Acevedo-Garcia v. Vera-Monroig

United States Court of Appeals

For the First Circuit

No. 99-1137

LUIS A. ACEVEDO-GARCIA, ET AL.,

Plaintiffs, Appellees,

v.

ROBERTO VERA-MONROIG, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge

Orlando Fernndez, with whom Juan Carlos Garay and Garcia &

Fernndez were on brief, for appellants Roberto Vera-Monroig and

Irma Gonzlez in their personal capacities.

Johanna M. Emmanuelli-Huertas, with whom Pedro E. Ortiz

Alvarez was on brief, for appellants Municipality of Adjuntas and

Roberto Vera-Monroig and Irma Gonzlez in their official

capacities.

Israel Roldn-Gonzlez for appellees.

February 17, 2000

LIPEZ, Circuit Judge. This case requires us to consider

claims of immunity from suit and liability raised by Roberto Vera-

Monroig, the mayor of Adjuntas in Puerto Rico, Irma Gonzlez,

Adjuntas's Director of Human Resources, and the municipality of

Adjuntas in response to a lawsuit filed by eighty-eight former and

current employees of the municipality, all members of the New

Progressive Party ("NPP"), in the wake of an election in November

1996. Alleging violations of their First, Fifth, and Fourteenth

Amendment rights pursuant to 42 U.S.C. 1983, the plaintiffs fall

into two groups: those who allege that they were discharged from

their positions and replaced with workers from the mayor's

political party; and those who allege that they suffered changed

work conditions and responsibilities, including removal of job

functions, relocation to distant or substandard office facilities,

assignment of menial duties to supervisory staff, and restrictions

on bathroom breaks. These actions occurred after the election of

Mayor Vera of the Popular Democratic Party ("PDP") in November 1996

and almost exclusively affected employees affiliated with the NPP.

The individual defendants sought summary judgment from

the district court on the basis of absolute immunity for their

legislative activities and qualified immunity for the performance

of discretionary government functions. The municipality sought

summary judgment on the grounds that liability was unavailable

under 1983 because the plaintiffs had not established a policy of

harassment and because the municipality followed the laws of Puerto

Rico. The defendants also moved for summary judgment on more

traditional grounds, arguing that the plaintiffs failed to provide

sufficient evidence of discrimination based on political

affiliation to warrant a jury trial. The district court rejected

the absolute and qualified immunity defenses of the individual

defendants and the grounds asserted by the municipality for summary

judgment, thereby prompting this appeal. See Acevedo-Garcia v.

Vera-Monroig, 30 F. Supp. 2d 141 (D.P.R. 1998).

We affirm the denial of summary judgment for two reasons:

(1) the district court's ruling on the unavailability of absolute

immunity for the non-legislative acts of the individual defendants

was correct; and (2) we lack jurisdiction to consider the

challenges to the district court's rulings on qualified immunity

and municipal liability.

I. BACKGROUND

A. Factual Summary

Drawing upon the district court's opinion, we first set

forth the uncontested facts. We then set forth the contested facts

in the light most favorable to the plaintiffs, cognizant of the

principle that we must take the record in the light most favorable

to the party opposing summary judgment. See Buenrostro v. Collazo,

973 F.3d 39, 41 (1st Cir. 1992).

1. Uncontested Facts

Mayor Vera of the PDP won the November 1996 elections in

Adjuntas. See Acevedo-Garcia, 30 F. Supp. 2d at 143-44. The

previous mayor had been a member of the NPP, and during his tenure

from 1989 to 1997 only two of the 114 employees he hired had been

members of the PDP. According to an April 1996 audit report from

the Puerto Rico Comptroller's Office, Adjuntas had operated with an

annual deficit of at least $1,000,000 for over a decade. Mayor

Vera requested a further financial study of municipal operations

from a private certified public accountant. The financial report

prepared by the accountant showed a cumulative deficit of over

$5,000,000 as well as long-term debt of $2,000,000. Mayor Vera

decided that the municipal departments were overstaffed and that

the municipality could not maintain the same levels of employment.

