O'Connell v. Marrero Recio , 724 F.3d 117 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2191
ROSEMARIE O'CONNELL; ALEJANDRO FRANCO,
Plaintiffs, Appellants,
v.
HUMBERTO MARRERO-RECIO, in his personal and official capacity;
JORGE GARCÍA-FANEYTT, in his personal and official capacity;
JESÚS MÉNDEZ-RODRÍGUEZ, in his personal and official capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
[Hon. Marcos E. López, U.S. Magistrate Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Harry Anduze-Montaño, with whom José A. Morales-Boscio was on
brief, for appellants.
Michelle Camacho-Nieves, Assistant Solicitor General,
Department of Justice, with whom Margarita Mercado-Echegaray was on
brief, for appellees.
July 22, 2013
TORRUELLA, Circuit Judge. After brief stints as the
Human Resources Director of two Puerto Rico governmental agencies,
Plaintiff-Appellant Rosemarie O'Connell sued her former supervisors
seeking redress under 42 U.S.C. § 1983 and the laws of Puerto Rico.
The district court dismissed some of her claims at the pleading
stage, and the rest at summary judgement. O'Connell now appeals
the dismissal of three of those claims.
Specifically, O'Connell first challenges the dismissal of
her First Amendment free speech claim, arguing that the district
court erred in finding that her "speech" exclusively revolved
around her professional responsibilities as Human Resources
Director. Second, O'Connell challenges the dismissal of a claim
she made under the Puerto Rico Whistleblowers Protection Act ("Law
426"), P.R. Laws Ann. tit. 1, § 601, and takes issue with the
court's determination that she never engaged in the kind of
whistleblowing activities protected under the statute. Third,
O'Connell challenges the judgment on her First Amendment freedom of
association claim. According to O'Connell, the court erred in
holding the First Amendment inapplicable to her position as Human
Resources Director.
After careful consideration, we affirm the district court
on all fronts.
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I. Background1
After the New Progressive Party ("NPP") won Puerto Rico's
November 2008 general elections, O'Connell, a long-time NPP
affiliate,2 became the Human Resources Director of the Puerto Rico
Permits and Regulation Administration (Spanish acronym "ARPE").
Shortly thereafter, Defendants-Appellees, Humberto Marrero-Recio
and Jorge García-Faneytti, also NPP affiliates, were respectively
appointed as the first and second in command at ARPE.3 O'Connell,
Marrero, and García appear to have coexisted without conflict
during their first months at ARPE.
Things changed in May 2009 when an NPP primary election
pitted O'Connell and Marrero's candidates against each other. When
Marrero learned that O'Connell stood in a different camp for the
election, he prohibited her from campaigning in favor of her
1
We state the facts underlying O'Connell's claims as alleged in
her complaint. S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir.
2010). When reviewing the summary judgment ruling, see infra Part
II (B), we use only those facts that are properly documented in the
summary judgment record.
2
As an active member of the NPP, O'Connell has held different
leadership positions through the years, including, for example,
Regional Director of the Women's Organization, Electoral Director
for the Carolina Region, and "Get Out to Vote" Regional Director.
In the 2007 NPP primary election, O'Connell unsuccessfully ran for
a Senate seat representing the Carolina District. She has also
worked within the NPP Human Resources Professional Group of the
Public Employment Coalition as well as coordinated several NPP
activities.
3
Marrero remained as ARPE's Administrator until October 8, 2009,
when he was appointed to a different position at another
governmental agency. García succeeded him as ARPE's Administrator.
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candidate. Marrero also threatened her by stating that "he did not
want to learn that she voted in the primaries for [her candidate]."
O'Connell voted for her candidate anyway, and a few days after the
election, Marrero told O'Connell that he knew how she had voted and
that, from that point on, she was not allowed to engage in any
"off-office" political activities. Marrero also enlisted some of
his subordinates at ARPE to spy on O'Connell. A clandestine
newsletter circulating at ARPE stated that O'Connell was being
videotaped and that she held a parallel private-sector job.
O'Connell later learned that a subordinate of Marrero was
responsible for the publication of the newsletter and that Marrero
exerted control over its content.
