Rodriguez Pinto v. Cirilo Tirado ( 1993 )


Menu:
  • USCA1 Opinion









    January 5, 1993
    UNITED STATES COURT OF APPEALS
    UNITED STATES COURT OF APPEALS
    For the First Circuit
    For the First Circuit
    ____________________

    No. 92-1648

    PEDRO L. RODRIGUEZ-PINTO,

    Plaintiff, Appellant,

    v.

    CIRILO TIRADO-DELGADO, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Gilberto Gierbolini, U.S. District Judge]
    ___________________
    ____________________

    Before

    Torruella and Stahl, Circuit Judges,
    ______________
    and Skinner,* District Judge.
    ______________

    ____________________

    Hector Urgell Cuebas for appellant.
    ____________________

    Vannessa Ramirez, Assistant Solicitor General, with whom Reina
    _________________ _____
    Colon De Rodriguez, Deputy Solicitor General, Department of Justice,
    ___________________
    was on brief for appellees.


    ____________________


    ____________________

    _____________________
    *Of the District of Massachusetts, sitting by designation





















    Stahl, Circuit Judge. In this appeal, plaintiff-
    ______________

    appellant Pedro Rodriguez-Pinto challenges the district

    court's entry of summary judgment in favor of defendants-

    appellees Cirilo Tirado Delgado and Rafael Rivera Gonzalez on

    his claim of political affiliation-based discrimination. For

    the reasons set forth below, we affirm the district court's

    entry of summary judgment on all of plaintiff's claims except

    his First Amendment claim for equitable relief. We remand

    that claim for further proceedings.

    I.
    I.
    __

    BACKGROUND
    BACKGROUND
    __________

    As always, we review the district court's summary

    judgment ruling de novo, reading the record in a light most
    __ ____

    amiable to the nonmoving party. See Federal Deposit Ins.
    ___ _____________________

    Corp. v. World Univ., Inc., No. 92-1389, slip op. at 4 (1st
    _____ _________________

    Cir. Oct. 22, 1992). Plaintiff is a career employee of the

    State Insurance Fund of the Commonwealth of Puerto Rico ("the

    Fund") who, at the time he filed his complaint, had accrued

    more than twenty-three years of public service. He also is a

    member of the New Progressive Party ("NPP"), whose

    gubernatorial candidate lost the general election of November

    6, 1984.

    At the time the complaint was filed, defendant

    Cirilo Tirado Delgado was the Fund's Administrator and

    defendant Rafael Rivera Gonzalez was the Fund's Director of



    -2-
    2















    Personnel. Both defendants are members of the Popular

    Democratic Party ("PDP"), whose gubernatorial candidate won

    the 1984 election. Defendants were appointed to their

    positions subsequent to January 2, 1985, the day the PDP

    candidate assumed the governorship of the Commonwealth.

    Prior to the 1984 election, plaintiff was Chief of

    the Fund's Finance Division. Plaintiff contends that as

    Chief, he directed, supervised, and coordinated all Sections

    of the Finance Division, including the Pay Vouchers Section,

    the Collections Section, and the Claims and Attachments

    Section. He further asserts that he coordinated "all the

    deposits of funds pertaining to the State Insurance Fund in

    the Government Bank and other commercial banks."

    The complaint alleges that from July 1985 through

    November 1985, defendants did not permit plaintiff to carry

    out the duties of his position. It further states that,

    since November 1985, plaintiff has been assigned "a small

    amount of functions belonging to lesser positions in the

    [Fund]. . . ." Plaintiff's sworn declaration, submitted in

    opposition to defendants' summary judgment motion, clarifies

    that, subsequent to the election, plaintiff was reassigned to

    the position of Assistant to the Chief of the Fund's

    Collection Division.1


    ____________________

    1. Defendants contend that plaintiff's reassignment took
    place pursuant to a reorganization of the Fund that was
    carried out late in 1985. Plaintiff asserts that the

    -3-
    3















    Plaintiff claims that, since his reassignment, the

    functions and duties of the Assistant to the Chief of

    Collections have not been delegated to him, and that he has

    been allotted only nominal tasks which take no more than ten

    minutes a day to perform. Plaintiff further claims that the

    Chief of the Fund's Collection Division, whom plaintiff now

    is assisting, previously was under his supervision. He also

    alleges that defendants have deprived him of the following

    previously-obtained rights and benefits: (1) personal

    secretary, (2) parking space, (3) office, (4) telephone, (5)

    supervision of other employees, and (6) access to office

    records and documents. Finally, plaintiff contends that he

    was placed in a lower salary scale which has adversely

    affected his ability to obtain certain pay raises, and that

    he is subject to daily ridicule and harassment which, in

    conjunction with the other circumstances of his job change,

    cause him to feel as if he actually has been discharged from

    his employment.2 It is plaintiff's position that

    defendants' actions were precipitated by his affiliation with

    the NPP.


