United States Court of Appeals

For the First Circuit

No. 09-2635

ELSIE RODRIGUEZ-SANCHEZ, et al.,

Plaintiffs, Appellants,

v.

MUNICIPALITY OF SANTA ISABEL, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Frank D. Inserni Milam, with whom Carlos J. Morales Bauza was

on brief, for appellants.

Jorge Martínez-Luciano, with whom Johanna M. EmmanuelliHuertas was on brief, for Municipality of Santa Isabel.

Susana I. Peñagarícano-Brown, Assistant Solicitor General,

with whom Irene S. Soreta-Kodesh, Solicitor General, Leticia

Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. GirónAnadón, Deputy Solicitor General, were on brief, for Enrique H.

Questell-Alvarado and Natalie Rodríguez-Cardona.

September 29, 2011
LIPEZ, Circuit Judge. Sixty-one terminated employees of

the Municipality of Santa Isabel challenge the district court's

entry of summary judgment against them on their claims for

deprivation of due process and political discrimination, brought

under 42 U.S.C. § 1983. After careful consideration of the record,

we affirm.

I.

A. Factual Background

In the Puerto Rico general elections of November 2004,

Enrique Questell-Alvarado ("Questell"), a member of Puerto Rico's

New Progressive Party ("NPP"), was elected Mayor of the

Municipality of Santa Isabel ("the Municipality"). He took office

on January 10, 2005. In February 2005, Mayor Questell appointed

Natalie Rodríguez-Cardona ("Rodríguez") to be director of the

city's Human Resources Department.

Prior to Mayor Questell's election, the Popular

Democratic Party ("PDP") had been in power in Santa Isabel for

eight consecutive years. The 2004 mayoral election was hotly

contested, as Mayor Questell bested the incumbent, PDP-affiliated

Mayor, Ángel Sánchez. The tension between the parties carried over

into the transition process, culminating in Mayor Questell filing

a writ of mandamus in a Puerto Rico court in December of 2004 to

compel the outgoing Mayor's participation in the transition.

At the time of Mayor Questell's election, the appellants

were all employed by the Municipality of Santa Isabel. Twenty-one

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of the appellants were employed in career positions, akin to civil

service employment, while the remainder were temporary or

transitory employees, or were employed under Puerto Rico's Law 52,

which authorizes the Commonwealth of Puerto Rico to fund municipal

employee salaries in order to subsidize locally managed programs

and ameliorate unemployment. See Acevedo-Feliciano v. RuizHernández, 447 F.3d 115, 117 (1st Cir. 2006).

In January 2005, Mayor Questell hired an independent

accounting firm to evaluate the state of Santa Isabel's budget. 

The firm produced a "Transition Report" in February that 1

evaluated the Municipality's financial status at the close of the

2004-2005 fiscal year. That report indicated that 82% of the

Municipality's budget was consumed by payroll and benefits for

municipal employees, leaving only 18% of the budget for other

expenditures. The report further indicated that the outgoing

administration had spent more than the allocated 50% of the

Municipality's budget for the first half of the 2004-2005 fiscal

year, in violation of Puerto Rico law, and that, having

underestimated expenses and overestimated revenue, the outgoing

administration left the Municipality with the functional equivalent

of 27% of that budget. According to audits performed by the Puerto

The Transition Report is not itself in the record, but an 1

October 5, 2005, letter from the accounting firm to Mayor Questell

summarizes its findings and sets the date of the report's

presentation at February 15, 2005. In his affidavit, Mayor

Questell confirmed that he received the Transition Report on

February 15.

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Rico Comptroller's Office, the Municipality had accumulated a

budgetary deficit of $7,261,639. The audits also showed that Santa

Isabel had more municipal employees during the 2004-2005 fiscal

year than in any of the six previous fiscal years.

In response to the report, the defendants began

terminating individual employees as early as March 30, 2005. In

June 2005, the contracts of numerous temporary employees expired

and were not renewed. That same month, the Santa Isabel Municipal

Legislature passed Municipal Ordinance #28 ("Ordinance 28"), which

approved a broad plan to lay off, transfer, or demote municipal

employees in accordance with the needs of the Municipality and the

availability of municipal funds. Ordinance 28 mandated that "the

least efficient employees will be the first to be dismissed" unless

the Municipality lacked valid information about employee

performance. If such information was lacking, Ordinance 28

required employee terminations to be based exclusively on

seniority. Mayor Questell signed Ordinance 28 into law on June 27,

2005, at which time it was posted on bulletin boards in every

department of the Municipality.

