# United States Court of Appeals

For the First Circuit

No. 01-1238

ROSANGELICA ACEVEDO-DELGADO,

Plaintiff, Appellee,

v.

MIGUEL A. RIVERA,

Defendant, Appellant.

____________________

No. 01-1239

ROSANGELICA ACEVEDO-DELGADO,

Plaintiff, Appellant,

v.

MIGUEL A. RIVERA, MANUEL DE J. VELEZ, ET AL.,

Defendants, Appellees.

_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge ]

Before

Torruella, Circuit Judge

, Coffin, Senior Circuit Judge

, and Lipez, Circuit Judge

.Sigfredo Rodri guez-Isaac , Assistant Solicitor General, with whom

Roberto J. Sanche z-Ramos , Solicitor General, and Vanessa Lugo-Flores

, Deputy Solicitor General, were on brief, for Rivera and the

Administration of Juvenile Institutions.

Judith Berkan

, wit h whom Mary Jo Mendez and Berkan/Mendez were on

brief, for Acevedo-Delgado.

June 4, 20021 The appeal was brought by defendant Miguel R ivera.

Defendant Manuel de Jesus Vélez did not appeal the judgment

against him.

-4- COFFIN, Senior Circuit Judge

. Rosangélica Acevedo-Delgado

("Acevedo") was fired from her job as director of a government-operated

group home for children in Puerto Rico after she refused to participate

in a workplace fund-raising campaign for a school voucher system.

Acevedo brought suit under 42 U.S.C. § 1983, claiming that she was

discharged based on her political affiliation and her resistance to the

fund raising, in violation of the First and Fourteenth Amendments to

the U.S. Constitution. She also brought pendent claims under Puerto

Rico law. The district court granted summary judgment for defendants

on her political affiliation claim, concluding that party allegiance

was an a ppropriate criterion for the job that Acevedo occupied, and it

declined to exercise jurisdiction over the Puerto Rico claims.

Although the court's summary judgment decision meant that

defend ants could have fired Acevedo simply based on their political

differences, the court also ruled that she could not be dismissed for

refusing to contribute to a cause she opposed. Thus, Acevedo's other

federal claim

– that defendants violated her right to be free from

coerced donations – went to trial. A jury found in her favor, awarding

$135,000 in back pay and damages.

On appeal, one defendant challenges the jury's verdict, 1 claiming

that it is unsuppo rted by either the law or facts. In a cross-appeal,2 In English, the organization is called the "Educational

Foundation for the Free Selection of Schools."

-5- Acevedo asserts that the district court erred in dismissing her

political affiliation claim. Because we affirm the judgment

incorporating the jury's verdict, we do not reach this latter

contention. We also briefly consider, but need not resolve, the

complexities of a coerced contribution claim made by an employee who is

subject to patronage dismissal.

I. Background

Thi s case is set against the backdrop of a 1992 election campaign

promise by the New Progressive Party ("NPP") to establish an

educational voucher system in Puerto Rico. The promise initially was

fulfilled through passage of Act No. 71, which established a

governmentally financed system of vouchers to be used by students in

both private and public sc hools in the Commonwealth. Within a year,

however, Puerto Rico's Supreme Court declared the law unconstitutional.

See Asocia cion de Maestros de Puerto Rico v. T orres

, 131 P.R. Dec. 528

(1994). Undaunted, the NPP-controlled legislature passed a law in 1995

creating the Fundación Educativa p ara la Libre Seleccion de Escuelas

(FELSE), 2a private, nonprofit fund with the same objectives as Act No.

71. By statute, full tax credits would be given for contributions to

FELSE up to $250, effectively making such contributions cost-free.3 The Spanish word for non-career positions, which are

outside the civil service system, is "confianza." That term is

sometimes translated as "trust" and sometimes as "confidential."

See Duriex-Gauthier v. Lopez-Nieves

, 274 F.3d 4, 7 n.3 (lst Cir.

2001); Correa-Martinez v. Arrillaga-Belendez

, 903 F.2d 49, 52

n.2 (lst Cir. 1990).

