Rosario-Urdaz v. Velazco, 04-2292.

• Decision Date: 06 January 2006
• Docket Number: No. 04-2292.,No. 04-2293.,04-2292.,04-2293.
• Citation: 433 F.3d 174
• Court: U.S. Court of Appeals — First Circuit
• Parties: Dorcas ROSARIO-URDAZ, Plaintiff, Appellant/Cross-Appellee, v. Román VELAZCO, Secretary of the Department of Labor and Human Resources of Puerto Rico; Víctor Rivera-Hernández. Defendants, Appellees/Cross-Appellants. Carmen Rosario-Morales; Maira González; Angel Agosto, Defendants, Appellees. Jane Doe; Conjugal Partnership Rivera-Doe, Defendants.

Page 174

433 F.3d 174

Dorcas ROSARIO-URDAZ, Plaintiff, Appellant/Cross-Appellee, v. Román VELAZCO, Secretary of the Department of Labor and Human Resources of Puerto Rico; Víctor Rivera-Hernández. Defendants, Appellees/Cross-Appellants.

Carmen Rosario-Morales; Maira González; Angel Agosto, Defendants, Appellees.

Jane Doe; Conjugal Partnership Rivera-Doe, Defendants.

No. 04-2292.

No. 04-2293.

United States Court of Appeals, First Circuit.

Heard September 7, 2005.

Decided January 6, 2006.

Víctor P. Miranda-Corrada with whom Roberto Busó-Aboy was on brief for plaintiff, appellant/cross-appellee.

Celina Romany with whom Celina Romany Law Offices was on brief for defendants, appellees/cross-appellants.

Doraliz E. Ortiz-de-León, Assistant Solicitor General, Commonwealth of Puerto Rico, Office of the Solicitor General, Department of Justice, with whom Salvador Antonetti-Stutts, Solicitor General of Puerto Rico, and Mariana D. Negrón-Vargas, Deputy Solicitor General, were on brief for defendants, appellees.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,^* Senior District Judge.

BOUDIN, Chief Judge.

The background to this litigation under section 1983 is easily recounted. In 1996 Dorcas Rosario-Urdaz ("Rosario-Urdaz") began work as an employee with the rank of Employee I in the Puerto Rico Department of Labor and Human Resources ("DLHR"). She earned career status as an Information Representative and was rather quickly promoted to a "trust" (i.e., political) position in 1997. At that time, the governorship was held by the New Progressive Party ("NPP") with which Rosario-Urdaz is associated.

In November 2000, a new governor was elected representing the Popular Democratic Party ("PDP"). As permitted by Puerto Rico law, 3 P.R. Laws Ann. § 1350(8)(a) (2000), Rosario-Urdaz then exercised her option to resume her earlier status as a career employee effective December 29, 2000, shortly before the new administration took power in January 2001. When the new governor took office, she appointed, as Secretary of the DLHR, Victor Rivera-Hernandez, who was later succeeded by Roman Velazco. In the new administration, Carmen Rosario-Morales was Assistant Secretary for Human Resources; she was later replaced by Gladys Rivera.

According to Rosario-Urdaz, she was made a target of harassment after the new PDP administration came to power. She said that her duties were reduced and given at least in part to a former subordinate, Maira Gonzalez, a member of the PDP; that she was harassed by Gonzalez and by another co-worker, Angel Agosto; and that her entire office was abolished in October 2001. Although Rosario-Urdaz was initially given an equivalent job in another part of the DLHR, she was discharged in March 2002.

The discharge, which is a central issue in the present appeal, occurred after an audit in 2001 studied transfers within the department that had occurred during a so-called freeze period surrounding the 2000 election. The audit was conducted under the supervision of Gladys Rivera and it concluded, as to Rosario-Urdaz, that there were irregularities in her original 1996 appointment to the career position of Information Representative that rendered the appointment a nullity. Gladys Rivera's report led to Rosario-Urdaz' discharge by Rivera-Hernandez.

Following the discharge, Rosario-Urdaz brought the present suit in April 2002. Along with claims under Puerto Rico law, the complaint asserted a federal claim under 42 U.S.C. § 1983 (2000), based on two different theories: first, that the alleged harassment and the discharge were politically motivated in violation of Rosario-Urdaz' first amendment rights, and second, that her discharge without a prior hearing violated fifth amendment due process rights, given that her career position is a protected property right.