He hired a private human resources consulting firm to evaluate all

personnel files and prepare a layoff plan. See id. at 144.

Pursuant to Puerto Rican law, P.R. Laws Ann. tit. 21,

4551, the Mayor submitted the layoff plan (Ordinance No. 25) to

the Adjuntas Municipal Assembly for approval; the Assembly approved

it in April 1997. The layoff plan detailed procedures for the

selection of employees for discharge and any ensuing appeals of the

municipality's decisions. See id. After meeting with the

municipal officials and the private consultants responsible for the

financial study and layoff plan, Mayor Vera instructed his staff to

implement the plan. Municipal staff evaluated personnel files to

determine seniority, notified employees of their seniority status,

and provided an opportunity for employees to contest their status.

On September 11, 1997, letters of severance were sent to affected

employees, informing them of their anticipated discharge and their

right to appeal the decision to the Personnel Administration

Systems Board of Appeals. Municipal officials posted employee

seniority status and listed employees affected by the layoff plan.

See id. Employees listed for termination received a second letter

informing them again of their right to appeal. See id. at 145.

Pursuant to Puerto Rican law, the elimination of

municipal positions occurs through a legislative act. On November

19, 1997, the municipality enacted Ordinance No. 20 which

eliminated 102 positions. See id. at 144. Almost all of the

employees discharged were members of the NPP. After the layoff,

Mayor Vera hired 77 new contract employees for positions in state-

funded programs. See id. at 145. Most of the contract workers

were affiliated with the PDP.

2. Contested Facts

While the plaintiffs concede that the defendants' actions

were taken pursuant to the layoff plan, they claim that the

defendants implemented the layoff plan in a discriminatory manner.

The municipality did not always observe the plan's seniority

criteria, sometimes retaining employees with less seniority than

the plaintiffs who were fired. Moreover, the most senior

terminated employees were not always offered open municipal

positions for which they qualified, contrary to the provisions of

the plan. Indeed, many whose positions were eliminated were

replaced by less senior contract workers from the PDP who performed

the same job functions but under different titles. Plaintiffs who

retained their positions were treated differently than PDP workers

while they remained on the job. They experienced a variety of

indignities, such as deprivation of job functions, bathroom breaks,

and office furniture. See id.

B. The District Court's Decision

In a lengthy written opinion, the district court rejected

all of the immunity and municipal liability defenses. The

individual defendants were not entitled to immunity for legislative

acts because the alleged political discrimination took place in the

administration of the layoff plan and not in its legislative

adoption. See id. at 148. The municipality could not prevail on

summary judgment because its liability hinged on disputed material

facts. See id. at 152.

In rejecting the qualified immunity defense of the

individual defendants, the court first noted that the defendants

would be shielded by qualified immunity if the jobs in question

"potentially concerned matters of a partisan political interest and

involved at least a modicum of policymaking responsibility, access

to confidential information, or official communication." Id. at

149 (quoting Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1478,

1480 (1st Cir. 1989)). The defendants, however, did not invoke

qualified immunity because of the nature of the plaintiffs' jobs.

Instead, Mayor Vera and Director Gonzlez argued that they were

entitled to qualified immunity because they "acted in an

objectively reasonable manner and in conformance with relevant

legal standards by proposing and implementing the Layoff Plan based

on Puerto Rico Law 81."

The court found this argument legally insufficient: "Even

if the Court 'objectively' considers the fact that Defendants

allegedly followed Law 81 in the analysis of qualified immunity,

Plaintiffs have proffered evidence of a triable issue of fact

regarding a potentially discriminatory application of the Layoff

Plan." Id. The court's finding of a triable issue of fact on

political motivation applied both to the claims of plaintiffs who

had lost their jobs and plaintiffs who claimed political harassment

because of changes in their work conditions and responsibilities.

In addition, by rejecting qualified immunity for the political

harassment claims of plaintiffs who still had jobs, the court

implicitly determined that the law protecting them from the

politically-motivated changes in work conditions and

responsibilities was "clearly established." See Harlow v.