    ____________________

    reorganization was a sham whose true purpose was to demote
    employees who were members of the NPP and to replace them
    with PDP members. Plaintiff further asserts that he was, in
    fact, replaced by active PDP members, and that all the
    employees who were demoted pursuant to the 1985
    reorganization were affiliated with the NPP.

    2. The record reveals, however, that plaintiff has not left
    his employment with the Fund.

    -4-
    4















    In June of 1986, plaintiff filed this action

    pursuant to, inter alia, 42 U.S.C. 1983, alleging that
    _____ ____

    defendants had violated rights secured him under the First

    and Fourteenth Amendments to the United States Constitution.

    Plaintiff's complaint sought both damages and equitable

    relief in the form of temporary and permanent injunctions

    directing defendants to reinstate plaintiff to his former

    employment and to refrain from acting toward him in an

    unconstitutional manner. Subsequently, defendants filed a

    motion for summary judgment, arguing that plaintiff's claims

    under 1983 were insufficiently supported to forestall the

    entry of judgment in their favor. The district court granted

    defendants' motion, ruling (1) that plaintiff had not been

    constructively discharged, (2) that plaintiff had not offered

    sufficient proof on his claim that, since his transfer, his

    work situation was so "unreasonably inferior to the norm,"

    see Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218
    ___ ___________________ ____________

    (1st Cir. 1989) (en banc) (announcing this circuit's standard

    for evaluating First Amendment political affiliation-based

    employment discrimination claims where the employee has not

    been discharged) (hereinafter "the Agosto-de-Feliciano
    ___________________

    claim"), that it violated the First Amendment,3 and (3) that


    ____________________

    3. The district court alternatively ruled that even if
    plaintiff had adequately supported his First Amendment claim,
    defendants would be entitled to qualified immunity therefrom
    insofar as plaintiff was seeking civil damages from the
    defendants in their individual capacities.

    -5-
    5















    plaintiff had not been deprived of any property right

    protected by the Fourteenth Amendment.4 On appeal,

    plaintiff challenges all of the district court's rulings. We

    discuss each in turn.

    II.
    II.
    ___

    DISCUSSION
    DISCUSSION
    __________

    A. The First Amendment
    A. The First Amendment
    _______________________

    1. Plaintiff's Constructive Discharge Claim
    1. Plaintiff's Constructive Discharge Claim
    ____________________________________________

    Plaintiff argues that the district court erred in

    ruling that he was not constructively discharged. However,

    we recently made clear that a First Amendment "claim of

    constructive discharge due to a demotion or transfer cannot

    succeed when a claimant, in fact, has not left employment."

    Pedro-Cos v. Contreras, 976 F.2d 83, 85 (1st Cir. 1992) (per
    _________ _________

    curiam) (surveying pertinent First Circuit authority). Here,

    the record reflects that plaintiff has not left his

    employment with the Fund. Thus, his constructive discharge

    claim fails as a matter of law.

    2. Plaintiff's Agosto-de-Feliciano Claim5

    2. Plaintiff's Agosto-de-Feliciano Claim5
    __________________________________________


    ____________________

    4. At the same time, the court also dismissed several
    pendent state claims brought by plaintiff.

    5. In his concurrence, Judge Torruella questions the
    continuing vitality of Agosto-de-Feliciano in light of the
    ___________________
    Supreme Court's ruling in Rutan v. Republican Party of
    _____ _____________________
    Illinois, 110 S. Ct. 2729 (1990). Because we find, as will
    ________
    be discussed more fully infra, that there exist sufficient
    _____
    genuine and material factual disputes to warrant a trial on
    plaintiff's claim for equitable relief even under the
    arguably more stringent standard set forth in Agosto-de-
    __________

