Petition for Writ of Certiorari — Aponte Roque v. Kercado-Melendez

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Supreme Oourt, U.S,

SEG = Tt FILED

2 APR 15 1986

No. 87-____ _ JOSEP F. SPANIOL, JP.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

AWILDA APONTE ROQUE,

SECRETARY OF THE DEPARTMENT

OF EDUCATION OF THE

COMMONWEALTH OF PUERTO RICO,

Petitioner,

IpclA M. KERCADO-MELENDEZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

HECTOR RIVERA CRUZ

Secretary of Justice

Commonwealth of Puerto Rico

RAFAEL ORTIZ CARRION

Solicitor General

Commonwealth of Puerto Rico

MARCOS RAMIREZ LAVANDERO

Counsel of Record

RAMIREZ & RAMIREZ

Eleanor Roosevelt #117

Third Floor

Hato Rey, P.R. 00918

(809) 758-5660

ATTORNEYS FOR PETITIONER

April 15, 1988

aS eR MARU NRE NE OSSETIA RS E SSNTONE SS ITI RTE TAT

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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QUESTIONS PRESENTED

1. Whether the Younger-Huffman-Dayton absten-

tion doctrine requires the federal judiciary to abstain

from hearing a Section 1983 action challenging a state

administrative disciplinary proceeding under the

Teachers Misconduct Act initiated by Puerto Rico’s

Secretary of Education against the federal plaintiff,

even though the federal action only challenges the

State’s motivation in initiating the proceeding and not

the constitutionality of the Act itself.

2. Whether under Younger-Huffman as extended by

Dayton, an administrative proceeding initiated by the

state is rendered remedial and not coercive because

the federal plaintiff must take “‘affirmative steps’’ to

trigger the administrative review-mechanism provided

by statute.

PARTIES TO THE PROCEEDING BELOW

The respondent herein was the plaintiff before the

District Court and the plaintiff-appellee before the

Court of Appeals for the First Circuit. Respondent is

the party in interest to the relief afforded below.

Petitioner was the defendant before the District Court

for the District of Puerto Rico and defendant-appel-

lant before the Court of Appeals for the First Circuit.

iil

TABLE OF CONTENTS

Page

UIUNINOED HP UOIEIONTEED sc ccsccccccccsssssecescesnscccnscssecznscs i

PARTIES TO THE PROCEEDINGS BELOW. .............0000. il

aL sauumsendudehsiooceaons ill

I INU, scccicnnsccsccceseaacecenscnscvobonpenctss iv

Ce sssdaneniubenss l

RESET ee 2

ES aR 3

A. THE TEACHER MISCONDUCT ACT . 4

B. DISTRICT COURT PROCEEDINGS ..... 6

C. THE COURT OF APPEALS

RT 7

REASONS FOR GRANTING THE WRIT .............ccccee000e 8

I. The Court of Appeals’ determination that ab-

stention is inappropriate because the federal

action challenges the motivation of the Sec-

retary, but not the constitutionality of the

state proceeding, misconstrues Supreme

Court authority and conflicts with other court

LASERS NRE NSE STE ae 10

II. The Court of Appeals’ determination that ab-

stention is inappropriate because the state

administrative proceeding was remedial and

the federal plaintiff did not have to exhaust

the integrated administrative judicial review

mechanism provided by statute is contrary

to Dayton Christian Schools and in conflict

with other court of appeals ..............eeeeeeeees 17

III. The First Circuit panel opinion can pro-

foundly alter the proper relationship between

the states and the federal courts ............... 25

SE Sl ea 25

TABLE OF AUTHORITIES

CASES Page

Cameron v. Johnson, 390 U.S. 611 (1968) ............. 14

Cleveland Board of Education v. Loudermill, 470

Weil EE IIIT shccivsnisslochevededeonsnibasnmenadinnmaninaaas 7

Dombrowski v. Pfister, 380 U.S. 479 (1965) .......... 14,15

Fresh International Corp. v. Agricultural Labor Re-

lations Board, 805 F.2d 1353 (9th Cir,

UNIT ‘ss cisniccguisesipacsaseueianundedabsecabdunsnnendiubuapiciaudnion 13

Gibson v. Berryhill, 411 U.S. 564 (1973) ............... 9,16

Huffman v. Pursue, 420 U.S. 592 (1975) .... 9,12,14,21-24

Juidice v. Vail, 480 U.S. 327 (1977) .............cccceees 9,21

Kercado-Melendez v. Aponte Roque, 829 F.2d 255

CE I Ree aiccwnusieismemsenasindiandasianstiies 1,10,11,14,22

Kugler v. Helfant, 421 U.S. 117 (1975) .............00 16

Moore v. Sims, 442 U.S. 413 (1979) ............cccscceees 9,12

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718

RII cdsdinnsishiseatiinsdeccenkuaciemaapinaniaiasnainias 9,17,21,24,25

Patsy v. Board of Regents of the State of Florida,

SOF Ue. Se Tee etter 7,8,17,23,29

Peery v. Brakke, 826 F.2d 740 (8th Cir. 1987) ..... 24

Pennzoil v. Texaco, __U.S. __, 107 S.Ct. 1519

UNE siuaidoreicnecatscstcinignnesiscalieamienaaaanatnasniiaienekis 9,11

Perez v. Ledesma, 401 U.S. 822 (1975) ................. 14,15

Rizzo v. Goode, 423 U.S. 362 (1976) ..................006 12

Ronwin v. Dunham, 818 F.2d 675 (8th Cir.

SEE sincicaehondccos tint tabi otia celina iekhaccaeiasahion 24

Steffel v. Thompson, 415 U.S. 452 (1974) .............. 22

Thomas v. Texas State Board of Examiners, 809

Fe GE GO, Ce. WUD nvssniaicenstsetasncdsasincvess 24

Trainor v. Hernandez, 431 U.S. 434 (1977) ........ 9,11,12

Velez Ramirez v. Romero Barcelo, 112 P.R. Dec.

Fe TE kscesicsctscn asa ceeadamanae 10

Table of Authorities Continued

: Page

Williams v. Red Bank Board of Education, 662 F.2d

DOR GIRS Gi Fee cncntsisessinscosniinacineicciones 9,12,13

Wooley v. Maynard, 430 U.S. 705 (1977) .............. 22,23

Younger v. Harris, 401 U.S. 37 (1971) ........... 8, passim

CONSTITUTION AND STATUTES

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P.R. Laws Ann. tit. 3, §§ 1-1567 (1982) ....0...... 3

PR. Laws Amm. tit. 3, § 16) CUBR) cccsccsccccccssnccses, 3

Pm. Lawes Asm. 00. B, © 168 (OUR) cvsvcccsccccccrsrescs 3

Law No. 115, of June 30, 1965, P.R. Laws Ann.

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P.R. Laws Ann. tit. 18, § 249e (1974)

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P.R. Laws Ann. tit. 18, § 274d (stinahasavnnsoisiasinevesiasa

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a a es, “ST ee sec ce

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

AWILDA APONTE ROQUE,

SECRETARY OF THE DEPARTMENT

OF EDUCATION OF THE

COMMONWEALTH OF PUERTO RICO

Petitioner,

Vv.

Ipcia M. KERCADO-MELENDEZ

Respondent.

PETITION FOR WRIT OF CERTIORARI

The petitioner Awilda Aponte Roque, Secretary of

the Department of Public Instruction of the Com-

monwealth of Puerto Rico, respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

First Circuit entered on September 27, 1987, as

amended by order of November 18, 1987.

OPINION BELOW

The opinion of the Court of Appeals, as amended,

is reported as Kercado-Meléndez v. Aponte Roque, 829

F.2d 255 (1st Cir. 1987), and appears as Appendix A

hereto. The opinion of the District Court is reported

at 841 F.Supp. 1326 (D.C.P.R. 1986), and appears as

Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the First

Circuit was entered on September 27, 1987. A timely

petition for rehearing en banc was denied on Novem-

ber 18, 1987, and this petition for certiorari was filed

within the April 16, 1988 deadline allowed by this

Court’s Order Extending Time to File Petition for

Certiorari of February 4, 1988. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Petitioner (hereinafter ‘‘the Secretary’) is the Sec-

retary of the Department of Public Instruction (DPI)

of the Commonwealth of Puerto Rico. She was ap-

pointed to said position in January 1985 by the newly

elected Governor Rafael Hernandez Coldén, after the

Popular Democratic Party (PDP) deposed the New

Progressive Party (NPP) in the election held on No-

vember 1984. At all relevant times, respondent (here-

inafter ‘‘Kercado”) was the school superintendent of

the Dorado School district. She is a member of the

NPP.

As the new head of the DPI, the Secretary initiated

public policy changes in the Department that signif-

icantly altered the past practice of the previous NPP

administration. These public policy changes were in-

strumented through directives from the Secretary, be

them circular letters or memoranda, addressed to the

pertinent DIP officials.! As school superintendent of

the Dorado school district, Kercado is obliged by law

to follow the directives of the Secretary.? The genesis

of this case is predicated on an administrative com-

plaint issued by the Secretary against Kercado, due

to her failure to follow the Secretary’s directives.

On May 20, 1985, the Secretary issued a memoran-

dum entitled ‘Teaching Personnel Outside of their

Regular Function’’, ordering all school superintend-

ents to assign all teaching personnel in administrative:

functions to teaching positions at schools. Kercado

failed to obey this directive by keeping teaching per-

sonnel in administrative functions in her office.

‘In Puerto Rico, contrary to the continental United States,

all of the primary functions of the state have been entrusted to

the state government by the Constitution of Puerto Rico. See,

P.R. Const. Art. IV; P.R. Laws Ann. tit. 3, §§ 1-1567 (1982).

The Secretary of the DPI is constitutionally and statutorily as-

signed the function of administrating all public education for the

island of Puerto Rico. P.R. Const. Art. IV, § 6; P.R. Laws Ann.

tit. 3, § 141 (1982). The educational system is divided into 100

school districts, roughly equivalent to a political municipality,

except in the cities, which usually consist of various school dis

tricts. Each school district is run by a school superintendent,

normally a tenured teacher who can only be removed for cause,

pursuant to P.R. Laws Ann. tit. 18, §§ 274-2740 (1974). The

school districts, in turn, fall under one of eight administrative

regions, each headed by a regional director. The regional director

is the direct supervisor of each of the school superintendents in

his region.

*P.R. Laws Ann. tit. 3, § 142 (1982) provides: ‘“‘The Secretary

of Education ... shall appoint, as occasion may require, an

officer for each school district to be known as the Supervisor

of Schools, and these supervisors of schools shall in all respect

be subject to the orders of the Secretary of Education.” The

terms school supervisor and school superintendent are inter-

changeable.

On July 10, 1985, the Secretary issued a circular

letter which established the procedure for selecting

teacher assistants. It provided that in the absence of

consensus at the district level, the DPI regional di-

rector shall determine the personnel to be appointed.

Kercado refused to follow the regional director’s de-

cision with respect to the appointment of fourteen

(14) teacher assistants.

On December 9, 1985, the Secretary served on

respondent a complaint pursuant to the Teachers Mis-

conduct Act, charging her with insubordination con-

sisting in failure to follow the directives and other

acts of obstruction.®

A. THE TEACHERS MISCONDUCT ACT.

Through Law No. 115, of June 30, 1965, the leg-

islature of the Commonwealth of Puerto Rico enacted

legislation providing for the removal for cause of the

DPI’s tenured teachers. P.R. Laws Ann. tit. 18, §§

274-2740 (1974).4 The Act enumerates the causes that

warrant the cancellation of a teaching certificate and

separation from teaching service. These causes in-

clude insubordination, negligence in the discharge of

duties and conduct prejudicial to the good name of

the Puerto Rico public education system. P.R. Laws

Ann. tit. 18, § 274.

3In addition to violating the directives previously discussed,

the complaint charged Kercado with altering the functions and

impeding the normal functioning of the Dorado assistant school

superintendent. See Appendix D.

4See Appendix F for the text of the statute. For want of a

better name, the district court designated the statute as the

Teachers Misconduct Act. Appendix B, p. 29a. For purposes of

this petition, said appellation is adopted.

The Act provides that if the Secretary, upon in-

vestigation, is satisfied that a teacher has incurred in

any of the causes warranting disciplinary action, she

“shall serve on the teacher an order of suspension

or cancellation of certificate jointly with a complaint

specifying the charges which are ground for such an

action.”” P.R. Laws Ann. tit. 18, § 274a. The order

shall notify the affected teacher of her right to appeal

to the DPI Board of Appeals, within 10 days of no-

tification. Jd. If not appealed within 10 days, the or-

der shall become the suspension or cancellation order

of the Secretary, and shall be final and conclusive.

P.R. Laws Ann. tit. 18, § 274b.

If, however, the complaint is appealed to the Board

of Appeals, the writ of appeal ‘“‘shall stay the effects

of the order of cancellation or suspension of certifi-

cate.’”’ P.R. Laws Ann. tit 18, §274d.° In such. cases,

the Secretary may, pending the appeal, suspend the

teacher from office and salary, but only for a period

of 90 days, unless a maximum extension of 90 days

is approved by the Board of Appeals. Jd. In cases of

Board approved extension, however, the teacher re-

sumes drawing her salary. P.R. Laws Ann. tit. 18, §

274n. If the Board of Appeals has not decided within

180 days, the aggrieved teacher shall be reinstated

in her position, pending a final decision by the Board.

5In its opinion, the Court of Appeals stated that the appeal

of the order to the Board would “‘stay the effects of the can-

cellation order, substituting in its stead a suspension of Ker-

cado’s employment and salary pending the outcome of her

appeal.’ 829 F.2d at 257. This is incorrect. Pursuant to the

statute, while the stay is automatic, the suspension is discre-

tionary.

The DPI Board of Appeals is an independent, sep-

arate entity required and empowered to give a full

evidentiary hearing.* The Board’s ‘“‘decision may af-

firm, revoke or modify the order of the Secretary.”’

P.R. Laws Ann. tit. 18, § 274i. The Act provides for

a speedy review process by the Board. P.R. Laws

Ann. tit. 18, §§ 274f, 274i. A party adversely affected

by the Board’s decision has 30 days to seek judicial

review before the Superior Court of Puerto Rico,

which shall apply the rules for review of administra-

tive bodies. P.R. Laws Ann. tit. 18, § 274e.

B. DISTRICT COURT PROCEEDINGS

Instead of filing an administrative appeal, Kercado

amended her original complaint and sought injunctive

relief and damages under 42 U.S.C. § 1983.’ The

6 The Board is comprised of three persons appointed by the

Governor with the advice and consent of the Senate for a term

of four years. Its presiding officer must be a lawyer or bachelor

of law. Its members serve without pay and cannot be employees

of the public education system. The Board must, at the parties’

request, compel the appearance of witnesses and the production

of documents; a refusal to obey can be met by a court order

subject to contempt. P.R. Laws Ann. tit. 18, § 274e. The hearing

itself must be public before at least two members and concurred

in by at least two. P.R. Laws Ann. tit. 18, § 274g. Both sides

can present evidence and have a right to counsel, to cross-

examination of witnesses, and to being supplied beforehand with

the names and addresses of the opposition’s witnesses and copies

of their statements. P.R. Laws Ann. tit. 18, § 274h.

7 The original administrative complaint against respondent is-

sued on October 28, 1985. Respondent sought review of the

charges before the DPI Board of Appeals. Subsequently, how-

ever, respondent filed a section 1983 complaint in the federal

district court and withdrew her petition for review before the

Board of Appeals. Her federal action sought a Temporary Re-

Secretary requested the district court to abstain from

entertaining Kercado’s action for injunctive relief,

claiming that by not availing herself of the admin-

istrative-judicial review of the charges provided by the

Act, Kercado was collaterally seeking to annul a state

proceeding initiated to vindicate the interests embod-

ied in the Teachers Misconduct Act. The district court

rejected the Secretary’s contention, holding that there

was no administrative hearing pending at the time of

litigation and that Patsy v. Board of Regents of the

State of Florida, 457 U.S. 499 (1982), does not require

exhaustion of administrative and state remedies. The

court, after a bench trial, found that the charges,

even if facially valid, had been instituted against

respondent because of her political affiliation and did

not warrant her discharge. Accordingly, the district

court ordered the Secretary to reinstate Kercado as

school superintendent, and ordered back pay, $15,000

in actual damages and $10,000 in punitive damages.

C. THE COURT OF APPEALS DECISION

The Court of Appeals, in a 2 to 1 decision, affirmed

the district court’s grant of reinstatement, backpay

and damages. In particular, a majority of the panel

straining Order seeking to enjoin her removal on the basis of

petitioner’s failure to provide a pretermination hearing required

by Cleveland Board of Education v. Loudermiil, 470 U.S. 532

(1985). As a result, the Secretary withdrew the initial complaint,

afforded respondent a pretermination hearing in accordance with

Loudermill, and on December 9, 1985, issued another admin-

istrative complaint, essentially containing the same charges as

the October 28, 1985 complaint. On January 15, 1986, respondent

amended her federal complaint, which remained only as to dam-

ages, to include a new cause of action in order to seek injunctive

relief and damages under Section 1983. It is the injunctive relief

therein requested, from which the Secretary seeks relief.

rejected the Secretary’s argument that the district

court should have abstained. The court recognizes the

applicability of Younger abstention to state adminis-

trative proceedings, but found abstention inappro-

priate because: (a) the federal action did not challenge

directly the constitutionality of the Teachers Miscon-

duct Act; (b) the available administrative appeal was

remedial rather than coercive; and (c) Patsy does not

require exhaustion of the integrated administrative-

judicial review mechanism provided by the Act.