-6- According t o evidence presented at trial, a plan was developed to

raise funds for FELSE from government employees, with a $2.5 million

goal that anticipated $250 from every management and confidential

employee. 3 Defendants Vélez and Rivera were in charge of collections

for the Juvenile Institutions Administration ("JIA"), the agency under

whose umbrella Acevedo worked. On November 9, 1995, appellant Rivera,

the JIA administrator, sent a letter to all confidential and managerial

employees in JIA, urging that their donations to FELSE be made before

December 15th. After that deadline, Vélez, coordinator of the FELSE

effort at the agency, reported to Rivera the names of the twenty

employees who had contributed and the four who had not, including

Acevedo. Over the next few weeks, several communications updating the

agency's collection effort took place among Rivera, Vélez, and Leopoldo

Mercado, the director of FELSE's public sector campaign.

Acevedo testified that on Friday afternoon, January 12, 1996, she

received three messages on her beeper reminding her of the $250

donation. Two of them also warned that she would have to submit her

resignation to Rivera if the funds were not received. On Tuesday,

January 16, following a long holiday weekend, she received another4 Branti v. Finkel

, 445 U.S. 507 (1980); Elrod v. Burns

, 427

U.S. 347 (1976).

-7- message requesting that the money be sent as soon as possible to

Vélez's attention. Acevedo also met with Vélez that day and was told

th at she would need to resign if she failed to contribute to FELSE by

Thursday. On Friday, January 19, Vélez sent a letter to Rivera

detailing the p ayments he had received from the other hold-outs and

stating that Acevedo continued to refuse to participate. He wrote:

Ms . Rosangélica Acevedo refused to participate in this event

because she alleges to b e too financially committed and it

is impossible for her to make any kind of contribution.

On Monday, January 22, Vélez and the agency's personnel director met

with Acevedo and requested that she turn in all government property and

prepare to lea ve her job. An official termination letter arrived the

next day, at which point Acevedo said her goodbyes at the group home

and left.

Acevedo filed this action shortly after her dismissal, claiming

that the N PP administration had improperly used the FELSE contribution

as a litmus test for political loyalty. She invoked two distinct

strands of First Amendment precedent to claim a constitutional

violation. Under the E lrod-Branti li ne of cases, 4 she claimed that her

politically motivated disc harge was impermissible because she was not

in a position subject to patronage dismissal. She also claimed that,

under Abood v. D etroit Bd. of Educ. , 431 U.S. 209, 223 (1976), she was-8-

protected from being coerced to contribute to causes she did not

support.

As noted earlier, Acevedo's Elrod-Branti claim was resolved

through summary judgment in defendants' favor. Following the jury

verdict for Ace vedo on the A bood claim, the district court rejected

defendants' post-trial motions seeking judgment as a matter of law or

a new trial. The court confirmed the damages award and provided

further relief in the form of reinstatement, attorney's fees, and

litigation costs.

Defendant Rivera challenges the court's judgment on multiple

fronts: (1) he argues that Abooddoes not support Acevedo's coercedcontribution claim because the Supreme Court's decision applies only to

political contributions, while FELSE is a non-political, nonideological program; (2) he claims that, if Abood is deemed applicable,

he is immune from damages because the law providing relief was not

clearly established at the time of the challenged conduct; (3) he

argues that Acevedo fai led to demonstrate that defendants knew of her

opposition to the FELSE program and, thus, that it was a motivating

fa ctor in their decision to fire her; and, finally, (4) he claims error

in the court's refusal to instruct the jury to use the balancing test

established in Pickering v. Bd. of Educ. o f Township High Sch. Dist.

205

, 391 U.S. 563 (1968) , for evaluating adverse employment actions

based on protected First Amendment activity.5 Prior c a ses had considered similar issues involving

private employers under the Railway Labor Act, 45 U.S.C. § 152

Eleventh. S ee Ry. Clerks v. Allen

, 373 U.S. 113 ( 1963);

Machinists v. Street , 367 U.S. 740 (1961); R y. Employees v.