As of June 2005, the Municipality did not have a reliable

system for evaluating the job performance of its career employees. 

The previous Mayor had signed into law an ordinance "to enact the

implementation of an evaluation and motivation system for Santa

Isabel municipal employees." According to a certification signed

by Mayor Questell, however, the evaluation system had never been

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used. A municipal audit conducted in 2005 further confirms this

fact.

On August 1, 2005, in conformance with the procedural

requirements of Ordinance 28, the Municipality's Human Resources

Department provided each career employee with a written calculation

of his or her years of service based on a review of the employee's

personnel file. The notice explicitly referenced Ordinance 28, 2

and it advised employees of their right to submit a request for

corrections to the calculation. Nineteen municipal employees,

including six plaintiffs in this case, exercised this right. The

Human Resources Department produced an amended seniority list,

copies of which were posted on bulletin boards at Santa Isabel's

City Hall.

On September 1, 2005, Mayor Questell ordered Rodríguez to

perform an evaluation of the existing positions within the

Municipality and to submit her recommendation as to the number of

positions that could be eliminated in order to alleviate the

budgetary deficit. On September 12, Rodríguez informed Mayor

Questell by letter that eighty-five job posts could be eliminated

from within the Municipality. The letter stated that this number

was aggregated from information provided by the managers or

directors of nine municipal departments when asked about the

positions whose elimination would cause "the less severe impact" on

It is undisputed that Mayor Questell did not have any 2

involvement in the review of personnel files or in this

notification process.

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the provision of municipal services. It did not identify the

employees who occupied the positions that would be eliminated, but

merely stated how many of each type of municipal job the department

managers considered expendable.

On September 15, Mayor Questell ordered Rodríguez to

eliminate forty-six of the eighty-five positions recommended. 

According to an affidavit signed by Rodríguez, she did not have any

personal involvement in deciding which jobs within the Municipality

would be eliminated. Mayor Questell did not review any personnel

files or make any individualized determinations before issuing this

order, nor did he discover the identities of the terminated

employees until their termination letters had been prepared.3

Within each job type, Mayor Questell ordered that the dismissals

were to be based strictly on seniority.

On October 17, the Municipality approved a municipal

ordinance that amended Ordinance 28 by allowing the Municipality to

consider other alternatives to employee terminations if financially

viable. The next day, as rumors of imminent layoffs spread, a

group of municipal employees politically affiliated with the PDP,

including many of the plaintiffs in this case, gathered in front of

Santa Isabel City Hall to protest. Several NPP-affiliated

The order from Mayor Questell employed the same position- 3

focused identification convention as had the recommendation letter

by Rodríguez. For example, Mayor Questell ordered the termination

of three Nurse positions (three had been recommended), eleven

Office Clerk I positions (twenty-two had been recommended), and

zero Janitor positions (six had been recommended).

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employees who remained inside City Hall mocked and laughed at the

protesters.

On the day of the protests, written termination notices

were provided to the selected career employees of the Municipality,

including the plaintiffs. The notices advised that the

terminations were to take effect in 30 days. They also informed

employees of their right to appeal the termination to the Puerto

Rico Appellate Commission of the Human Resources System. Nineteen

career employees appealed their terminations through this process.4

B. Procedural History

In June 2006, the sixty-one appellants, along with

thirty-seven other plaintiffs, filed this civil rights suit in

federal district court, pursuant to 42 U.S.C. § 1983. The

complaint alleged that the defendants had unconstitutionally

terminated the plaintiffs on account of their political affiliation

with the PDP, and had failed to provide those plaintiffs who had

been career employees, including twenty-one of the appellants here,

with a pre-termination hearing to which they were constitutionally

entitled. The plaintiffs also brought supplemental state tort

claims under articles 1802 and 1803 of the Puerto Rico Civil Code,

P.R. Laws Ann. tit. 31, §§ 5141-5142.5

The outcome of those appeals is not reflected in the record. 4

The plaintiffs' complaint encompassed numerous other claims 5

that were dismissed at an early stage of the litigation pursuant to

Federal Rule of Civil Procedure 12(b)(6). Additionally, the claims

of nine plaintiffs were dismissed because they failed to attend

scheduled depositions. Those dismissals are not before us.