REASONS FOR GRANTING THE WRIT

The Court of Appeals decision raises important con-

stitutional questions because it misconstrues Supreme

Court precedent and overlooks the overriding con-

cerns of federalism, comity and equity that control

whenever the state initiates an administrative pro-

ceeding to vindicate important state interests embod-

ied in the state law. The exercise of jurisdiction in

this case is particularly intrusive given that the stat-

ute involved expressly provides for an integrated ad-

ministrative-judicial review mechanism geared to

insure to the affected party a full, fair and speedy

consideration of the charges issued against her. In

effect, the Court of Appeals’ decision marks a sub-

stantial transfer of public personnel administration

from the state to the federal courts, and eviscerates

the state’s interest in the enforcement of statutes

aimed at maintaining the integrity and responsiveness

of the state’s educational systems. This result is hos-

tile to the common underlying purpose of all absten-

tion doctrines: to ensure the proper relationship

between the states and the federal judiciary.

In extending abstention doctrine from a state crim-

inal proceedings to civil proceedings and finally to

state administrative proceedings, the Court has re-

quired the presence of two factors in order to insure

consonance between legitimate state and federal in-

terests; these are:

(a) That the state civil or administrative proceeding

be initiated to vindicate an important state in-

terest.

(b) That the state proceeding afford the federal

plaintiff an opportunity to hear her constitu-

tional claims.

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 2723 (1986);

See Younger v. Harris, 401 U.S. 37 (1971); Gibson v.

Berryhill, 411 U.S. 564 (1973); Huffman v. Pursue,

420 U.S. 592 (1975); Juidice v. Vail, 430 U.S. 327

(1977); Trainor v. Herndndez, 481 U.S. 434 (1977);

Moore v. Sims, 442 U.S. 413 (1979); Middlesex County

Ethics Committee v. Garden State Bar Ass’n, 457 U.S.

423 (1982); Pennzoil v. Texaco, __ U.S. __, 107 S.Ct.

1519 (1987).

It is undisputed that both these factors are present

in this case. Certainly, enforcement of the Teachers

Misconduct Act which is the only disciplinary mech-

anism for removing a tenured teacher for cause, em-

bodies an important state interest in the integrity of

the Commonwealth’s educational system. Williams v.

Red Bank Board of Education, 662 F.2d 1008, 1019

(3d. Cir. 1983). Similarly, it is clear that the admin-

istrative mechanism provided by statute allows

plaintiff to raise her constitutional claims, since the

DPI’s statute itself proscribes discrimination on the

basis of political affiliation and the appeals board is

empowered to hear the constitutional claims. Thus,

P.R. Laws Ann. tit. 18, § 249e (1974) expressly pro-

hibits the schoo! authorities from discriminating

against a teacher because of her political affiliation.

See Appendix E. In Vélez Ramirez v. Romero Barcel,

112 P.R. Dec. 716, 728 (1982), the Commonwealth

Supreme Court makes clear that an administrative

body charged pursuant to statute with hearing the

just cause removal charges against a public official is

empowered to hear all constitutional claims, including

those of unconstitutional motive. See Appendix C.

I. The Court of Appeals’ determination that abstention

is inappropriate because the federal action challenges

the motivation of the Secretary, but not the consti-

tutionality of the state proceeding, misconstrues

Supreme Court authority and conflicts with other

court of appeals.

In its decision, nonetheless, the Court of Appeals

determined that abstention was inappropriate because

the relief sought by the federal plaintiff was not

‘seeking to mount a broad, constitutional attack on

the legitimacy of the state proceeding or their un-

derlying statutory predicate.”” 829 F.2d at 261. Ac-

cording to the court, abstention is appropriate only

if “‘the state proceeding is itself the wrong which the

federal plaintiff seeks to correct via injunctive relief

under section 1983.’’ 829 F.2d at 260. Abstention,

however, is unsuitable whenever ‘“‘a teacher alleges

that her dismissal was motivated by an unconstitu-

tional purpose.” 829 F.2d at 261.

The Court of Appeals’ decision renders Younger

abstention inapplicable whenever a federal section 1983

action chailenging the enforcement of a state law al-

leges an unconstitutional motive, such as political, re-

ligious or racial discrimination proscribed by the first

amendment or the equal protection clause of the four-

teenth amendment. Such an exegesis of abstention -

doctrine constitutes an alarming misreading of this

Court’s authority because it overlooks the overriding

substantive interest of the state in the enforcement

of its laws, and because it redefines the bad faith

exception to Younger abstention in a manner contrary

to this Court’s pronouncements and inimical to the

values of federalism and comity informing its appli-

cation.

There is no Supreme Court authority indicating that

a broad constitutional attack on the state proceeding

or its underlying statutory predicate is a sine qua non

of Younger abstention. On the contrary, the focus of

this Court’s precedent, as well as that of other ap-

pellate circuits, has been on the impairment that fed-

eral intervention imposes on the substantive interest

of the state as a sovereign. Thus, this Court’s atten-

tion has been on whether the state interest in the

underlying proceeding ‘‘goes beyond its interest as

adjudicator of wholly private disputes.” Pennzoil, 107

S.Ct. at 1527, n. 2. See Trainor, 431 U.S. at 444.

The Court of Appeals’ discernment that the ‘‘state

interest at stake was severely diminished,” 829 F.2d

at 261, because the federal action attacked the un-

constitutional motivation of the state official enforcing

the Act and not the constitutionality of the Act itself,

miscalculates the substantive interest of the Com-

monwealth in the enforcement of the Teachers Mis-

conduct Act. The Commonwealth shares as important

an interest in the enforcement of state law as in the

constitutional pristineness of the Act. The attack on

the state enforcement proceedings, due to an alleged

unconstitutional motive, do not any more “automat-

ically vitiate the adequacy of those proceedings for

purposes of Younger-Huffman line of cases,’’ Moore,

442 U.S. at 427, n. 10, than do attacks on the con-

stitutionality of the underlying statute. Furthermore,

it is clear that abstention concerns cloak ‘‘those in

charge of an executive branch of an agency or local

government”. Rizzo v. Goode, 423 U.S. 362, 380

(1976). Thus, contrary to the Court of Appeals’ as-

sertion, abstention concerns are most implicated

where the federal action seeks to enjoin ‘‘state offi-

cials from enforcing state statutes or implementing

public policies.”” Trainor, 431 U.S. at 444, n.8.

In the case at bar, it is the enforcement of the

Teachers Misconduct Act by the Secretary as a rep-

resentative of the state in its sovereign capacity which

comprises the nucleus of both the state administrative

proceeding and the federal action. It is the action

initiated by the Secretary which the federal plaintiff

seeks to annul. The Court of Appeals distinction be-

tween a federal action premised on an unconstitu-

tional motivation as opposed to an unconstitutional

statute misapprehends the identical interest impaired

by federal intervention: in both circumstances, inter-

ference with the state proceeding ‘‘prevents the state

not only from effectuating its substantive policies, but

also from continuing to perform the separate function

of providing a forum competent to vindicate any con-

stitutional objections interposed against those poli-

cies.’’ Huffman, 420 U.S. 604.

The First Circuit’s decision with respect to this

matter conflicts with the Third Circuit and the Ninth

Circuit. Williams v. Red Bank Board of Education,

662 F.2d 1008 (8rd Cir. 1981), a case on point, con-

cerns a federal action to enjoin tenure termination

proceedings initiated by a New Jersey school board

against a federal plaintiff. There, the plaintiff con-

tended that the state’s interest in the prosecution of

tenure charges against her was not implicated where

her federal injunctive request attacked the manner in

which the tenure system was being applied to her,

rather than attacking the system as facially invalid.

The Third Circuit rejected this argument, holding that

“an injunction by a federal court commanding state

and local officials to cease action on a tenure charge

against a public school teacher cannot have other than

a disruptive impact on the state’s ability to ensure a

competent and qualified body of teachers”. 662 F.2d

at 1018, n.10.

The Ninth Circuit seems to have reached similar

determination in Fresh International Corp. v. Agri-

cultural Labor Relations Board, 805 F.2d 1353 (9th

Cir, 1986). Said case involved a preemption challenge

to state officials’ enforcement of the California Ag-

ricultural Labor Relations Act. There the Ninth Cir-

cuit noted:

Of course, Younger is not necessarily in-

applicable because a state’s processes are not

being challenged. Rather, when a plaintiff

does not challenge state proceeding, the fo-

cus shift to an examination of the state’s

interest in the law sought to be enforced.

Dayton makes this obvious.

805 F.2d at 1360, n.9.

In addition to its erroneous calibration of the state

interest involved whenever a federal plaintiff claims

that a state official is enforcing a state law due to

an unconstitutional motive, the First Circuit’s focus

on said motive errs in another fundamental manner:

namely, it unbridles the bad faith exception to

Younger abstention of all its equitable restraints.

While the Court of Appeal does not recognize it as

such, its vision of an alleged unconstitutional motive

as the trigger for federal equitable intervention is

tantamount to the bad faith exception to abstention

recognized by this Court in the Younger-Huffman line

of cases. There, this Court left room for federal in-

tervention with state initiated proceedings where

there is a showing that the state proceeding “‘is mo-

tivated by a desire to harass or is conducted in bad

faith,” Huffman, 420 U.S. at 611, or where there are

other “extraordinary circumstances in which the nec-

essary irreparable injury can be shown.” Younger, 401

U.S. at 53. The Court of Appeal’s pronouncement that

‘‘a teacher who alleges that her dismissal was moti-

vated by an unconstitutional purpose need not pursue

her administrative remedies,’ 829 F.2d at 261, is es-

sentially indistinguishable from the bad faith excep-

tion described by this Court.

This disguised exercise of the bad faith exception

by the First Circuit is contrary to the criteria estab-

lished for its application by this Court. For this Court

has indicated that bad faith exception is to be invoked

only in extraordinary circumstances where it can be

objectively shown that the state officials have har-

assed the federal plaintiff with multiple unsuccessful

prosecutions or threats of prosecution without hope of

a conviction, and where the state proceeding provides

no adequate mechanism for resolution of the consti-

tutional issues. Dombrowski v. Pfister, 380 U.S. 479

(1965); Cameron v. Johnson, 390 U.S. 611 (1968); Pérez

v. Ledesma, 401 U.S. 822 (1975); Younger, 401 U.S.

—

at 48-50. For it is clear that the ‘‘cost, anxiety, and

inconvenience of having to defend against a single

criminal prosecution” is not the type of injury that

warrants federal interference. Younger, 401 U.S. at

46.

Dombrowski exemplifies the extraordinary circum-

stances calling for the application of the bad faith

exception. There, plaintiffs brought a section 1983

action against Louisiana’s law enforcement officials

alleging that their prosecution under the state’s law

was part of a plan of persecution and harassment

because of their civil rights activities on behalf of

blacks. The Court found bad faith where the state

officials had brought an unsuccessful prosecution and

threatened further prosecutions, and there was no

prospect that the state proceedings would ‘‘provide

satisfactory resolution of constitutional issues.’’ Dom-

browski, 380 U.S. at 487. Similarly, in Pérez v. Le-

desma, 401 U.S. 82, 91 (1975), this Court explained:

‘only in cases of proven harassment or prosecutions

undertaken by state officials in bad faith without hope

of obtaining a valid conviction and perhaps in other

extraordinary circumstances where irreparable injury

can be shown’ will federal intervention be appropri-

ate.

This case evidences no facts or other extraordinary

circumstances warranting application of the bad faith

doctrine.? While the complaint alleges bad faith, nei-

®It should be noted that in the Court of Appeals’ original

opinion of September 27, 1987, the court found, in the alter-

native, that abstention would have been improper because ‘‘Ker-

cado’s complaint alleged facts sufficient to support the application

of the bad faith exception to the Younger doctrine.” Appendix

ther it nor the district court proceeding demonstrate

a scheme of harassment evidenced by multiple charges

or proceedings initiated by the Secretary against Ker-

cado without hope of prevailing on the merits. On

the contrary, the district court’s opinion acknowledges

that the conduct attributed to Kercado in the com-

plaint did occur, but that it did not warrant or re-

quired the cancellation of her teacher certificates.

Furthermore, there is no indication that the Board

of Appeals proceeding would have been institutionally

biased or otherwise incapable of addressing Kercado’s

constitutional claim thereby creating a situation of

immediate irreparable harm calling for federal inter-

vention. Cf. Gibson v. Berryhill, 411 U.S. 564 (1978);

Kugler v. Helfant, 421 U.S. 117, 124-125 (1975).

In essence, by holding that an allegation of uncon-

stitutional motive dispenses the federal judiciary from

compliance with Younger abstention, the Court of

Appeals introduces through the back door the bad

faith exception, but divested of the requirements

enunciated by this Court for its application. By re-

ducing the bad faith exception to mere talismanic al-

legations of unconstitutional motive in the complaint,

the court transmutes the exception into the rule. This

facile application of the exception defeats the fun-

G, p. 123a. Revealingly, the Court equated bad faith with

respondent’s allegation that the state proceedings ‘‘was moti-

vated by the Secretary’s dissatisfaction for her political affilia-

tion.’’ Pursuant to the Secretary’s ‘‘Petition for Rehearing,” on

November 18, 1987 the court issued two orders, one denying the

petition for a rehearing en banc, and the other deleting footnote

No. 5. Appendix H. By focusing, however, on the unconstitu-

tional motive factor the Court of Appeals continues to apply,

under a different legal nomenclature, the bad faith exception in

a manner contrary to Younger abstention doctrine.

damental values of federalism, comity and equity in-

forming Younger abstention and converts the federal

courts, via the federal action, into super-personnel

boards sitting in the place and substituting the judg-

ment of the administrative-judicial bodies established

by the state for this purpose.® A result more offensive

to the “proper respect for state functions’’ contem-

plated by ‘Our Federalism’’, Younger, 401 U.S. at

44, is difficult to envision.

II. The Court of Appeals’ determination that abstention

is inappropriate because the state administrative

proceeding was remedial and the federal plaintiff

did not have to exhaust the integrated administra-

tive judicial review mechanism provided by statute

is contrary to Dayton Christian Schools and in con-

flict with other court of appeals.

The Court of Appeals held abstention inappropriate

because it found that the administrative proceeding

was not ongoing since it was remedial, rather than

coercive. Ohio Civil Rights Commission v. Dayton

Christian Schools, Inc., 106 S.Ct. 2718, 2723, n.2,

(1986). The majority opinion concluded that the

‘‘appeal’’ was remedial and controlled by Patsy be-

* The instant case is symptomatic of the super-personnel board

role to be played by the district courts under these circumstan-

ces. At trial, the district court examined the charges contained

in the complaint issued by the Secretary against Kercado, re-

viewed the evidence and testimony in support of such charges,

and appraised that under its assessment of state law, and con-

ceding the facial validity of the charges, they did not warrant

Kercado’s discharge. The assessment under the state law as to

the merit of the charges, and the district court’s substitution of

its judgment for that statutorily entrusted to the Board of

Appeals, is precisely the type of interference with and usurpation

of state functions that Younger abstention seeks to avoid.

cause “‘the dismissed teacher must take affirmative

steps to initiate the appeal to the Board of Appeals’’,

and because Kercado ‘‘cannot be coerced into appear-

ing before the Board of Appeals, but is provided with

an administrative remedy should she choose to avail

herself of it.” (emphasis ours) 829 F.2d at 261. The

majority opinion also held that the proceeding was

remedial (i.e., there existed no pending state pro-

ceeding) because ‘‘the issuance of the dismissal ‘or-

der’, based on an unconstitutional motive, constituted

the legal wrong suffered by Kercado’’, while the

appeal to the Board was a remedy ‘“‘available to her’’.

Id.

Said analysis is erroneous. First, as the dissent ac-

curately points out, the panel misreads Common-

wealth law when it characterizes the ‘‘appeal”’

mechanism of the Teacher’s Misconduct Act as pro-

viding for a remedy distinct from the legal wrong.

Section 274b provides that ‘if not appealed within

the term of ten (10) days, the order shall become the

suspension or cancellation order of the Secretary and

it shall be final and conclusive.”’ P.R. Laws Ann. tit.

18, § 274b. Section 274d provides that “‘[t]he filing

of the writ of appeal ... shall stay the effects of the

order of cancellation or suspension of the certificate.”

P.R. Laws Ann. tit. 18, § 274d It is obvious that,

under Commonwealth law, there are orders and there

are orders. The ‘‘order’”’ that accompanies the charges

(the original ‘‘order’’), can be automatically stayed by

the affected teacher by the mere filing of an appeal.

In such case, the proceedings -including a full blown

hearing- are conducted before the Board of Appeals.

The ‘“‘order’’ becomes really an ‘order of the Sec-

retary’, only ‘‘if not appealed’, or when the Board

EES

makes a final determination. P.R. Laws Ann. tit. 18,

§ 274b. This is no different from any contested case

where the defendant must answer the charges either

accepting or denying them; and only upon defendant’s

denial of the charges are the full blown proceedings

triggered. The only peculiarity of Puerto Rico’s sta-

tutory scheme is that the manner in which the teacher

contests the charges is by filing an ‘‘appeal”’ instead

of an answer. The majority of the panel, therefore,

can conclude as it did, only by looking at the words

“order” and ‘“‘appeal’’ divorced from the real sub-

stance of the proceedings. That is why Judge Breyer’s

dissent astonishingly notes:

How can the majority find the plaintiff was

not in the midst of this procedure when she

brought her federal law suit? The majority

seems to do so only by artificially separating

the statute’s ‘‘sending-the-other’”’ provision

from the rest of the statute. The majority

reads the “‘sending-of-the-order’’ provision as

if it permitted the Commonwealth to dismiss

a teacher without a full-blown hearing simply

by sending the piece of paper called an “‘or-

der’’, as if the sending of that piece of paper

constituted the legal wrong and all the rest

provided by the statute were but a state rem-

edy. In any contested case, however, the

sending of the ‘order’ and the hearing on

‘“‘appeal’’ are steps within an integrated, sta-

tutory administrative scheme—a scheme sim-

ilar to those often used by states to dismiss

tenured teacher. Unless one viewed Puerto

Rico’s law as embodying an effort to dismiss

tenured teachers without hearing (which nei-

ther the statutory language nor common

sense suggested is so) this case fits squarely

within the Younger doctrine ... For these

reasons, it seems to me that the majority’s

view both misreads Puerto Rico’s law and,

in any event, runs contrary to relevant

Supreme Court authority.