Hanson , 351 U.S. 225 (1956); see also Lehnert v. Ferris Faculty

Ass'n

, 500 U.S. 507, 514-16 (1991) (reviewing relevant

precedent).

-9- We review de novo the district court's denial of a motion for

judgment as a matter of law, Cigna Ins. Co. v. Oy Saunatec, Ltd. , 241

F.3d 1, 8 (lst Cir. 2001), but review denial of a motion for new trial

only for abuse of discretion, s ee Interstate Litho Corp. v. Brown , 255

F.3d 19, 29 (lst Cir. 2001). We explain in the following section why

none of appellant's points warrants disturbing the court's judgment.

II. Discussion

A. Abood and Government Employment

The constitutionality of coercing contributions from public

employees was first fully aired in Abood

, 431 U.S. at 217, 5 which

involved a challenge by Detroi t public school teachers to the

requirement that they either join a union and pay dues, or pay a

service charge, as a condition of employment. Although the Court

upheld the public sector agency shop, it ruled that the union could not

use employee funds against their will "to contribute to political

cand idates and to express political views unrelated to its duties as

exclusive bargai ning representative." See 431 U.S. at 234. The Court-10-

emphasized that well established First Amendment principles prohibited

the union from requiring an individual "to contribute to the support of

an ideological cause he may oppose as a condition of holding a job as

a public school teacher." S ee id. at 235. Such expenditures must be

finan ced by "employees who do not object to advancing those ideas and

who are not coerced into doing so against their will by the threat of

loss of governmental employment." Id. at 236.

The Court recognized that there would at times be "difficult

problems in drawing lines between collective-bargaining activities, for

which contributions may be compelled, and ideological activities

unrelated to collective bargaining for which such compulsion is

prohibited." S ee id. In a subsequent decision, L ehnert

, 5 00 U.S. at

519, the Court noted that the requisite case-by-case analysis may be

aided by three guidelines:

[C]hargeable activities must (1) be "germane" to collectivebargaining activity; (2) be justifi ed by the government's

vital policy interest in labor peace and avoiding "free

riders"; and (3) not significantly add to the burdening of

free speech that i s inherent in the allowance of an agency

or union shop.

Id.

The Court later addressed similar First Amendment association

issues in the context of mandatory bar membership. In Keller v. State

Bar

, 496 U.S. 1 (1990), the C ourt reaffirmed an earlier ruling that a

substantial state interest in regulating the legal profession and

improving the quality of legal services justifies restricting the-11-

pr actice of law to those who are members of a state bar association.

Id. at 13-14 (citing Lathrop v. Donahue , 367 U.S. 820, 842-43 (1961)).

It als o ruled, however, that an integrated state bar may not "compel

members to fund 'activities of an ideological nature' that are not

germane to the state's interest justifying compelled membership." S ee

Romero v. Colegio de Abogados de Puerto Rico

, 204 F.3d 291, 297 (lst

Ci r. 2000) (quoting Keller , 496 U.S. at 14). We explicitly recognized

in Romero that the protection afforded by th e First Amendment against

coerced contributions extends as well to activity that is nonideological and non-germane. S ee id. at 300-02 & n.10. Thus, in both

the union and bar sett ings, "the constitutionally protected right to

refuse to associate" m ust bend to the stat e's compelling interest, but

it remains a barrier to co erced association unrelated to the state's

demonstrated needs. See id. at 297.

Although this case implicates similar a ssociation issues, the

government employment setting introduces some unique considerations.

In the Abood /Keller line of cases, the issue of coerced

contributions arose in the context of a mandated association

–

a union or integrated bar

– that served significant state

interests and thus was deemed a permissible intrus ion on the

First Amendment right not to associate. After concluding that

some compromise of an employee's First Amendment rights was

justified in both settings, the Court confronted the difficult-12-

question of how far the in trusion could extend. The L ehnert

criteria represent the Court's effort to limit the scope of the

intrusion to a narrow category of assessments that are linked

closely to the state's asserted interest and are not

substantially more burdensome to First Amendment rights than the

mandated association itself.