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In due course, the defendants moved for summary judgment

on all counts against all plaintiffs. The district court granted

that motion in part. In its opinion and order, the district court

held that the due process claims of the plaintiffs who had been

career employees were foiled by the Parratt-Hudson doctrine. The 6

court characterized the defendants' failure to provide those

plaintiffs with a pre-termination hearing as a "random and

unauthorized deprivation." It then reasoned that the plaintiffs'

claims could not succeed because they had failed to show that the

available post-deprivation remedies were inadequate. The court

also rejected the political discrimination claims of all but

twenty-three plaintiffs because they had not shown that Mayor

Questell, who made the ultimate decision to terminate their

employment, knew of their political affiliation. The court denied

the motion with respect to the political discrimination claims of

the twenty-three plaintiffs whose political affiliation Mayor

Questell admitted to knowing in his deposition.7

As we recently noted, "Parratt–Hudson provides that, where 6

'a deprivation of a property interest is occasioned by random and

unauthorized conduct by state officials, . . . the due process

inquiry is limited to the issue of the adequacy of postdeprivation

remedies provided by the state.'" San Gerónimo Caribe Project,

Inc. v. Acevedo-Vilá, No. 09-2566, 2011 WL 2436607, at *5 (1st Cir.

June 17, 2011) (alteration in original) (quoting Chmielinski v.

Massachusetts, 513 F.3d 309, 315 (1st Cir. 2008)). See generally

Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S.

527 (1981).

Those plaintiffs reached a settlement agreement with the 7

defendants shortly thereafter.

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This appeal followed. After the appeal was docketed, but

before oral argument, five appellants requested the voluntary

dismissal of their appeal, which we granted.

II.

Summary judgment is appropriate when "the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a); see also, e.g., Leavitt v. Corr. Med. Servs., Inc., 645

F.3d 484, 496 (1st Cir. 2011). "A disputed fact is 'material' only

if its existence vel non has the potential to change the outcome of

the suit." Nolan v. CN8, No. 10-2239, 2011 WL 3795606, at *5 (1st

Cir. Aug. 29, 2011). At this stage, we view the record evidence in

the light most favorable to the non-movant. Id. If a movant has

averred that there is an absence of evidence to support the cause

of action, the burden shifts to the non-movant to establish,

through "definite, competent evidence," an issue worthy of trial. 

Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)

(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991) (internal quotation mark omitted)). Our review is de novo,

and we may accordingly affirm the entry of summary judgment on any

ground apparent from the record. E.g., Méndez-Aponte v. Bonilla,

645 F.3d 60, 64 (1st Cir. 2011).

A. Due Process

As noted, twenty-one appellants held career positions

with the Municipality prior to their termination. Under the laws

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of Puerto Rico, career employees have a property interest in

maintaining their employment that is protected by the Fourteenth

Amendment to the United States Constitution. Colón-Santiago v.

Rosario, 438 F.3d 101, 108 (1st Cir. 2006). Depending on context,

employees often, but not always, may not be deprived of continued

employment without notice and a meaningful opportunity to be heard

in advance of the termination. See generally Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542-43 (1985). Here, the

parties all agree that the appellants were not afforded a pretermination hearing.

However, pre-termination hearings are not always

required. We have held that pre-termination hearings are not

required by due process where a bona fide government reorganization

plan bases dismissals on factors unrelated to personal performance. 

Whalen v. Mass. Trial Ct., 397 F.3d 19, 25 (1st Cir. 2005); see

also Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir. 1989). Because

such a plan is aimed at positions of employment rather than at

individual employees, a pre-termination hearing would be a futile

exercise. Whalen, 397 F.3d at 25; Hartman v. City of Providence,

636 F. Supp. 1395, 1411 (D.R.I. 1986) ("[S]ince there are no

charges against the employee . . . there would be no occasion for

a hearing, and it would be idle to hold one." (quoting Kusza v.