829 F.2d at 267 (Breyer, J; dissenting).

Secondly, the holding that the administrative pro-

ceeding in this case is remedial rather than coercive

simply because the dismissed teacher must take “‘af-

firmative steps” to invoke said proceeding and there-

fore, ‘‘cannot be coerced into appearing before the

Board,” is clearly contrary to established Younger

abstention doctrine. The critical distinction between

‘coercive’ and “remedial’’ does not depend on

whether affirmative steps must be taken. A proceed-

ing is coercive if the state has initiated it against an

unwilling defendant exposed to the loss of a liberty

or property right for violation of a state statute. In

any such proceeding the defendant must act, he must

defend himself; but the fact that he must act or take

‘affirmative steps’ does not render the proceedings

remedial. Nor the fact that the defendant may if he

‘wishes, waive his rights, change the coercive nature

of the proceedings. Thus, in the same way as Kercado

cannot be “‘coerced into appearing before the Board’’,

a defendant cannot be coerced into answering the

charges in a complaint, or into appearing at a hearing

scheduled to hear the charges. In other words, the

defendant can never be coerced into defending him-

self, but the fact that he has such a choice certainly

does not render the proceeding remedial.

li iain,

Kercado in this case is in the same shoes as the

federal plaintiff in Juidice, who chose not to appear

at the contempt hearing; in Middlesex County, who

decided not to answer the disciplinary charges issued

against him; in Dayton, who sought to bail out of the

administrative proceeding; and in Huffman, who opted

not to utilize the state appellate remedies. All these

plaintiffs share in common the natural consequences

of jettisoning state proceeding: they voluntarily forfeit

the opportunity of contesting the charges and become

bounded by the determination issued against them.

Under these circumstances, Younger impedes that

they recur to the federal forum to collaterally chal-

lenge the state determination.

Third, even if the ‘“‘appeal’”’ to the Board of Appeals

is really an appeal, it is a review mechanism within

a highly integrated administrative proceeding which

also provides for judicial review in the Commonwealth

courts. This Court has held that in such cases the —

failure of a federal plaintiff to avail himself of an

opportunity for review forecloses the door to the fed-

eral courthouse. In Huffman, a judgment and per-

manent injunction issued by an inferior state court

had become final and unappealable and, therefore, the

plaintiff sought federal intervention contending there

was no longer a pending state court proceeding. This

Court rejected this contention, noting that federal in-

tervention prior to the exhaustion of appellate rem-

edies impaired the same concerns that Younger sought

to protect. The Court held, therefore, that a ‘‘nec-

essary concomitant of Younger’ is the need to ex-

haust state appellate procedures before seeking

federal injunctive relief. 420 U.S. at 608.

Huffman clearly indicates that once the state ini-

tiates the administrative proceeding to vindicate im-

portant state interests and it affords the federal

plaintiff an opportunity to raise his constitutional

claims, said proceeding is ‘‘pending’’ regardless of

whether the plaintiff utilizes or not the opportunity

to appeal charges or the adverse determination. Thus,

Huffman held that the term “pending proceeding”’

serves only to ‘‘distinguish state proceedings which

have already commenced from those which are merely

incipient or threatened’. 420 U.S. at 607.

The panel majority attempted to distinguish Huff-

man by pointing out that the exhaustion requirement

to Younger cases had been restricted by Wooley v.

Maynard, 430 U.S. 705, 710-11 (1977), to cases in

which the federal plaintiff attempts to use the federal

courts ‘‘to annul the results of a state trial.’’ The

panel majority then concluded that in this case Ker-

cado had ‘‘made no such effort.” 829 F. 2d at 262.

In Wooley, however, Huffman was held inapposite be-

cause the federal plaintiff sought only to preclude

further prosecution. The federal plaintiff therein had

already sustained convictions and served a sentence

of imprisonment for his prior offenses. He did not

seek ‘‘to have his record expunged or to annul any

collateral effects” of those convictions. 480 U.S. at

711. He sought ‘“‘only to be free from prosecutions

for future violations of the same statutes.’’ Jd. Thus,

Wooley is nothing but a restatement of a basic ele-

ment of the Younger doctrine which requires a pros-

ecution or proceeding to have been initiated prior to

the commencement of the federal action. Steffel v.

Thompson, 415 U.S. 452 (1974).

In this case, contrary to Wooley, Kercado’s only

concern is with the proceeding initiated by the Com-

monwealth pursuant to the Teachers Misconduct Act.

She is not seeking to enjoin future charges under such

Act but using the federal courts to annul the pro-

ceedings brought against her by the Secretary. She

is akin to the federal plaintiff in Huffman who sought

“federal post-trial intervention, in a fashion designed

to annul the results” of the state proceeding. Huff-

man, 420 U.S. at 609. The instant case fits squarely

within the import of Huffman and has no relation

whatsoever with Wooley.

The Secretary submits that the only definition of

“coerciveness” consistent with prior Supreme Court

authority is that of “‘coerciveness” understood as state

proceeding initiated against an unwilling defendant

exposed to the loss of a property or liberty right.

This definition is congruent with the distinction be-

tween a Younger and Patsy-like situation described in

Huffman, where this Court held that Section 1983

action alleging deprivation of federal rights “had

nothing to do” with the ‘‘deference to be accorded

state proceedings which have already been initiated

and which afford a competent tribunal for the reso-

lution of federal issues.’’ 420 U.S., at 609, n. 21. The

critical distinction between Younger abstention and

Patsy is that Patsy does not involve a state initiated

proceeding to vindicate a substantive interest of the

state. In Patsy an applicant for employment was re-

jected because of her race and sex. There was no

state proceeding initiated to vindicate state law. The

failure to hire in Patsy clearly was not effectuated

to advance a substantive state interest, and the state

did not act in its sovereign capacity. Thus, in Patsy

none of the abstention concerns are present and there

is no justification for the federal courts to stay their

hand. The situation is quite different in this case

where the Commonwealth has initiated a disciplinary

proceeding to protect the integrity of its educational

system. Patsy is clearly inapplicable.’

To conclude, the First Circuit has failed to apply

the clear principles of the Younger-Huffman-Dayton

abstention doctrine. The “affirmative step’ and

‘coerced into appearing”’ criteria for determining the

coercive or remedial nature of the proceedings is

clearly contrary to Younger and its progeny. Said

criteria eviscerates the letter and the spirit of this

Court’s abstention doctrine in cases in which the state

has initiated a proceeding to vindicate an important

state interest.

aminers, 809 F.2d 453 (5th. Cir. 1987) seemingly coincides with

the First Circuit in holding that the mere availability of state

judicial review of state administrative proceedings does not

amount to the pendency of state proceedings for purposes of

Younger abstention. 807 F.2d at 456. On the other hand, albeit

without much analysis, the Eight Circuit has indicated in Peery

v. Brakke, 826 F.2d 740 (8th Cir. 1987), that Dayton Christian

Schools signals a “clear break’’ with past law enunciated in

Patsy, but refused to apply it retroactively. 826 F.2d at 745.

Similarly, in Ronwin v. Dunham, 818 F.2d 675 (8th Cir. 1987),

the Eight Circuit indicated that abstention is appropriate and

Dayton Christian Schools does not conflict with Patsy, so long

as the federal plaintiff is in a state proceeding initiated to vin-

dicate an important state interest and which provides an ade-

quate opportunity to raise constitutional claims. 818 F.2d at 677,

n.7.

III. The First Circuit panel opinion can profoundly alter

the proper relationship between the states and the fed-

eral courts.

The First Circuit opinion in this case will have a

profound impact on the relationship between the fed-

eral courts and the state’s administration of its per-

sonnel policies. Although the present case relates to

the Commonwealth’s administration of its educational

system, the impact of the First Circuit opinion is

much broader. It affects any proceeding initiated by

a state to discipline an employee for just cause. The

employee will be able to jettison himself out of the

state proceeding and into the federal court merely by

alleging an unconstitutional motive in the institution

of the charges, even where there is no suggestion

that the state administrative-judicial mechanism can-

not fairly adjudicate the employee’s constitutional

claims. Thus, the federal courts will be converted into

super-personnel boards in charge of adjudicating dis-

ciplinary proceedings against state employees for just

cause.

In sum, it seems evident that the First Circuit’s

decision impoverishing the Younger abstention doc-

trine raises an important constitutional question with

respect to the application of this Courts’ decision in

Dayton Christian School. This is a vital issue with

grave consequences to the integrity and independence

of functions that are properly left to the states to

perform. The existing conflict of circuits highlights

the need for this Court to presently address and clar-

ify the questions presented.

CONCLUSION

In light of the foregoing discussion, the Secretary

respectfully requests that this Court issue the Writ

of Certiorari in order to clarify the important ques-

tions presented for review.

In San Juan, Puerto Rico, this April 15, 1988.

Respectfully submitted,

HECTOR RIVERA CRUZ

Secretary of Justice

Commonwealth of Puerto Rico

RAFAEL ORTIZ CARRION

Solicitor General

Commonwealth of Puerto Rico

MARCOS RAMIREZ LAVANDERO

Counsel of Record

RAMIREZ & RAMIREZ

Eleanor Roosevelt #117

Third Floor

Hato Rey, P.R. 00918

Tel. (809) 758-5660

Attorneys for Petitioner

APPENDIX

APPENDIX A — Ipcia M. Kercado-Melendez v. Aponte

Roque, 829 F.2d 255 (1st Cir.

PEED. désconuthancinnbniinantadenbiaisdeniiananuesonans la

APPENDIX B — Ipcia M. Kercado-Melendez v. Aponte

- Roque, Civil No. 85-2261, Slip op.

(D.C. PR. August 12, 1986) ............. 28a

APPENDIX C — Walter Velez Ramirez v. Hon. Carlos

Romero Barcelo, 112 D.P.R. 716

ERIE sinceieciekianepbaniiniiainiiidenadstossansions 54a

APPENDIX D — Complaint of December 9, 1985, is-

sued by the Department of Public In-

struction of the Commonwealth of

I iii Eiiadtnialaninminniaanans 104a

APPENDIX E — P.R. Laws Ann. Tit. 18, §249e. ...... 1l4a

APPENDIX F -- P.R. Laws Ann. Tit. 18, §274-2740. 1l5a

APPENDIX G — Footnote 5 of original slip opinion de-

leted by Order of the Court of

Appeals on November 18, 1987 ....... 123a

APPENDIX H — Court of Appeals Orders of Novem-

SO Se, I ieiieccinieindensendcntsnneicinnccnnens 124a

APPENDIX I — Order of the Supreme Court of the

United States Extending Time for

Filing Petitition for Writ of

GRIT “aswadddabthénnupsnicnetncepsantiinniadeoe 127a

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIRST CIRCUIT.

IpciA M. KERCADO-MELENDEX,

Plaintiff, Appellee,

Vv.

AWILDA APONTE-ROQUE, etc.,

Defendant, Appellant.

No. 86-1853

Heard May 7, 1987,

Decided Sept. 22, 1987.

Puerto Rican school superintendent brought § 1983 action

alleging she was fired from her position because of her

political affiliation. The United States District Court for

the District of Puerto Rico, 641 F.Supp. 1326, Hector M.

Laffitte, J., entered judgment for school superintendent

and appeal was taken. The Court of Appeals, Bownes,

Circuit Judge, held that: (1) availability of noncoercive ad-

ministrative appeal by which school superintendent could

have challenged her dismissal did not require district court

to abstain from entertaining superintendent’s § 1983 ac-

tion; (2) failure of Secretary of Department of Instruction

to give school superintendent notice of charges and op-

portunity to respond prior to dismissal violated due process

rights of superintendent; and (3) school superintendent in

Puerto Rico would not have been discharged but for her

political affiliation, in violation of her First Amendment

rights.

Affirmed and remanded.

Breyer, Circuit Judge, dissented and filed opinion.

Carlos Del Valle, with whom Hector Rivera Cruz, Secre-

tary of Justice, Ramirez & Ramirez and Marcos A. Ra-

mirez Irrizarry, Hato Rey, P.R., were on brief, for

defendant, appellant.

Hector Gonzalez Lopez, with whom Hector Urgell Cue-

bas and Pedro Miranda Corranda, San Juan, P.R., were

on brief, for plaintiff, appellee.

Before BOWNES and BREYER, Circuit Judge, and

CAFFREY,* Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant Awilda Aponte-Roque, Secretary of

the Department of Public Instruction (DPI) in Puerto Rico,

appeals a judgment entered against her in a section 1983

suit brought by plaintiff-appellee Ipcia M. Kercado-Melen-

dez. Kercado had alleged that she was fired from her

position as superintendent of the Dorado School District

because of her political affiliation with the Partido Nuevo

Progresista (PNP). The United States District Court for

the District of Puerto Rico, sitting without a jury, ordered

Kercado reinstated to her former position, and awarded

her over $37,000 in back pay and damages. This appeal

by Aponte followed.

I. BACKGROUND

Ipcia Kercado worked for the Department of Public In-

struction for eighteen years, rising through the ranks until

she attained the position of superintendent for the Dorado

School District. Kercado was well known in Dorado as a

prominent member of the Partido Nuevo Progresista, which

was deposed as Puerto Rico’s ruling party by the Partido

Popular Democratico (PPD) in the election of 1984. In

. January, 1985, Awilda Aponte-Roque, a PPD member, was

appointed Secretary of the DPI.

* Of the District of Massachusetts, sitting by designation.

3a a,

On October 28, 1985, Kercado received a complaint! from

the Secretary of Public Instruction cancelling her teaching

certificate and dismissing her as superintendent of the Dor-

ado School District. It charged Kercado with incompetence,

negligence, insubordination, and improper conduct. Ker-

cado was accused of keeping two teachers in administra-

tive positions during the month of August, 1985, when

they should have begun to resume their teaching duties.

It was also alleged that she improperly impeded the Dor-

ado district’s assistant superintendent, Hector Lopez Mal-

donado, from performing his duties. In addition, Kercado

was charged with failing to process fourteen teacher as-

sistant appointments.

The complaint informed Kercado that Aponte, in her

capacity as Secretary of the DPI, had decided to “‘per-

manently cancel your teacher certificate(s) which you hold

in order to teach in the public and private schools of the

Commonwealth of Puerto Rico and [to] dismiss you from

your post.’”’ The cancellation order which became effective

upon receipt by Kercado stated that, pursuant to Puerto

Rico law, she had ten days to appeal the order to the

Board of Appeals of the Public Education System. Such

an appeal would stay the effect of the cancellation order,

substituting in its stead a suspension of Kercado’s em-

ployment and salary pending the outcome of her appeal.

The order further stated that if Kercado did not appeal

the cancellation within ten days, it would become “final

and binding.”

On November 5, 1985, Kercado filed an appeal with the

Board of Appeals, which scheduled a hearing on the

charges for November 27. On November 7, Kercado in-

stituted an action in the United States District Court for

the District of Puerto Rico, claiming that her dismissal

was prompted by her affiliation with the PNP. Kercado

also asserted that she had been denied due process, be-

' The document is a combined notice and order entitled ‘‘Compiaint.”

cause she had not been given an opportunity to respond

to the charges against her prior to the Secretary’s ter-

mination action. She sought either a temporary restraining

order or a preliminary injunction. The following day, No-

vember 8, Kercado withdrew her appeal from the Board

of Appeals.

After Kercado had filed her action in federal court, and

withdrawn her administrative appeal, the Secretary invited

her to appear at an informal hearing schedule for Novem-

ber 14, 1985. Kercado wrote a letter to the Secretary in

which she declined the invitation to appear at the informal

hearing. In the letter, she noted that a “‘show cause’

hearing was scheduled in federal court on November 18,

which would address the issue of whether the failure to

grant her a hearing before the issuance of the cancellation

order violated her due process rights. On November 18,

the Secretary dismissed ~'i charges against Kercado and

reinstated her as superintendent of the Dorado School Dis-

trict.

One week later, the Secretary tried again to dismiss

Kercado. On November 25, Kercado received a letter re-

questing her presence at an informal hearing on charges

against her. The hearing took place the following day,

November 26, before Elba Rodriguez Fuentes, Director of

the Legal Division at the DPI. Kercado was read the

charges against her and given the opportunity to respond.

No evidence or witnesses were presented by either side

at the hearing.

On December 9, Kercado was served with an order can-

celling her superintendent’s certificate and dismissing her

from employment with the DPI. The December 9 order

enumerated the same charges contained in the October 28

order, albeit in a more condensed form. The order notified

Kercado of her right to file and administrative appeal, and

informed her that a failure to file such an appeal within

ten days would render the order ‘‘final and binding.”’

Sanwa A ee

Kercado declined to file an administrative appeal; in-

stead, she pressed her action in the federal court. She

amended her original complaint and sought injunctive relief

and damages under 41 U.S.C. § 1983. The district court

agreed with Kercado that she had been dismissed from

her position as superintendent because of her political af-

filiation with the PNP. The court found the charges

brought by the Secretary against Kercado to be without

merit. It noted further that, even accepting the facial va-

lidity of the Secretary’s allegations, they were not serious

enough ‘‘to warrant the discharge of an employee of

plaintiff's caliber who had been with the DPI for eighteen

years.”” (Emphasis in orignal.) The court also held that

Kercado had been deprived of her due process rights when

the Secretary dismissed her on October 28, 1985, without

granting her a pretermination hearing. Accordingly, the

district court ordered the Secretary to reinstate Kercado

as superintendent of the Dorado School District, 641

F.Supp. 1326. Kercado was awarded $12,074.50 in back

pay, $15,000 in actual damages and $10,000 in punitive

damages.

