USCA1 Opinion

April 22, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________

No. 92-2084
CARMEN NEREIDA-GONZALEZ,
Plaintiff, Appellant,
v.
CIRILO TIRADO-DELGADO, ET AL.,
Defendants, Appellees.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the
corrected as follows:
On page
"factfinder"

11,

Court issued

lines

from

on

bottom

April 14,

1993,

is

change

"jury"

to

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________
No. 92-2084
CARMEN NEREIDA-GONZALEZ,
Plaintiff, Appellant,
v.
CIRILO TIRADO-DELGADO, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________

_________________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
_________________________

Hector Urgell Cuebas for appellant.

____________________
Vannessa Ramirez, Assistant Solicitor General, with whom
________________
Reina Colon de Rodriguez, Acting Solicitor General, was on brief,
________________________
for appellees.
_________________________
April 14, 1993
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

In

this

case,

plaintiff-

appellant Carmen Nereida-Gonzalez (Nereida), a veteran government

employee displeased

by a

series of adverse

employment actions,

sued

two of

her

superiors.

The

district court

defendants'

motion for summary

judgment.

affirm

part,

part,

in

reverse

in

Nereida

and

remand

granted

the

appeals.

We

for

further

proceedings.
I.
I.
__
Background
Background
__________

We limn the facts in the light most advantageous to the

summary judgment
R. Civ.

loser, consistent with record

P. 56 requires.

See, e.g.,
___ ____

support, as Fed.

Amsden v. Moran,
______
_____

904 F.2d

748, 749 (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991).
_____ ______
Appellant, a known member

of the New Progressive Party

(NPP), started working for the Commonwealth of Puerto Rico in the

1960s.

By 1984,

Insurance

she occupied

a career

position in

Fund (SIF), a government agency.1

year, the incumbent NPP

the State

In November of that

governor lost the gubernatorial election

to a member of the rival Popular Democratic Party (PDP).

the

Hot on

heels of the change in command two PDP loyalists, defendants

Cirilo

Tirado-Delgado

(Rivera),

received

(Tirado)

high-level

and
SIF

Rafael

Rivera

appointments

Gonzalez
Tirado

as

Administrator of the SIF, Rivera as Director of Personnel.

____________________

1Appellant served as executive assistant to SIF's Director

of Administrative Services. The defendants did not urge below,
and have not contended on appeal, that political affiliation is
an appropriate criterion for this position.

Once ensconced at the

informed

appellant that

she

agency, the defendants allegedly

would be

because of

her

prophecy soon became a reality.

By

political affiliation.

The

letter dated

1985, Rivera

position

June 20,

was

being

reorganization

eliminated

demoted

advised appellant that

as

part

of

her

departmental

and that, consequently, she was being transferred

to a different SIF position

as assistant to the Director

Systems and Procedures Office.

of the

Rivera's letter acknowledged that

"[t]his transfer represents a demotion."

Although

the

defendants now

struggle to

portray the

reassignment as a lateral transfer, the record bears out Rivera's

initial characterization
appellant's

new

lower than the

month).

of

the

position ($1565
base salary

move.
per

The

base

month) was

for her former

salary

for

significantly

position ($1915

per

The terms of her employment provided that, until the gap

was closed, she would continue to be paid at her accustomed rate,

but the difference between her new base salary and her actual pay
would

absorb any raises or bonuses she otherwise would have been

eligible to collect.
outright,

Thus, while appellant's pay was not reduced

it was effectively frozen and her ability to earn more

money was

circumscribed.

February 3, 1987,

This

situation lasted at

least until

when Tirado informed appellant by letter that,

in terms of salary and classification, her new position was being

upgraded to the level of her previous position.
The demotion
pocketbook.

Her

damaged appellant's pride as

new job,

unlike her old

well as her

one, did

not entail

supervisory
functions

responsibilities.
and duties

What

is more,

corresponding to

even the

the new

modest

job title

were

placed beyond her reach as she was asked to perform only clerical
tasks.

As a final

appellant's

indignity, although the defendants abolished

former position

on

paper, its

functions

remained

essentially intact and were performed by an employee with ties to

the PDP.
Asserting that she had been
or,

alternatively,

Amendment
actions

demoted because

rights,

and

contending

undertaken

at

defendants'

constructively discharged,
of

her

that the
direction

exercise of
adverse

First

personnel

deprived her

of

property without due process of law, appellant brought suit under

42 U.S.C.

1983

(1988).