Maximonis, 70 A.2d 329, 331 (Pa. 1950) (internal quotation mark

omitted))). Accordingly, "[w]here a reorganization or other cost-

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cutting measure results in dismissal of an employee no hearing is

due." Duffy, 892 F.2d at 147.

Because the district court based its decision on the

Parratt-Hudson doctrine, neither party has argued that the nature

of the reorganization plan in this case provided an alternative

ground for concluding that no pre-termination hearings were

necessary. Nevertheless, in arguing that the dismissals at issue

were driven by the financial crisis in the Municipality and not by

political considerations, the appellees have set forth in the

summary judgment record the facts necessary to support the

reorganization exception, and the appellants have had a full

opportunity to challenge them. Given that our review on summary

judgment is plenary, Méndez-Aponte, 645 F.3d at 64, that we can

affirm on any basis apparent in the record, and that the

applicability of the reorganization exception in this case is so

plain, we choose to apply it.

There is no disputing that Santa Isabel was in a dire

financial situation when Mayor Questell assumed office, with an

accumulated budget deficit in excess of $7,000,000, or that the

situation was attributable in large part to the size of the

municipal workforce. Nor is there any question that the layoff

plan, in fact, alleviated that situation. According to an audit

conducted in 2008, the Municipality's accrued deficit decreased by

nearly $4,000,000 in the first two years under Mayor Questell's

administration. The audit also shows that, over that two-year

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period, the total number of municipal employees decreased by

roughly 25% while the municipality's payroll was cut almost in

half. The need for, and the benefits from, Ordinance 28 are

manifest.

Of course, an incoming administration may not use a

systematic reorganization to effectuate otherwise impermissible

terminations. Borges Colón v. Román-Abreu, 438 F.3d 1, 6 (1st Cir.

2006). In this instance, the plaintiffs' accompanying political

discrimination claim makes clear that they view the seniority-based

layoff plan as a stratagem to oust employees hired by, and thus

affiliated with, the outgoing PDP administration. We have

encountered similar claims numerous times, often as a result of

administration changes following elections in Puerto Rico. Id.

However, there is no evidence of pretext here. The

appellants emphasize various record evidence that is insufficient,

both individually and cumulatively, to create a triable issue. For

example, the appellants point to Rodríguez's deposition testimony,

in which she stated that the Municipality had approximately fifty

more employees in June of 2008 than it did at the time of the

layoffs in 2005, and that she does not recall the Municipality

instituting a hiring freeze immediately following the layoffs. 

This evidence is incomplete and equivocal, at best. First, an

absolute increase in the number of municipal employees over a

three-year period, with no distinction drawn between career

employees, temporary or contract employees, or even Commonwealth-

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funded employees under Law 52, does not indicate that the layoffs

in 2005 were needless or pretextual. Moreover, as noted above, the

Comptroller's auditing report from 2008 confirms that the absolute

number of municipal employees decreased in each of the first two

years under Mayor Questell. Rodríguez's comment does not, as the

plaintiffs contend, demonstrate that "in spite of the alleged

financial crisis, the Municipality continued to hire new employees

throughout 2005, 2006, 2007, and 2008."

Second, Rodríguez explained in her deposition that she

does not recall whether the Municipality instituted a hiring freeze

because the positions that were subject to Ordinance 28 were

removed from the municipal budget entirely. In other words, the

positions at issue no longer existed within the Municipality, so

there were no open positions to fill. Thus, Rodríguez's failure to

recall whether a hiring freeze was implemented is not probative of

whether the Municipality conducted any hiring in 2005. The only

record evidence that directly speaks to municipal hiring in 2005 is

Mayor Questell's unequivocal assertion in his deposition that, in

2005, "we were not hiring and there was a reduction in all

[departments], including mine in particularly [sic]."

Likewise, the appellants suggest that the defendants' use

of a seniority ranking only for the positions selected for layoffs,

instead of an across-the-board seniority ranking, shows that

certain defendants were targeted for layoffs and that seniority was

not, in fact, the basis for the termination decisions. We

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disagree. In general, one would expect a bona fide administrative

reorganization plan to focus on particular positions that would be

eliminated. A layoff plan based exclusively on seniority, without

regard to the jobs the terminated employees performed, would pose

considerable challenges, including the possibility of added expense

and inefficiency by requiring the Municipality to re-train more

senior employees in new roles based on the needs of the public. 