Fitzgerald, 457 U.S. 800, 818-19 (1982) ("If the law was clearly

established, the immunity defense ordinarily should fail . . . .").

After disposing of the qualified immunity issues, the

court turned to the defendants' traditional summary judgment

argument that the individual plaintiffs had not generated genuine

issues of material fact on either their termination or political

harassment claims. With respect to the allegations of unlawful

termination, the trial court denied the defendants summary judgment

as to the claims of seven of the plaintiffs. For this group of

claims, the court found that the defendants' replacement of NPP

members with PDP members in the same job function but with a

different title created a triable issue of fact as to whether the

conduct had been motivated by political discrimination. See id. at

154. For the remaining plaintiffs alleging unlawful termination,

the trial court requested that they submit additional evidence

indicating the job duties of positions created after January 1,

1997, and the qualifications of the plaintiffs to fill those

positions. See id. at 155.

The trial court then evaluated which plaintiffs had

offered sufficient evidence of political harassment to withstand

summary judgment. The court found that thirty plaintiffs had put

forward some affirmative evidence that they were harassed on the

basis of political affiliation after the new administration took

office. See id. at 156-57. The defendants countered with evidence

that the alleged campaign of harassment represented "legitimate

efforts to enable the Municipality to be more efficient." After

considering this evidence, the court concluded that summary

judgment should be granted for defendants as to the claims of two

of the plaintiffs who "only allege claims relating to the use of

the telephone, the timing of breakfast breaks, and the use of sign

in sheets." Id. at 158. The court concluded that these policy

changes were founded on legitimate municipal needs and that the

changes would have been made regardless of political affiliation.

These two claims were the only claims dismissed by the district

court.

The court denied summary judgment to the defendants for

the thirty remaining plaintiffs who had offered evidence of

harassment. These plaintiffs had provided evidence of "further

harassment, including that their job functions were decreased or

eliminated, that they were forced to do menial work not related to

the job functions, that they were not allowed to go to the bathroom

and/or that the bathroom was not always available, and that they

were not allowed to take breakfast breaks." Id. The court found

that these allegations were "sufficient to state a claim for

political harassment under Agosto-de-Feliciano and Rutan" because

a finder of fact could reasonably conclude that their positions

were made "unreasonably inferior to the norm" compared to similarly

situated PDP employees.

The individual defendants and the municipality filed this

appeal, seeking reversal of the district court's determinations on

absolute immunity, qualified immunity, and municipal liability.

Although defendants do not formally challenge the court's denial of

summary judgment on the traditional evidentiary sufficiency grounds

for the claims of thirty-one of the eighty-eight plaintiffs, they

fail to appreciate the relevance of the court's "triable issue of

fact" determinations to the availability of an appeal from the

denial of a request for summary judgment on the basis of qualified

immunity. Ordinarily, the denial of summary judgment is not

appealable. See Buenrostro v. Collazo, 973 F.3d 39, 41 (1st Cir.

1992). However, review is sometimes available for the denial of

summary judgment on immunity grounds because the immunity

encompasses immunity from both suit and liability. See Mitchell v.

Forsyth, 472 U.S. 511, 525-27 (1985). Appeal of such decisions is

limited to issues of law, such as whether an act was truly

"legislative" or whether the constitutional rights at issue were

"clearly established." See Diaz v. Diaz Martinez, 112 F.3d 1, 3

(1st Cir. 1997) (citing Johnson v. Jones, 515 U.S. 304, 317

(1995)). Defendants may not file an immunity appeal simply on the

ground that they did not do what the plaintiffs allege. See id.

Such fact-based appeals inappropriately ask the appellate court to

revisit the trial court's decision that "the pretrial record sets

forth a 'genuine' issue of fact for trial." Johnson, 515 U.S. at

319-20. We therefore turn to the defendants' various grounds for

appeal, cognizant of these jurisdictional bars.

II. ABSOLUTE IMMUNITY

Officials acting in a legislative capacity have absolute

immunity from suit and liability under 1983. See Romero-Barcelo

v. Hernandez-Agosto, 75 F.3d 23, 28 (1st Cir. 1996). The function

of such immunity is "to insure that the legislative function may be

performed independently without fear of outside interference."

