Roldan-Plumey v. Cerezo-Suarez

• Citation: 115 F.3d 58
• Decision Date: 05 March 1997
• Docket Number: No. 96-1701,ROLDAN-PLUME,P,CEREZO-SUARE,96-1701
• Parties: 12 IER Cases 1619 Magalylaintiff-Appellant, v. Hiram E.ersonally and as Commissioner for Municipal Affairs, et al., Defendants-Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 58

115 F.3d 58

12 IER Cases 1619

Magaly ROLDAN-PLUMEY, Plaintiff-Appellant, v. Hiram E. CEREZO-SUAREZ, Personally and as Commissioner for

Municipal Affairs, et al., Defendants-Appellees.

No. 96-1701.

United States Court of Appeals, First Circuit.

Heard March 5, 1997.

Decided June 4, 1997.

Carlos A. del Valle-Cruz, Hato Rey, PR, with whom Juan Rafael Gonzalez- Munoz and Doris I. Quinonez Tridas, were on brief, for appellant.

Sylvia Roger-Stefani, Assistant Solicitor General, Department of Justice, with whom Carlos Lugo-Fiol, Solicitor General, San Juan, PR, and Edda Serrano-Blasini, Deputy Solicitor General, Guaynabo, PR, were on brief, for appellees.

Before TORRUELLA, Chief Judge, SELYA and STAHL, Circuit Judges.

TORRUELLA, Chief Judge.

On May 4, 1994, PlaintiffAppellant Magaly Roldan-Plumey ("Roldan") brought this Section 1983 suit against Defendants-Appellees Hiram Cerezo- Suarez ("Cerezo"), Commissioner of Municipal Affairs for Puerto Rico, and Sandra Valentn ("Valentn"), Director of the Legal Division of the Office of the Commissioner of Municipal Affairs ("OCMA"), in their individual and official capacities. The suit alleged that appellees, in violation of Roldan's First Amendment rights, dismissed her from her position of Hearing Examiner (also referred to as Examining Officer) because of her political beliefs. The district court granted appellees' motion for summary judgment on the ground that party affiliation is an appropriate requirement for the effective performance of the position of Hearing Examiner and, consequently, that appellees were entitled to dismiss Roldan on those grounds. See Opinion and Order, March 5, 1996, at 10. Having ruled on the merits, the district court did not address, inter alia, whether appellees were entitled to qualified immunity.

In contrast to the lower court, we find that the inherent duties of Roldan's position do not demonstrate policymaking attributes sufficient to subject Roldan to discharge based on her political beliefs and, accordingly, reverse the entry of summary judgment. Moreover, having found cause to set aside the judgment on the merits, we address appellees' argument that they are entitled to qualified immunity and find it wanting.

BACKGROUND

On March 1, 1992, Roldan accepted the position of Hearing Examiner with the Office of the Commissioner of Municipal Affairs. The OCMA is the main regulatory agency of Puerto Rico's municipalities and is charged with uncovering, investigating, and reporting to municipal mayors any irregularities in the municipalities' management. P.R. Laws Ann. tit. 21, § 4909 (1995). The office is further obligated to provide various forms of "technical and professional assistance to the municipalities relating to their organization, administration, functions and operation." Id. § 4902. The Commissioner developed a confidential and trust employee plan under which employees in the OCMA were classified in accordance with the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit. 3, § 1301 et seq. The plan, developed by Cerezo's predecessor as Commissioner, Ismael Pagan-Colberg, designated the position of "examining officer" as a trust position. According to this document, the OCMA positions designated as trust or confidence positions were only "[t]hose positions whose holders intervene or collaborate substantially in the formulation of public policy, which directly advise or render direct services to the Commissioner of the Office of the Commissioner of Municipal Affairs." Def. Exh. IV to Motion to Summary Judgment.

The classification, or job description, for the position of "Examining Officer" sets forth the position's duties as follows:

DUTIES OF POSITION

Professional and technical work that requires great knowledge of the principles and the practice of law and the ability to direct research procedures leading to an adjudicative determination.

1. Holds administrative hearings required by the Autonomous Municipalities Act and any other necessary one[s] to carry out the duties assigned to the Commissioner. Regulates the procedures during the [performance] of the same.

2. Takes oaths and declarations, issues summons for the appearance of witnesses and the filing of reports, documents and other evidence necessary to solve cases.

