Kercado Melendez v. Aponte Roque

• Decision Date: 12 August 1986
• Docket Number: Civ. No. 85-2261 HL.
• Citation: 641 F. Supp. 1326
• Parties: Ipcia M. KERCADO MELENDEZ, Plaintiff, v. Awilda APONTE ROQUE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

641 F. Supp. 1326

Ipcia M. KERCADO MELENDEZ, Plaintiff, v. Awilda APONTE ROQUE, Defendant.

Civ. No. 85-2261 HL.

United States District Court, D. Puerto Rico.

August 12, 1986.

Héctor González López, San Juan, P.R., for plaintiff.

Carlos del Valle, Ramirez & Ramirez, Hato Rey, P.R., José Luis González, Ramirez & Ramirez, for defendant.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, Ipcia M. Kercadó Meléndez, a career employee for eighteen years with the Department of Public Instruction ("DPI"), filed this complaint against defendant, Awilda Aponte Roque, Secretary of DPI, under 42 U.S.C. § 1983 claiming she was discharged from the position of Superintendent of the Dorado School District in violation of the Fifth and Fourteenth Amendment Due Process clause and that the discharge was motivated by political discrimination in violation of the First Amendment.¹ As relief plaintiff seeks a permanent injunction reinstating her as Superintendent of the Dorado School District, restoring all her teaching certificates and compensating her with compensatory and punitive damages.

A five day bench trial of this case was held in March, 1986. Evidence was presented addressing plaintiff's claim that her termination violated both due process and the First Amendment. Based on the pleadings, the evidence presented at trial, and after considering the demeanor and credibility of the witnesses, the Court enters the following findings of facts and conclusions of law.

PROCEDURAL HISTORY

After working as a DPI employee for eighteen years, plaintiff was terminated from the position of Superintendent of the Dorado School District for the first time on October 28, 1985. On that date plaintiff received a complaint signed by the defendant, the Secretary of DPI, ordering her dismissal, cancelling of all her certificates to teach in both public and private schools,² and charging her with seven infractions of the Teachers' Misconduct Act, Law 115 of June 30, 1965, 18 L.P.R.A. section 274 ("Law 115").³ Plaintiff was also informed through the complaint of her right to appeal the Secretary's action within ten days to the DPI Board of Appeals.

Within ten days of receiving defendant's order plaintiff appealed the charges to the Board of Appeals. Plaintiff also filed the present action and petitioned this Court for a Temporary Restraining Order seeking to enjoin her dismissal. After filing the claim in this Court plaintiff withdrew her appeal before the Board of Appeals.

Plaintiff's petition for a TRO was based on the claim that she was separated from employment without a pre-termination hearing in violation of due process as required by Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Rather than granting a TRO, this Court set a "show cause" hearing for November 18, 1985, at which the parties were to come prepared to address the due process issue and plaintiff's right to a preliminary injunction on that basis.

On the very day set for the "show cause" hearing the charges against plaintiff were withdrawn and she was reinstated as Dorado Superintendent, thereby mooting the preliminary injunction sought as relief. On November 25, 1985 plaintiff was delivered a letter requesting her presence at an informal hearing on "new" charges against her. The hearing was held the next day, November 26, 1985, before Elba Rodriguez Fuentes, the Director of the DPI Legal Division and two other attorneys with the Department. Elba Rodriguez read plaintiff the charges against her and plaintiff was given the opportunity to respond. No evidence or witnesses were presented by either side.

On December 9, 1985 plaintiff was served for the second time with a complaint signed by defendant ordering her dismissal and cancelling her Superintendent's certificate. The complaint made four charges against plaintiff which, except for the condensed form, were identical to the seven charges made in the original October 28, 1985 complaint.

Plaintiff did not file an appeal of this order to the DPI Board of Appeals. Instead, she pursued the litigation of her rights in the present action. During the period between plaintiff's first discharge on October 28, 1985 and the second discharge on December 9 a trial date was set by this Court and discovery proceeded. While litigation was ongoing in this court defendant withdrew the first complaint against plaintiff and no administrative proceeding concerning plaintiff's dismissal was commenced before the DPI Appeals Board.⁴

FACTS

Plaintiff is an active member of the New Progressive Party ("NPP"). She has been a frequent attendant at NPP functions and speaks freely of her political party affiliation. Defendant, plaintiff's immediate supervisor and other DPI employees were well aware of plaintiff's political affiliation.