She sought

both equitable relief

and

money

damages.

The district court gave her cold gruel, entering

summary judgment in defendants' favor on all claims.

This appeal

followed.
II.
II.
___
Discussion
Discussion
__________
A
A
_
Summary Judgment
Summary Judgment
________________
Summary judgment exists to
the

"pierce the boilerplate

of

pleadings and assay the parties' proof in order to determine

whether trial is actually

of Medicine, 976
____________

required."

F.2d 791,

Wynne v. Tufts Univ. Sch.

_____
_________________

794 (1st

Cir. 1992),

petition for
________ ___

cert.
_____

filed, 61 U.S.L.W. 3586 (U.S. Feb. 3, 1993) (No. 92-1334).

_____

Such

disposition

is

appropriate
5

when

"the

pleadings,

depositions, answers to interrogatories,

and admissions on file,

together

show

with

the affidavits,

genuine issue as to any

is entitled to
56(c).
to

that there

is no

material fact and that the moving

party

judgment as a

matter of law."

Fed. R. Civ.

P.

A genuine issue exists when there is evidence sufficient

support rational resolution of

party.

the point in

favor of either

See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

___ ____ ________
___________________

248 (1986); United States

_____________
960 F.2d 200,
concerns

v. One Parcel of Real Property, Etc.,

__________________________________

204 (1st Cir.

a material

potential
law.

if any,

fact

1992).
if

A genuinely

the

fact

disputed issue

carries

with

it

the

to affect the outcome of the suit under the applicable

See Anderson,
___ ________

477 U.S. at 248; Rivera-Muriente

_______________

Alicea,
______

959 F.2d

349,

remains

intact when

352 (1st

qualified

Cir.

1992).

immunity

issues

v. Agosto_______

This

framework

are

presented

despite the potential of such defenses, in other ways, to "create

strange procedural configurations."
Because
involves

applying

definition, be
order under

the granting
a legal

Amsden, 904 F.2d at 752.

______

of summary

standard

to

judgment necessarily
facts which

undisputed, appellate review of

Rule 56 is

plenary.

B
B
_
Constructive Discharge

by

a district court

See Wynne, 976

___ _____

Amsden, 904 F.2d at 752.

______

must,

F.2d at

794;

Constructive Discharge
______________________
We

need

initiative:

not

tarry

over

her claim that she

appellant's

most

touted

was constructively discharged in

reprisal for the free exercise of her First Amendment rights.

We

have ruled, squarely and recently, that a "claim of

discharge due to
claimant, in
Contreras,
_________

a demotion

fact,
976

has

F.2d

or transfer cannot

succeed when

left employment."

Pedro-Cos
_________

v.

not
83,

constructive

85

(1st

Cir.

1992)

(per

curiam)

(collecting cases); accord Rodriguez-Pinto v. Tirado-Delgado, 982

______ _______________
______________
F.2d

34,

37

(1st Cir.

concedes that she never

1993).

In

this instance,

left the SIF payroll.

appellant

Accordingly, her

constructive discharge claim fails as a matter of law.

C
C
_
Transfer and Demotion
Transfer and Demotion
_____________________
Next, appellant

claims

that she

was transferred

and

demoted for the same

exercising

(impermissible) reason:

prerogatives

of

free

to punish

association

guaranteed to her by the First Amendment.

and

her for
the

like

Because this claim is

scissile, its component parts are best treated separately.

The Claim for Money Damages
The Claim for Money Damages
___________________________
Insofar

as

appellant's First

demotion claim is one for

the

doctrine of

qualified

immunity

shields

functions

from

conduct

does

constitutional
known.

compensatory damages, we conclude that

immunity bars

government officials
civil liability

not

Harlow v.
______

for

violate "clearly

rights of

Amendment transfer-and-

which a

Fitzgerald, 457
__________

determination is time-critical.

recovery.

Qualified

performing discretionary
money

damages when

established"

statutory

reasonable person
U.S. 800,

their

or

would have

818 (1982).

The

See, e.g., Goyco de Maldonado v.