Here, there is no threshold compulsory association that has

been sanctioned as a permissible burden on employees ' free

association rights to provide boundaries for a Lehnert inquiry.

Instead, however, any examination of the legitimacy of coercing

contributions from governm ent workers runs headlong into the

political patronage cases, which allow politically motivated

discharges of policy-related employees when reasonably necessary

for an administration to effectuate its mandates. S ee O'Hare

Truck Serv. v. City of Northlake , 518 U.S. 712, 718-19 (1996);

Elrod , 427 U.S. at 347; Branti

, 445 U.S. at 507; Flynn v. City

of Boston , 140 F.3d 42, 44-47 (lst Cir. 1998).

The primary question that arises from that colli sion of

principles is whether the loyalty of a confidential employee is a

sufficient state interest – like collective bargaining and regulating

the legal profes sion – to justify some degree of coerced contribution.

See Flynn

, 140 F.3d at 47 ("[W]here the employee is subject to

discharge fo r political reasons under the E lrod and Branti6 Defendant Rivera hints at this position in the heading to

the section of his brief on qualified immunity, asking

"[w]hether defendants were entitled to qualified immunity since

it was not clearly e stablished that a confidential or policymaking employee could not be required to support, follow and/or

further the public policy of the administration for which they

work." The discussion that follows does not address that point,

however, and it co nsequently is not before us. S ee United

States v. Zannino

, 895 F.2d 1, 17 (lst Cir. 1990) (noting the

"settled appellate rule that issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived").

-13- cases, a superior may also

– without o f fending the First

Amendm ent's free speech guarantee – consider the official's

substantive views on agency matters in decidin g whether to

retain the official in a policy related position."). I f so, does

di scharge in such a case require establishing a connection

between the required contribution and "effective performance" of

the individual's particular job, see Branti

, 445 U.S. at 518, or

may support be compelled for any, and all, policy initiatives?

Does it matter if the coerced contribution is effectively costfree to the employee?

We need not pursue these questions here because d efendants hav e

not argued that they were justified in firing Acevedo for refusing to

contribute to FELSE based on the ne ed to maintain political loyalty

among all trust and confidential employees. 6 Instead, they consistently

have asserted that Acevedo was not terminated because of her opposition

to FELSE or failure to contribute. At trial, Rivera testified that the7 Defendants took this approach despite the district court's

finding on summary judgment that Acevedo was in a position

subject to patronage dismissal. At oral argument, counsel

continued to eschew the political loyalty justification, noting

that Acevedo's termination was at worst "unfair" – but not

unconstitutional

– because all that defendants knew ab out her

refusal to contribute was what she ha d told them – that she

could not afford to do so.

8 The judge instructed the jurors as follows:

Plaintiff claims that she was dismissed for her

failure to contribute $250 to the "Fundación Educativa

para la Libre Seleccion de Escuelas," FELSE

. . . because she did not believe in this program.

The defendants c laim that the plaintiff was an

employee holding a position of trust and confidence,

subject to be dismissed at will, and that she was

-14- termination decision stemmed from several earlier episodes that caused

him to lose trust in her. 7

Defendants' chosen defense thus eliminates from the coercedcontribution calculus t he complications presented by political

patronage principles, and the basic principle underlying A bood and its

progeny

– that a public employee's job may not be conditioned on a

coerced contri bution to a cause she may oppose – is thus left as the

applicable guidepost. As framed by the evidence and the judge's

instruction s, the jury's task was to assess the circumstances and the

credibility of the witnesses to ascertain the actual motivation for the

discharge: was it improperly based on Acevedo's refusal to contribute

to FELSE, or was it a legitimate discharge based on unsatisfactory

performance that diminishe d her superiors' trust in her? 8 Appellantdismissed because she lost the trust and confidence of

the Administra tor of Juvenile Institutions, not

because of her failure to contribute to FELSE.

-15- contends that the jury lacked evidentiary support for concluding that

Acevedo was, in fact, terminated based on her refusal to support FELSE

in violation of her First Amendment rights. We turn to that issue

after a preliminary review of appellant's claimed entitlement to

immunity.

