Rojas v. Aponte-Roque, CIVIL 86-0671 (PG).

• Decision Date: 11 December 1987
• Docket Number: No. CIVIL 86-0671 (PG).,CIVIL 86-0671 (PG).
• Citation: 678 F. Supp. 23
• Parties: Maria ROJAS, et al., Plaintiffs, v. Awilda APONTE-ROQUE, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

678 F. Supp. 23

Maria ROJAS, et al., Plaintiffs, v. Awilda APONTE-ROQUE, et al., Defendants.

No. CIVIL 86-0671 (PG).

United States District Court, Judicial D. Puerto Rico.

December 11, 1987.

Pedro Miranda Corrada, San Juan, P.R., for plaintiffs.

Esteban Nunez Hoyos, Federal Litigation Div., U.S. Dept. of Justice, Com. of P.R., San Juan, P.R., for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

The matter is before this Court on defendants' motion for summary judgment filed on June 8, 1987. On August 4, 1987, plaintiffs filed a motion for extension of time to reply to defendants' motion for summary judgment by August 18, 1987. Said request for extension of time is unduly late, therefore, it is hereby denied.

This is a civil rights action brought, among other things, under the Civil Rights Act of 1871, 42 U.S.C. § 1983, in which plaintiffs allege that defendants deprived them under color of state law of their rights under the First and Fourteenth Amendments to the Constitution of the United States.¹ Plaintiffs allege that they were separated from their positions as Executive Directors of the Department of Education of the Commonwealth of Puerto Rico because of their political affiliation with the New Progressive Party (hereinafter NPP). Plaintiffs are claiming damages and reinstatement in their positions as Executive Directors.

In support of their motion for summary judgment, defendants raise various arguments, to wit: 1) that plaintiffs did not have a property interest in continued employment and, therefore, were not entitled to due process of law; 2) that defendants did not violate any substantive rights of plaintiffs upon their exercising legal authority and discretion to refrain from giving plaintiffs new employment contracts; 3) plaintiffs' positions as Executive Directors were illegal; and 4) defendants are entitled to qualified immunity from suit for damages in their personal capacity because their actions were taken according to law, in good faith and did not violate clearly established statutory or constitutional rights which a reasonable person would have known.

It is our duty to grant defendants' request for summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of 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).

Findings of Fact

1. All plaintiffs held the transitory positions of Executive Directors at the Department of Public Education. Pursuant to the terms and conditions of their employment contract, plaintiffs were appointed to a contractually fixed term expiring on July 31, 1985.

2. All of the plaintiffs are members of the NPP, the political party whose candidate for the governorship lost the general elections of November 6, 1984. All of the defendants are members of the Popular Democratic Party, the political party whose candidate, Rafael Hernández Colón, was elected Governor of the Commonwealth of Puerto Rico in the general elections held on November 6, 1984.

3. Through opinion letters dated March 15, 1985 and July 2, 1985, the Secretary of Justice of the Commonwealth of Puerto Rico concluded that the creation and afterward extension of the transitory positions of Executive Directors I were made in violation of the norms of creation, classification and compensation of the classes of positions provided by the Public Service Personnel Act, 3 L.P.R.A. § 1301, et seq., its Regulations and Personnel norms; the Budget Act, 23 L.P.R.A. § 81, et seq.; and the Uniform Compensation Act, 3 L.P.R.A. 760, et seq. Moreover, the Secretary of Justice was of the opinion that according to law the Secretary of Public Education had the power to abolish the positions of Executive Directors and/or School Managers.

4. According to defendants, defendant Awilda Aponte Roque, Secretary of Public Education, relied on the opinion letters of the Secretary of Justice and decided to eliminate the positions of Executive Directors or School Managers. As a result, the transitory appointments held by plaintiffs whose contracts expired were not renewed, except for plaintiff Margarita López Feliciano, whose contract was terminated one month before it expired.

