED. Motions for Summary Judgment by defendants and Ceide on her First Amendment claim are DENIED.

FACTS

Plaintiffs worked for PRTC as "career" employees with PRTC until they were dismissed or, in the case of Annie Ceide, permanently suspended, from their jobs on February 22, 1985. Each plaintiff claims to be an active member of the New Progressive Party ("NPP") of Puerto Rico. Defendants are known to be members of the rival political party, the Popular Democratic Party ("PDP").

Following eight years of NPP administration, the PPD won the November, 1984 general election for governor, and took office in January, 1985. Shortly after the change in administration defendant, Miguel Lausell, was appointed Executive Director of PRTA and President of the PRTC. As President and Executive Director, Lausell appointed defendants, Rafael Navarro, Elsa Molina and Armando Ríos to the positions of Vice President in charge of Employee Relations, Personnel Director, and Recruitment Manager respectively.

PRTA is a public corporation created by Law No. 25 of May 6, 1974, 27 L.P.R.A. sect. 401 et seq. PRTC is a private corporation organized under the laws of the state of Delaware. PRTA is the sole shareholder of PRTC. The Governor of Puerto Rico appoints the PRTA governing board and, pursuant to the law, the PRTA Executive Director who also serves as President of PRTC. 27 L.P.R.A. sects. 404, 405.

From its creation in 1974 until 1982 PRTC operated its employment matters as a private corporation without complying with the personnel laws of Puerto Rico. In 1982 the Puerto Rico Supreme Court held that PRTC was a "public-private" corporation operating as an instrumentality of the government and must comply with the laws of Puerto Rico. Torres-Ponce v. Jimenez, 113 D.P.R. 58 (1982). The court ordered PRTC to adopt personnel regulations in compliance with the merit principles and regulations of Puerto Rico's Public Service Personnel Act of 1975, 3 L.P.R.A. sect. 1301 et seq. ("the Personnel Act"). Id.

The Personnel Act was passed in 1975 in response to a deep dissatisfaction with the quality and efficiency of government employees. See Reyes Coreano v. Puerto Rico Ports Authority, 110 D.P.R. 40 (1980). The objective of the Act was to install a government-wide merit system aimed at attracting the most qualified employees to public service, attaining a public administration governed by "uniformity, equity, and justice," and maintaining "harmony and satisfaction" in the work place and "continuity and regularity" of public services. 3 L.P.R.A. sect. 1321.

Following the order of the Puerto Rico Supreme Court, PRTC issued Personnel Regulations for Managerial (non-union) Employees ("the Regulations"), effective April, 1983, consistent with the merit principles and objectives of the Personnel Act. The Regulations govern all aspects of recruitment, hiring, firing, and training of PRTC employees. The salient features of the Regulation's provisions governing recruitment and hiring are the requirements to give priority to internal employees and to publish the job openings publicly in order to attract the most qualified candidates.²

Except for Annie Ceide, all plaintiffs were recruited and hired to "career" positions with PRTC subsequent to the April, 1983 effective date of the Regulations.³ By letter dated February 22, 1985, signed by Rafael Navarro and hand delivered by Armando Ramos and Elsie Molina, these plaintiffs were notified of dismissal. The letter gave the following explanation for their discharge:

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.

An investigation of the recruitment process was undertaken by the Employment Relations Division after Rafael Navarro became aware that several complaints alleging illegal recruitment and hiring had been filed with an administrative tribunal handling such matters and that a group of PRTC employees had been formed with the purpose of protesting these violations. The investigation revealed that fifty-two employees, including plaintiffs, had been hired in violation of the Regulations. It was found that 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.

Plaintiff Annie Ceide was hired as PRTC Recruitment Manager on January 17, 1983, prior to the April, 1983 effective date of the Regulations. She held this position until January 21, 1985 when she was replaced by Armando Ramos and assigned to another position. On March 2, 1985, she received a letter suspending her from employment without pay effective February 22, 1985. The letter explained that she was being suspended pending an investigation of her involvement as Recruitment Manager of recruitment and hiring in violation of the Regulations.

Following her suspension on April 4, 1985 Ms. Ceide was sent a letter from Mr. Navarro requesting her presence on April 11 for an interview regarding the charges against her of illegal recruitment and hiring. She failed to appear at the meeting. On April 26 she was sent a second letter requesting her presence at a May 2 meeting. Again she failed to appear. Ms. Ceide was officially terminated from employment on May 20, 1985.

On cross-motions for summary judgment the court must decide whether either party is entitled to judgment on the claim presented, in this case plaintiff's claim for violation of the Due Process Clause and the First Amendment. Summary judgment is proper if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

PLAINTIFFS HIRED AFTER THE EFFECTIVE DATE OF THE PRTC PERSONNEL REGULATIONS HAD NO PROPERTY INTEREST IN THEIR JOBS AND WERE NOT ENTITLED TO DUE PROCESS.

The Due Process Clause of the Fourteenth Amendment guarantees public employees with a property interest in continued employment the right to an informal hearing prior to being discharged. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). A property interest is created by "existing rules or understandings that stem from an independent source such as state law." The process due prior to taking the property is, however, a matter of constitutional or federal law. Id. at 1492-1493.

The positions held by plaintiffs in this case—Employment Assistant, Office Clerk or Interviewer I—are "career" positions as defined by Puerto Rico's Personnel Act, 3 L.P.R.A. sect. 1349.⁴ "Career" employees may be removed only upon a showing of "just cause," and after being given notice and hearing. 3 L.P.R.A. sect. 1336(4).⁵ Employees with similar statutory protection have been held to have an expectancy in continued employment and a property interest in the employment position. See Loudermill, supra, at 1491; Kerkado v. Aponte-Roque, 64 F.Supp. 1326 (D.P.R.1986).

Whether plaintiffs here had a property interest in continued employment is dependent upon the legality of their appointments. The Supreme Court of Puerto Rico has made it clear that appointment of a public employee in violation of an agency regulation or provision of the Personnel Act is null and void, and carries none of the due process protection normally associated with a "career" appointment. Liliana Laboy v. Ela, ...