O'Connell and Marrero also butted heads when it came time to
implement the "Special Act Declaring a State of Fiscal Emergency,"
also known as "Law 7." As ARPE's Human Resources Director,
O'Connell was responsible for determining and reporting the agency
employees' "years of service" to a so-called Stabilization Board
created under Law 7. The Board was required to determine the
respective "seniority" of each employee in order to make downsizing
decisions. Employees could challenge the Board's determinations
within a period of 30 days.
In an attempt to prevent the possible layoff of certain
NPP employees under Law 7, Marrero instructed O'Connell to falsify
their personnel records by increasing their years of service. She
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refused, and, a few days later, García made the same request. But
O'Connell reaffirmed her position "and explained that the[] same
employees [had] failed to challenge the calculated time within the
term established by Law 7 [and] [t]hat it was illegal for her to
change the numbers adjudicated by the Stabilization Board."
Unable to impose his will over O'Connell, Marrero
entrusted one of his subordinates with reviewing employees'
challenges to the year-of-service computations made by the
Stabilization Board. Marrero then instructed O'Connell to certify
the work of his subordinate without validating the information
provided to her. She refused and told Marrero that "the Internal
Auditor, the IT Director, the License Supervisor, and human
resources personnel would verify the calculations."
O'Connell and Marrero's working relationship continued to
deteriorate as she consistently refused to follow his politically
motivated orders. For example, among other things, O'Connell
refused to acquiesce to Marrero's wishes to (1) reinstate an NPP
employee who was previously terminated because of dishonesty; (2)
ignore an Office of Government Ethics request for information as to
possible unethical conduct at the agency; (3) disregard personnel
related inquiries made by NPP employees considered to be traitors
because they were friends with employees affiliated with the
opposing party; and (4) arbitrarily transfer an ARPE employee as
punishment for supporting the opposing party. In refusing to act
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as instructed, O'Connell told Marrero that his requests "could not
be legally justified and would surely bring upon [them negative
legal repercussions]." Marrero responded "that he was
'disappointed' with her failure to act according to his wishes."
And when O'Connell reinstated the duties of another employee
affiliated with an NPP opponent, Marrero responded by having an
employee under his direct supervision threaten her, stating that
"those who do not follow our instructions (gestured by 'passing a
finger across his neck') . . . [and we] know where your husband
works and where your daughter studies."
O'Connell tendered her resignation on October 9, 2009,
effective on December 15, 2009. A few days later, however,
O'Connell received an offer to become the Human Resources and Labor
Relations Director for the Puerto Rico Public Buildings Authority
(Spanish acronym "AEP") under the direction of Defendant-Appellee
Jesús Méndez-Rodríguez (together with Marrero and García,
"Defendants"). She accepted the offer and changed the effective
date of her resignation to October 31, 2009. But during
O'Connell's first day at AEP, Méndez summoned her to a meeting and
informed her that "she was [being] terminated immediately" because
Marrero had threatened to cause problems if she was employed at the
agency. As O'Connell left the AEP building, she came across an
edition of ARPE's clandestine newsletter already in circulation
stating that she had been immediately terminated from AEP.
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O'Connell filed her complaint on October 7, 2010, and
amended it on January 19, 2011. O'Connell divided Count One of her
amended complaint into two sections. The first section claimed
that she had been constructively discharged at ARPE, and then
discharged at AEP, due to her allegiance with an NPP faction
disfavored by Defendants, in violation of her First Amendment
freedom of association rights. The second section claimed First
Amendment free speech violations in the form of retaliation on
account of "her refusal to partake in the[] illegal actions"
requested by Marrero and García. O'Connell's Law 426 claim was
pled in Count Five of the amended complaint, which stated that
"Defendants took an adverse employment action against Plaintiff
because of her 'whistleblowing' actions."