5. The position of School Manager was created for experimental districts on July 31, 1978, by the then Secretary of Public Education. Said position was created as a transitory position of fixed duration with a classification of Executive Director I. As of that date, there was no classification plan nor a compensation plan for the teaching personnel of the Department of Public Education (hereinafter DPE), as required by the Central Office of Personnel Administration (hereinafter COPA). Furthermore, when these transitory positions were created no approval from the Budget Bureau was requested.

On August 14, 1980, through Circular Letter number 7-80-81, the Secretary of Public Education extended the creation of the fixed-term positions of School Managers (Executive Directors I) to all school districts. A total of eighty-four persons were appointed to the transitory positions of School Managers. All of them were permanent employees for the teaching section of the DPE as of the date of their appointments as School Managers.

In fiscal year 1981 the Budget Bureau created permanent positions of School Managers. However, the school manager position was never approved by COPA.

Conclusions of Law

In their motion for summary judgment defendants argue that plaintiffs did not have a property interest in continued employment and therefore were not entitled to due process of law. Defendants are correct.

The Due Process Clause of the Fourteenth Amendment requires some kind of hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1983). A property interest is created by existing rules or understandings that stem from an independent source such as "state law". Id. 105 S.Ct. at 1491, citing, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

In their complaint, plaintiffs allege that they had an expectancy of continued employment in their positions even though they held transitory positions. They do not describe, however, any promises or representations made that might give rise to a property interest in their employment beyond the expiration date of their appointment. Thus, plaintiffs have alleged only a mere subjective expectancy that their employment would continue indefinitely and as a result plaintiffs have no property interest in their employment. Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1983); Cheveras Pacheco v. Rivera González, 809 F.2d 125 (1st Cir.1987). Therefore, under Perry v. Sindermann, these employees have no procedural due process rights.²

In their motion for summary judgment defendants also argue that plaintiffs' positions as Executive Directors were illegal and thus null and void.

We agree. The creation and afterward extension of the transitory positions of Executive Directors I were illegal since they were made in violation of the norms, classification and compensation provided by the Public Service Personnel Act, supra; the Budget Act, supra; and the Uniform Compensation Act. As a result, these actions were null and void. See, Liliana Laboy v. ELA, 115 D.P.R. 190 (1984); Colón v. Alcalde Municipio Ceiba, 112 D.P.R. 748 (1982).

The classification of positions is one of the essential areas of the merit principle embodied in the Public Service Personnel Act, 3 L.P.R.A. § 1331. Section 4.2 of said Act, 3 L.P.R.A. § 1332(7), binds the appointing authority in the case of individual administrators³ to establish and maintain classification and compensation plans. However, the structuring of functions as well as the determination of the relative hierarchy between the different classes and the assignment of the compensation requires the approval of the COPA director. 3 L.P.R.A. § 1332(9) and (10). In the present case, when the first transitory positions were created in July 1978, no approval from COPA was requested in order to set their classification or their compensation.

Likewise, former Budget Act, Act No. 213 of May 12, 1942, as amended, 23 L.P.R. A. § 81, et seq., required in its article 30, subparagraph (c), that no additional positions could be created without written consent from the Director of the Budget Bureau. Likewise, when the first transitory positions were created in July 1978, no approval from the Budget Bureau was requested.

In July 12, 1979, the Uniform Compensation Act of 1979 came into effect, 3 L.P.R. A. § 760d. It established the obligation of the individual administrators to create separate compensation plans for its career and confidential employees with the approval of the Director of Personnel after consulting with the Director of the Bureau of the Budget. Article 9 of that Act, 3 L.P.R.A. § 760h, also required the individual administrators to assign at the beginning of each fiscal year all the classes of positions to the schedules contained in the compensation plan. The creation of the additional transitory positions in 1980, as well as the approval by the Budget Bureau of the regular positions in 1981, violated these provisions as well as the provisions on classification of positions of the Personnel Act, 3 L.P.R.A. § 1332.

Although plaintiffs were denied the requested extension of time to reply to defendants' motion for summary judgment and, therefore, it stands unopposed, we would only grant defendants' request for summary judgment if appropriate. Fed.R. Civ.P. 56(e); Tunnell v. Wiley, 514 F.2d 971 (3rd Cir.1975); McDermott v. Lehman, 594...