3. Evaluates evidence and comes to conclusions of facts and law.

4. Carries out legal studies for the solution of cases.

5. Issues reports with his conclusions and recommendations to the Commissioner.

6. Carries out other assigned related duties.

Def. Exh. V to Motion for Summary Judgment.

On November 4, 1992, Pedro Rossell ("Rossell"), a member of the New Progressive

Party ("NPP"), was elected governor. In March 1993, Rossell appointed Cerezo Commissioner of Municipal Affairs. In April 1993, Cerezo appointed Valentn to head the Legal Division of the OCMA. On May 6, 1994, Roldan received a dismissal letter effective that same date.

STANDARD OF REVIEW

We review the grant of summary judgment de novo, viewing the facts, and drawing all reasonable inferences, in the light most favorable to the non-movant, here Roldan, and affirming summary judgment only "if no genuine issue of material fact exists." O'Connor v. Steeves, 994 F.2d 905, 906-07 (1st Cir.1993).

DISCUSSION

I. Political Discharge Claim

We turn first to the grounds on which the district court granted summary judgment to Cerezo and Valentn. More than twenty years ago, a plurality of the Supreme Court held that governmental employers may not discharge an employee because of her political affiliation without showing a governmental interest sufficiently vital to outweigh the employee's First Amendment right to association. Elrod v. Burns, 427 U.S. 347, 355-56, 362, 96 S.Ct. 2673, 2676-77, 2680-81, 49 L.Ed.2d 547 (1976). The plurality found that the government's interest in effective implementation of its policies can be achieved "by limiting patronage dismissals to policymaking positions." Id. at 372, 96 S.Ct. at 2689. Justice Stewart's concurrence gave the Court a majority for the proposition that nonpolicymaking, nonconfidential employees should not be discharged on the basis of their political beliefs. Id. at 374-75, 96 S.Ct. at 2690-91 (Stewart, J., concurring in the judgment).

The Court next attempted to define the contours of the prohibition on political discharge in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Instead of applying Elrod 's policymaking inquiry, the Branti Court relied upon a finding that political affiliation is not an appropriate requirement for the effective performance of the position of assistant public defender. Id. at 518-19, 100 S.Ct. at 1294-95. The Branti Court again, however, imposed the burden on the governmental body seeking dismissal: "[U]nless the government can demonstrate 'an overriding interest' 'of vital importance' requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment." Id. at 515-16, 100 S.Ct. at 1293 (citations omitted). Of fundamental importance is the idea that "conditioning continued public employment on an employee's having obtained support from a particular political party violates the First Amendment because of 'the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one's job.' " Rutan v. Republican Party of Illinois, 497 U.S. 62, 71, 110 S.Ct. 2729, 2735, 111 L.Ed.2d 52 (1990) (quoting Branti, 445 U.S. at 516, 100 S.Ct. at 1294).

More recently, in Rutan v. Republican Party of Illinois, the Court extended the reach of the Elrod-Branti doctrine to politically motivated promotions, transfers, and recalls. Rutan, 497 U.S. at 70, 110 S.Ct. at 2734-35. The Court reaffirmed the heavy burden on government employers to show that the use of "patronage practices are narrowly tailored to further vital government interests." Id. at 74, 110 S.Ct. at 2736-37. The Court reiterated that

[a] government's interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient. A government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views.

Id. Unless a position is one that requires policy implementation, or is confidential in nature (a claim that appellees here do not make and to which we need not allude hereafter), a government employer must rely on traditional discharge criteria.

Based on this case law, this circuit has developed a two-part test for discerning when discharge based on political affiliation is permissible. First, we inquire into whether

                the discharging agency's functions entail " 'decision making on issues where there is room for political disagreement on goals or their implementation.' "  O'Connor, 994 F.2d at 910 (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986)).  If so, we next determine "whether the particular responsibilities of the plaintiff's position, within the department or agency, resemble those of a policymaker, privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement for continued tenure."  Id. (internal quotation marks omitted);  see also Jimenez Fuentes, 807 F.2d at 241-42.   In reviewing this second prong, we have looked to "relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders."  O'Connor, 994 F.2d at 910
                

A. Agency functions

In her opposition to appellees' motion for summary judgment, Roldan conceded that OCMA is...