In due course, Defendants moved to dismiss the amended
complaint under Federal Rule of Civil Procedure 12(b)(6). The
district court granted the motion in part, dismissing O'Connell's
First Amendment retaliation claim as well as her Law 426 claim. In
so holding, the court rejected O'Connell's contention that the
complaint sufficiently pled retaliation based on the different
actions Marrero and García took upon her refusal to follow
personnel-related orders that she considered illegal and
politically motivated. The court reasoned that O'Connell's
"speech" was made in response to Marrero's orders "pursuant to her
professional activities and, therefore, d[id] not fall under the
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First Amendment's protections." In connection with O'Connell's Law
426 claim, the court agreed with Defendants that the complaint
failed to allege "the misuse of public property or public funds"
required for a valid whistleblowing claim under that law.
Once discovery concluded, Defendants moved for summary
judgment in connection with O'Connell's First Amendment freedom of
association claim and the remaining state law claims. As relevant
here, they argued that O'Connell's Human Resources positions at
ARPE and AEP were "trust" and "policy-making" positions exempted
from the protection of the First Amendment. In opposition,
O'Connell stated that the responsibilities of her positions
resembled those of a technocrat and not a policymaker given that
Law 7 had "stripped" her job of any discretion and "severely
curtailed" her supervisory duties. In a thorough, well-reasoned
opinion, the district court sided with Defendants, and this appeal
timely ensued.
II. Discussion
A. Challenges to the Pleading Stage Dismissals
We review the district court's ruling on a motion to
dismiss de novo, accepting all well-pled facts in the complaint as
true, and drawing all reasonable inferences in favor of the
plaintiff. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st
Cir. 2011); Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d
45, 48 (1st Cir. 2009). Dismissal for failure to state a claim is
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warranted when the complaint lacks "sufficient factual matter . .
. to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We make this
determination through a holistic, context-specific analysis of the
complaint, which, in some cases, can represent a formidable
undertaking. See Iqbal, 556 U.S. at 679; Maldonado v. Fontanes,
568 F.3d 263, 268 (1st Cir. 2009). However, where, as here, a
district court "accurately takes the measure of a case,
persuasively explaining its reasoning, and reaches a correct
result, it serves no useful purpose for a reviewing court to write
at length in placing its seal of approval on the decision below."
Moses v. Mele, 711 F.3d 213, 216 (1st Cir. 2013). We therefore
limit our discussion to the bare essentials.
1. O'Connell's First Amendment Retaliation Claim
Our analysis begins with O'Connell's claim that
Defendants impinged on her First Amendment rights in retaliating
against her for refusing to partake in "unethical, unlawful and
discriminatory practices." She claims that her refusals
constituted protected "speech." We disagree.
Under the three-part test applicable here, the threshold
inquiry is whether O'Connell spoke as a citizen on a matter of
public concern. See Decotiis v. Whittemmore, 635 F.3d 22, 29 (1st
Cir. 2011) (citing Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.
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2007)), and Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).4
A dispositive factor in this determination is whether the "speech"
underlying O'Connell's claim was made "pursuant to [her] official
duties." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). If the
answer to this inquiry is in the affirmative, then O'Connell has no
First Amendment claim, since "restricting speech that owes its
existence to a public employee's professional responsibilities does
not infringe any liberties." Id. at 421-22.
As the district court correctly held, the "speech"
underlying O'Connell's claim was made pursuant to her duties as
ARPE's Human Resources Director. According to Count One of her
complaint, O'Connell's alleged protected speech consisted
exclusively of several instances in which she communicated to
Marrero and García her reluctance to undertake personnel-related
actions that she deemed either illegal or unethical. In other
words, O'Connell's "speech" solely focused on events at her
workplace and was made exclusively to fulfill her responsibilities
as ARPE's Human Resources Director. This type of communication is
the quintessential example of speech that owes its existence to a
4
For the second prong, "the court must balance the interest of
the employee, as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees." Decotiis, 635 F.3d at 29 (citations, alterations, and
quotation marks omitted). Under the third prong, "the employee
must show that the protected expression was a substantial or
motivating factor in the adverse employment decision." Id.(citations omitted).