The defendants named in the suit were Rivera-Hernandez, Rosario-Morales, Gonzalez and Agosto; Velazco, who succeeded Rivera-Hernandez as secretary of the DLHR, was later added for purposes of reinstatement relief. Gladys Rivera was not named as a defendant. Rosario-Urdaz sought huge damages against all four in their personal capacity (official-capacity damage claims were made but are barred) and reinstatement as Information Representative. She requested a preliminary injunction to restore her to her position pendente lite; this was denied by the district court but this court vacated and remanded the matter for further proceedings. Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219 (1st Cir.2003).

In June 2004, the district court granted pending motions to dismiss the personal capacity damage claims against all defendants based on qualified immunity. On June 21, 2004, the court held a bench trial on the request for reinstatement, which it granted on the ground that termination without a prior hearing was impermissible because the department had not shown that Rosario-Urdaz' career appointment was void. In August 2004, the district court issued a final judgment.

These cross appeals followed: Rosario-Urdaz to contest the dismissal of her damage claims and the secretary to contest her reinstatement. On the former, resolved on summary judgment, our review is plenary, Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir.2000); on the latter, which followed a bench trial, fact-findings are reviewed for clear error and legal determinations de novo save that some deference may be shown to rulings that effectively apply abstract rules to specific events. Fed.R.Civ.P. 52(a); 9A Wright & Miller, Federal Practice & Procedure: Civil 2d § 2588 at 600-08 (1995).

We begin with Rosario-Urdaz' damage claims against the defendants, which the district court dismissed based on qualified immunity. The underlying substantive law protects government employees from adverse action or harassment against them motivated by hostility to their political views or affiliation. Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.2000). Defendants did not assert that Rosario-Urdaz held a position for which her political opinions could be treated as pertinent; instead, they denied any violation and, in the alternative, said that qualified immunity protected them.

We may affirm the district court's dismissal if the claims fail on their merits at the summary judgment stage or if, on this record, qualified immunity has been made out. Indeed, the two inquiries now overlap in part due to the Supreme Court's direction in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that qualified immunity determinations begin with an inquiry into whether the right asserted exists at all in relation to the facts. The individual defendants are charged with distinct acts performed by each and, in addition, with a joint and general effort to drive Rosario-Urdaz from her post.

Rosario-Urdaz was deprived of her position by a single act—Rivera-Hernandez' decision to terminate her employment on the professed ground that her original career appointment as Information Representative was flawed in its inception. Rosario-Urdaz asserts that Rivera-Hernandez was wrongfully motivated by her party affiliation; if so, he would presumptively be liable, Padilla-Garcia, 212 F.3d at 74—subject to qualified immunity or other possible defenses, see, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

There is no evidence that Rivera-Hernandez' action was politically motivated. He received a report, resulting from Gladys Rivera's audit, colorably asserting that Rosario-Urdaz was holding a career position to which she was not entitled. He has denied a political motive; in his deposition, he identified others who were terminated as a result of the audit. Rosario-Urdaz has pointed to nothing to show political motivation on Rivera-Hernandez' part.

If anything, Rosario-Urdaz' brief on this issue tends more to undercut her position than to support it. In a short mustering of "evidence" against Rivera-Hernandez, the brief says he "admitted" considering Rosario-Urdaz' party membership; so he did, saying that it made him hesitate (i.e., in her favor) when confronted with the recommendation against her. The brief also conjures up an imaginary conflict between Rivera-Hernandez' statements that he questioned Gladys Rivera actively as to the recommendation and his eventual reliance on the audit recommendation.

There are four charges against Rosario-Morales: that she deprived Rosario-Urdaz of prior duties, assigned Gonzalez to the same office with some of those duties, transferred all of the personnel of Rosario-Urdaz' then-existing office incident to its closing, and ordered an earlier audit of personnel transactions occurring in August 2000—just before the pre-election freeze became effective. The earlier audit had no effect on Rosario-Urdaz;¹ the other three charges pose the only issue of general importance in this case.

Rosario-Urdaz does not claim that Rosario-Morales is responsible for her termination; this occurred as a result of actions taken by Gladys Rivera and Rivera-Hernandez after Rosario-Morales left the department at the end of 2001. Instead, the three incidents involve reassignments of duties and of personnel to different offices. None of these changes resulted in Rosario-Urdaz' discharge or reduction in salary. Two of them, perhaps all three depending on what duties Rosario-Urdaz retained, are commonplace personnel decisions likely to be shielded by qualified immunity if objective reasonableness overcomes imputed motive.

This is the rub. Traditionally—search and seizure is the best example—the Supreme Court has said that private motive is irrelevant if the defendant had objective probable cause or, for qualified immunity purposes, a reasonable officer might have so believed, even if wrongly. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). By contrast, in cases involving first amendment ri...