Violeta Valiente v. Luis Rivera

USCA1 Opinion

June 5, 1992 ____________________

No. 91-2277

No. 91-2332

IRIS VIOLETA VALIENTE, ET AL.,

Plaintiffs, Appellees,

v.

HON. RAMON LUIS RIVERA, ETC., ET AL.,

Defendants, Appellants.

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APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

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Before

Breyer, Chief Judge,

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Campbell, Senior Circuit Judge,

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and Cyr, Circuit Judge.

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Reina Colon De Rodriguez, Acting Solicitor General, and Carlos

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Lugo-Fiol, Assistant Solicitor General, on brief for appellants.

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Jesus Hernandez Sanchez and Hernandez Sanchez Law Firm, on brief

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for appellees.

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Per Curiam. Claiming qualified immunity, defendant

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moved for summary judgment. Without reaching the merits of

the immunity claim, the district court denied the motion

because it was "filed on the eve of trial" and "comes too

late." Defendant has appealed. For reasons which follow, we

do not agree that the motion was filed too late.

I

Eight plaintiffs, employees of the municipality of

Bayaman, filed a complaint in October 1986 against the

municipality and its mayor. The lead plaintiff, Mrs. Violeta

Valiente, stated that she was a member of the same political

party as the mayor, but, because she had refused to

discriminate on the basis of political affiliation, the mayor

had classified her and her associates (the other plaintiffs)

as dissenters and had discriminated against them. According

to the complaint, Mrs. Violeta Valiente had been demoted in

1985, moved to a small room next to the toilet, given no

work, and harassed. Other plaintiffs had been denied raises

granted to employees with less experience and fewer

credentials, had been transferred to work places more distant

from their homes, had suffered a cut in hours, and had been

harassed and persecuted.

After initial settlement negotiations failed, trial

was originally scheduled for March 13, 1990, but was

postponed to July 31, 1990. On July 26, 1990, defendants

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filed their request for jury instruction, which included

instruction on qualified immunity. The July 31, 1990 trial

date was vacated when the parties informed the court that

promising settlement negotiations were underway. When, by

mid-September, no settlement had materialized, trial was

rescheduled for May 7, 1991. On May 2, 1991, several days

before trial, defendants sought a three-month continuance

because of the mayor's health problems. The motion was

granted the next day, but no new trial date was immediately

set.

On May 10, 1991, defendant mayor filed the motion

which is the subject of this appeal. He requested permission

to file a motion for summary judgment based on qualified

immunity. Accompanying the motion was a lengthy memorandum

arguing that in 1985 and 1986 when the acts in question had

taken place, the law was not clearly established that

politically motivated personnel actions short of discharge

were constitutionally proscribed. The motion was not

immediately acted upon. On May 28, trial was rescheduled to

December 2, 1991. On November 4, 1991, the court denied the

May 10, 1991 request to file a motion for summary judgment.

The court stated as follows:

Denied. Although a pre-trial motion for

summary judgment is the best instrument

for disposing of a qualified immunity

defense, this motion, filed on the eve of

trial, comes too late in this 1986

litigation. Given the Court's congested

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trial calendar, to allow this filing will

inevitably lead to a continuance of the

trial.

Defendant mayor has appealed from that order.

II

We reject plaintiffs' contention that the order

refusing permission to file a motion for summary judgment is

not appealable. Orders denying pre-trial claims of qualified

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immunity are immediately appealable as collateral orders in

accordance with Mitchell v. Forsyth, 472 U.S. 511 (1985). To

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be sure, the district court here did not deny defendant's

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claim to qualified immunity on the merits, but rather refused

to address the merits of the motion at all. Nevertheless, as

an asserted right not to stand trial is lost no less by a

court's refusal to entertain a pre-trial immunity claim as by

an erroneous denial of it on the merits, we see no basis --

at least not in the circumstances of the present case -- for

distinguishing between the two for appellate jurisdictional

purposes. See Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st

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Cir. 1990) ("Without question, defendants had . . . a right

to appeal from the district court's announced refusal to

entertain any further pre-trial motions raising the qualified

immunity defense."). We have jurisdiction to hear this

appeal.

III

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Contrary to the court's ruling, the motion

requesting permission to file a motion for summary judgment

was not filed on the eve of trial. Rather, when the motion

was filed, the court had already vacated the May trial date

and granted defendants' request for a substantial

continuance. As the new trial date was not until December,

the motion ended up having been filed almost seven months in

advance of trial. Seven months in advance is not the eve of

trial. There was sufficient time for the court to rule on

the summary judgment request.1

Moreover, it is clear that to the extent

defendant's motion asserted qualified immunity from damages

liability for politically motivated personnel actions short

of dismissal, the motion should have been granted.

Government officials are not liable for monetary damages in

1983 suits unless their actions violate "clearly established

statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

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1. One reason why the court may have mistakenly

characterized the summary judgment motion as having been

filed on the eve of trial is that defendant's summary

judgment motion, ostensibly drafted before the motion for

continuance had been granted, itself stated it was being

filed on the eve of trial. Defendant sought to excuse the

late filing by pointing to a two and a half month old First

Circuit opinion and arguing that only recently had the

applicable law crystallized. We would be faced with a far

different case had the district court not granted the

continuance. Once the continuance was granted, however, the

summary judgment request was no longer last minute and must

be viewed in the context of the new trial schedule.

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800, 818 (1982); Anderson v. Creighton, 483 U.S. 635 , 639

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(1987). As we have explained in other cases similar to the

present involving actions short of discharge, not until Rutan

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v. Republican Party of Illinois, 110 S.Ct. 2729 (1990), was

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decided did it become clearly established that the Elrod-

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Branti constitutional prohibition against politically

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motivated firings applied to other personnel actions, such as

promotions, transfers, and hirings. See Castro-Aponte v.

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Ligia-Rubero, 953 F.2d 1429 (1st Cir. 1992) (qualified

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immunity for 1986 transfer decision); Roque-Rodriguez v. Lema

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Moya, 926 F.2d 103, 106-07 (1st Cir. 1991) (plaintiff denied

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promotion from 1985 to 1989; qualified immunity); Nunez-Soto

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

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In the present case, plaintiffs complained of demotion,

changes in duties, transfers, reduced hours, and raise

denials predating their 1986 complaint. As it was not

clearly established at that time that such personnel actions,

even if politically motivated, violated the constitution,

defendant mayor is entitled to qualified immunity from

damages liabilitywith respectto these FirstAmendment claims.2

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2. In their appellate brief, various plaintiffs assert other

possible claims: 1) denial of procedural due process in that

no hearing preceded the demotion or other adverse personnel

actions, 2) constructive discharge in violation of First

Amendment rights, and 3) violation of First Amendment rights

in that plaintiffs were harassed because of their speech

concerning unhealthy conditions. We do not now decide

whether all these claims were raised below or whether summary

judgment with respect to any of them is proper, but rather

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Pursuant to First Circuit Rule 27.1, the November

4, 1991 order is vacated to the extent it denied defendant

mayor's motion requesting permission to file a motion for

summary judgment, and the case is remanded with directions to

grant summary judgment to defendant mayor on the issue of

qualified immunity from damages liability with respect to

plaintiffs' claims that defendant violated plaintiffs' First

Amendment rights by subjecting them to adverse working

conditions short of discharge (actual or constructive)

because of their political affiliation.

Vacated and remanded.

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leave these matters to be addressed in the first instance by

the district court.

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