II. THE ISSUES

There are four issues on appeal. First, the Secretary

urges that the district court should have abstained from

hearing the case because Kercado could have pressed her

claims in the state administrative appeal that was available

to her. The Secretary points out that, had Kercado been

dissatisfied with the result in the administrative proceed-

ing, she could have appealed the decision to the common-

wealth courts of Puerto Rico. Second, Aponte submits that

the court erred in holding that Kercado’s due process rights

were violated, since she could have filed an administrative

appeal and received a hearing before her termination be-

came fully operative. Third, the Secretary also contends

that the district court erred in finding that Kercado had

been dismissed for political reasons. She argues that the

charges brought against Kercado were substantive and le-

gitimate grounds for dismissal. Fourth, it is argued that

the district court erroneously granted Kercado compen-

satory and punitive damages. We consider each of these

contentions seriatim.

Abstention

The Secretary avers that the district court erred when

it failed to dismiss the case in accordance with the doctrine

established in Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971). The federal plaintiff in

Younger, John Harris, Jr., was being prosecuted under a

state criminal synidicalism statute. He asked a three-judge

federal district court to enjoin state criminal proceedings

instituted against him, alleging that his prosecution would

immediately and irreparably injure his first amendment

rights. The three-judge court held that the criminal synd-

icalism statute was void due to vagueness and restrained

the state from further prosecution of Harris. The Supreme

Court reversed, holding that the district court should have

abstained from hearing Harris’ claim. The Court stated

that considerations of federalism and comity dictated that

federal court should refrain from deciding broad consti-

tutional challenges to the legitimacy of a state criminal

_ proceeding, provided that the state proceedings was Un-

dertaken in good faith and the federal plaintiff was given

an adequate opportunity to press his constitutional claims

in the state forum. Younger v. Harris, 401 U.S. at 43-53,

91 S.Ct. at 751-55.

Since Younger, the Supreme Court has invoked the ab-

stention doctrine to overturn federal court challenges to

the constsitutionality of pending state civil proceedings.

Penzoil Co. v. Texaco, Inc., _. U.S. ___ , 107 S.Ct. 1519,

95 L.Ed.2d 1 (1987); Middlesex Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73

L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct.

2371, 60 L.Ed.2d 994 (1979); Trainer v. Hernandez, 431

| achiral

at aE iA tists A SNE EM A BT Po A OK hie see ANE OBEY BIR Ss ME Ra Pk SO AEE Saag SONS 8 RA DE he ea lk a ee ane bak

Pe PRA a rea Se LP Oo AEP ha BS GAS TARAS 0

De SV OD ES MLD ROA VEEL TABS HORNE.

U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice

v. Vail, 480 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376

(1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.

1200, 43 L.Ed.2d 482 (1975). Those cases featured federal

plaintiffs who had lodged broad constitutional attacks on

the legitimacy of state civil proceedings instituted against

them. In each case, the federal court was asked to enjoin

a contemporaneous state civil proceeding pending against

the federal plaintiff; the relief sought by the federal

plaintiff was directed specifically at the pending state pro-

ceeding. Here, Kercado had not requested the federal dis-

trict court to enjoin any state civil proceeding pending

against her. Such a prayer would have been futile because

the Secretary had already completed dismissal proceedings

against Kercado; by its own terms, the order of dismissal

became effective upon its receipt by Kercado. Accordingly,

there was no proceedings for the district court to enjoin.

The Secretary urges, however, that because Kercado

could have appealed the dismissal to the DPI Board of

Appeals, the district court should have abstained and

thereby forced Kercado to litigate her constitutional claims

in a Puerto Rico forum. In effect, the Secretary argues

that Kercado should have been permitted to bring a section

1983 suit in federal court because of the availability of an

appeal within the Puerto Rico administrative and judicial

apparatus. The Supreme Court, however, has held ex-

pressly that section 1983 claimants need not avail them-

selves of state judicial and administrative remedies before

going to federal court. Patsy v. Florida Board of Regents,

457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982);

Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209,

1222-23, 39 L.Ed.2d 505 (1974). The federal plaintiff in

Patsy alleged that she had been denied employment op-

portunities by Florida International University on the basis

of race and sex. Rather than pursue available state ad-

ministrative remedies, she chose to file a section 1983

claim in federal court. The Supreme Court rejected ‘‘the

argument that a section 1983 action should be dismissed

where the plaintiff has not exhausted state administrative

remedies.” Patsy v. Florida Board of Regents, 457 U.S.

at 500, 102 S.Ct. at 2559.

The Secretary relies heavily on the Court’s decision in

Ohio Civil Rights Commission v. Dayton Christian Schools,

477 U.S. 619, 106 8.Ct. 2718, 91 L.Ed.2d 512 (1986), which

held that the principles of Younger abstention apply to

pending state administrative, as well as state judicial, pro-

ceedings. The Ohio Civil Rights Commission instituted a

state administrative proceeding against Dayton Christian

Schools, alleging that it had dismissed a teacher because

of her sex and her efforts to assert her legal rights. Day-

ton responded by asserting that the first amendment pro-

hibited the Commission from exercising authority because

the dismissal of the teacher had been undertaken pursuant

to internal guidelines grounded in sincerely held religious

beliefs to which all of its employees subscribed. While the

state administrative proceeding was pending, Dayton

Christian Schools filed a section 1983 action in federal

court claiming that the administrative proceeding insti-

tuted by the Ohio Civil Rights Commission violated its first

amendment right to free exercise of religion.

The Supreme Court ruled that the interests of comity

and federalism rendered abstention appropriate under such

circumstances. It held that Ohio had an important interest

in regulating schools, even private religious schools. The

Court also noted that Dayton Christian Schools would have

an opportunity to raise its constitutional claims in the state

administrative proceeding. Justice Rehnquist, writing for

the majority, stressed that the Court’s decision in Dayton

Christian Schools did not conflict with its earlier holding

in Patsy:?

? The Patsy holding was reaffirmed recently by the Court in Wright

v. Roanoke Redevelopment and Housing Authority, ___ U.S._, 107

7s PAO Oe

Seg eee Ore Pe

Dries MOT Pa GA A cian! ate da BAN

The application of the Younger principle to pending

state administrative proceedings is fully consistent

with Patsy v. Florida Board of Regents, 457 U.S. 496,

102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), which holds

that litigants need not exhaust their administrative

remedies prior to bringing a § 1983 suit in federal

court. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 607-

11, 95 S.Ct. 1200 1209-12, 43 L.Ed.2d 482 (1975).

Unlike Patsy, the administrative proceedings here are

coercive rather than remedial, began before any sub-

stantial advancement in the federal action took place,

and involve an important state interest.

Dayton Christian Schools, 106 S.Ct. at 2723 n. 2.

The crucial distinction between Dayton Christian Schools

and Patsy is that in Patsy the state proceeding was an

option available to the federal plaintiff on her own initi-

ative to redress a wrong inflicted by the state. In Dayton

Christian Schools and the other absentention cases noted

above, the federal plaintiffs sought to enjoin a pending

state proceeding which they did not initiate, but in which

their presence was mandatory. Here, unlike Dayton Chris-

tian Schools, the administrative proceeding is remedial

rather than coercive. The administrative appeal process

could be triggered only on Kercado’s initiative if she wished

to pursue her remedies within the Puerto Rico adminis-

trative framework. Patsy holds that she was not required

to do so.

S.Ct. 766, 773 93 L.Ed.2d 781 (1987) (‘‘the existence of a state ad-

ministrative remedy does not ordinarily foreclose resort to § 1983”’).

This circuit has on a number of occasions expressly reaffirmed the

holding in Patsy that § 1983 plaintiffs need not exhaust state remedies

prior to filing suit in federal court. Exeter-West Greenwich Regional

School District v. Pontarelli, 788 F.2d 47, 52 (ist Cir.1986); Urbani-

zadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993, 999 (1st Cir.1983);

Developmental Disabilities Advocacy v. Melton, 689 F.2d 281, 286 n.

15 (1st Cir.1982); Developmental Disabilities Advocacy v. Melton, 689

F.2d 281. 286 n. 15 (1st Cir.1982).

10a

There is another important difference between Patsy

and the absention cases. In Dayton Christian Schools and

similar cases, the state proceeding is itself the wrong which

the federal plaintiff seeks to correct via injunctive relief

under section 1983. Those cases involved claims by

plaintiffs that constitutional rights would be violated by

virtue of the operation of the state proceedings. Comity

and federalism concerns are at their highest in such cases

since the legitimacy of both the state proceeding and its

underlying statutory predicate are at stake. Abstention is

appropriate in such instances because, absent bad faith or

an adequate opportunity to raise the constitutional chal-

lenge in the state forum, state courts should have the first

opportunity to construe the constitutionality of their own

proceedings. “‘Minimal respect for the state processes, of

course, precludes any presumption that the state courts

will not safeguard federal constitutional rights.” Middlesex

Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. at

431, 102 S.Ct. at 2521.

An inquiry into the appropriateness of abstention is war-

ranted if the relief sought by the federal plaintiff is ad-

dressed directly to an ongoing state proceeding. Moore v.

Sims, 442 U.S. at 431, 99 S.Ct. at 2381. In Patsy and

cases like it,’ abstention was unnecessary because the fed-

°E.g., Praprotnik v. City of St. Louis, 798 F.2d 1168, 1172-73 & n.

4 (8th Cir.1986) (district court was not required to abstain from case

brought by a city employee who alleged he was laid off for exercising

his first amendment rights; fact that federal plaintiff had initiated an

appeal to the civil service commission did not mandate abstention since

he was not required to exhaust his state administrative remedies prior

to filing the federal suit), cert. granted, __. U.S. ____ , 107 S.Ct. 871,

93 L.Ed.2d 826 (1987); Clark v. Yosemite Community College Dist., 785

F.2d 781, 790 (9th Cir.1986) (federal plaintiff who alleged his teaching

duties were interfered with because of the exercise of his first amend-

ment rights need not exhaust his state administrative remedies); Stana

v. School Dist. of City of Pittsburgh, 775 F.2d 122, 129-30 (8rd Cir.1985) .

(public school teacher denied employment opportunities need not ex-

haust state remedies); Brantley v. Surles, 718 F.2d 1354, 1358-60 (5th

he ae

lla

eral plaintiffs did not allege injury arising from, or seek

relief directed to, an ongoing state proceeding. Instead,

the federal plaintiff claimed actual injury arising from ac-

tion undertaken and completed by state actors. Thus, the

state interest at stake was severely diminished because

the federal plaintiffs were not seeking to mount a broad,

constitutional attack on the legitimacy of the state pro-

ceedings or their underlying statutory predicate.

The dissent asserts that we can conclude that there is

no challenge to an ongoing state proceeding only by “ar-

tificially separating’”’ the “‘notice’’ which Kercado received

on December 9 from the administrative remedy which was

available to her. We note first that the document which

Kercado received on December 9 was not simply a “‘no-

tice,” but was also an order cancelling her teacher’s cer-

tificate and dismissing her from employment. The dissent’s

assertion that the dismissal order would take “effect only

after the Board of Appeals of the Public Education System

holds a full public hearing on the record’’ is flatly con-

tradicted by the language of the order itself. It states:

“The present Order shall become effective upon notifica-

tion and receipt of the same by the accused.”’ The issuance

of the dismissal order, based on an unconstitutional motive,

constituted the legal wrong suffered by Kercado. Kercado’s

rights were triggered at the moment the allegedly wrong-

ful dismissal became effective. We have made no “artifi-

cial” separation here; we have simply separated the alleged

wrong inflicted on Kercado from the remedies available to

her.

The dissent errs by suggesting that there must be a

hearing by the Board of Appeals before the dismissal order

becomes final and binding; there is no such requirement.

P.R.Laws Ann. tit. 18, § 274b. Review by the Board of

Appeals is couched, by the language of the statute itself,

Cir. 1983) (public school cafeteria worker discharged for exercising her

constitutional rights need not exhaust state remedies.

12a

as a remedy available to a teacher who is dissatisfied with

a dismissal order: “If not satisfied with the order, the

teacher thereby aggrieved may file a writ of appeal with

the Board of Appeals. .. .”” P.R. Laws Ann. tit, 18, § 274c

(emphasis added). The dissent’s description of the admin-

istrative appeal scheme omits a crucial fact: the dismissed

teacher must take affirmative steps to initiate the appeal

to the Board of Appeals. She cannot be coerced into ap-

pearing before the Board of Appeals, but is provided with

an administrative remedy should she choose to avail herself

of it. Undoubtedly, the administrative appeal scheme here

is perfectly adequate for handling the vast majority of

teacher dismissals, which ordinarily do not involve federal

constitutional claims. But a teacher who alleges that her

dismissal was motivated by an unconstitutional purpose

need not pursue her administrative remedies within the

Commonwealth system, but may proceed directly to federal

court to press her claims. This is precisely the holding of

Patsy.

Despite the Court’s clear holding in Patsy,:the dissent

contends that the District Court of Puerto Rico should not

have heard her claim until she had pursued her adminis-

trative remedy. This fails to recognize that there is a sig-

nificant difference between a civil rights plaintiff who seeks

to use the federal courts to stop or nullify an ongoing

state proceeding in which she is a defendant, and a civil

rights plaintiff who has an option to initiate a state pro-

ceeding to remedy a constitutional wrong perpetrated by

a state actor. In the former case, absention is appropriate;

in the latter, the Patsy rule prevails.

The dissent notes that the Court in Huffman v. Pursue,

Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975),

stated that “a necessary concomitant of Younger is that

a party ... must exhaust his state appellate remedies be-

fore seeking relief in the District Court.’’ Subsequently,

the Court restricted the reach of this language, noting

specifically that it applies only when a federal plaintiff

‘

—— ES ee

13a

seeks to avoid state judicial appeals and, instead, use the

federal courts ‘‘to annul the results of a state trial.’’ Wooley

v. Manyard, 480 U.S. 705, 710-11, 97 S.Ct. 1428, 1433,

51 L.Ed.2d 752 (1977). Here, of course, the federal plaintiff

has made no such effort. Both Huffman and Pennzoil v.

Texaco, __. U.S. ___ , 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987),

also cited by the dissent, hold that federal plaintiffs ag-

grieved by the results of a state trial must pursue their

state judicial appeals before going to federal court. The

instant case, like Patsy, involves a federal plaintiff ag-

grieved by an allegedly unconstitutional deprivation of em-

ployment by state officials. The Court has imposed no

requirement that she pursue her administrative remedies

in such circumstances.‘

We believe that this matter is controlled by the prin-

ciples outlined in Patsy. The instant case is not an ap-

propriate occasion for abstention. The thrust of Kercado’s

claim challenges the basis of the dismissal action under-

taken and completed by the Secretary. Kercado could have

sought to remedy this allegedly wrongful act in a state

administrative proceeding, but was not required by law to

do so. She also claimed that the Secretary deprived her

of due process by not granting her a pretermination hear-

ing prior to issuing the letter of dismissal. Such a claim

does not implicate absention concerns since it does not

constitute a challenge to a pending state proceeding. The

Secretary had completed her action against Kercado who,

in turn, alleged that the substance and the procedural

effectuation of that completed action violated the Consti-

tution. Because Kercado’s claim did not involve a challenge

to the legitimacy of a pending state proceeding, we reject

‘The other lower court cases cited by the dissent are inapposite.

They involve challenges by federal plaintiffs to ongoing coercive state

proceedings initiated against them. The relief sought in those cases

runs directly against the proceedings themselves. We have already noted

that abstention is entirely appropriate in such circumstances. Such cir-

cumstances do not, however, prevail here.

—

l4a

the Secretary’s contention that the lower court should have

abstained.

Procedural Due Process

The Secretary disputes the district court’s conclusion

that Kercado’s due process rights were violated when she

was deprived of a pretermination hearing prior to receiv-

ing the dismissal order of October 28, 1985. Kercado’s due

process claim depends on her having had a property in-

terest in her employment.® Cleveland Board of Education

v. Loudermill, 470 U.S. 582, 538, 105 S.Ct. 1487, 1491,

84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S.

564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972).

Property interests are not created by the Constitution, but

are rooted in an independent source such as state law.

Cleveland Board of Education v. Loudermill, 470 U.S. at

538, 105 S.Ct. at 1491. Board of Regents v. Roth, 408 U.S.

at 577, 92 S.Ct. at 2708-10. The Secretary admits that a

school superintendent is a career employee under Puerto

Rico law. 3 L.P.R.A §§ 1849-52 (1978). Puerto Rico law

clearly gave Kercado a property interest in her position;

her status as a “‘career’’ employee permitted her to be

fired only for “good cause.” 3 L.P.R.A. §§ 1336 (1978).

Since Kercado had a property interest in her employ-

ment, the relevant constitutional question concerns what

process is due her. The Supreme Court has stated:

* The Secretary does not argue that by reinstating Kercado on No-

vember 18, 1985, the injury caused by the alleged deprivation on Oc-

tober 28 was somehow cured or rendered moot. Kercado’s claim for

emotional an? mental distress arising from the alleged October due

process violation survives irrespective of the subsequent reinstatement.

Cf. Carey v. Piphus, 435 U.S. 247, 263-64, 98 S.Ct. 1042, 1052-53, 55

L.Ed.2d 252 (1978).

