Gonzalez-De-Blasini v. Family Department

United States Court of Appeals

For the First Circuit

No. 03-2345

MIGDALIA GONZÁLEZ-DE BLASINI,

Plaintiff, Appellant,

v.

FAMILY DEPARTMENT, as an agency of the Commonwealth

of Puerto Rico; YOLANDA ZAYAS, Secretary of the

Family Department in her official capacity and personal

capacity; VICTOR MALDONADO, Human Resources Director,

in his official and personal capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Godwin Aldarondo-Girald, with whom Aldarondo-Girald Law Office

was on brief, for appellant.

Camelia Fernández-Romeu, Assistant Solicitor General, with

whom Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth

Pamias-Velázquez, Deputy Solicitor General, were on brief, for

appellees.

August 2, 2004

TORRUELLA, Circuit Judge. Plaintiff-appellant Migdalia

González de Blasini ("González") appeals from an order of the

district court granting co-defendants Yolanda Zayas's ("Zayas") and

Víctor Maldonado's ("Maldonado") motion for summary judgment. We

affirm.

I. Factual Background

We review the entry of summary judgment on all claims de

novo, viewing the facts in the light most favorable to the party

opposing summary judgment, in this case González. Aponte-Matos

v. Toledo-Dávila, 135 F.3d 182, 185 (1st Cir. 1998). Summary

judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c).

González is a member of the New Progressive Party

("NPP"), which was the political party in power in Puerto Rico

before the 2000 general elections. After the elections, a new

administration under the Popular Democratic Party ("PDP") assumed

control of the government. Both defendants are members of the PDP.

At all relevant times, Zayas was the Secretary of the Family

Department of the Commonwealth of Puerto Rico ("Family

Department"), and Maldonado was its Human Resources Director.

Following the change in administration, the Family Department

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conducted an audit of its Human Resources Office covering personnel

transactions from July 1, 1998, through December 31, 2000.

González began working for the Family Department in 1972.

As of January 1993, she held a career position classified as Local

Service Director I. On January 22, 1993, González was promoted to

the trust position of Regional Director III. During her time in

the trust position, the position of Local Service Director I was

eliminated and replaced by the position of Director of Integral

Services I. González occupied her trust position into 2000. On

June 21, 2000, González requested reinstatement to a career

position pursuant to the Puerto Rico Personnel Act (the "Personnel

Act"), 3 P.R. Laws Ann. §§ 1301-1431.1

In a memorandum dated July 20, 2000, the Family

Department's Human Resources Office stated that the position of

Executive Director I was most similar to the position of Director

of Integral Services I which was presently occupied.

Notwithstanding the memorandum's finding, on September 1, 2000, the

Executive Secretary of the Family Department reinstated González to

a career position as Executive Director IV, which, as its

designation suggests, provides greater compensation and involves

more responsibility than Executive Director I.

1

Under the Personnel Act, a career employee who accepts a trust

position has an absolute right to be reinstated to a career

position equal to the last position she held as a career employee.

See 3 P.R. Laws Ann. § 1350(a).

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According to the complaint, beginning in January 2001,

González began receiving less work and responsibility. She also

overheard co-workers make what she deemed to be derogatory comments

about her. On February 2, 2001, González met with Zayas to discuss

her situation at work. Zayas informed González that she had been

improperly reinstated to the Executive Director IV position and

that she would have to be placed in a different position. Zayas

also allegedly told González that she needed González's position

for "an employee of her trust." Zayas ordered González to vacate

her office and exhaust any accumulated vacation leave. González

went on vacation for ten days. When she returned, she was not

immediately assigned a new office or duties. After several days,

she met with Maldonado, the Human Resources Manager. Maldonado

informed González that she would be transferred to the career

position of Executive Director I because she had been improperly

promoted to Executive Director IV. The demotion was made

retroactive to September 1, 2000. On April 4, 2001, González began

working in the Executive Director I position. On April 21, 2001,

González's request for early retirement was approved.

González filed the present complaint against the Family

Department seeking monetary damages. She alleged violations under

42 U.S.C. §§ 1981, 1983, and 1986 of the First, Fifth and

Fourteenth Amendments to the United States Constitution as well as

Article II, §§ 1, 6, and 7 of the Constitution of the Commonwealth

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of Puerto Rico. González alleged that she had a property right

protected under the due process clause of the Fourteenth Amendment

to her career position as Executive Director IV, and that

defendants unconstitutionally discriminated against her on the

basis of her political affiliation in violation of the First

Amendment.2

On May 1, 2003, Zayas and Maldonado filed a motion for

summary judgment and the district court granted the motion for

summary judgment, mooted the remaining motions, and dismissed all

claims against Zayas and Maldonado. This appeal followed.