B. Qualified Immunity

Appellant asserts that he is entitled to qualified immunity

because FELSE is non-ideological in nature and Acevedo's termination

took place before it was established that coercing contributions for

non-ideological activities is barred by the First Amendment. We find

this position wholly unsupportable. The conclusion is inescapable that

the compelled contributions to FELSE served political and ideological

objectives. The very reason for defendants' intensive fund-raising was

the NPP campaign promise, and the appropriateness of school vouchers

has for some time generated national debate. Although FELSE itself may

be an independent, non-partisan agency – a factual finding made by the

district court that we need not examine – it has an undeniably

ideological purpose. Indeed, this is an apt illustration of the

dictionary definition of "ideology": " a body of doctrine . . . with

reference to some political and social plan

. . . along with the-16-

devices for putting it into operation." S ee The Random House

Dictionary of the English Language (2d ed. 1987) 950.

The unlawfulness of co ercing contributions to ideological causes

was well established before the conduct challenged here occurred, and

appellant's attempt to invoke qualified immunity is therefore

unavailing. S ee Abood

, 431 U.S . at 235-36; Wash. Legal Found. v. Mass.

Bar Found.

, 993 F.2d 962, 977 (lst Cir. 1993) (citing, inter alia

,

L ehnert

, Keller

, and Abood ) ("Compelled support of an organiza tion

engaging in expressive activities may also burden First Amendment

rights.").

C. Evidence of motive

Appellant contends that the evidenc e presented at trial did not

permit a finding that he knew of plaintiff's substantive objections to

the FELSE program. He points to the letter he received from Vélez

explaining that Acevedo refused to contr ibute because she could not

afford to do so, and asserts that a discharge based simply on her

inability to pay would not be unconstitutional. In response, Acevedo

maintains that her actual motivation is immaterial, be it ideological

or financial; she contends that defendants violated the Constitution if

they fired her for refusing to support an ideological cause, whatever

her reason for declining to do so.

We agree with appellant that the record lacks direct evidence

show ing that defendants knew of Acevedo's substantive opposition to the9 The Supreme Court has noted that strong opposition to an

ideological cause heightens the burden imposed by compelling

speech. S ee Lehnert , 500 U.S. at 522 ("The extent of one's

disagreement with the subject of compulsory speech is relevant

to the degree of impingement upon free expression that

compulsion will effect.").

-17- voucher program. This does not help appellant's cause, however,

b ecause, as Acevedo argues, a const itutional violation occurs when an

individual's employment is conditioned on paying for ideological

activity, regardless of the reason for the employee's refusal to

participate, unless the compelled association is justified by an

important government interest.

In A bood

, the Supreme Court ruled that employees could object to

ideological expenditures without identifying the specific causes to

which they objected because forced disclosure would compromise an

employee's "freedom to maintain his own beliefs without public

disclosure," 431 U.S. at 239 n.39, 241 & n.42; s ee Schneider v. Coleg i o

de Abogados de Puerto Rico

, 917 F.2d 620, 635 (lst Cir. 1990) ("[A]

primary feature of a constitutional system [of mandatory fees] is that

dissenters be able to trigger refunds by means of general objections so

that they need not make public their views on specific issues.").

Particularly in the absence of a government interest justifying

financial coercion, requiring an e mployee to confess her views would

place an undue burden on the individual's exercise of her First

Amendment rights. 9 In this case, therefore, the jury needed to10 The form asked whether plaintiff was dismissed "for her

refusal to contribute to Fundación de Libre Seleccion de

Escuelas because she did not believe in that program."

-18- determine only whether Acevedo was terminated for her refusal to

contribute to FELSE. As detailed above, the evidence of repeated,

explicit warnings that she would need to tender her resignation if she

failed to make the donation

– the validity of which the jury evidently

accepted

– was more than adequate to substantiate Acevedo's First

Amendment claim.