Kercado also alleged in her complaint that the pretermination hear-

ing granted her prior to the December 9, 1985, dismissal was consti-

tutionally inadequate. The district court did not decide this issue, and

we have no occasion to do so here.

ania elaine

15a

An essential principle of due process is that a dep-

rivation of life, liberty, or property ‘‘be preceded by

notice and opportunity for a hearing appropriate to

the nature of the case.”” Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 3138, 70 S.Ct. 652,

656-57, 94 L.Ed. 865 (1950). We have described ‘“‘the

root requirement” of the Due Process Clause as being

“that an individual be given an opportunity for a hear-

ing before he is deprived of any significant property

interest in his employment.” Boddie v. Connecticut,

401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113

(1971) (emphasis in original); see Bell v. Burson, 402

U.S. 585, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90

(1971). This principle requires ‘“‘some kind of a hear-

iny”’ prior to the discharge of an employee who has

a constitutionally protected interest in his employ-

ment. Board of Regents v. Roth, 408 U.S. at 569-70,

92 S.Ct. at 2705; Perry v. Silnderman, 408 U.S. 593,

599, 92 S.Ct. 2694, 2698-99, 33 L.Ed.2d 570 (1972).

Cleveland Board of Education v. Loudermill, 470 U.S. at

542, 105 S.Ct. at 1493.

The Secretary does not dispute that Kercado was en-

titled to a pretermination hearing prior to the first effort

to dismiss her in October 1985. It is argued, however, that

the administrative appeal which Kercado could have pur-

sued was itself a pretermination hearing. The Secretary

points out that the filing of an appeal by Kercado to the

Board of Appeals would have suspended the effect ‘of the

dismissal order. She contends, therefore, that the availa-

bility of an administrative appeal provided Kercado with

a pretermination hearing since the dismissal order would

not become fully effective until after a final decision by

the Board of Appeals.

We reject this argument. The dismissal order received

on October 28 informed Kercado that the Secretary had

acted to ‘permanently cancel your teacher certificate(s)

16a

... and... dismiss you from your post.” The order stated

that it became “effective upon the service and receipt”’ of

it by Kercado. The plain meaning of these words is that

Kercado’s discharge took effect on her receipt of the order

on October 28. That the binding effect of such an order

would be suspended upon the filing of an “‘appeal,”’ does

not transform that ‘“‘appeal’’ into a pretermination hear-

ing. As the Eighth Circuit stated in the case of Schultz

v. Baumgart, 738 F.2d 231 (8th Cir.1984):

(If Schultz was indeed fired in violation of his due

process rights, the availability of post-deprivation

grievance procedures or a board hearing would not

have cured the violation. Schultz was entitled to notice

and a meaningful opportunity to respond before he

was terminated. If he was terminated without those

protections, the constitutional deprivation was then

complete. Schultz need not have exhausted other state

remedies before bringing his section 1983 claim.

738 F.2d at 237 (emphasis in original.)

Kercado’s opportunity to appeal the Secretary’s order

after being informed of the action is constitutionally in-

adequate; due process requires that she be given notice of

the charges and an opportunity to respond before the action

is taken. Cleveland Board of Education v. Loudermill, 470

U.S. at 546, 105 S.Ct. at 1496. We recognize that the

Secretary was not obliged to conduct a full evidentiary

hearing prior to dismissing Kerdaco. Jd. at 545, 105 S.Ct.

at 1495; Moody v. Town of Weymouth, 805 F.2d 30, 33

(1st Cir.1986). But Kercado was not given notice of the

charges and any opportunity to respond prior to the Sec-

retary’s action on October 28. We affirm the district court’s

* This is especially true here because the filing of the appeal would

still adversely affect Kercado’s rights; her employment and pay would

be suspended until the Board’s final decision.

17a

holding that her procedural due process rights were vio-

lated.

The Motives Behind Kercado’s

Dismissal

The first amendment prohibits a government agency

from dismissing public employees based on their political

affiliation unless membership is an appropriate require-

ment for a particular position. Branti v. Frankel, 445 U.S.

507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns,

427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The

parties agree that political affiliation is not a proper qual-

ification for a school superintendent position.

The Secretary challenges the district court’s conclusion

that Kercado was dismissed for political purposes. At trial,

Kercado bore the initial burden of demonstrating that her

political affiliation was a substantial or motivating factor

underlying the Secretary’s decision to discharge her. Mt.

Healthy City School District v. Doyle, 429 U.S. 274, 285-

87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977); Rosaly

v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). Once that

threshold showing had been met, the Secretary was obliged

to demonstrate that Kercado would have been dismissed

irrespective of her membership in the PNP. We cannot

uphold the verdict unless the trial court correctly found

that she would not have been dismissed ‘“‘but for’ her

political affiliation with the PNP. Mt. Healthy City School

District v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576; Rosaly

v. Ignacio, 593 F.2d at 149. The district court made ex-

tensive findings of fact with respect to events leading up

to Kereado’s dismissal. These factual findings must be ac-

cepted unless we are “left with a definite and firm con-

viction that a mistake has been committed.’’ Anderson v.

Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511,

84 L.2d.2d 518 (1985); Scarpa v. Murphy, 806 F.2d 326,

329 (ist Cir. 1986).

~ 18a

The district court ruled that Kercado carried her initial

burden of proving that her political affiliation was a sub-

stantial factor motivating her dismissal. Proof of such an

improper motive may be shown via circumstantial evi-

dence. Rosaly v. Ignacio, 593 F.2d at 149. The trial judge

was aware of the highly charged political atmosphere in

Puerto Rico following the PPD’s election victory over the

PNP in 1984. He highlighted Kercado’s long, active and

visible membership in the PNP. The evidence showed that

the DPI Secretary and Undersecretary, the DPI Regional

Director for the region which included the Dorado district,

and the Regional Director’s deputy, all were members of

the PPD. The trial judge noted that one of the charges

filed against Kercado was based solely on a statement by

assistant superintendent Hector Lopez Maldonado, a well

known PPD member who had once run for mayor of Dor-

ado. The evidence revealed that Kercado and Lopez had

an extremely antagonistic relationship. The trial court held

that the Secretary’s willingness to appoint Lopez as as-

sistant superintendent—despite widespread knowledge of

his hostile relationship with Kercado and stronger support

from the appointments committee for two other candi-

dates—, and her refusal to investigate complaints that Lo-

pez’ conduct, evidenced her willingness to _ politicize

personnel decisions. Finally, the trial court noted various

instances in which the DPI officials investigating Kercado’s

conduct failed to elicit Kercado’s version of the events

underlying the charges against her. The court surmised

that the investigators’ conduct indicated that they were

more interested in building a case against Kercado to sup-

port her dismissal than in actually assessing the merits of

the charges against her. We agree with the district court

that these circumstances, when taken together, support a

finding that Kercado’s political affiliation was a substantial

factor motivating her dismissal.

After making this threshold determination, the trial

court then focused on whether Kercado would have been

19a

discharged ‘“‘but for” her political affiliation with the PNP.

The court noted thai uu. her eighteen years as a DPI em-

ployee, Kercado had never been reprimanded for her job

performance, but instead had been ‘‘steadily rewarded for

her work with job prornotions.”’ The court then undertook

an evaluation of the merits of the four charges brought

by the Secretary against Kercado.

The first charge levied against Kercado alleged that she

failed to process fourteen teacher assistant appointments,

in contravention of the order of Leida Cintron, the DPI

Regional Director for Bayamon. The committee assigned

to appoint teacher assistants in Dorado met on August 20,

1985, but was able to agree on only three candidates. The

district court found that the failure to select the other

eleven candidates occurred in part because the Regional

Director’s deputy, Maria Cordova, refused to accept the

committee’s recommendations. The committee’s inability to

reach a consensus meant that Cintron herself would choose

the remaining teacher assistants. On October 4, 1985, six

weeks after the August meeting, Cintron sent Kercado a

list of the additional eleven appointees. The Secretary avers

that Kercado’s failure to process the appointments within

three days constituted an act of insubordination. The dis-

trict court’s analysis of the evidence on this point is un-

assailable. The court failed

to see how defendant could honestly believe that

plaintiff should have realized the urgency of the sit-

uation and processed the aides immediately when it

took the Bayamon Regional Director, herself, over six

weeks to make the selection—from August 20, 1985

when the committee to select the aides met and no

consensus was reached, until October 4 when she sent

plaintiff a letter with her choices for the appoint-

ments. Plaintiff claims she received the letter October

11, 1985 and she was dismissed October 28, 1985.

This left her less than three weeks to process the

appointments. Given the fact that the Regional Di-

20a

rector never gave plaintiff a time limit to make the

appointments and given the situation in plaintiff’s of-

fice—that she was short-handed and it was the be-

ginning of a school year—all facts of which defendant

was aware, we cannot find that defendant was sincere

in believing plaintiff's conduct was a purposeful re-

fusal to follow the directives of her superior or an

overt act of insubordination worthy of dismissal.

The second and third charges brought against Kercado

concerned her decision to keep two teachers working in

the superintendent’s office during August, 1985, after thay

had been reinstated to their regular teaching positions.

The Secretary averred that such conduct was insubordi-

nate, since it defied a DPI directive ordering that all per-

sonnel be located in the work unit to which they were

assigned. An amendment to the directive provided that

personnel could be reaes.gned from their permanent po-

sitions in order to take care of “special situations that

may arise in a school or school district.’”” Kercado main-

tained that her temporary use of the two teachers was

prompted by the ‘‘special situation” of severe understaff-

ing in her office. It is undisputed that Kercado’s office

was short on personnel during the summer of 1985. In-

deed, on July 2, 1985, Kercado sent a letter to the Gov-

ernor complaining that fourteen positions in her office

remained vacant. She stated in the letter that she had

unsuccessfully complained about the shortage through the

proper channels. A copy of this letter was also sent to

the Secretary. The Secretary does not deny that Kercado’s

office was suffering personnel shortages, but submits that

“understaffing does not justify hierarchical disobediendce.”

The evidence shows that Kercado received permission

to use the two teachers from their respective principals.

There was no evidence that the temporary reassignment

of the teachers disrupted the schools in which they worked.

The trial judge found that temporary reassignments for

path ds Lay we al

2la

“special situations” were expressly permitted by the June

29 amendment to the DPI directive on teacher reassign-

ment. There was evidence that it has been a common

practice to temporarily use teachers to perform adminis-

trative tasks in the superintendent’s office. Moreover, nei-

ther the DPI directive or reassignments, nor its June

amendment, specify particular procedures to be followed

in order to temporarily use a teacher to meet the special

needs of the district. The district court, therefore, con-

cluded that with respect to charges two and three filed

against Kercado there was no evidence “to indicate a pur-

poseful act of insubordination by plaintiff which would war-

rant a dismissal.”’

The fourth charge against Kercado involved her dealings

with assistant superintendent Hector Lopez Maldonado. As

mentioned earlier, it was evident that there was consid-

erable friction between Lopez and Kercado dating back

long before he was assigned to work with her in the same

office. Nevertheless, on September 19, 1985, slightly more

than a month before Kercado was dismissed, the Secretary

ignored the recommendation of the appointments commit-

tee and assigned Lopez to the position of assistant su-

perintendent.

The Secretary charged Kercado with altering the duties

of the assistant superintendent, thereby disrupting the

smooth functioning of the Dorado office. Kercado claimed

that Lopez refused to perform his assignments and caused

problems for the staff in the office. There was ample evi-

dence submitted by Kercado documenting complaints lev-

ied by Dorado district personnel against Lopez. In essence,

this fourth charge involved a credibility contest between

Lopez and Kercado; each testified of harassment and an-

tagonism from the other; each accused the other of inhib-

iting the efficient operation of the Dorado superintendent’s

office; and there was evidence that political motives en-

gendered the hostility they displayed toward one another.

“(F]indings based on witness credibility are lodged firmly

22a

in the province of the trial court and we are loathe to

disturb them absent a compelling showing of error.’

Scarpa v. Murphy, 806 F.2d at 328; Anderson v. Bessemer

City, 470 U.S. at 575, 105 S.Ct. at 1512-13. The trial judge

accepted Kercado’s assertion that Lopez’s abusive and un-

cooperative behavior forced her to relieve him of some of

his duties. The court characterized the Secretary’s charge

that Kercado refused to give Lopez his proper assign-

ments, as the “weakest” of all the allegations brought

against her. Indeed, the trial judge stated that “‘it is not

an unfounded conclusion that the Secretary, knowing the

antagonism between plaintiff and Lopez, appointed Lopez

as Assistant Superintendent in order to harass the

plaintiff.”

We see no reason to disturb any of the factual findings

made by the district court. The Secretary, in effect, has

sought to reargue to this court the merits of the charges

it originally brought against Kercado. The trial judge’s

assessment of the merits of those charges is entitled to

considerable deference. See Jimenez-Fuentes v. Torres-Gaz-

tambide, 807 F.2d 236, 238-39 (1st Cir.1986) (en banc),

cert. denied, __ U.S. __ , 107 S.Ct. 1888, 95 L.Ed.2d 496

(1987); De Choudens v. Government Development Bank, 801

F.2d 5, 7 (1st Cir.1986) (en banc), cert. denied, —— U.S.

, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). We agree with

the district court that, even conceding the facial validity

of the charges against Kercado, they are not so serious

as to warrant the discharge of a capable eighteen-year

career employee. The district court correctly concluded

that, when the merits of these charges are considered, it

is evident that they provide “little support for [the Sec-

retary’s] claim that [Kercado’s] conduct was insubordinate

requiring the termination of her employment with DPI.”’

Accordingly, we affirm the district court’s determination

that Kercado would not have been dismissed ‘‘but for’ her

political affiliation with the PNP.

ae a

23a

Damages

The Secretary challenges the district court’s award of

compensatory and punitive damages. Kercado proved that

she had been dismissed from her job for political reasons

and had been deprived of her procedural due process rights.

The district court reinstated Kercado and awarded her

$12,074.50 in back pay. Based on our reading of the record

and the briefs, this appears to be in error. The court

apparently computed its back pay award from the date of

plaintiff's dismissal, October 28, 1985. Appellants claim,

however, that Kercado was paid through December 9, 1985,

and she does not deny this. The court also granted Ker-

cado $15,000 to compensate for the pain and suffering

caused by the deprivation of her constitutional rights. Com-

pensatory damages for mental and emotional distress are

recoverable for violations of rights protected by section

1983. Memphis Community School Dist. v. Stachura, 477°

U.S. 299, 106 S.Ct. 2537, 2542-48, 91 L.Ed.2d 249 (1986);

Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052-

53, 55 L.Ed.2d 252 (1978). When reviewing a challenge

to the basis of an award for compensatory damages, ‘‘we

rely heavily on the judgment of the trial court, who has

had the benefit of hearing all of the evidence and observing

the demeanor of the witness.” Clark v. Taylor, 710 F.2d

4, 13 (1st Cir. 1983). Kercado testified of the emotional

and mental distress caused by her abrupt dismissal on

October 28 and by the Secretary’s second, and more suc-

cessful, effort to discharge her in December. We find the

district court’s award of $15,000 for compensatory dam-

ages reasonable under the circumstances.’

7 The court below did not specify how much of these compensatory

damages stemmed from the deprivation of her procedural due process

rights, and how much stemmed from the improper dismissal. The

Supreme Court has stated that a federal plaintiff alleging a procedural

due process violation must “‘convince-the trier of fact that he actually

suffered distress because of the denial of the due process itself.’’Carey

24a

The trial judge also awarded Kerdaco $10,000 in puni-

tive damages. The court concluded that the Secretary was

“callously indifferent to plaintiff's federally protected

rights,” thus warranting the imposition of punitive dam-

ages. Smith v. Wade, 461 U.S. 30,56, 103 S.Ct. 1625, 1640,

75 L.Ed.2d 632 (1983); Clark v. Taylor, 710 F.2d at 14.

The Secretary’s conduct, as found by the district court,

demonstrated a steadfast intent to discharge Kercado, ir-

respective of her constitutional rights or the actual merits

of the charges brought against her. The award of punitive

damages was therefore appropriate, and we do not find

it excessive.

Affirmed and remanded for a recomputation of the back

pay award. Costs awarded to appellee.

BREYER, Circuit Judge (dissenting).

I do not disagree with the majority about the basic

principles of federal law that apply to this case. On the

one hand, a person who claims that someone has violated

his civil rights may bring suit in federal court under 42

U.S.C. § 1983 without exhausting remedies that state law

makes available. See Patsy v. Board of Regents, 457 U.S.

496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). On the other

hand, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971), and its progeny held that if a state

has already begun a state judicial or administrative pro-

ceeding against a person, that person may not proceed in

federal court, even with a § 1983 suit, if that suit risks

interfering with important state interests and if the federal

plaintiff can raise constitutional challenges in the state

v. Piphus, 435 U.S. at 263, 98 S.Ct. at 1052. Here, Kercado testified

that she suffered distress ever since the Secretary’s action on October

28, when her procedural due process rights were violated. She also

testified of the distress she suffered due to the actual loss of her job.

We do not think the failure to identify the portion of compensatory

damages arising from each claim to be of consequence under the cir-

cumstances of this case.

PPE ee Tee ee ye ee

25a

proceedings. Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515,

2521, 73 _L.Ed.2d 116 (1982) (setting out basic test for

invoking Younger-type abstention); see Ohio Civil Rights

Commission v. Dayton Christian Schools, 477 U.S. 619,

106 S.Ct. 2718, 2728, 91 L.Ed.2d 512 (1986) (extending

the Younger doctrine, in the context of a § 1983 action,

to state administrative proceedings).

I disagree with the majority, however, about the appli-

cation of those principles to this case. I think the plaintiff

was, when she brought her federal suit, very much in the

midst of Commonwealth administrative proceedings. In the

Commonwealth, as in many states, local authorities cannot

dismiss a tenured teacher without fairly elaborate admin-

istrative proceedings that involve notice of charges, a full-

blown administrative hearing, and either an administrative

appeal, judicial review, or both. P.R. Laws Ann. tit. 18,

§§ 274-2740; see, e.g., Cal. Educ. Code §§ 44932-44945;

N.J. Stat. Ann. §§ 18A:6-10 to -27; Wash.Rev. Code §§

28A.70.160-.170. Puerto Rico’s statute provides that to

“cancel” or “‘suspend”’ a tenured teacher’s educational cer-

tificate, the ‘Secretary of Education ... shall serve on

the teacher an order of suspension or cancellation ...

jointty with a complaint specifying the charges.”” P.R. Laws

Ann. tit. 18. §§ 274, 274a. The order “‘shall be final’’ after

ten days only if the teacher does not ‘appeal’ from it.