___ ____ __________________

Rivera, 849 F.2d 683, 684 (1st Cir. 1988).

______

Here, the key actions

of which appellant

complains occurred before

1989.

This

court

had not yet decided Agosto-De-Feliciano v. Aponte-Roque, 889 F.2d

___________________
1209 (1st Cir. 1989) (en banc)

____________

and the Supreme Court had not yet

decided

Rutan v. Republican Party of Illinois, 110

_____
_____________________________

(1990).

As

we explain

below, this chronology

S. Ct. 2729

gets the

grease

from the goose.

Before 1989,

that is,

throughout the period

present defendants allegedly acted

was

subject of

prohibition

much

against

when the

to appellant's detriment,2 it

conjecture

whether the

politically motivated

constitutional

firings

extended to

other personnel actions, such as refusals to hire, demotions, and

failures to

promote.

See
___

Rodriguez-Pinto, 982
_______________

F.2d

at

38;

Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992); Roque_______________

_______
______
Rodriguez v. Lema Moya, 926
_________
__________
Nunez-Soto
__________

F.2d 103, 107-09

1991);

v. Alvarado, 918 F.2d 1029, 1030 (1st Cir. 1990).

________

the absence of a clearly established

employees

(1st Cir.

even civil

servants

In

right on the part of public

to engage in

politics without

fear of demotion, the irresistible conclusion is that the instant

defendants are

entitled to don the cloak

Therefore, the

lower

court appropriately

of qualified immunity.
scotched

appellant's

____________________

2The record is tenebrous as to whether petty harassment

(e.g., shortstopping of responsibilities) continued after 1989.
____
But, it is apparent that, by then, the major hardships (e.g.,
____
reduced compensation) had been ameliorated. Thus, there seems to
be little basis for arguing that, in 1989, Agosto-De-Feliciano

___________________
stripped the cloak of qualified immunity from the defendants visa-vis any remnants of
the alleged mistreatment thereafter
occurring, and, indeed, appellant has made no such argument on
appeal.
8

claim for compensatory damages at the summary judgment stage.3

The Claim for Equitable Relief
The Claim for Equitable Relief
______________________________
The remaining

furculum of appellant's

transfer-and-demotion claim

has

more

First Amendment

meat on

its

bones.

primary purpose of providing officials with qualified immunity is

to

ensure that

fear

of

influence or inhibit
e.g.,
____

at 814; Carlson v.
_______

will

not

unduly

public duties.

483 U.S. 635,

See,
___

638 (1987); Harlow,

______

Green, 446 U.S. 14,

_____

21 n.7 (1980).

purpose is achieved when the official is held harmless from

personal

liability.

confers

immunity only

suits

liability

their performance of

Anderson v. Creighton,
________
_________

457 U.S.
This

personal

for

money

government actors.

Not

surprisingly, then, qualified immunity

from

individual-capacity suits,

such as

damages,

that

against

Here,

Nereida

have
sued

been

brought

the

defendants

both

individually
explained,

and
the

in

their official

doctrine

of

individual-capacity claims to
claims

are qualitatively

state official
the

latter's

capacities.

qualified
rest.

immunity

But, the

different:

when a

the

we have

sets

the

official-capacity
plaintiff sues

in the latter's official capacity,

________
personal capacity,
________

As

as opposed to

underlying rationale

for

qualified immunity has no bite.

An
against

official

capacity

the governmental

suit

entity, not

is, in

reality,

against the

suit

governmental

____________________

3Appellant has not asserted that her claim for compensatory

damages should proceed against the defendants in their official
capacities, and we do not consider, therefore, whether sovereign
immunity would bar the maintenance of such an action in federal
court.
9

actor.

See
___

Kentucky v.
________

Brandon v. Holt, 469

_______
____

Graham, 473
______

U.S. 159,

165-66 (1985);

U.S. 464, 471-72 (1985); Monell v. New York

______
________

City Dep't of Social Servs., 436

______________________________

U.S.

658, 690

n.55 (1978);

American Policyholders Ins. Co. v. Nyacol Prods., Inc., ___ F.2d

________________________________
___________________

___,

___ (1st

Cir.

1993)

[No.

92-1949,

slip

op.

at

7-8];

Northeast Fed. Credit Union v. Neves, 837 F.2d 531, 533 (1st Cir.
___________________________
_____
1988).