Supreme Court of Virginia v. Consumers Union of the United States,

446 U.S. 719, 731 (1980); see also Forrester v. White, 484 U.S.

219, 223 (1988) ("When officials are threatened with personal

liability for acts taken pursuant to their official duties, they

may well be induced to act with an excess of caution or otherwise

to skew their decisions . . . ."). Legislative immunity applies to

local legislators as well as to their state and federal

counterparts, see Bogan v. Scott-Harris, 118 S. Ct. 966, 970-72

(1998) (reasoning that the common law had afforded this protection

and that the rationales for legislative immunity applied with equal

force to local legislators), and it applies when these officials

act "in a field where legislators traditionally have power to act."

Tenney v. Brandhove, 341 U.S. 367, 379 (1951). The administrative

or executive actions of legislators are not entitled to protection.

See Bogan, 523 U.S. at 972. "[I]mmunity is justified and defined

by the functions it protects and serves, not by the person to whom

it attaches." Forrester, 484 U.S. at 227. An official's bad

motivation, or "unworthy purpose," does not affect the immunity

privilege so long as the actions fall within the ambit of protected

legislative activity. Tenney, 341 U.S. at 377; see also Rateree v.

Rockett, 852 F.2d 946, 951 (7th Cir. 1988) (A "legislator may vote

for legislation for seemingly improper reasons; nevertheless, the

rule of absolute immunity shields this conduct.").

Defendants' claim to absolute immunity hinges on whether

the actions at issue here were legislative or administrative.

Absolute immunity applies to "prospective, legislative-type rules"

that are general in nature. Alexander v. Holden, 66 F.3d 62, 67

(4th Cir. 1995). "Employment decisions generally are

administrative" except when they are "accomplished through

traditional legislative functions" such as policymaking and

budgetary restructuring that "strike at the heart of the

legislative process." Rateree, 852 F.2d at 950-51. Voting for

legislation, the introduction of budget plans, and signing an

ordinance into law are "quintessentially legislative" functions.

Bogan, 118 S. Ct. at 973.

The defendants characterize their behavior, including the

selective layoffs and restrictions on employees, as "integral steps

in the legislative process" rather than "acts of implementation,"

and they rely on the holding in Bogan in support of this claim.

See 118 S.Ct. 966. We are not persuaded. In Bogan, the plaintiff

alleged that her discharge, accomplished through an ordinance

eliminating the city's Department of Health and Human Services (of

which she was the sole employee), was motivated by racial animus

and retaliation for filing a complaint against another employee who

had made racial and ethnic slurs. The Supreme Court concluded that

absolute immunity applied because the ordinance "bore all the

hallmarks of traditional legislation." Id. at 973. The ordinance

"reflected a discretionary, policymaking decision" and it had

prospective impact because it eliminated a department rather than

a particular employee. Id. The entirety of the disputed action

was accomplished legislatively. In the instant case, while the

ordinances adopted by Adjuntas reflected discretionary,

policymaking decisions, the defendants' alleged replacement of

discharged NPP members with PDP contract workers and acts of

political harassment did not. Similarly, the alleged acts of

political discrimination were not "prospective"--that is, these

acts did not "reach well beyond the particular occupant of the

office," but instead targeted specific individuals affiliated with

the NPP. Id.

We draw support for these conclusions from a two-part

analysis that we have adopted to determine whether an act is

legislative or administrative. See Cutting v. Muzzey, 724 F.2d

259, 261 (1st Cir. 1984). First, if the facts underlying the

decision are "generalizations concerning a policy or state of

affairs," the decision is legislative. Id. If the decision stems

from specific facts relating to particular individuals or

situations, the act is administrative. Id. Second, the court must

consider the "particularity of the impact of the state of action."

Id. "If the action involves establishment of a general policy, it

is legislative;" if it "single[s] out specifiable individuals and

affect[s] them differently from others," it is administrative. Id.

In Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-28 (1st

Cir. 1994), a case conceptually similar to the instant suit, we

applied this two-part test. There, the director of the legislative

service office for the Commonwealth of Puerto Rico discharged the

legislative librarian, a PDP member, and replaced her with an NPP

activist. We concluded that under either test the "decision to

replace Negron--a member of the Popular Democratic Party--with a

New Progressive Party activist was administrative." Id. at 28.

Vera and Gonzlez rely on the two ordinances relating to

the layoff plan to support their claim that their actions were

legislative in nature. The Adjuntas Municipal Assembly formally

enacted the mayor's layoff plan through Ordinance 25. A subsequent

piece of legislation, Ordinance 20, ordered the elimination of 102

specified positions in order to "enable[] the Municipality

Administration to readjust the 1997-98 Operating Budget to the

Municipality's economic reality."

Although these two ordinances provided a framework for

the administrative decisions of Vera and Gonzlez in implementing

the layoff plan, it is precisely those administrative decisions

that are at issue in this case. After the enactment of Ordinance

20, the defendants' implementation of the layoff plan targeted

specific individuals. Following the terminations, the defendants

hired contract employees for the same job function but under a

different formal title. The replacement of NPP workers with less

senior PDP contract workers performing essentially the same

functions constituted particularized employment decisions rather

than general policymaking. The defendants also targeted specific

individuals in the NPP and "affected them differently from others"

through restrictions on job amenities, such as bathroom access and

office furniture, and reduction of job duties. According to the

allegations, the political harassment began prior to the enactment

of Ordinance 25 and persisted for the remaining NPP workers after

the layoff of their co-workers pursuant to Ordinance 20. Because

the defendants' decisions stemmed from specific facts about the

party affiliation of individuals and affected particular

individuals differently from others, these actions were

administrative rather than legislative. Legislative ratification

does not shield the defendants from liability.

Similarly, the defendants' contention that they are

entitled to legislative immunity because their actions in

discharging the plaintiffs were taken pursuant to Puerto Rican law

is unconvincing. In Forrester, 484 U.S. at 230, the Supreme Court

declined to extend absolute immunity to a judge sued under 1983

for violating the Equal Protection Clause when he allegedly

discharged a probation officer based on her gender. The Court

deemed it insignificant that Illinois law allowed judges to hire or

fire probation officers: "To conclude that, because a judge acts

within the scope of his authority, such employment decisions are

brought within the court's 'jurisdiction,' or converted into

'judicial acts,' would lift form above substance." Id. The same

analysis applies here -- the mandates of Puerto Rican law on layoff

procedures do not convert the defendants' conduct into legislative

acts.

III. QUALIFIED IMMUNITY

Vera and Gonzlez argue that even if they are not

entitled to legislative immunity, they are shielded from suit and

liability by the doctrine of qualified immunity. We have no

jurisdiction to review this claim on appeal.

The doctrine of qualified immunity protects government

officials who perform discretionary functions from suit and

liability for monetary damages under 1983. See Roldan-Plumey v.

Cerezo-Suarez, 115 F.3d 58, 65 (1st Cir. 1997). They are immune

when their conduct does not violate "clearly established statutory

authority or constitutional rights." Mitchell v. Forsyth, 472 U.S.

511, 524 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). "The contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Anderson v. Creighton, 483 U.S. 635, 640

(1987).

Generally, as already noted, the denial of summary

judgment is not appealable until after a final judgment. See

Buenrostro, 973 F.2d at 41; see also 28 U.S.C. 1291 ("[t]he

courts of appeals . . . shall have jurisdiction of appeals from all

final decisions of the district courts . . . ."). Nevertheless, an

appeal from the pre-trial denial of qualified immunity is available

when the appeal is "based on a purely legal ground," but not when

it challenges sufficiency of the evidence. Diaz v. Diaz-Martinez,

112 F.3d 1, 3 (1st Cir. 1997). In Stella v. Kelley, we explained

the distinction between appealable and non-appealable immunity

cases:

[A] summary judgment order which determines

that the pretrial record sets forth a genuine

issue of fact, as distinguished from an order

that determines whether certain given facts

demonstrate, under clearly established law, a

violation of some federally protected right,

is not reviewable on demand.