P.R. Laws Ann. tit. 18, § 274b. With a few possible ex-

ceptions not here relevant, the order (regardless of what

it says) legally takes effect only after the Board of Appeals

of the Public Education System holds a full public hearing

on the record, at which the teacher may be represented

by counsel, present evidence, and cross-examine the wit-

nesses presented by the education authorities. P.R. Laws

Ann. tit. 18, §§ 274d-274h. If the Board decides against

the teacher, he may obtain judicial review in the Com-

monwealth courts. P.R. Laws Ann. tit. 18, § 274l.

26a

How can the majority find that the plaintiff was not in

the midst of this procedure when she brought her federal

law suit? The majority seems to do so only by artificially

separating the statute’s “‘sending-the-order” provision from

the rest of the statute. The majority reads the ‘‘sending-

of-the-order” provision as if it permitted the Common-

wealth to dismiss a teacher without a full-blown hearing

simply by sending the piece of paper called an “‘order’’,

as if the sending of that piece of paper constituted the

legal wrong and all the rest provided by the statute were

but a state remedy. In any contested case, however, the

sending of the “order” and the hearing on ‘appeal’ are

steps within an integrated, statutory administrative

scheme—a scheme similar to those often used by states to

dismiss tenured teachers. Unless one viewed Puerto Rico’s

law as embodying an effort to dismiss tenured teachers

without a hearing (which neither the statutory language

nor common sense suggest is so) this case fits squarely

within the Younger doctrine. Regardless, even if one calls

the hearing stage an administrative “appeal” from the

sending of the “‘order,’’ relevant Supreme Court precedent

would still seem to require the plaintiff to take such an

appeal before bringing her § 1983 action in federal court.

Pennzoil v. Texaco, __ U.S. __ , 107 S.Ct. 1519, 1527 &

n. 13, 95 L.Ed.2d 1 (1987) (holding in the context of a §

1983 suit that the availability of a judicial appeal renders

a proceeding “pending” for purposes of Younger-type ab-

stention); Huffman v. Pursue, Ltd., 420 U.S. 592, 607-09

& n. 21, 95 S.Ct. 1200, 1211 & n. 21, 43 L.Ed.2d 482

(1975) (holding that ‘‘a necessary concomitant of Younger

is that a party ... must exhaust his state appellate rem-

edies before seeking relief in the District Court’’ and not-

ing that according such deference to already-initiated state

proceedings is consistent with a general no-exhaustion doc-

trine); see Patsy v. Board of Regents, 457 U.S. at 518-19,

102 S.Ct. at 2568-69 (White, J., concurring in part) (noting

that the Court’s holding in Patsy “‘is also fully consistent

27a

with [the Court’s] decisions that a defendant in a civil or

administrative enforcement proceeding may not enjoin and

sidetrack that proceeding by resorting to a § 1983 action

in federal court’’ (citing Huffman)); see also Malachowski

v. City of Keene, 787 F.2d 704, 708 (1st Cir.) (holding that

a § 1983 plaintiff must first take available state appeals),

cert. denied, __ U.S. __, 107 S.Ct. 107, 938 L.Ed.2d 56

(1986); Coruzzi v. New Jersey, 705 F.2d 688, 690 (3d

Cir.1983) (similar); Carter v. Maryland Commission on

Medical Discipline, 639 F.Supp. 542, 546 (D.Md. 1986)

(similar). For these reasons, it seems to me the majority’s

view both misreads Puerto Rico’s law and, in any event,

runs contrary to relevant Supreme Court authority.

28a

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO

CIVIL NO. 85-2261 AL

IpciA M. KERCADO MELENDEZ,

Plaintiff,

AWILDA APONTE ROQUE, .

Defendant.

OPINION AND ORDER

Plaintiff, Ipcia M. Kercadé Melénez, a career employee

for eighteen years with the Department of Public Instruc-

tion (“DPI’’), filed this complaint against defendant, Awilda

Aponte Roque, Secretary of DPI, under 42 U.S.C. sects.

1983 claiming she was discharged from the position of

Superintendent of the Dorado School District in violation

of the Fifth and Fourteenth Amendment Due Process

clause and that the discharge was motivated by political

discrimination in violation of the First Amendment.' As

relief plaintiff seeks a permanent injunction reinstating her

as Superintendent of the Dorado School District, restoring

all her teaching certificates and compensating her with

compensatory and punitive damages.

A five day bench trial of this case was held in March,

1986. Evidence was presented addressing plaintiff’s claim

that her termination violated both due process and the

' Plaintiff also filed this action under 42 U.S.C. sects. 1985, 1986.

The evidence presented at trial was not addressed to either of these

statutes. Consequently, we make no ruling on this basis.

29a

First Amendment. Based on the pleadings, the evidence

presented at trial, and after considering the demeanor and

credibility of the witnesses, the Court enters the following

findings of facts and conclusions of law.

PROCEDURAL HISTORY

After working as a DPI employee for eighteen years,

plaintiff was terminated from the position of Superintend-

ent of the Dorado School District for the first time on

October 28, 1985. On that date plaintiff received a com-

plaint signed by the defendant, the Secretary of DPI, or-

dering her dismissal, cancelling of all her certificates to

teach in both public and private schools,? and charging her

with seven infractions of the Teachers’ Misconduct Act,

Law 115 of June 30, 1965, 18 L.P.R.A. section 274 (‘“‘Law

115’’).2 Plaintiff was also informed through the complaint

of her right to appeal the Secretary’s action within ten

days to the DPI Board of Appeals.

Within ten days of receiving defendant’s order plaintiff

appealed the charges to the Board of Appeals. Plaintiff

also filed the present action and petitioned this Court for

a Temporary Restraining Order seeking to enjoin her dis-

missal. After filing the claim in this Court plaintiff with-

drew her appeal before the Board of Appeals.

2 Plaintiff holds teaching certificates to work as an Elementary

teacher, Principal, General Supervisor and Superintendent of Schools.

’The defendant’s action dismissing plaintiff and cancelling her cer-

tificates was justified on the basis of the following provisions of Law

115, 18 L.P.R.A. 274:

(d) Insubordination ...

(g) Observance of improper behavior injurious to the good name

of the Public Education.

30a

Plaintiff's petition for a TRO was based on the claim

that she was separated from employment without a pre-

termination hearing in violation of due process as required

by CLEVELAND BD. of EDUCATION v. LOUDERMILL,

__.U.S. __, 105 S.Ct. 1487 (1985). Rather than granting

a TRO, this Court set a “‘show cause” hearing for No-

vember 18, 1985, at which the parties were to come pre-

pared to address the due process issue and plaintiff's right

to a preliminary injunction on that basis.

On the very day set for the ‘‘show cause” hearing the

charges against plaintiff were withdrawn and she was rein-

stated as Dorado Superintendent, thereby mooting the pre-

liminary injunction sought as relief. On November 25, 1985

plaintiff was delivered a letter requesting her presence at

an informal hearing on ‘‘new” charges against her. The

hearing was held the next day, November 26, 1985, before

Elba Rodriguez Fuentes, the Director of the DPI Legal

Division and two other attorneys with the Department.

Elba Rodriguez read plaintiff the charges against her and

plaintiff was given the opportunity to respond. No evidence

or witnesses were presented by either side.

On December 9, 1985 plaintiff was served for the second

time with a complaint signed by defendant ordering her

dismissal and cancelling her Superintendent’s certificate.

The complaint made four charges against plaintiff which,

except for the condensed form, were identical to the seven

charges made in the original October 28, 1985 complaint.

Plaintiff did not file an appeal of this order to the DPI

Board of Appeals. Instead, she pursued the litigation of

her rights in the present action. During the period between

plaintiff's first discharge on October 28, 1985 and the sec-

ond discharge on december 9 a trial date was set by this

Court and discovery proceeded. While litigation was on-

going in this Court defendant withdrew the first complaint

against plaintiff and no- administrative proceeding con-

3la

cerning plaintiffs dismissal was commenced before the DPI

Appeals Board.‘

FACTS

Plaintiff is an active member of the New Progressive

Party (‘““NPP’’). She has been a frequent attendant at NPP

functions and speaks freely of her political party affiliation.

Defendant, plaintiff's immediate supervisor and other DPI

omployees were well aware of plaintiff's political affiliation.

Defendant is a member of Popular Democratic Party

(“PDP”). After eight years of NPP administration in

Puerto Rico, the PDP regained power in the November,

1984 election. Following the transition to a PDP admin-

istration in January, 1985 the defendant, Awilda Aponte

Roque, was appointed Secretary of DPI.

Plaintiff began to work for the DPI in 1967, after having

completed a Bachelor’s and Master’s Degree in Education

‘Prior to trial defendant requested plaintiff's claim to be dismissed

for failure to exhaust state remedies or in the alternative, that this

Court abstain in favor of an administrative hearing before the DPI

Appeals Board. We denied defendant’s request. Exhaustion of state

remedies is not a prerequisite to bring a civil rights claim under 42

U.S.C. sect. 1983 in federal court. Patsy v. Board of Regents of the

State of Florida, 457 U.S. 499, 102 S.Ct. 2557, 73 L.Ed. 2d 122 (1982).

Furthermore, there was no reason for abstention since no admin-

istrative hearing was pending while litigation was proceeding in this

Court. Though our denial of defendant’s request for abstention was

made prior to the recent Supreme Court opinion in Ohio Civil Rights

Commission v. Dayton Christian Schools, No. 85-488 (June 27, 1986),

the decision is distinguishable from the situation before us and would

not alter our ruling. In support of our decision denying defendant’s

request we refer to the oft quoted language from Mitchum v. Foster,

407 U.S. 225,242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)quoting Ex

Parte Virginia, 100 U.S. 339,346, 25 L.Ed. 676 (1880)}: “(t]he very

purpose of section 1983 was to interpose the federal courts between

the States and the people, as guardians of the people’s federal rights—

to protect the people from unconstitutional action under color of state

law, “whether that action be executive, legislative, or judicial’.”

32a

at Interamerican University in San Juan, Puerto Rico.

Since being hired by DPI plaintiff has worked as an ele-

mentary teacher, principal of an elementary school, Deputy

Director and Director of the Institute of Educational Ser-

vices. In 1980 she was appointed Superintendant of the

Dorado School District, a position she held until her ter-

mination in 1985. As Dorado Superintendent plaintiff was

a “‘career’’ employee as defined by the Puerto Rico Per-

sonnel Act, 3 L.P.R.A sect. 1849. Under the law of Puerto

Rico, a ‘“‘career’”’ employee with DPI, or any other Com-

monwealth agency, can be involuntarily terminated from

employment only for ‘‘just cause.’’®

5 The Puerto Rico Personnel Act, 13 L.P.R.A. sect. 1336(4) states:

(4) The appointing authorities may remove any career employ-

ees for good cause and upon previous preferment of charges, in

writing, and upon prior holding of an administrative hearing, if

the employee so requests.

Law 115, 18 L.P.R.A. sect. 274 states:

Procedure for cancellation of certificates—Causes

The Secretary of Education may permanently cancel the certificate of

any teacher, or suspend such certificate for a definite period of time,

through the procedure herein provided, for any of the following causes:

(a) Prevarication, bribery or immoral] conduct.

(b) Incompetency in the discharge of his duties as a teacher.

(d) Insubordination.

(e) Being convicted of a felony by any court.

(f) Incurrence of the conduct forbidden by sections 249-249e of this

title.

(g) Disorderly or improper conduct, or such as is prejudicial to the

good name of the public education system of Puerto Rico.

(h) Holding a certificate through fraud or deceit.

See also, Diaz Gonzdlez v. Tribunal Supremo, 102 D.P.R. 195 (1974);

33a

During her eighteen years of employment with DPI,

plaintiff was never formally reprimanded for her job per-

formance until October 28, 1985, when she received the

first notice of dismissal. In fact, a witness for plaintiff,

Regina Sevilla de Santiago, a 31 year veteran with DPI

who served as plaintiff's supervisor for eight years in-

cluding the years 1980-1984 while plaintiff was Dorado

Superintendent, testified that plaintiff was very profes-

sional in her work and was highly dedicated to DPI and

to her duties as Superintendent of the Dorado schools.

Seven charges were made against plaintiff when she was

terminated for the first time on October 28, 1985. On

December 9, 1985, when she was discharged for the second

time, four charges were made. Other than the condensed

format the four charges made in December are identical

to the seven made in October. The charges against plaintiff

to justify her dismissal state as follows:

1. You did not process the appointments of four-

teen Teacher Assistants in the Schoo! District of Dor-

ado thus disobeying the orders of the Director of the

Bayamon Educational Region.

2. You kept Mrz. Clara Luna Garcia working in

your office during the month of August, 1985, without

the authorization of the Regional Director nor that of

the Secretary of Public Education, knowing that Mrs.

Luna had been reinstated to her permanent position

as a Mathematics Teacher.

8. You kept Mr. José W. Ramos Urbina working

in your office without the authorization of the Re-

gional Director nor that of the Secretary of Public

Education, knowing that he had been reinstated to

Pastor Lozada v. Director Ejecutivo, 101 D.P.R. 923 (1973), interpreting

the Personnel Act upon which the present Personnel Act of Puerto

Rico is based.

34a

his permanent position as elementary school teacher,

effective July 1st, 1985.

4. You altered the duties of Mr. Hécter J. Lépez

Maldonado, Assistant Superintendent, making it im-

possible for him to work normally in the position to

which he was appointed, thus affecting the smooth

functioning of the Dorado School District.

Defendant claims the first charge—that plaintiff failed

to appoint the teachers’ aides—was an act of insubordi-

nation in violation of Law 115. Plaintiff had received a

letter dated October 4, 1985 from her supervisor, the Bay-

amon Regional Director, Leida Cintrén, with instructions

to appoint the following persons selected by Ms. Cintrén

to serve as teachers’ aides. Neither this letter nor a follow-

up letter to plaintiff from Ms. Cintrén dated October 18,

1985—asking plaintiff for an update on the teachers’

aides—gave plaintiff a time limit within which to process

the appointments.

Prior to defendant’s appointment as DPI Secretary

teachers’ aides were selected by plaintiff, as the Super-

intendent of the district with the aid of the Dorado School

Principals. After defendant took office a new system was

instituted. The fourteen teachers’ aides to be appointed in

the Dorado District were to be selected by a committee

of Dorado School Principals, plaintiff—Dorado Superin-

tendent, and Maria Cérdova de Zayas—the Assistant Di-

rector of the Bayamén Region serving as the Regional

Director’s representative. In the case that no consensus

was reached the aides were to be selected by Leida Cin-

trén, the Bayamén Regional Director.

On August 20, 1985. the committee met. Consensus was

reached on only three people. As for the remaining ten

appointments, for which there was no consensus, the Re-

NO eal ns arian

35a

gional Director herself made the selection and sent plaintiff

the letter dated October 4, 1985 with her decision.®

Plaintiff claims her failure to appoint the aides was not

an act of insubordination. She testified that she did not

receive the Regional Director’s letter until October 11,

1985, that she was understaffed, and that the appointment

process takes work to complete. Plaintiff claims she did

not have sufficient time to make the appointments prior

to her dismissal on October 28, 1985.

The second and third charges against plaintiff—that she

kept Clara Luna Garcia and José Ramos Urbina working

in her office—are, according to defendant, acts of insu-

bordination in violation of defendant’s directives outlines

in a May 20, 1985 memo to all DPI Superintendents and

an Amendment to Circular Letter 20-84-85 issued July 19,

1985. The May 20, 1985 memorandum stated that DPI had

a problem of a large number of teaching personnel working

in positions other than those to which they were appointed.

To correct the situation the memo ordered all employees,

effective July, 1985, to be located in the work unit to

which they were assigned. The July 19, 1985 memorandum

amending Circular Letter 20-84-85 established the proper

procedure for reassigning teachers from their appointed

positions. The amendment provides that reassignments are

allowable on petition of the employee or when services of

an employee are necessary for, among other reasons, a

“special situation’’ in the school district.’

*'The evidence indicates that no consensus was reached in part be-

cause the Regional Director’s representative, Maria Cérdova, refused

to accept the committee’s recommendations. The evidence further in-

dicates that both Ms. Cintrén and Ms. Cordova are affiliated with the

PDP.

7 The pertinent portion of the July 19, 1985 memo states:

According to the rules and regulations for teacher appointments,

the School Superintendent may reassign in his/her school district

the personnel with teaching and student service duties, and special

36a

Plaintiff denies that the temporary use of Clara Luna

and José Ramos was an act of insubordination. Prior to

defendant’s appointment it was accepted practice to bor-

row the services of a teacher when the Superintendent’s

office was short of staff. Plaintiff testified that she as-

sumed that the shortage of employees in her office con-

stituted a “special situation’”’ within the meaning of the

July 19, 1985 amendment to the Circular Letter and,

therefore, the temporary reassignment of Clara Luna Gar-

cia and José Ramos was proper.

It is undisputed that plaintiff's office was shorthanded

at that time. On July 2, 1985 plaintiff sent a letter to the

Governor, with a copy to the defendant, explaining her

problem of staff shortages and listing 14 positions which

remained unfilled.’ Plaintiff stated in the letter that she

teachers, in the same category, upon request of the employee or

for service needs...

Service needs shall be understood as

d. taking care of special situations that may arise in a school

or school district.