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public employee's professional responsibilities and thus is not
protected under the First Amendment. See, e.g., Garcetti 547 U.S.
at 421-22 (finding the First Amendment Free Speech clause
inapplicable to prosecutor’s memo on “the proper disposition of a
pending criminal case” as it was written in conjunction with his
professional responsibilities and it was part of what he was paid
to do); Foley v. Town of Randolph, 598 F.3d 1, 7-8 (1st Cir. 2010)
(finding no First Amendment protection where the chief of the fire
department addressed the media in an official capacity during a
press conference when he was on duty, in uniform, at the scene of
a fire, and speaking alongside the State Fire Marshal on matters
concerning the fire department’s funding). For that reason,
O'Connell is unable to state a plausible claim for relief and our
Decotiis inquiry ends.
O'Connell contends that the district court disregarded
well-pled allegations stating that she suffered retaliation for
participating in the NPP's primary election against Marrero's
wishes. O'Connell, however, did not premise her First Amendment
retaliation claim on those allegations. Count One, subsection B
(entitled "Retaliation") of her first amended complaint makes plain
that O'Connell's retaliation claim arose out of Marrero and
García's actions in connection with her refusal to go along with
their alleged illegal orders:
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Defendants violated Plaintiff's First
Amendment rights as she suffered [D]efendants'
retaliation for refusing to follow politically
motivated illegal employment actions to favor
members of her own party, and for opposing
orders from the codefendants to injure members
of the opposing party . . . . O'Connell
engaged in protected speech while refusing to
follow the unethical, unlawful and
discriminatory practices ordered by
[D]efendants.
Similarly, O'Connell's opposition to Defendants' motion to dismiss
restated that Defendants' "retaliation was due to Plaintiff's
refusal to violate the law and her duties as a public servant in
order to accommodate defendants' requests to favor their political
protegees and to illegally affect others that were not . . . ."5
The district court therefore had no reason to factor into its
analysis of O'Connell's retaliation claim the allegations
concerning her participation in the NPP's primary elections. See
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)
("Judges are not expected to be mindreaders. Consequently, a
litigant has an obligation to spell out its arguments squarely and
distinctly or else forever hold its peace.") (internal citation and
quotation omitted). Neither do we. United States v. Slade, 980
5
Defendants' motion to dismiss unequivocally argued that
O'Connell's retaliation claim failed because it was premised on
"speech" that exclusively arose from her professional
responsibilities. If O'Connell felt that Defendants were
misconstruing her retaliation claim, she could (and should) have
stated so in her opposition or requested leave to amend the
complaint. She did neither.
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F.2d 27, 30 (1st Cir. 2013) ("It is a bedrock rule that when a
party has not presented an argument to the district court, she may
not unveil it in the court of appeals.").
Let us be perfectly clear. We in no way condone conduct
of the type that O'Connell attributes in her complaint to Marrero
and García. But federal law does not provide a remedy for every
kind of misfeasance by a local official, no matter how
unattractive, and O'Connell has not plausibly alleged a timely
argued violation of any federally assured right.
2. O'Connell's Law 426 Claim
Next, we consider O'Connell's contention that her
complaint plausibly pled a Law 426 whistleblowing claim. Law 426
was enacted to protect
the rights of public employees and officials
who disclose information or testify on alleged
improper or illegal acts regarding the use of
public property or funds that due to their
nature constitute acts of government
corruption or fall within the ethical conduct
regulated by our legal system.
P.R. Laws Ann. tit. 1, § 601. (emphasis added). Its provisions,
among other things, make it illegal to dismiss, threaten, or
discriminate against any public employee who discloses or attempts
to disclose, "before any official or employee with investigative
functions or before a state or federal legislative, administrative
or judicial forum," the improper or illegal misuse of public funds,
acts of corruption, abuse of authority, or other qualified
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information. P.R. Laws Ann. tit. 1, § 603(a), (b)(1). Therefore,
in order to lay out a plausible whistleblowing cause of action
under Law 426, the statute's plain language calls for a complaint
to state three threshold allegations: (1) that the plaintiff was
aware of qualified information; (2) that she reported or attempted
to report that information to an investigatory agent or to a forum
with administrative, legislative, or judicial authority; and (3)
that she was retaliated against on account of such reporting or
attempted reporting.
In dismissing O'Connell's Law 426 claim, the district
court held that O'Connell's complaint had "not alleged that [she]
ever reported the misuse of public property or public funds . . .