63 F.3d at 74. If the issue on appeal is "nothing more than

whether the evidence could support a finding that particular

conduct occurred, the question decided is not truly 'separable'

from the plaintiff's claim, and hence there is no 'final

decision.'" Behrens v. Pelletier, 516 U.S. 299, 313 (1996); see

also Mitchell, 472 U.S. at 530. Therefore, to decide the

availability of an appeal from the qualified immunity ruling of the

district court, we must determine whether the trial court denied

qualified immunity on the basis of an abstract issue of law or on

the existence of what it perceived as genuine issues of material

fact concerning the actions of Vera and Gonzlez.

A. Politically-Motivated Terminations

The district court identified seven plaintiffs who had

established a triable issue of fact as to whether they had been

fired because of their political affiliation and then replaced by

contract workers or less senior employees. These employees

presented evidence that, although their positions were eliminated

under the layoff plan, they were effectively replaced with newly

hired PDP members who performed the same job functions (though

typically under a different title). The court also requested

additional evidence from other plaintiffs so that it could

determine whether they had established a triable issue of fact on

political motivation. In making these rulings, the court concluded

that the law on politically-motivated terminations was clearly

established.

Vera and Gonzlez concede that the law on politically-

motivated terminations is clearly established. They argue,

however, that they are guilty of nothing more than "develop[ing] a

layoff plan and evaluat[ing] the positions to be eliminated

according to the objective criteria of seniority." In their brief,

defendants list twenty-one "uncontested facts [regarding the layoff

process and procedures] that directly demonstrate that Mayor Vera

and Ms. Gonzlez acted reasonably." They conclude that they acted

with "objective reasonableness," and they assert that "[t]he

district court erred, therefore, in looking at defendants'

allegedly politically discriminatory motive . . . . [R]easonability

from an objective point of view is the norm to apply in this case."

Defendants misunderstand the nature of the claim that

they face in this case. For a subset of constitutional torts,

motivation or intent is an element of the cause of action. In Tang

v. State of Rhode Island, Department of Elderly Affairs, 120 F.3d

325, 325 (1st Cir. 1997), the plaintiff alleged that she had

suffered racial discrimination and retaliation in her position as

nutritionist for the state government. The district court found the

majority of facts in dispute and deferred hearing the defendants'

motion for qualified immunity until completion of the trial. Id.

at 326. The defendants appealed. In concluding that we lacked

jurisdiction because the appeal was based on a dispute over motive

and other factual matters, we responded to the defendants'

contention that subjective intent is irrelevant to qualified

immunity: "[T]he Harlow-Anderson objective test does not

automatically resolve a qualified immunity defense in favor of the

defendant in a case of alleged racial discrimination or retaliation

. . . . a wholly objective test would wipe out many, if not most,

of these claims." Id. at 327.

The reasoning in Tang applies to the claims of Vera and

Gonzlez that the district court erred in considering evidence of

their motivation. The plaintiffs allege that they were terminated

because of their political affiliation, a constitutional claim that

has no meaning absent the allegation of impermissible motivation.

The district court recognized this fact, concluding that the

"Defendants' emphasis on the fact that their conduct was

'objectively reasonable' because they acted pursuant to Puerto Rico

Law 81 in the Layoff Plan . . . is not sufficient to meet their

burden under the relevant legal standard and to grant them

qualified immunity." Acevedo-Garcia, 30 F. Supp. 2d at 149. That

was so, the court continued, because "Plaintiffs have proffered

evidence of a triable issue of fact regarding a potentially

discriminatory application of the Layoff Plan." Id. There was no

error in this analysis.