* According to the July 2, 1985 letter to the Governor, the following

positions were vacant:

Assistant Superintendent

Asst. Superintendent (supposedly)

Asst. Superintendent Chapter I

Sup. Special Education Zone

Supervisor Spanish Zone

Supervisor Mathematics Zone

Director Maguayo Elem. School

Director Jose de Diego School

Director Pre-vocational Center

10. Custodians

11. Sec. - Clerk Typist II

12. Executive Official

13. Sec. - Clerk Typist

14. Clerk

PSM ere rrr

37a

had notified the proper people of this problem without

success and, she added, that she hoped there was no “‘per-

secution” involved in creating this situation.

In the case of both Clara Luna and José Ramos plaintiff

asked permission of the Principals of the schools where

they were assigned to use them temporarily. Clara Luna

was assigned to the José Alegria Elementary School as a

Mathematics teacher and was to report there at the be-

ginning of August. Instead, plaintiff asked her principal,

Hernan Burgos, if Ms. Luna could work in the Superin-

tendent’s office from August 5 to August 30, the busiest

month for the Superintendent.® Clara Luna returned to

her teaching position the first week of September. In the

case of Jose Ramos, he was originally assigned to the Luis

Munoz Rivera School, however, on August 30, 1985

plaintiff received a letter from the principal of that school

explaining that his position was in excess and that he

would be returned to the office of the Superintendent. On

September 5, 1985 Ramos was reassigned to the Pedro

Lépez Canino School and on September 11, 1985, plaintiff

wrote a letter to the principal there, Marie Carvajal, ask-

ing permission to use Ramos in her office until new staff

was appointed to her office.

Plaintiff denies the validity of the fourth charge—that

she altered the duties of Héctor Lépez Maldonado, the

newly appointed Assistant Superintendent. She claims that

Héctor Lépez was given his proper assignments but re-

fused to cooperate and caused problems with the staff in

her office and at schools in the district.

* There is a discrepancy in the evidence as to when plaintiff com-

municated to Mr. Burgos in writing requesting the use of Clara Luna.

Plaintiff presented a letter dated earlier August, while defendant pre-

sented a similar letter dated early September. Whenever the written

request was sent the evidence is clear that plaintiff had spoken to Mr.

Burgos in early August about using Clara Luna temporarily.

38a

Héctor Lépez and Evaristo Rosado Colén were ap-

pointed plaintiff's Assistant Superintendents in early Sep-

tember and began work on or near September 19, 1985.

Plaintiff was not pleased with Héctor Lépez’ appointment

as her assistant. Plaintiff and Lopez had known each other

for years and the record is unequivocal that there was no

love lost between them.

Assistant Superintendents of the Dorado School District

were to be appointed by a committee of plaintiff—the Dor-

ado Superintendent, Maria de Cérdova—the Assistant Re-

gional Director, and Héctor J. Torres—a representative

from the DPI central office. The committee interviewed

candidates and voted on their preferences. A consensus

was reached on at least two candidates; Héctor Lépez was

not one. Despite the fact that unanimous support existed

for two candidates and there was no such support for

Héctor Lépez, Hector Lopez was appointed Assistant Su-

perintendent by the defendant.

The evidence in the case is rife with incidents docu-

menting the tumultuous relationship between plaintiff and

Lopez both before and after his appointment.’® Plaintiff

also presented letters and testimony evidencing that sev-

eral other people on her staff and at the other schools

had problems working with Lépez and found his conduct

offensive.

Of particular note to this case is an incident which oc-

cured prior to Lépez’ appointment while he was working

under plaintiff as Director of the Work and Study Center

in the Dorado District. In January, 1985 plaintiff wrote

to the defendant requesting a meeting with her and Lépez

to discuss the problems at the Center. Plaintiff testified

‘The record is clear that plaintiff and Lépez had an antagonistic

relationship. At one point in October 1985 the two entered into a heated

verbal battle calling each other obscene names. Following the incident

Lépez filed criminal charges against plaintiff for breach of the peace.

No probable cause was found for the charges.

39a

that the Secretary accused her during the meeting of caus-

ing the problems at the Center by politically persecuting

Lépez. Lépez is a well known PDP member. In 1980 he

was a candidate for Mayor of Dorado. Defendant and Lé-

pez deny that defendant made such an accusation at the

meeting.

On March 19, 1985 plaintiff wrote the Governor about

the meeting with the defendant and Lépez at the Work

and Study Center and about another meeting with the

defendant and teachers and employees of the Bayamén

region. In this letter plaintiff accused the defendant of not

knowing ‘anything about the functioning of a school dis-

trict and to top it off she [the defendant] passes judgment

and makes decisions without investigation and dialogue.”

The defendant responded to the letter cordially without

addressing plaintiff's accusations. This letter was never

cited in the charges against plaintiff or the testimony as

a reason for plaintiff's dismissal.

It is also noteworthy that plaintiff filed a form 409

against Héctor Lépez on August 12, 1985 when he failed

to report to his assigned position for over a week. Plaintiff

explained that the filing of a 409 form was an automatic

procedure used to inform the administration of a teacher’s

failure to report to work. This form was returned to

plaintiff by the Director of the Legal Division requesting

the submission of three pieces of written evidence that

plaintiff communicated with Lépez prior to taking the ac-

tion. The Legal Division took no further action. On August

14, 1985 Antonio Adrover wrote plaintiff explaining that

the defendant had ordered the matter dropped ‘‘without

effect.”

As explained by the Director of the Legal Division the

general procedure for terminating a DPI employee is to

assign an investigator from the Legal Division’s Complaint

Department to investigate the employee’s conduct. The

investigation may be triggered by a complaint filed by a

40a

parent, child, fellow teacher or supervisor. The findings of

the investigation are then submitted to the defendant, Sec-

retary of DPI, who decides, with recommendations from

the attorneys at the Legal Division, what action should be

taken in accordance with Puerto Rico’s Law 115.

Once the Secretary decides that discharge is the proper

action, the employee is served with a complaint notifying

him or her of the termination, the charges, and the right

to appeal. If the case is appealed to the DPI Board of

Appeals, an attorney from the DPI Legal Division serves

as prosecutor in the case.

In plaintiff's case no comprehensive investigation of her

conduct was undertaken prior to her first discharge on

October 28, 1985. The charges that she kept Clara Luna

and José Ramos working in her office when they were

assigned elsewhere were supported by findings made by

investigators with the DPI Legal Division in the course of

investigating a complaint made by parents of children at

the José Alegria School. As for the charge concerning

Héctor Lépez, Antonie Adrover Robles, a special aide to

the defendant, submitted the complaint to the Director of

the Legal Division. The Legal Division never investigated

this charge. The Director of the Legal Division testified

that all credibility findings for the charge were based on

conversations she had with Androver and on a statement

made by Lépez to Androver. Neither plaintiff nor any

other employee in her office was questioned about this

charge prior to her termination in October, 1985. Con-

cerning the charge that plaintiff failed to process the

teachers’ aides, the Legal Division Director must have ob-

tained this information through conversations with Leida

Cintrén, the Bayamén Regional Director. The Director

never spoke with plaintiff about the matter prior to her

termination.

Following plaintiff's reinstatement on November 18,

1985 the Legal Division did some further investigation.

4la

Statements were taken from several sources to establish

that Clara Luna and Jése Ramos were actually in plaintiff's

office and to confirm that tension existed between Héctor

Lépez and the plaintiff. No statement was ever taken from

Clara Luna, Jése Ramos, the Principals of the schools

where ‘hey were assigned, or from the plaintiff. This in-

vestigation was completed in hand written form on De-

cember 9, 1985. On the same day plaintiff was served with

the second order of termination signed by the defendant.

FIRST AMENDMENT VIOLATION

The first Amendment protects a government employee

from being discharged because of his or her political beliefs

or party membership, unless political affiliation is an ap-

propriate requirement for the job. BRANTI v. FINKEL,

445 U.S. 507, 100 S.Ct. 1287, 68 L.Ed.2d 574 (1980). See

ELROD v. BURNS, 427 U.S. 347, 96 S.Ct. 26738, 49

L.Ed.2d 547."

BRANTI and ELROD both presented situations where

political affiliation was the sole basis for the dismissal. In

such cases where politics is the sole motive for dismissing

the plaintiff the courts must apply a strict scrutiny analysis

to determine whether the Constitution was violated. See

WREN v. JONES, 6385 F.2d 1277 (1980); FARKAS v.

THORNBURGH, 493 F.Supp. 1168 (E.D.Penn. 1980).

However, in situations, such as the case at bar, where the

evidence demonstrates that political affiliation was not the

sole motivating factor, but, rather, the dismissal as based

on a “‘mixture motive’’ of both legitimate and illegitimate

motives, the burden of proof is dictated by MT. HEALTHY

CITY SCHOOL DISTRICT BD. OF ED. v. DOYLE, 429

U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1974). The ap-

'' Defendant admits that political affiliation was not an appropriate

requirement for plaintiff ‘‘career’’ position as Superintendent of the

Dorade Schools. No claim was ever presented to this Court that

plaintiff's dismissal was justified because in her position she was un-

protected by the First Amendment.

42a

plication of the MT. HEALTHY standard has been held

appropriate in cases where plaintiff claims to have been

discharged because of his or her political affiliation and

mixed motives are alleged. JONES v. DODSON, 727 F.2d

1329 (4th Cir. 1984); BARNES v. BOSLEY, 745 F.2d 501

(8th Cir. 1984); NEKOLNEY v. PAINTER, 653 F.2d 1164

(7th Cir. 1981); WREN v. JONES, supra; TANNER v.

McCALL, 625 F.2d 1183 (5th Cir. 1980); ROSALY v. IG-

NACIO, 593 F.2d 145 (1st Cir. 1979); BRULE v. SOUTH-

WORTH, 611 F.2d 406 (1st Cir. 1979).

Under the MT. HEALTHY standard the burden is in-

itially on the plaintiff to show that his or her conduct was

constitutionally protected and that this conduct was a sub-

stantial or motivating factor in the action taken against

him or her. Jd. at 287, 97 S.Ct. at 576; GIVHAN v. WEST-

ERN LINE CONSOL. SCHOOL DIST., 439 U.S. 410,417,

99 S.Ct. 693,697, 58 L.Ed.2d 619 (1979). If this is proven,

the burden shifts to defendant to show by a preponderance

of the evidence that the plaintiff would have been dis-

charged in any event. Jd. As the Court explained in

GIVHAN, supra, if plaintiff is to recover after meeting

his or her initial burden, the trier of fact must expressly

find that plaintiff would not have been discharged ‘“‘but

for’ the constitutionally protected conduct. Jd. at 417, 99

S.Ct. at 697

The protected conduct in the present case is plaintiff’s

membership in the NPP political party. Plaintiff’s initial

burden was to prove that her political affiliation was a

substantial and motivating factor for her dismissal. Be-

‘* We note that defendant made no claim that the action against

plaintiff was in response to the March 19 and July 2, 1985 letters

plaintiff wrote to the Governor of Puerto Rico. Therefore, we do not

consider the facts of this case in light of the balancing test required

by Connick v. Myers, ___U.S. __ , 103 S.Ct. 1684 (1983); Pickering

v. Board of Education, 391 U.S. 563, 88 S.Ct. 1732, 20 L.Ed.2d 811

(1968).

43a

cause of its subjective nature, motivation of a defendant

can rarely be proved with direct evidence—seldom will an

employer admit to have violated the Constitution. For this

reason circumstantial evidence may be used to show dis-

criminatory motive in a patronage dismissal case. GA-

BRIEL v. BENITEZ, 390 F.Supp. 988,993 (D.P.R. 1975),

aff'd. RIVERA MORALES v. BENITEZ DE REXACH,

541 F.2d 882 (1st Cir. 1976). We find that the circum-

stances surrounding plaintiff’s dismissal supports her bur-

den of proving political affiliation was a motivating factor

for defendant’s action.

Plaintiff is a member of the NPP while defendant is a

member of the PDP. The Court takes note that in the

highly charged political climate in Puerto Rico this fact

has added significance. See, e.g., COLON v. CRUV, 84 JTS

52 (P.R. 1984); ROSARIO NEVAREZ v. TORRES GAZ-

TAMBIDE, Civ. No. 85-1117 (citing large number of po-

litical discrimination cases filed in the federal court this

year alone).

Furthermore, the manner in which defendant handled

plaintiff's dismissal indicates that defendant was bent on

her discharge. Though one of the functions of the DPI

Legal Division, as explained by its Director, is to inves-

tigate complaints against an employee to determine

whether the complaint has merit, in this case it appears

the Legal Division and the defendant were less interested

in assessing whether the charges against plaintiff had merit

and more interested in building a case to support her

dismissal.

Despite the fact that plaintiff was an exemplary DPI

employee for 18 years and the Dorado Superintendent for

five years, defendant made no comprehensive investigation

of plaintiff's conduct prior to her first dismissal on October

28, 1985. The charge that plaintiff failed to assign duties

to Héctor Lépez was based solely on a complaint and

statements made by Lépez, a well known PDP member,

44a

to Antonio Androver, a special aide to the defendant. The

Director of the Legal Division relied on this information

from Antonio Adrover to make all credibility findings.

Plaintiff was never asked her view of the problem with

Héctor Lépez and the DPI Legal Division did no other

investigation of the situation.

The charges against plaintiff for keeping Clara Luna

and José Ramos in her office were based on otherwise

unnoticeable findings made in the course of a much larger

investigation of a completely different subject. The inves-

tigation report shows that plaintiff explained to the in-

vestigator why Clara Luna and José Ramos were working

in her office, and that she had received permission from

their Principals. Defendant must have rejected this expla-

nation, yet, at no time prior to her dismissal was plaintiff

reprimanded for or notified of wrongdoing.

Plaintiff's failure to process the appointment of teachers’

aides must have been based on information obtained by

the Director of the Legal Division in the course of con-

versations with plaintiff's supervisor, the Director of the

Bayamon Region. Again, plaintiff was never given the op-

portunity to respond to this charge prior to being dis-

missed.

It was only after the plaintiff filed suit in this Court

and was reinstated as Superintendent that the DPI Legal

Division undertook a more comprehensive investigation.

However, even this investigation is decisively one-sided.

Statements were taken from select individuals only and

for the limited purpose of establishing that Clara Luna

and José Ramos worked in the plaintiff's office in August

and September, 1985, and that plaintiff and Héctor Lépez

had a less than friendly relationship. No statement was

ever taken from plaintiff, nor from Clara Luna, José Ra-

mos, the Principals of the schools where they were as-

signed, or from other employees in plaintiff's office who

also had a negative relationship with Héctor Lépez.

45a

On December 9, 1985, the very same day that the DPI

Legal Division investigator finished her report, and even

before the report had been typed, plair.tiff was served with

her second notice of termination. It is hard to believe that

the attorneys at the DPI Legal Division, much less the

defendant, had time to review this report before termi-

nating plaintiff.

It also bears weight as an indication that defendant had

political motives for terminating plaintiff that no investi-

gation was made of complaints against Héctor Lépez, a

PDP member. In particular is the 409 form filed by plaintiff

notifying the administration that Lépez had failed to report

to his assigned position. The defendant ordered this action

dropped without follow-up or investigation.’

In addition, the defendant’s appointment of Héctor Lé-

pez as Dorado Assistant Superintendent is significant evi-

dence that the defendant does make decision on the basis

of political affiliation. Héctor Lopez was appointed despite

the fact that there was consensus among the committee

members to appoint two other candidates (and no consen-

sus for Lépez), and that it was well known that plaintiff

and Lépez had an antagonistic relationship. When asked

why she had appointed Lopez despite knowing the facts

of the situation, the defendant gave the following uncon-

vincing response:

_ [Héctor Lépez}] had a right to be appointed.

Education is a process of change and supervisors

* Plaintiff also presented letters signed by several teachers working

with Héctor Lépez at the Rio Lajas School, where Mr. Lopez was

assigned prior to being appointed Assistant Superintendent. The letters

complained about Lopez’ lack of professional work habits, and his con-

descending and uncooperative conduct. Although there is no evidence

that this complaint was ever sent to the complaint department of the

Legal Division, it is clear from the investigating procedures followed

in this case that if the Legal Division had been interested in investi-

gating Lépez they would have discovered the complaint and made a

follow-up.

46a

have to change if we want the children to behave

and to be considerate, we have to begin to do it

by counselors. So I think it was a wonderful op-

portunity to put professionals together.

The evidence in the record is sufficient to infer that

political affiliation was a substantial factor in defendant’s

motives to terminate her.

The burden shifts to defendant at this point to dem-

onstrate that plaintiff would have been dismissed despite

her party affiliation for valid reasons. The applicable test

is whether “‘but for’’ political discrimination plaintiff would

not have been discharged. We find that defendant failed

to meet her burden.

We begin with the fact that plaintiff has been a DPI

employee for eighteen years and Dorado Superintendent

for five years. Until her dismissal on October, 1985, she

had never been formally reprimanded for her job perform-

ance. In fact, plaintiff was steadily rewarded for her work

with job promotions. Even when the charges against

plaintiff were taken on their face without considering their

merit they do not rise to such a level of seriousness to

warrant the discharge of an employee of plaintiff’s caliber

who had been with the DPI for eighteen years. And when

the merits are considered it becomes apparent that there

is little support for defendant’s claim that plaintiff's con-

duct was insubordinant requiring the termination of her

employment with DPI.