." O'Connell disagrees and argues that Marrero and García's orders
in connection with the "years-of-service" report provided to the
Stabilization Board constituted acts of financial malfeasance
directly falling under Law 426's purview. She reasons that the
Stabilization Board was to use that report in implementing
personnel-related decisions, and that Marrero and García's orders
would have eventually impacted public funds. O'Connell, however,
never raised this argument below. In fact, the following sentences
encompass the entire extent of O'Connell's memorandum in opposition
to the dismissal of her Law 426 claim: "Plaintiffs' averments amply
showed the corrupted conduct engaged by the [D]efendant[s]. Thus,
Defendant[s]' Law 426 argument is meritless." Accordingly, we need
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not consider O'Connell's eleventh-hour contentions at this
juncture. Slade, 980 F.2d at 30. In any event, even if we were to
do so, the fact remains that O'Connell's complaint nowhere alleges
that she ever disclosed or attempted to disclose Marrero and
García's alleged financial wrongdoing to anybody with investigating
authority, or to an otherwise qualified forum, and this in itself
is fatal to her contentions under Law 426's whistleblowing
provisions.
In the alternative, O'Connell argues that the district
court construed Law 426 too narrowly in limiting its application to
instances of financial malfeasance reporting. In support, she
alludes to subsection b(3) of Law 426, which, in pertinent part,
provides that "[n]o public employee who has authority to influence,
recommend or approve any action, shall make adverse or
discriminatory decisions regarding any public official or employee
for [...] [r]efusing to obey an order to carry out an act or
omission that would bring about the violation of a law or
regulation." P.R. Law Ann. tit. 1, § 603(b)(3) (emphasis
supplied). O'Connell also underscores complaint allegations
specifically stating that Marrero and García discriminated against
her because she refused to carry out orders that would have
violated the law.
Her contentions on this front appear to have some merit.
After all, the allegations she brings to our attention seem to
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depict the exact same conduct prohibited under § 603(b)(3).
Nevertheless, O'Connell failed to raise this argument during the
district court's proceedings. In fact, when Defendants moved to
dismiss her Law 426 claim, they argued that she exclusively
asserted whistleblowing claims.6 O'Connell responded with the pair
of perfunctory, generic sentences highlighted above, and never
argued that § 603(b)(3) was implicated in this case. O'Connell is
therefore in no position to challenge the application of Law 426 on
grounds that she failed to raise before the district court, namely,
that her claim was premised on subsection b(3). United States ex
rel. Estate of Cunningham v. Millennium Labs. of CA, Inc., 713 F.3d
662, 674 (1st Cir. 2013) ("If any principle is settled in this
circuit, it is that, absent extraordinary circumstances, legal
theories not raised squarely in the lower court cannot be broached
for the first time on appeal.") (citations omitted).
B. Challenge to the Summary Judgment Order
6
We find that Defendants interpreted O'Connell's complaint
coherently, given the way in which she articulated her Law 426
Count:
These statutes [including Law 426] imposed as sanctions,
the payment of double damages against those employers
that take adverse employment actions, including to
terminate any employee, in retaliation for claiming her
protected rights and for engaging in speech of public
concern ("whistleblowing"). In the instant case,
Defendants took an[] adverse employment action against
Plaintiff because of her "whistleblowing" actions.
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Last, we consider O'Connell's argument that the district
court erred when summarily dismissing her First Amendment freedom
of association claim. We review the district court's entry of
summary judgment de novo, Wojcik v. Mass. State Lottery Comm'n, 300
F.3d 92, 98 (1st Cir. 2002), and affirm when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Farmers Ins. Exch. v. RNK, Inc., 632
F.3d 777, 782 (1st Cir. 2011). Even though we are not wedded to
the district court's rationale, and can affirm on any ground made
manifest by the record, O'Brien v. Town of Agawam, 350 F.3d 279,
292 (1st Cir. 2003), when the lower court produces a well-reasoned
on-point decision, as in the present case, we generally track the
court's steps and refrain from writing at length, Lawton v. State
Mut. Life Assur. Co. of Am., 101 F.3d 218, 220 (1st Cir. 1996).