Interestingly, we suggested in a footnote in Tang that

the Supreme Court might clarify the relevance of motivation in

considering a qualified immunity defense to a charge of retaliatory

motive when it heard Crawford-El v. Britton, 118 S. Ct. 1584

(1998), a case then scheduled for argument, in which the defendant

correction officer was charged with diverting the property of the

plaintiff prisoner with an intent to retaliate against him for

exercising his First Amendment rights. See id. at 1587. As noted

by Chief Justice Rehnquist in his dissent in Crawford-El, that

clarification did not occur. Instead, the Supreme Court confined

its ruling to a disapproval of the requirement of the Court of

Appeals, District of Columbia Circuit, that in claims of a

constitutional tort requiring proof of the actor's unconstitutional

motive, the plaintiff must present clear and convincing evidence of

that motive. The Court did not address the second question

presented in the petition on which the Court granted certiorari:

In a First Amendment retaliation case against

a government official, is the official

entitled to qualified immunity if she asserts

a legitimate justification for her allegedly

retaliatory act and that justification would

have been a reasonable basis for the act, even

if evidence - no matter how strong - shows the

official's actual reason for the act was

unconstitutional?

Given the lack of an answer to this question, Chief Justice

Rehnquist concluded that "[u]nder the Court's view, only a

factfinder's ultimate determination of the motive with which he

acted will resolve this case." Id. at 1602.

Chief Justice Rehnquist's assessment of the law after

Crawford-El confirms the rightness of the district court's

consideration of motivation in rejecting the qualified immunity

defense of the defendants. Because we reject the defendants' legal

argument that the district court erred in considering motivation,

we are left with a denial of summary judgment based on their

motivation. In Stella v. Kelley, we held that we "lack the power

to inquire into . . . the fact-based question of what the evidence

does (or does not) show concerning whether the selectmen's actions

violated the asserted right -- a question that depends, in this

case, on the selectmen's motives . . . ." 63 F.3d 71, 75 (1st Cir.

1995). The evidence relating to the defendants' motivation in

terminating plaintiffs is a factual matter and thus cannot form the

basis of an appeal from the denial of summary judgment. See

Guilloty-Perez v. Fuentes-Agostini, 196 F.3d 293, 294 (1st Cir.

1999).

B. Politically-Motivated Changes in Work Conditions

and Responsibilities

A second group of plaintiffs complain of loss of job

function, relocation to remote or inferior offices, and restricted

access to bathroom breaks and facilities. These plaintiffs claim

that the miserable working conditions created by their supervisors

amounted to a constitutional violation.

In denying summary judgment for the defendants on their

political harassment claims, the district court discussed the

relevant law on political discrimination based on changes in work

conditions and responsibilities. Specifically, it noted that we

have left unresolved the relationship between our holding in

Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir.

1989), that politically-motivated changes in work conditions and

responsibilities which make a plaintiff's situation "unreasonably

inferior to the norm for the position" violate constitutional

rights, and the Supreme Court's later decision in Rutan v.

Republican Party of Illinois, 497 U.S. 62, 75 (1990), that

"promotions, transfers, and recalls after layoffs based on

political affiliation" are examples of impermissible "deprivations

less harsh than dismissal that nevertheless press state employees

and applicants to conform their beliefs and associations to some

state-selected orthodoxy." Acevedo-Garcia, 30 F. Supp. 2d at 156.

Although the Rutan Court did not explicitly address the issue of

changed work conditions and responsibilities as examples of

deprivations less harsh than dismissal, it noted in dicta that,

"the First Amendment . . . already protects state employees not

only from patronage dismissals but also from 'even an act of

retaliation as trivial as failing to hold a birthday party for a

public employee . . . when intended to punish her for exercising

her free speech rights.'" Id. at 76 n.8 (citations omitted). It

is not clear if this language in Rutan proscribes application of

the "unreasonably inferior to the norm" standard of Agosto-de-

Feliciano to politically-motivated changes in work conditions and

responsibilities, or whether that doctrine survives Rutan,

"providing a sort of . . . intermediate First Amendment haven for

employees wounded by slings and arrows less damaging than those

[official actions] described by the Rutan court." Nereida-Gonzlez

v. Tirado-Delgado, 990 F.2d 710, 705 (1st Cir. 1993). In Acosto-

Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 n.5 (1997), we

noted the possible conflict between these two cases and stated that

"we leave the resolution of any conflict in the standard for such

adverse personnel actions to some future case."