Consequently,

from a

defendant in

qualified immunity

when a

plaintiff seeks

his capacity

as an

equitable relief

officer of

is not a viable defense.

the state,

See, e.g., Wood v.

___ ____ ____

Strickland, 420 U.S. 308, 314 n.6 (1975) (stating that

__________

"immunity

from

relief");

damages

does

Rodriguez-Pinto,
_______________
with

respect

not

982 F.2d

to claims

ordinarily
at
for

appellant,

on

equitable

38-40 (vacating

summary judgment

equitable redress

notwithstanding

defendants' qualified immunity).

that

bar

So

it is here.

First Amendment

relief such as reinstatement in her

grounds,

To the
seeks

extent

equitable

former position, the defense

of qualified immunity does not obtain.

Absent the interposition of qualified immunity, we must

look

to what

rights

government worker

we

at the

now believe
time in

the

law

conferred on

question, rather

than merely

seeking to ascertain what rights were clearly established at that

time.

See
___

probe by

Rodriguez-Pinto, 982 F.2d

_______________
gauging the

at 38-40.

We begin

respective gravitational pulls

this

exerted by

Agosto-De-Feliciano and Rutan as they palpitate in this case.

___________________
_____
In

Agosto-De-Feliciano, we
___________________

determined that

the First

Amendment's proscription of patronage dismissals as formulated by

10

the Court

in Elrod v. Burns,
_____
_____

Finkel, 445
______
government

427 U.S. 347 (1976)

U.S. 507 (1980),

employer's

and Branti v.
______

encompasses situations in

actions

fall

constructive discharge but nonetheless

short

of

which a

discharge

or

result in an altered work

situation "unreasonably inferior to the norm" for the position in

question.

Agosto-De-Feliciano,
___________________

quotation marks

omitted).

889

We coupled

F.2d

at

1218

(internal

this substantive standard

with a

procedural requirement

that the plaintiff

establish the

change

in conditions "by clear and convincing evidence."

Id. at
___

1220.
Shortly

after

we

decided

Agosto-De-Feliciano,
___________________

Supreme

Court cast further illumination on the issue.

110

Ct.

S.

at

2739,

the

Court

extended

principles to government employment decisions

promotion,
interesting

transfer, and recall of

the

the

In Rutan,
_____

Elrod/Branti
_____ ______

concerning hiring,

public employees.

It is an

question whether some vestige of Agosto-De-Feliciano

___________________

survives

Rutan, thereby providing a

_____

intermediate

First

Amendment

haven

sort of halfway
for

house

an

employees wounded

by

slings and arrows less damaging than those described by the Rutan
_____
Court.
within

But if there are

cases that elude Rutan

_____

Agosto-De-Feliciano's reach
_____________________

decide

a matter

instances of actual demotion are

yet still come

which we need not

not among them.

Rutan's precise contours may arguably be indistinct,

_____
that Rutan's doctrinal influence
_____

While

it is clear

suffuses situations in which an

employee has actually been demoted.

Under

Rutan, then,
_____

a plaintiff

who

has held

a non-

11

policymaking job
summary
credited,

in the

public sector may

ordinarily forestall

judgment by pointing to evidence in the record which, if

would permit a rational factfinder

demotion occurred and

discriminatory animus.
There

can be

that it stemmed

to conclude that a

from a politically

based

Nereida passes this test.

no

disputing that

the record

contains

evidence sufficient to justify a trier in finding that a demotion

occurred. Under the NPP-led regime, appellant occupied a position

with supervisory and coordinating functions.
settled
lower

in, she
pay

was shifted

bracket.

to a

When the new regime

less lustrous position

Her affidavit

also

relates that

in a

she was

effectively deprived of raises and similar due-course increments,

divested of supervisory powers,
. .

. of a clerical

nature."

and assigned "only nominal tasks

These facts,

if proven, together

with defendants' contemporaneous characterization of her transfer

as

step

down, would

unquestionably

permit

a finding

that

appellant was, in fact, demoted.