In the First Circuit, it is a settled principle that
the First Amendment does not protect all government employees from
layoffs based on political-party affiliation. Flynn v. City of
Boston, 140 F.3d 42, 46 (1st Cir. 1998). We employ a two-pronged
test to determine whether a particular public employee can be
properly terminated on account of political-party affiliation.
First, we look to whether "the discharging agency's functions
entail decision making on issues where there is room for political
disagreement on goals or their implementation." Rosenberg v. City
of Everett, 328 F.3d 12, 18 (1st Cir. 2003) (quoting Roldán-Plumey
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v. Cerezo-Suárez, 115 F.3d 58, 61-62 (1st Cir. 1997)) (internal
quotations omitted). Then we determine whether "the particular
responsibilities of the plaintiff's position resemble those of a
policy maker, privy to confidential information, a communicator, or
some other office holder whose function is such that party
affiliation is an equally appropriate requirement for continued
tenure." Id.Here, on the first prong, we find that both discharging
agencies, ARPE and AEP, are involved in decision-making on issues
for which there is room for political disagreement. On the one
hand, ARPE, among other things, is charged with the administration
of the permit process for every construction project in Puerto
Rico. We thus agree with the district court in Velázquez v.
Quiñones, 550 F.Supp.2d 243, 249 (D.P.R. 2007), that the agency
"plays a vital role in the implementation of any administration's
urban planning policies." It is certainly not difficult to fathom
how different political factions could disagree on these policies,
and it is therefore evident that ARPE's functions entail
decision-making on politically contentious issues.
Likewise, AEP is an agency responsible for implementing
politically sensitive policies. The AEP is a public corporation
whose seven-member board includes four people appointed by the
Governor of Puerto Rico. Soto Padró v. Pub. Bldgs. Auth., 675 F.3d
1, 2 (1st Cir. 2012). The AEP directs the preparation of plans for
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all buildings and other facilities related to the provision of
government services, such as schools and hospitals, and is
empowered to contract with private entities to own, lease, finance,
or repair such facilities. P.R. Laws Ann. tit. 22, § 903. In
Juarbe-Angueira v. Arias, 831 F.2d 11, 15 (1st Cir. 1987), we held
that the AEP's mission "at least potentially . . . concern[ed]
politically-charged issues" and granted AEP's Administrator
qualified immunity on plaintiff's political discrimination claim.
Since this decision, we have witnessed a number of developments at
the AEP and can now firmly state that the agency's mission
definitely, not merely potentially, concerns politically charged
issues. Most significant of these developments is a 2006 amendment
to the agency's enabling statute, P.R. Laws Ann. tit. 22, § 902,
that mandated, as a matter of public policy, all governmental
entities to "promote and support the contracting of the services of
the [AEP] in order to fulfill the design, construction, remodeling,
improvements, operations and maintenance needs of the structures
needed for rendering [their] services."7 As governmental
organizations are now obligated to use the AEP services, the agency
has absolute authority over the amount of money and resources that
will be allocated for various repair, construction, and maintenance
7
The amendment does not apply to governmental organizations which
traditionally used their own employees or outside contractors to
satisfy such needs.
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projects. The political disposition of a given administration may
thus greatly factor into the scope of such AEP projects.
As it is clear to us that both agencies' functions entail
decision-making on politically charged issues, we move to the
second prong of the test--that is, to evaluate whether O'Connell's
particular responsibilities resembled those of a policy-maker.
Jiménez-Fuentes v. Torres-Gaztambide, 807 F.2d 236, 242 (1st Cir.
1986) (citing Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th
Cir. 1985)). In making this determination, we look first to the
position's job description rather than the employee's actual de
facto responsibilities, finding this to be "the best, and sometimes
[a] dispositive, source for determining the position's inherent
functions." Roldán-Plumey, 115 F.3d at 62. We also consider the
position's "relative pay, technical competence, power to control
others, authority to speak in the name of policymakers, public
perception, influence on programs, contact with elected officials,
and responsiveness to partisan politics and political leaders."
