Roure v. Hernandez Colon, 87-1048

• Decision Date: 24 July 1987
• Docket Number: No. 87-1048,87-1048
• Citation: 824 F.2d 139
• Parties: Trinidad ROURE, et al., Plaintiffs, Appellees, v. Rafael HERNANDEZ COLON, etc., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 139

824 F.2d 139

Trinidad ROURE, et al., Plaintiffs, Appellees, v. Rafael HERNANDEZ COLON, etc., et al., Defendants, Appellants.

No. 87-1048.

United States Court of Appeals, First Circuit.

Submitted April 24, 1987.

Decided July 24, 1987.

Elba Rosa Rodriquez, Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera

Cruz, Secretary of Justice, and Rafael Ortiz Carrion, Sol. Gen., Hato Rey, P.R., on brief, for defendants, appellants.

Miguel Pagan, Eliezer Aldarondo Ortiz and Aldarondo & Lopez Bras, Hato Rey, P.R., on brief, for plaintiffs, appellees.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

Plaintiffs, 25 former employees of the Office of the Governor at La Fontaleza, brought a Sec. 1983 action contending that they were terminated in violation of their First Amendment rights solely because of their political association and that they had been deprived of their property interest in their positions without due process. They sought reinstatement, back pay, and damages. Defendants' motion for summary judgment based on, among other things, qualified immunity from damages liability was denied by a brief margin order stating that material facts were in dispute. Defendants have appealed. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Unlike many of the political termination cases this court has dealt with recently, with the exception of one of the 25 employees--a translator for the governor--defendants do not contend that political association is an appropriate job requirement. Rather, they say that the appointments of the 24 had failed to comply with relevant personnel laws and hence were void. Maintaining that employees with void appointments could properly be terminated, defendants say they are entitled to qualified immunity.

For convenience, the 25 plaintiffs in this case can be divided, in accordance with defendants' contentions, into three categories: 1) the translator in the governor's press office who, defendants say, properly could be terminated for political reasons; 2) four employees, classified as trust employees, but who, defendants claim, in actually should have been classified as career employees and whose appointments could properly be terminated as void because the procedures for appointing career employees had not been followed, and 3) 20 employees properly classified as career employees, but whose appointments also were void because the appointing requirements for career employees had not been followed. Each group is addressed.

1. The translator. In support of their motion for summary judgment with respect to the translator, defendants presented two principal documents. The first was an affidavit from the personnel director of the office of the governor which stated as follows:

"The Press and Communications Office is the area of the Office of the Governor that handles the communications of the Governor and his family. It gathers all the new[s] materials published in relation to the Governor and his family, the Governor Administration, and all kind of problems and information that may be of official or personal interest to the Governor."

"As of January 2, 1985, there was in the Press and Communications Office of the Governor, only one position of Translator, classified as trust position."

The second was a job description of the press office translator. The duties listed were

"Translate into Spanish or into English office materials such as speeches, press releases or any materials for which a translation is required."

Four years of college were required for the position, and while job instructions were said to be "detailed," job review was "superficial."

The question before us on this interlocutory appeal is whether "the incorrectness of [defendants'] conduct was clearly established," see DeAbadia v. Izquierdo Mora, 792 F.2d 1187, 1193 (1st Cir.1986), that is, whether it was clearly established that a translator such as plaintiff could not be fired for political reasons.

In Branti v. Finkel, 445 U.S. 507, 518 (1980), one of the few examples indicated of a position for which political affiliation would be an appropriate requirement was an assistant who helps a governor with speeches or explains his views to the press. Id., at 518. And in Vazquez Rio v. Hernandez Colon, 815 F.2d 830 (1st Cir.1987), we upheld a claim of qualified immunity with respect to a text writer's aide or editing assistant's Sec. 1983 claim for damages liability. Id. at 837-39.

The translator contends that politics has nothing to do with language. Apparently she sees her translation of English into Spanish (or vice versa) as a matter of applying a technical skill to a task with little room for political judgment or original communicative effect, much as, say, a skilled typist renders written script into typewritten print. We do not think the matter is so clear cut. Given the importance of nuances in language, a governor might reasonably regard it as important that the one who translates his speeches and press releases shares his political views. The translator position could reasonably be viewed as involving "at least a modicum of ... official communication," see Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir.1987), and hence we cannot say that it was clearly established that such a translator could not be discharged for political reasons. Therefore, defendants were entitled to qualified immunity from damages liability with respect to the translator's First Amendment claim.

As for the translator's claim that she was deprived of property without due process, there is no dispute she was classified as a trust employee. ¹ Thus, for the reasons stated in Raffucci Alvarado v. Sonia Zayas, 816 F.2d 818, 820-21 (1st Cir.1987), defendants were entitled to qualified immunity on the due process claim. Under Puerto Rico law, confidential or trust employees are of "free selection and removal," P.R.Laws Ann. tit. 3, Sec. 1350, and hence defendants could reasonably conclude plaintiff could be summarily dismissed without a hearing.

2. The four trust employees who, defendants claim, should have been classified as career employees. There is no dispute that these four employees were classified as trust employees. In moving for summary judgment, however, defendants contended that the job functions of these four employees were low level, hence the jobs should have been classified as career (tenured) positions, and consequently the procedures for appointment to career positions should have been followed. Because the career procedures had not been followed, the appointments were null and void, and hence defendants could legally terminate the employees, defendants argued.

Defendants' position that the appointments were void, even if correct as a matter of Puerto Rico law, does not establish that defendants are entitled to qualified immunity with respect to plaintiffs' First Amendment claims. Rather, defendants' defense raises a classic mixed motive under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Defendants say they could legitimately terminate plaintiffs because their appointments were void. Plaintiffs, in turn, alleged in their verified complaint that the real reason they were terminated was political affiliation. Whether defendants would have terminated plaintiffs regardless of their political affiliation is a question for the trier of fact. If defendants are contending plaintiffs did not, as a matter of summary judgment law,...