II. Analysis

A. The Political Discrimination Claim

When alleging a claim of political discrimination, a

plaintiff bears the burden of producing sufficient evidence,

whether direct or circumstantial, that she engaged in

constitutionally protected conduct and that political affiliation

2

On June 14, 2002, the Family Department filed a motion to

dismiss, arguing that it was entitled to sovereign immunity under

the Eleventh Amendment of the United States Constitution. The

district court granted the motion and dismissed the complaint

against the Family Department and Zayas and Maldonado in their

official capacities on November 21, 2002. This appeal was filed on

September 2, 2003. In her appellate brief, González argued that

the Family Department did not have sovereign immunity pursuant to

the Eleventh Amendment. As defendants pointed out at oral

argument, we do not have jurisdiction to review the partial

judgment because the time to appeal has expired. See Fed. R. App.

P. 4(a)(1)(A)(stating that, in a civil case, the notice of appeal

must be filed with the district court clerk within 30 days of the

date when the judgment is entered).

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was a substantial or motivating factor behind the challenged

employment action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977); Cosme-Rosado v. Serrano-Rodríguez, 360 F.3d

42, 47 (1st Cir. 2004). The plaintiff must point "to evidence on

the record which, if credited, would permit a rational fact finder

to conclude that the challenged personnel action occurred and

stemmed from a politically based discriminatory animus." LaRou v.

Ridlon, 98 F.3d 659, 661 (1st Cir. 1996)(quoting Rivera-Cotto v.

Rivera, 38 F.3d 611, 614 (1st Cir. 1994)(internal quotations

omitted)).

The district court found that González failed to provide

any evidence that establishes a genuine issue of material fact as

to whether her political affiliation was a substantial or

motivating factor behind the alleged adverse employment action. In

the view of the district court, González did not even establish

that her political affiliation was known to the defendants.

We agree with the district court that González has not

met the burden of showing that her political affiliation was a

substantial or motivating factor for the challenged employment

action. González has adduced no evidence that the defendants knew

she was a member of the NPP. She attempts to bolster her political

discrimination cause of action by alleging that Zayas and Maldonado

must have been aware of her political affiliation because she was

a well-known supporter of the NPP in the community, had held a

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previous trust position under the NPP administration, and was

allegedly demoted shortly after the PDP assumed power. González

points to Zayas's statement that she wanted González's office and

position to go to an employee of her trust as indication of a

causal link between her political beliefs and the change in her

employment conditions.

This evidence is insufficient to show that political

affiliation was a substantial factor in the challenged employment

action. Compare Cosme-Rosado, 360 F.3d at 48 (finding that the

mayor's stated intention to "rid the town of NPP activists" was not

enough to show that political affiliation was motive) with Padilla-

García v. Rodríguez, 212 F.3d 69, 75-76 (1st Cir. 2000)(where

evidence showed that defendants knew of plaintiffs' party

affiliation, plaintiff was conspicuous party member and witnesses

testified as to defendant's desire to humiliate plaintiff there was

genuine issue of material fact to warrant denial of summary

judgment). While "we recognize that a prima facie case for

political discrimination may be built on circumstantial evidence,"

González has not generated "the specific facts necessary to take

the asserted claim out of the realm of speculative, general

allegations." Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st

Cir. 1988). We therefore affirm the district court's dismissal of

plaintiff's political discrimination claim.

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B. The Due Process Claim

González's second claim is that she has a

constitutionally protected property right to her position as

Executive Director IV and that she was deprived of this right

without due process of law. The district court held that González

did not have a property interest in the Executive Director IV

position because it was obtained in violation of Puerto Rico law.

We agree.

Under the Fourteenth Amendment, a public employee who

possesses a property interest in continued employment cannot be

discharged without due process of law. See Santana v. Calderón,

342 F.3d 18, 23 (1st Cir. 2003); Figueroa-Serrano v. Ramos-Alverio,

221 F.3d 1, 5-6 (1st Cir. 2000). The Constitution does not create

property interests; "they are created and their dimensions are

defined by existing rules or understandings that stem from an

independent source such as state law." Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972); see also Santana, 342 F.3d at 23-24. "In

order to establish a constitutionally protected property interest,

a plaintiff must demonstrate that she has a legally recognized

expectation that she will retain her position . . . ." Santana,

342 F.3d at 24.

Under Puerto Rico law, career employees have a property

interest in their continued employment. See Figueroa-Serrano, 221

F.3d at 6; Kauffman, 841 F.2d at 1173. However, "public employees

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hired for career positions in violation of the Puerto Rico

Personnel Act, or agency regulations promulgated thereunder, may

not claim property rights to continued expectations of employment

because their career appointments are null and void ab initio."