Despite noting that "it is unclear how the First Circuit

views the Rutan dicta as affecting its "unreasonably inferior"

standard, the district court rejected the qualified immunity

defense of the defendants to the political harassment claims of the

plaintiffs, concluding that "a finder of fact could determine that

the plaintiffs here put forth clear and convincing evidence [as

required by Agosto-de-Feliciano], that their positions are

'unreasonably inferior to the norm.'" Acevedo-Garcia, 30 F. Supp.

2d at 156-58. By applying the Agosto-de-Feliciano standard, the

court implicitly concluded that the right of the plaintiffs to be

protected from politically-motivated changes in work conditions and

responsibilities was established clearly enough to reject the

qualified immunity defense of the defendants.

Arguably, the defendants could have appealed from this

implicit legal conclusion of the district court relating to the

clarity of the right protecting the plaintiffs from politically-

motivated changes in work conditions and responsibilities. In

Behrens v. Pelletier, the Supreme Court held that "summary judgment

determinations are appealable when they resolve a dispute

concerning an 'abstract issu[e] of law' relating to qualified

immunity -- typically, the issue whether the federal right

allegedly infringed was 'clearly established.'" 516 U.S. 299, 313

(1996)(internal citations omitted). The defendants failed to frame

such an issue. Instead, they persisted in their argument that

their conduct, viewed objectively, was reasonable and that any

consideration by the district court of evidence of a proscribed

political motive was inappropriate. For the reasons already

stated, that argument is wrong. The district court's denial of

summary judgment for the defendants on their immunity defense to

the political harassment claims of the plaintiffs rests, in part,

on what the district court reasonably perceived to be triable

issues of fact about the defendants' political motivation. We have

no jurisdiction to consider such rulings on appeal.

IV. MUNICIPAL LIABILITY

In addition to suing Vera and Gonzlez in their personal

capacities, the plaintiffs sued the municipality of Adjuntas. The

Supreme Court decision in Monell v. Department of Soc. Servs., 436

U.S. 658, 690-91 (1978) authorizes 1983 relief against

municipalities where "the action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body's officers." In moving for summary

judgment, the defendant alleged that the plaintiffs had not offered

sufficient evidence that the alleged constitutional violations were

municipal policy. The district court denied summary judgment,

finding that the "evidence [was] sufficient to show that the

alleged harassing conduct is so 'well settled and widespread' as to

attribute the custom or policy of harassment to the Municipality,"

and that the comments of municipal supervisors that the harassment

was targeted at NPP employees provides the necessary "'affirmative

link' between the harassing conduct and the policy of political

discrimination." Acevedo-Garcia, 30 F. Supp. 2d at 152.

We will not evaluate this denial of summary judgment

because we do not have jurisdiction to do so. In Swint v. Chambers

County Comm'n, 514 U.S. 35, 43 (1995), a unanimous Supreme Court

held that the denial of summary judgment based on municipal

liability is not immediately appealable. The rationale supporting

immediate review of some qualified immunity decisions does not

extend to a municipality's defenses to 1983 claims. In qualified

immunity, "[t]he entitlement is an immunity from suit rather than

a mere defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to

trial." Mitchell, 472 U.S. at 526. Thus, pre-trial qualified

immunity decisions are immediately appealable as collateral orders

when the immunity claim presents a legal issue that can be decided

without considering the correctness of the plaintiff's version of

the facts. See Johnson, 515 U.S. at 313-15. The Swint Court ruled

that, unlike the qualified immunity entitlement, municipal defenses

under 1983 are not a right to immunity from trial but a "mere

defense to liability." Swint, 514 U.S. at 43. As such, the

collateral order doctrine does not apply and a municipality's

defenses to suit may only be reviewed after a final judgment on the

merits. Id.

V. CONCLUSION

For all of the reasons set forth above, we dismiss the

appeal in part for want of appellate jurisdiction and, as to the

remainder, affirm the district court's denial of summary judgment.