Defendant is a member of Popular Democratic Party ("PDP"). After eight years of NPP administration in Puerto Rico, the PDP regained power in the November, 1984 election. Following the transition to a PDP administration in January, 1985 the defendant, Awilda Aponte Roque, was appointed Secretary of DPI.

Plaintiff began to work for the DPI in 1967, after having completed a Bachelor's and Master's Degree in Education at Interamerican University in San Juan, Puerto Rico. Since being hired by DPI plaintiff has worked as an elementary teacher, principal of an elementary school, Deputy Director and Director of the Institute for Educational Services. In 1980 she was appointed Superintendent of the Dorado School District, a position she held until her termination in 1985. As Dorado Superintendent plaintiff was a "career" employee as defined by the Puerto Rico Public Service Personnel Act, 3 L.P.R.A. sect. 1349. Under the law of Puerto Rico, a "career" employee with DPI, or any other Commonwealth agency, can be involuntarily terminated from employment only for "just cause."⁵

During her eighteen years of employment with DPI, plaintiff was never formally reprimanded for her job performance until October 28, 1985, when she received the first notice of dismissal. In fact, a witness for plaintiff, Regina Sevilla de Santiago, a 31 year veteran with DPI who served as plaintiff's supervisor for eight years including the years 1980-1984 while plaintiff was Dorado Superintendent, testified that plaintiff was very professional in her work and was highly dedicated to DPI and to her duties as Superintendent of the Dorado schools.

Seven charges were made against plaintiff when she was terminated for the first time on October 28, 1985. On December 9, 1985, when she was discharged for the second time, four charges were made. Other than the condensed format the four charges made in December are identical to the seven made in October. The charges against plaintiff to justify her dismissal state as follows:

1. You did not process the appointments of fourteen Teacher Assistants in the School District of Dorado thus disobeying the orders of the Director of the Bayamón Educational Region.

2. You kept Mrs. Clara Luna Garcia working in your office during the month of August, 1985, without the authorization of the Regional Director nor that of the Secretary of Public Education, knowing that Mrs. Luna had been reinstated to her permanent position as a Mathematics Teacher.

3. You kept Mr. José W. Ramos Urbina working in your office without the authorization of the Regional Director nor that of the Secretary of Public Education, knowing that he had been reinstated to his permanent position as elementary school teacher, effective July 1st, 1985.

4. You altered the duties of Mr. Héctor J. López Maldonado, Assistant Superintendent, making it impossible for him to work normally in the position to which he was appointed, thus affecting the smooth functioning of the Dorado School District.

Defendant claims the first charge—that plaintiff failed to appoint the teachers' aides—was an act of insubordination in violation of Law 115. Plaintiff had received a letter dated October 4, 1985 from her supervisor, the Bayamón Regional Director, Leida Cintrón, with instructions to appoint the following persons selected by Ms. Cintrón to serve as teachers' aides. Neither this letter nor a follow-up letter to plaintiff from Ms. Cintrón dated October 18, 1985—asking plaintiff for an update on the teachers' aides—gave plaintiff a time limit within which to process the appointments.

Prior to defendant's appointment as DPI Secretary teachers' aides were selected by plaintiff, as the Superintendent of the district with the aid of the Dorado school Principals. After defendant took office a new system was instituted. The fourteen teachers' aides to be appointed in the Dorado District were to be selected by a committee of Dorado School Principals, plaintiff—Dorado Superintendent, and Maria Córdova de Zayas—the Assistant Director of the Bayamón Region serving as the Regional Director's representative. In the case that no consensus was reached the aides were to be selected by Leida Cintrón, the Bayamón Regional Director.

On August 20, 1985 the committee met. Consensus was reached on only three people. As for the remaining ten appointments, for which there was no consensus, the Regional Director herself made the selection and sent plaintiff the letter dated October 4, 1985 with her decision.⁶

Plaintiff claims her failure to appoint the aides was not an act of insubordination. She testified that she did not receive the Regional Director's letter until October 11, 1985, that she was understaffed, and that the appointment process takes work to complete. Plaintiff claims she did not have sufficient time to make the appointments prior to her dismissal on October 28, 1985.

The second and third charges against plaintiff—that she kept Clara Luna Garcia and José Ramos Urbina working in her office—are, according to defendant, acts of insubordination in violation of defendant's directives outlined in a May 20, 1985 memo to all DPI...