Moreover, because the appellants have failed to adduce evidence

showing that Mayor Questell had knowledge of the identities or

political affiliations of the workers in each position, the

suggestion that particular positions were selected for elimination

in order to target the appellants on the basis of their political

affiliation is speculative and unsupported. See Méndez-Aponte, 645

F.3d at 64 ("We ignore any conclusory allegations, improbable

inferences, and unsupported speculation." (quoting Del Toro Pacheco

v. Pereira, 633 F.3d 57, 62 (1st Cir. 2011) (internal quotation

marks omitted))).

The strongest evidence in favor of the plaintiffs' claim

of pretext is the admission by Rodríguez that she did not employ

any of the alternatives to termination identified in the amendment

to Ordinance 28 once the administration had settled on a particular

layoff plan. Even that evidence is insufficient, however. The 8

amendment to Ordinance 28 required the defendants to consider

These alternatives included the transfer of employees to 8

similar posts in programs not affected by the reduction in force,

retraining, work schedule reduction, furlough, and demotion.

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alternatives to termination only if they viewed the use of such

alternatives to be financially feasible. The record is devoid of

evidence that would support the conclusion that the defendants'

insistence upon proceeding with terminations was the product of a

political motive, and it provides no ground for us to second-guess

the defendants' appraisal of what approaches were or were not

financially feasible. "The mere fact that the impact falls mainly

on members of the party which has lost power is not, of course,

sufficient to warrant federal court interference with the policy

choices of a new administration which reflects the voters' choice

that changes are desirable." Borges Colón, 438 F.3d at 6.

In short, the evidence in the summary judgment record is

insufficient to allow a reasonable jury to conclude that Ordinance

28 was anything other than a bona fide reduction in force in

response to the Municipality's financial troubles. Accordingly,

the defendants' failure to provide pre-termination hearings did not

deprive plaintiffs of due process.

B. Political Discrimination

All of the appellants claim that the termination

decisions constituted impermissible political discrimination, in

violation of the First and Fourteenth Amendments. A triable claim

of political discrimination under 42 U.S.C. § 1983 requires, among

other things, evidence that political affiliation was a substantial

or motivating factor in the conduct being challenged. See Del Toro

Pacheco, 633 F.3d at 63. Even if a plaintiff makes a prima facie

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showing that the government acted from politically discriminatory

motives, a defendant may avoid liability by proving that he or she

inevitably would have taken the same action without regard to

politics. See generally Mt. Healthy Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977). "Thus, even if the defendant's actions

were motivated in part by the plaintiff's protected conduct, the

defendant can still prevail if he or she can show that the

protected conduct was not the 'but-for' cause of the adverse

action." Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 767 (1st

Cir. 2010). More specifically, "when a new administration decides

to reorganize or take other cost-cutting measures after winning an

election and thereby eliminates the jobs of the plaintiffs, the

defendants' decision will be upheld if they can demonstrate that

the reorganization would have occurred regardless of the political

affiliation of the plaintiffs." Acevedo Cordero v. Cordero

Santiago, 764 F. Supp. 702, 709 (D.P.R. 1991).

In the present case, the district court concluded that

the appellants had failed in their burden of producing evidence

sufficient to show that the termination decisions were politically

motivated. It held that, with the exception of the twenty-three

plaintiffs identified earlier, the plaintiffs had failed to

establish that Mayor Questell was aware of the political

affiliation of the affected employees. We need not separately

address that conclusion. Our determination in the due process

analysis that the reorganization was bona fide, and thus not

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pretextual, necessarily means that the defendants have satisfied

their burden of showing that Ordinance 28 would have been

implemented irrespective of the political affiliation of those who

were terminated. See Duffy, 892 F.2d at 147 ("[B]ecause the

district court determined that the reorganization was valid for

purposes of Mt. Healthy, another finding on that point under due

process was unnecessary."). The success of that defense obviates

the need for additional analysis of the record evidence.

III.

For the foregoing reasons, the district court's entry

of summary judgment is affirmed.

So ordered.

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