Moreover, the judge instructed the jury that it had to determine

"whether defendants dismissed plaintiff . . . for failure to contribute

to FELSE because she did not believe in that program." The court

repeated this description of the jury's fact-finding mission multiple

times, telling the jurors, for example, that "public employees may not

be compelled to make financial contributions for the implementation of

government programs to which they are opposed as a condition of

employment," and that, to prevail on her association claim, "plaintiff

Rosangélica Acevedo must demonstrate tha t her failure to contribute

$250 to FELSE because she did not believe in that program played a

s ubstantial role in her dismissal." The jury verdict form incorporated

the same inquiry. 10

As we have explained, these i nstructions overstated the

plaint iff's burden. The jury nonetheless found in her favor, and we

think its judgment reflects the logical inference that, if she was-19-

fired for her failure t o contribute, it was on account of her

opposition to the program. Defendants unquestionably knew that the

favored ta x treatment would make a FELSE contribution cost-free for

Acevedo. It was thus unlikely that defendants believed plaintiff did

not contribute simply because she could not afford to do so. In

launching the campaign within the JIA, Ri vera had written a letter to

all trust and managerial employees referring to the "commitment" of the

government to support the voucher program, and defendants closely

monitored the donations f rom each trust employee within the agency.

Rivera testified that he expected every trust employee to contribute to

FELSE because "we have a responsibility to fulfill any public policy

approved in the Commonwealth." The jurors likely inferred from these

facts that defend ants viewed plaintiff's recalcitrance as a statement

against the administration's pro-voucher policy, leading to the

conclusion that her dismissal occurred for that reason.

Whether that rationale was directly supported by the record is of

no consequence, however, because of the strong foundation for the

general finding that Acevedo's discharge resulted from her refusal to

participate in the FELSE fund-raising campaign. We thus reject

appellant's claim that the record does not support the verdict.

D. The Pickering Instruction

Lastly, appellant challenges the district court's refusal to

instruct the jury to follow the First Amendment balancing test set out11 Given appellant's failure to ident ify a state interest

justifying Acevedo's termination, we need not consider whether

the Pickering analysis applies to freedom of association, as

well as freedom of speech, clai ms. S ee Tang v. R.I. Dept. of

Elderly Affairs

, 163 F.3d 7, 11 n.4 (lst Cir. 1998) (noting

circuit split on appli cability of C onnick v. Myers

, 461 U.S.

138, 140, 142 (1983), which incorporated the Pickering test, to

association claims).

-20- in Pickering

, 391 U.S. at 564. That test typically is applied when an

employee suffers adverse employment action based on his speech, and it

involves " a balancing of the employee's interests 'as a citizen, in

commenting upon matters of public concern' against 'the interest of the

State, as an employer, in promoting the efficiency of the public

service it performs through its employees,'" Flynn

, 140 F.3d at 47

(q uoting Pickering , 391 U.S. at 568). Pickering is inapposite to this

case, which does not involve an asserted state interest that allegedly

was compromised by an employee's statements. Rivera simply denies

having fired Acevedo for her refusal to contribute; he advances no

argument to ju stify having done so. C f. Marshall v. Allen

, 984 F.2d

787, 797 n.8 (7th Cir. 1993) ("[T]he defendants' primary defense on the

merits of this case appears to be that [plaintiff's] speech had nothing

to do with his dismissal. In light of this, defendants have waived a

Pickering analysis."). 11 Consequently, the district court did not err

in declining to instruct the jury under Pickering

.

III. Conclusion-21-

Although the fact s of this case place it at the intersection of

the Elrod-Branti and Abood strands of First Amendment jurisprudence,

defendants have not sought to justify compulsory contributions to FELSE

– or Acevedo's termination – by asserting an important state interest.

Instead, they h ave denied that her refusal to contribute caused her

t ermination. The jury rejected this defense, and that determination

was supported by sufficient evidence in the record. FELSE's objectives

unquestionably are ideological in nature, and Abood therefore

proh ibited defendants from linking Acevedo's tenure to her willingness

to contribute. The bar against coerced contributions to ideological

activities was well es tablished at the time of the acts in question,

and appellant is therefore not entitled to qualified immunity.

For the foregoing reasons, the judgment of the district court is

affirmed.