Kauffman, 841 F.2d at 1173; see also De Feliciano v. De Jesús, 873

F.2d 447, 452-55 (1st Cir. 1989). The Personnel Act sets up a

merit system for career employees. See generally 3 P.R. Laws Ann.

§ 1333. Under this system, career employees must, among other

requirements, pass a competitive examination to be eligible for

appointment or promotion to a career position. See, e.g., Ramos-

Meléndez v. Valdejully, 960 F.2d 4, 6 (1st Cir. 1992)(holding that,

if the plaintiff held a career position to which he was appointed

without taking a competitive examination, he held the position

illegally). The issue before us, then, is whether González's

appointment to the Executive Director IV position, after her tenure

in the trust position ended, complied with Puerto Rico law.

In their motion for summary judgment, Zayas and Maldonado

argued that the transfer violated the Personnel Act in two ways:

(1) González had been improperly reinstated under Puerto Rico law

which forbids any transfer of public service personnel two months

prior to and two months after an election; and (2) González was

improperly reinstated to a career position three levels higher than

that to which she was entitled.

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We agree with the district court's holding that

González's reinstatement did not violate the ban on transfers of

public service personnel two months prior to and two months after

an election. See 3 P.R. Laws Ann. § 1337. González was reinstated

to the Executive Director IV position on September 1, 2000, more

than two months before the elections were held on November 6, 2000.

The reinstatement on September 1, 2000, was therefore outside the

prohibited period.

González's reinstatement to the position of Executive

Director IV, however, did violate the Personnel Act. González was

reinstated to a position higher than that to which she was

entitled. She was entitled, under the statute, to reinstatement in

a position equal to the one she last held as a career employee.

See 3 P.R. Laws Ann. § 1350(a) (when a trust employee transfers

back to a career position, she "shall have the absolute right to be

reinstated in a regular [career] position equal to the last

position she held while in the Career service . . . ."). While she

was in a trust position from January 1993 to September 2000,

González's original position was eliminated and eventually

reclassified as Director of Integral Services I due to an amendment

in Puerto Rico law. When González requested reinstatement to her

career position in June 2000, Director of Integral Services I was

occupied. A memorandum prepared by the Family Department's Human

Resources Office on July 20, 2000, recommended that González be

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reinstated to Executive Director I, because this position was the

most similar to her last career position. Because Executive

Director I was designated as equal to her prior career position,

her property interest under Puerto Rico law was in the Executive

Director I position. See Kauffman, 841 F.2d at 1173. Thus,

González was entitled to reinstatement to Executive Director I, not

Executive Director IV.3 In order to be properly appointed to the

Executive IV position, González had to be appointed pursuant to 3

P.R. Laws Ann. § 1334(2). See id. ("Transfers may be made from one

position to another in the same class . . . provided the employee

meets the requirements for the position to which [she] was

transferred."). Under the Personnel Act, a transfer such as

Gonzalez's is improper, and plaintiff has presented no evidence to

create a genuine issue of material fact as to its legality. See

DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) ("Once the

moving party has properly supported [its] motion for summary

judgment, the burden shifts to the nonmoving party, with respect to

each issue on which [it] has the burden of proof, to demonstrate

that a trier of fact reasonably could find in [its] favor.")(citing

3

There is some uncertainty in the record regarding González's

transfer to a trust position in October 2000 and subsequent

reinstatement to the Executive Director IV position in December

2000. Because we find that González's original September 1, 2000

reinstatement to Executive Director IV was improper, any subsequent

transfers would be tainted by the September reinstatement (at least

during the period in question). We therefore need not reach the

question of whether any subsequent transfers occurred.