Appellant has
discriminatory
defendants
assigned
duties"

animus.

told her
to

likewise adduced sufficient

another

According

outright

to

her

that she

position without

would
any

because of her NPP affiliation.

evidence of

affidavit,

the

"be demoted

and

responsibilities or

This direct evidence of

discriminatory animus, although denied by defendants, is adequate

to ward off summary judgment on the point.

Cf. Fed. R. Evid. 801

___

(d)(2)(A)

made

in

either

are

not

considered

individual

(statements
or

of

party-opponent

representative
12

capacity

an

hearsay).

In

this

case,

moreover,

the

direct

evidence is

buttressed by other facts of record from which a factfinder could

reasonably
the

conclude that:

NPP; (2)

she was

(1)

appellant was a

transferred on the

known member of

premise of

what some

evidence indicates was a sham reorganization; and (3) a number of

other

personnel actions

time, all of which

allegedly

held

by NPP

record, a reasonable factfinder,

could

and

easily

about the

involved insinuating PDP members

positions previously

appellant

occurred at

members.

that

into career

this

scumbled

drawing inferences favorable to

making credibility
conclude

On

same

determinations in

the

defendants

acted

her favor,
out

of

discriminatory animus.4
Because
which,

our

if credited,

concluding

canvass of
would

that appellant

perhaps, other

the

warrant a
was

record reveals

evidence

reasonable factfinder

entitled

to reinstatement

equitable redress,5 the district

in

and,

court swept too

broadly in entering summary judgment across the board.

____________________

4To be sure, even if a plaintiff adduces evidence that her

job loss was politically motivated, her employer may still
prevail by demonstrating that the employee would have been ousted
anyway, say, for unsatisfactory
work performance or as a
legitimate casualty of a bona fide reorganization.
See Mt.
___ ___
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
_____________________________________
_____
(1977); Agosto-De-Feliciano, 889 F.2d at 1220; Hartman v. City of
___________________
_______
_______
Providence, 636 F. Supp. 1395, 1416-17 (D.R.I. 1986). But, since
__________
the record before us reflects genuine questions of material fact
as to why Nereida was demoted, the defendants' explanations must

be tested in the crucible of a trial.

5Given the myriad factual uncertainties that dot the record,

we leave to the court below three related questions: (1) whether
a job still exists into which appellant might be reinstated, (2)
whether appellant can collect back pay, and (3) if so, the amount
thereof.
13

D
D
_
Due Process
Due Process
___________
Appellant also assigns error
due

process claim

the entry of

claim which was

summary judgment

specifically mentioned
Rodriguez-Pinto,
_______________
appellant

waived

straightforwardly
was

adequately

982

anent the handling of her

presumably foreclosed by

but which the

in its opinion.
F.2d

this

at

41,

argument

Pressing an
defendants

by

failing

in the district court.

preserved and,

court below

never

analogy to

suggest
to

advance

that

it

We find that the claim

therefore,

direct

the district

court to consider it on remand.

While we could, of
summary

judgment

might

be

course, search to ascertain whether

affirmable

"on

any

independently

sufficient ground made manifest by

F.2d

at 204,

we see

district court
must
See
___

no

the record," One Parcel,

__________

reason to

appears to

decide an

960

issue which

have overlooked, especially

the

since we

remand the case for further consideration of another claim.

supra Part
_____

II(C).

summary judgment
intimate

Accordingly,

as it pertains

we

to the

vacate the

entry

due process claim.

of

We

no opinion as to the ultimate resolution of this aspect

of the case.
III.
III.
____
Conclusion
Conclusion
__________
We
affirm

the

need

go no

district

appellant's

further.

court's

constructive

entry

discharge

For
of
claim

the reasons
summary
and

stated we

judgment

on

her

on

First

14

Amendment

claims

capacities;
judgment

on

against

we reverse
appellant's

the defendants

the

in

district court's

First

their

individual

entry of

Amendment claim

for

summary

equitable

redress against the defendants

we vacate the order
to

foreclose

in their official capacities; and

for summary judgment insofar as

appellant

from

further prosecution

it purports
of

her

due

process claim.

Affirmed in part, reversed in part, and remanded for

Affirmed in part, reversed in part, and remanded for
_______________________________________________________
further proceedings consistent herewith.
further proceedings consistent herewith.
__________________________________________
appellant.
appellant.
_________

Two-thirds costs to
Two-thirds costs to
____________________

15