Concerning the first charge—that plaintiff failed to proc-

ess the appointment of the teachers’ aides—defendant

claims this was an act of insubordination in refusing to

carry out the directive of the Bayamoén Regional Director,

Leida Cintrén. According to defendant plaintiff should have

realized the urgency of the situation and made the ap-

pointments within ‘“‘three days.” We fail to see how

defendant could honestly believe that plaintiff should have

realized the urgency of the situation and processed the

47a

aides immediately when it took the Bayamén Regional Di-

rector, herself, over six weeks to make the selection—from

August 20, 1985 when the committee to select the aides

met and no consensus was reached, until October 4 when

she sent the plaintiff a letter with her choices for the

appointments. Plaintiff claims she received the letter Oc-

tober 11, 1985 and she was dismissed October 28, 1985.

This left her less than three weeks to process the ap-

pointments. Given the fact that the Regional Director never

gave plaintiff a time limit to make the appointments and

she never reprimanded plaintiff for tardiness, and given

the situation in plaintiff's office—that she was shorthanded

and it was the beginning of a school year—all facts of

which defendant was aware, we cannot find that defendant

was sincere in believing plaintiff's conduct was a pur-

poseful refusal to follow the directives of her supervisor

or an overt act of insubordination worthy of dismissal.

Defendant charges that plaintiff's decision to keep Clara

Luna and José Ramos working was an act of insubordi-

nation in charge of the defendant’s May 20, 1985 memo

to all Superintendents and the June 29, 1985 memo setting

forth the procedure for reassigning DPI personnel. As

plaintiff interprets the June 29 amendment, she was au-

thorized to use temporarily the services of Clara Luna and

José Ramos. The amendment allows for personnel reas-

signment when “special circumstances’ exist in the dis-

trict. Plaintiff believed the shortage of personnel in her

office to constitute such a “special circumstance.” With

the permission of the school Principals Clara Luna and

José Ramos worked in her office for a short time and then

returned to their assignments. There is no evidence that

plaintiff's temporary use of Clara Luna or José Ramos

caused any disruption in the schools where they worked.

We find plaintiff's interpretation of of the July 29, 1985

amendment to be logical and valid. Certainly it would have

been more proper for plaintiff to seek authorization for

her action from her supervisor as well as the school Prin-

hae

48a

cipals, however, the July amendment does not call for such

authorization. Again, we find a lack of evidence to indicate

a purposeful act of insubordination by plaintiff which would

warrant a dismissal.

Defendant’s charge that plaintiff refused to give Héctor

Lépez his proper assignments is the weakest of all charges

against her. The tension which existed between plaintiff

and Lépez was well known to defendant and many other

DIP employees in the Dorado district. If pressed on this

issue, the Court would find this charge to favor plaintiff's

case over defendant’s. It is not an unfounded conclusion

that the Secretary, knowing the antagonism between

plaintiff and Lépez, appointed Lopez as Assistant Super-

intendent in order to harass the plaintiff.

We conclude that defendant violated the First Amend-

ment when she discharged plaintiff as Superintendent of

the Dorado Schools. Plaintiff's affiliation with the NPP

political party was a motivating factor for her discharge

and, if it were not for plaintiff’s political party affiliation,

she would not have been dismissed by defendant.

DUE PROCESS

The Due Process Clause of the Constitution guarantees

a public employee with a property interest in continued

employment the right to an informal hearing prior to being

discharged. CLEVELAND BD. OF ED. v. LOUDER-

MILL, __U.S. —_, 105 S.Ct. 1487 (1985). In the Court’s

view, the protection of a pretermination hearing is re-

quired by the Due Process Clause because the private in-

terest of an individual in retaining employment outweighs

the government’s interest in expeditious removal of an

employee and the avoidance of administrative burdens. /d.,

at 1494. As the Court stated:

[T]he significance of the private interest in re-

taining employment cannot be gainsaid. We have

frequently recognized the severity of depriving a

49a

person of the means of livelihood. (Cites omitted.)

While a fired worker may find employment else-

where, doing so will take some time and is likely

to be burdened by the questionable circumstances

under which he left his previous job. (Cite omit-

ted.)

The Due Process Clause guarantees a public employee

with a property interest in continued employment the right

to notice and an opportunity to respond to the charges at

an informal hearing. The type of hearing required is de-

scribed as ‘Something less than a full evidentiary hearing”’

enough to make an ‘“‘initial check against mistaken deci-

sions.”’ Id., at 1495.

In the case before us the plaintiff had a property in-

terest in continued employment as Dorado Superintendent.

Puerto Rico’s Personnel Act, 3 L.P.R.A. 1849, and Law

115 establish that a ‘‘career’’ employee may be terminated

only for ‘‘just cause.’’'* On October 28, 1985 she was dis-

charged as a Superintendent without notice of the charges

| against her or an opportunity to respond. Not only was

plaintiff left on October 28, 1985 without employment or

salary, and was left with the stigma of having been fired

from her job with charges against her, but defendant also

cancelled all of plaintiffs certificates to teach in both pub-

lic schools and private schools leaving her without the

ability to seek work in the profession she had practiced

for the past eighteen years.

After filing this claim against defendant for a due proc-

ess and First Amendment violation, plaintiff was rein-

stated as Dorado Superintendent. She was then given an

informal hearing before the Director of the DPI Legal

Division and two weeks later was discharged for the sec-

ond time, this time with a cancellation of only her Su-

'* Similar state laws have been interpreted to create a property in-

terest worthy of due process protection. See Loudermill, supra, at 1491.

50a

perintendent Certificate. Despite this apparent attempt to

correct a due process violation, defendant does not concede

that plaintiff’s due process rights were violated when she

was terminated for the first time without a hearing.

Defendant argues that the procedures for discharge re-

quired by Law 115 entitling the employee to an expedited

decision on appeal—within ninety days—and to full back-

pay if the Appeals Board decision is favorable, are in com-

pliance with the due process required by LOUDERMILL.

This, precisely, is the argument rejected by LOUDER-

MILL. There, the Supreme Court held that while the State

Legislature may confer a property interest on a public

employee, it may not constitutionally define the deprivation

of the interest. Jd., at 1493. Once it is determined a prop-

erty interest exists according to state law and the due

process clause applies, what process is due is determined

by the Constitution, not state law. Id.

LOUDERMILL held that the Due Process Clause re-

quires a pre-termination hearing before dismissing a public

employee, like plaintiff herein, with a property interest in

his or her employment. Defendant violated plaintiff’s due

process rights when she discharged plaintiff on October

28, 1985 without giving plainitff an informal hearing.

RELIEF

Defendant in this case is not entitled to a qualified im-

munity excepting her from liability for damages. It follows,

as a matter of course, that plaintiff is entitled to all relief,

for which there is proof, available to a prevailing plaintiff

in section 1983 action. Under the proper circumstances a

prevailing plaintiff may be awarded injunctive relief in the

form of reinstatement to the position previously held.

WOOLEY v. MAYNARD, 430 U.S. 705 (1977). As dam-

ages, prevailing plaintiff is allowed compensatory damages,

WOOD vy. STRICKLAND, 420 U.S. 308 (1975); FERNAN-

DEZ v. CHARDON, 681 F.2d 42,60 (1st Cir. 1982), in-

cluding damages for emotional distress, CAREY v.

5la

PIPHUS, 435 U.S. 247, 263-64 (1978). Plaintiff is also

entitled to punitive damages when defendant’s conduct in-

volves a callous indifference to plaintiff's federally pro-

tected rights or when defendant’s conduct is motivated by

malicious intent, or evil motive. SMITH v. WADE, 461

U.S. 30 (1982); IRIZARRY v. QUIROS, 722 F.2d 869 (1st

Cir. 1988).

As compensatory damages plaintiff is awarded

$12,074.50 in back wages. She was dismissed from the

position of Superintendent of Dorado on October 28. 1985,

nine and a half months ago. Prior to her dismissal she

was paid a salary of $1,271.00 per month.

Plaintiff is further awarded $15,000.00 as actual dam-

ages for emotional and mental distress. Plaintiff's abrupt

discharge from the position as Dorado Superintendent

caused her humiliation, stress and anxiety. Plaintiff cried

on several occasions during the trial when she was ques-

tioned about her discharge on October 28, 1985. Plaintiff

tried to seek work elsewhere but was unsuccessful. She

testified that the process was extremely painful; that it

was difficult for her to maintain composure when she was

asked the inevitable question about her past work. Plaintiff

no longer goes into the town of Dorado because she is

too humiliated and ashamed to face the people she knows

and worked with when she held the important position of

Dorado Superintendent. Plaintiff is married and the mother

of five sons. The family relies on her income for their

financial well-being. Plaintiff testified that her dismissal

affected her and her family emotionally, socially and fi-

“nancially.

Plaintiff is also awarded $10,000.00 in punitive damages.

The evidence indicates that defendant was callously indif-

ferent to plaintiff’s federally protected rights and was in-

tent on terminating plaintiff's employment as

Superintendent because she was a member of the opposing

political party. Though plaintiff was a stellar DPI employee

52a

for eighteen years she was terminated for the first time

on October 28, 1986 without her being reprimanded for

her conduct, without being notified of the charges, and

without being given an oppurtunity to respond.

CONCLUSION

A. DAMAGES

Plaintiff Ipcia Kercadé Meléndez is entitled to recover

from defendant Awilda Aponte Roque the amount of

$12,074.50 for loss of wages and $15,000.00 for actual

damages for emotional and mental distress.

Punitive damages are also assessed against defendant

in the amount of $10,000.00 because of her callous dis-

regard for plaintiff's First Amendment rights and to deter

political discrimination.

B. INJUNCTIVE RELIEF

Equitable relief is a component of a Section 1983 action.

Plaintiff has established that injunctive relief is just and

proper in this case. Accordingly, it is hereby ORDERED,

ADJUDGED AND DECREED that defendant, her suc-

cessor in office, agents, attorneys, employees, and any

other person acting on behalf or in concert with defendant,

reinstate plaintiff forthwith to her former position of Su-

perintendent of the Dorado Schools, at the same salary

and with the sare fringe benefits she would be earning

and receiving, but for her termination, and with the same

functions and authority pertaining to her position.

C. ATTORNEYS FEES

As a prevailing party, plaintiff is entitled to attorneys

fees pursuant to the Civil Rights Attorney’s Fees Award

Act, 42 U.S.C. 1988. The overriding purpose of the Act

is the encouragement of private enforcement of the civil

rights laws to fully vindicate federal constitutional guar-

antees. Accordingly, plaintiff is to submit a verified fee

53a

application within fifteen days. See GRANDEL’S DEN,

INC. v. LARKIN, 749 F.2d 945 (1st Cir. 1984).

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

San Juan, Puerto Rico, August 12, 1986.

HECTOR M. LAFFITTE

U.S. District Judge.

54a

APPENDIX C

WALTER VELEZ RAMIREZ Y OTROS, demandantes y ape-

lantes, v. Hon. Carlos Romero Barcelo y Otros, deman-

dados y apelados.

Numeros: R-79-285, Resueltos: 12 de mayo de 1982

0-79-438

. DERECHO ADMINISTRATIVO—SEPARATION DE LOS

PODERES ADMINISTRATIVOS DE OTROS PODERES—

PODERES JUDICIALES—JURISDICCION—AGOTAMIENTO

PREVIO DE LOS REMEDIOS ADMINISTRATIVOS.

E] balance de poderes que debe existir entre agencias

y tribunales, y la necesidad y conveniencia de tener un

récord administrativo completo. Aconsejan se culminen

los procesos administrativos antes del examen judicial.

. Ip.—Ip.—Ip.—Ip.—Ib.

Para decidir si aplica o no el requisito de agotar los

remedios administrativos en el contexto de un planteam-

iento de falta de jurisdiccién se deben examinar tres

factores: el riesgo de que se ocasione un dano irrepar-

able al afectado si el tribunal pospone su intervencién

dejando que prosigan los procedimientos, el grado de

claridad con que surja la ausencia o presencia de juris-

diccién, y la pericia que tenga la agencia para dilucidar

las cuestiones pertinentes a su jurisdicci6n.

. MUNICIPIOS—CORPORACIONES MUNICIPALES—

FUNCIONARIOS Y EMPLEADOS—FUNCIONARIOS

MUNICIPALES—DESTITUCION O REMOCION—

PROCEDIMIENTOS— REVISION

La garantia estutaria que brinda el Art. 37(i), 21

L.P.R.A. sec. 1256(i), de que todo alcalde a quien, previa

formulacién de cargos, la Comisién para Ventilar Quer-

ellas Municipales resuelva destituirlo tiene derecho a ob-

tener revision judicial directa ante al Tribunal Supremo,

minimiza el riesgo de que al alcalde recurrente se le

55a

ocasionen danos irreparables por la posposicién del ex-

amen judicial de la cuestién jurisdiccional.

. Ip.—Ip.—Ip.—IpD.—ID.—CAUSAS—NEGLIGENCIA

INEXCUSABLE EN EL DESEMPENO DEL CARGO.

Si bien la Comisién para Ventilar Querellas Municipales

tiene jurisdiccién para ventilar los cargos contra un al-

calde, el determinar si los cargos radicados imputan

‘“conducta inmoral o actuaciones ilegales que impliquen

abandono, negligencia inexcusable o canducta lesiva a

los mejores intereses publicos en el el desempeno de sus

funciones” esta sujeto a un proceso de interpretacién y

a la consideracién de factores que invitan a ser preci-

sados en su origen por la Comisioén.

. Ip.—Ip.—Ip.—Ip.—Ip.—Ib.—Ib.

Debido a que la Comisién para Ventilar Querellas Mu-

nicipales fue creada especificamente para extender en

los procedimientos disciplinarios de los alcaldes, ya que

presuntivamente esta particularmente facultada para de-

terminar lo que “es conducta inmoral or actuaciones

ilegales que impliquen abandono, negligencia inexcusable

o conducta lesiva a los mejores intereses publicos, en el

desempeno de sus funciones’’, debe ser ella, como or-

ganismo especialmente creado para adjudicar las quer-

ellas contra los alcaldes, la que intervenga y decida en

primera instancia.

. DERECHO CONSTITUCIONAL—INTERPRETACION, EFECTO Y

APLICACION DE PRECEPTOS CONSTITUCIONALES—QUIENES

PUEDEN LEVANTAR CUESTIONES CONSTITUCIONALES—EN

GENERAL.La impugnaci constitucional de actuaciones ad-

ministrativas estSujeta a la norma de agotar los reme-

dios administrativos.

. Ip.—Ip.—Ip.—ID.

Aunque las agencias administrativas no pueden dilucidar

la constitucionalidad de la ley que la crea, si pueden

determinar si su aplicacién a los hechos especificos de

un caso seria inconstitucional, y por ello la Comisién

para Ventilar Querellas Municipales tendria facultad para

56a

desestimar o declarar sin lugar una querella al estimar

que una destitucién por motivo de derminada conducta—

ya establecida—seria inconstitucional.

. Ip.—ID.—DETERMINACION DE LA CONSTITUCIONALIDAD DE

LOS ESTATUTOS—AUTORIDAD Y DEBER DE_ LOS

TRIBUNALES.

E] senalamiento de que el derecho al voto protegido por

el Art.II, Sec.2 de la Constitucién de Puerto Rico no

tolera que se prive de su puesto a un alcalde libremente

elegido en eleccién popular, por actos desvinculados con

éste, no supera exitosamente la norma de abstencién

judicial sobre entender en cuestiones constitucionales a

menos que sea necesario, ya que no es apropiado ex-

plorar esa dimensién hasta que se hayan determinado

los hechos y si procede la destitucién.

. Ip.—Ip.—IpD.—ID.

Corresponde a los tribunales y no a la Comisién para

Ventilar Querellas Municipales determinar si la suspen-

sion sumaria de un alcalde de su cargo y suelo decretada

por el Gobernador viola el debido proceso de ley gar-

antizado en el Art. II, Sec.7 de la Constitucién de Puerto

Rico y las Enmmiendas V y XIV de la Constitucidn de

Estados Unidos.

10. MUNICIPIOS—CORPORACIONES MUNICIPALES—

FUNCIONARIOS Y EMPLEADOS—FUNCIONARIOS

MUNICIPALES—DESTITUCION O REMOCION—

PROCEDIMIENTOS—CUESTIONES A CONSIDERAR Y

RESOLVER.

Al ejercer la facultad constitucionalmente valida que le

confiere el Art. 37 de la Ley Municipal para decretar

la suspensién de empleo y sueldo de un alcalde luego

de haberle sido formulados cargos, hasta que se diluciden

los mismos, el Gobernador esta limitado a aquellos casos

en que la suspensién sea conveniente a los mejores in-

tereses del municipio y a que al hacerlo no viole el

debido proceso de ley.

57a

11. DERECHO CONSTITUCIONAL—DEBIDO PROCEDIMIENTO DE

LEY—GARANTIAS CONSTITUCIONALES—OPORTUNIDAD DE

SER OIDO. ;

Ya que el debido proceso de ley no requiere que haya

una vista previa a toda privacién de un derecho o interés

propietario, cuando hay una privacién temporal basta

que en algun momento significativo u oportuno el afec-

tado tenga la oportunidad de defenderse y presentar su

caso en un proceso con adecuadas garantias.

12. Ip.—ID.—PROPIEDADES Y DERECHOS QUE SE

PROTEGEN—PUESTOS PUBLICOS—PUESTOS PUBLICOS COMO

DERECHO DE PROPIEDAD.

Los tres factores que deben ser sequidos para examinar

cuando el debido proceso de ley no permite suspender

o destituir a una persona de un puesto sin darle derecho

a una vista previa son: los intereses afectados por la

accién oficial; el riesgo de una determinacién errdénea

que prive a la persona del interés protegido mediante

el proceso utilizado y el valor probable de garantias adi-

cionales o distintas; y el interés gubernamental protegido

con la accién sumaria, inclusive la funcién evuelta y las

cargas fiscales y administrativas que conllevaria el im-

poner otras garantias procesales.

13. Ip.—Ip.—Ip.—IpD.—ID.

La suspensién sumaria de un alcalde lo priva de sus

derechos de propiedad como son el sueld

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