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Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986)). We therefore

affirm the district court's order on these grounds.4

C. Scope of the Summary Judgment Record

At the same time they moved for summary judgment,

defendants filed a motion requesting leave to accept the documents

submitted in support of the motion for summary judgment in the

Spanish language pursuant to Local Rule 108.5 González filed a

motion in opposition to the filing of documents in support of

motion for summary judgment, arguing that the documents were in

Spanish and all but one did not involve or mention González. She

argues that the district court erred in accepting documents

supporting defendants' motion for summary judgment filed in the

Spanish language. Defendants argue that it was within the district

court's discretion to accept the documents in Spanish until English

language translations were filed. See D.P.R. R. 108.1.6

4

Further, because plaintiff has failed to establish a genuine

issue of material fact as to whether defendants violated any of

plaintiff's rights, we need not reach the issue of qualified

immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001)(stating

that whether a constitutional violation occurred is the first step

in the qualified immunity inquiry).

5

Local Rule 108.1 stated:

All documents not in the English language

which are presented or filed in this Court,

whether evidence or otherwise, shall be

accompanied at the time of presentation or

filing by an English translation thereof,

unless the court shall otherwise order.

6

This rule is now codified as Local Rule 43. See D.P.R. R. 43.

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It is well settled that "federal litigation in Puerto

Rico [must] be conducted in English." Estades-Negroni v. Assocs.

Corp. of N. Am., 359 F.3d 1, 2 (1st Cir. 2004). "In collecting a

record for summary judgment a district court must sift out non-

English materials, and parties should submit only English-language

materials." Id.; see also United States v. Rivera-Rosario, 300

F.3d 1, 6 (1st Cir. 2002). A violation of the English language

requirement "will constitute reversible error whenever the

appellant can demonstrate that the untranslated evidence has the

potential to affect the disposition of an issue raised on appeal."

Rivera-Rosario, 300 F.3d at 10.

There was sufficient evidence in the record in English to

sustain a finding that González was reinstated in violation of the

Personnel Act. The evidence submitted in Spanish therefore does

not affect the disposition of this case.

The main document in issue is the internal audit

conducted by the Family Department. The record before the district

court did not contain an English translation of the audit. An

English translation of the audit does appear in the appendix to

González's appellate brief. Since the audit did not appear in

English on the record before the district court when it decided the

motion for summary judgment, we cannot now take the English

translation of this audit into account. See Estades-Negroni, 359

F.3d at 2. The memorandum prepared by the Family Department's

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Human Resources Office on July 20, 2000, which was in the summary

judgment record in an English translation, recommended that

plaintiff be reinstated to Executive Director I, because Executive

Director I was the most similar to plaintiff's last career

position.

The district court should not have considered any

documents before it that were in the Spanish language. Because

there was sufficient evidence in the record in English to support

the district court's holding that no genuine issue of material fact

remained, however, we may affirm the judgment of the district

court.

D. The State Claims

González assigns error to the district court's dismissal

without prejudice of her causes of action under Puerto Rico law

when it issued a general order dismissing all claims. In its

opinion and order, the district court discussed only González's

federal claims. The district court then dismissed González's

action with prejudice.

Under 28 U.S.C. § 1367, "district court may decline to

exercise supplemental jurisdiction" if "the district court has

dismissed all claims under which it has original jurisdiction." 28

U.S.C. § 1367(c); see Claudio-Gotay v. Becton Dickinson Caribe,

Ltd., 2004 WL 1557905, *4 (1st Cir. July 13, 2004). We review a

district court's decision not to exercise supplemental jurisdiction

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for abuse of discretion. See Pejepscot Indus. Park, Inc. v. Maine

Cent. R. Co., 215 F.3d 195, 200 (1st Cir. 2000). "As a general

principle, the unfavorable disposition of a plaintiff's federal

claims at the early stages of a suit . . . will trigger the

dismissal without prejudice of any supplemental state-law claims."

Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.

1995). To the extent that the federal action was dismissed with

prejudice, we construe it as holding that González is at liberty to

bring her unadjudicated claims before the Commonwealth courts, but

her federal claims are forever barred. See 28 U.S.C. § 2106

(allowing appellate courts to modify judgments as may be just under

the circumstances). We can discern no abuse of discretion in the

district court's dismissal of the action after ruling against

González on the federal claims.

III. Conclusion

For the reasons stated herein, we affirm the district

court's grant of summary judgment for the defendants.

Affirmed.

"Concurrence follows"

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BOUDIN, Chief Judge, (Concurring in the judgment). The

panel opinion persuades me that the grant of summary judgment

should be sustained. But my reservations as to certain of the

quotations from, and glosses upon, two prior decisions dealing with

the issue of Spanish language documents under 48 U.S.C. § 864

(2000) are so firm as to preclude an unqualified concurrence in the

panel opinion.

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