O'Connor v. Steeves, 994 F.2d 905, 910 (1st Cir. 1993) (internal
citations omitted).
O'Connell's official job description at ARPE called for
(1) performing duties related to "the direction, coordination,
supervision and evaluation of the activities conducted in the
various sections of the Human Resources office"; (2) ensuring
"application and compliance of the laws and regulations related to
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the merit system and to personnel administration"; and (3)
preparing confidential reports and participating in the formulation
and implementation of public policy regarding the administration of
human resources in the agency.8 As the AEP's Human Resources
Director, she would have been in charge of "the enactment and
implementation of the labor management policy, as well as the
planning, coordination, and supervision of the programs and
activities that are developed in the Human Resources and Labor
Affairs Office."
According to both job descriptions, the Human Resources
Director positions at the agencies have inherent policy-making, or
at the very least, policy implementation authority. As noted by
the district court, both positions are the highest human resources
positions in their respective agencies, and both are trust
positions which answer only to the agencies' administrators.
Moreover, the job descriptions either explicitly state or
implicitly suggest that the Human Resources Director has access to
confidential information. Crucially, both positions are the
conduit between the agencies' administrators and staff. Even if
the Human Resources Director of either agency only relays policy
from the administrator to the staff, she is still in a position to
8
Defendants accompanied their summary judgment motion with
copies of the official job descriptions of O'Connell's positions at
ARPE and AEP. O'Connell raised no objection in connection with
those exhibits.
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implement policy, which the Supreme Court has noted is just as
important as policymaking. Branti v. Finkel, 445 U.S. 507, 530
(1980). Moreover, the Human Resources Director of both agencies
has authority to speak on behalf of policymakers, as well as
influence to carry out the programs of their superiors. As such it
appears evident that the second prong of the Rosenberg inquiry is
satisfied, and political affiliation is an appropriate requirement
for employment, since both Human Resources Director positions
clearly resemble top level policymakers in their respective
agencies.
O'Connell attempts to sidestep these realities by
claiming that Law 7 limited her inherent responsibilities so as to
strip her of discretion over any human resources policy-making or
implementation. However, Law 7 only called for a two-year
suspension of select responsibilities, temporarily preventing the
Human Resources Director from taking certain personnel actions such
as promotions, demotions, relocations and transfers. Law 7 did not
eliminate or alter the Human Resources Director's job description.
See P.R. Laws Ann. tit. 3, §§ 8802(a)(1)-(27). Even assuming that
O'Connell's policy-related duties were limited by Law 7, this
limitation would only be temporary, and her inherent duties would
remain unchanged for the purposes of the Rosenberg analysis.
In all events, Law 7's major provisions pertain to human
resources, and O'Connell was the employee charged with the
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implementation of this law for ARPE's entire workforce (and would
have been charged with Law 7's implementation at AEP). Such
responsibility is in line with that of a high-level trust employee,
whose political affiliation would be relevant to an agency's
efficient functioning. Thus O'Connell's contentions miss the
mark.9
To the extent that O'Connell claims that Law 7 stripped
her of policy-making authority, yet maintains that Marerro
discriminated against her because of their disagreement over how to
implement Law 7 at ARPE, her arguments are self-defeating. In
making these claims, O'Connell essentially admits that she retained
some level of authority over how Law 7 was carried out, and that
her use of this authority caused the conflict between her and
Marrero. This only demonstrates that her position did in fact
retain influence over policy implementation, regardless of any
alleged limitations instituted by Law 7.
In sum, because there are no genuine disputes of material
facts, and because the Human Resources Director positions at ARPE
and AEP do not enjoy First Amendment protection, judgment in favor
of Defendants in connection with O'Connell's freedom of association
claim is proper as a matter of law.
9
As the district court correctly pointed out, the fact that
O'Connell pleads intra-party political discrimination does not
alter this holding. See, e.g., Rodríguez-Rodríguez v. Muñoz-Muñoz,
808 F.2d 138, 145 (1st Cir. 1986).
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II. Conclusion
For the forgoing reasons, we affirm the district court's
decisions at both the pleading stage and the summary judgment
stage.
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