    -6-
    6















    a. Civil Damages
    a. Civil Damages
    _________________

    Plaintiff also takes issue with the district

    court's alternative ruling, see supra note 3, that defendants
    ___ _____

    are entitled to qualified immunity from his claim for civil

    damages under Agosto-de-Feliciano.6 However, we repeatedly
    ___________________

    have stated that, prior to our decision in Agosto-de-
    __________

    Feliciano and the Supreme Court's decision in Rutan, it was
    _________ _____

    not clearly established that the constitutional prohibition

    against politically motivated firings applied to other
    _______

    personnel actions, such as promotions, transfers, demotions,

    and hirings. See, e.g., Pedro-Cos, 976 F.2d at 85; Valiente
    ___ ____ _________ ________

    v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Castro-Aponte v.
    ______ _____________

    Ligia-Rubero, 953 F.2d 1429, 1430 (1st Cir. 1992). Here, all
    ____________

    the complained of adverse personnel actions took place prior

    to our decision in Agosto-de-Feliciano and the Supreme
    ___________________

    Court's decision in Rutan. As a result, the district court's
    _____

    ruling that defendants were entitled to qualified immunity

    from plaintiff's claim for civil damages was plainly correct.

    b. Equitable Relief
    b. Equitable Relief
    ____________________




    ____________________

    Feliciano, we do not reach this issue.
    _________

    6. The doctrine of qualified immunity shields governmental
    officials performing discretionary functions from liability
    for civil damages when their conduct does not violate clearly
    established statutory or constitutional rights of which a
    reasonable person would have known. See Rivera v. Murphy,
    ___ ______ ______
    No. 92-1688, slip op. at 7 (1st Cir. Nov. 10, 1992) (citing
    Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
    ______ __________

    -7-
    7















    Plaintiff's claim for equitable relief under


    Agosto-de-Feliciano to redress perceived ongoing
    ___________________

    constitutional violations by defendants presents us with a

    considerably more difficult issue. As noted above, the

    district court held that plaintiff did not introduce

    sufficient proof on this claim to warrant a trial. More

    specifically, the court ruled that plaintiff had not

    "produced enough evidence" of a sufficiently severe decline

    in his work conditions for a factfinder to conclude, under a

    "clear and convincing evidence" standard, that plaintiff's

    work situation is "unreasonably inferior to the norm for the

    position." See generally Agosto-de-Feliciano, 889 F.2d at
    ___ _________ ___________________

    1218-20. The court also ruled that plaintiff had failed to

    adduce evidence sufficient for a factfinder to determine,

    under a "preponderance of the evidence" standard, that

    defendants' true motivation in taking their actions was

    political affiliation-based discrimination. See id. at 1220.
    ___ ___

    In so doing, the court found that the allegations set forth

    in plaintiff's sworn complaint and elaborated upon in

    plaintiff's sworn declaration were "conclusory" and, without

    more, were insufficient to defeat defendants' motion for

    summary judgment. We do not share the district court's view

    of plaintiff's evidence.

    Summary judgment acts "to pierce the boilerplate of

    the pleadings and assay the parties' proof in order to



    -8-
    8















    determine whether trial is actually required." Wynne v.
    _____

    Tufts Univ. Sch. of Medicine, No. 92-1437, slip op. at 6 (1st
    ____________________________

    Cir. Oct. 6, 1992). It is appropriate where "the pleadings,

    depositions, answers to interrogatories, and admissions on

    file, together with affidavits, if any, show that there is no

    genuine issue as to any material fact and that the moving

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

    Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
    ___ ____ _____________ _______

    317, 323 (1986). "In this context, ``genuine' means that the

    evidence is such that a reasonable jury could resolve the

    point in favor of the nonmoving party." United States v. One
    _____________ ___

    Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992)
    ________________________

    (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
    ________ ___________________

    (1986)). A "material" fact is one "that might affect the

    outcome of the suit under the governing law." Anderson, 477
    ________

    U.S. at 248.

    The moving party bears the initial burden of

    averring that the evidence is insufficient to support the

    nonmoving party's case. See, e.g., Lawrence v. Northrop, No.
    ___ ____ ________ ________

    92-1702, slip op. at 3 (1st Cir. Nov. 25, 1992) (citations

    omitted). Once that burden is met, the opposing party must

    "limn a genuine disagreement as to some material fact." One
    ___

    Parcel of Real Property, 960 F.2d at 204. In so doing, the
    _______________________

    nonmovant cannot avoid summary judgment merely by promising

    to produce admissible evidence at trial. Id. (citing Garside
    ___ _______



    -9-
    9















    v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir. 1990)).
    _________________

    "Instead, the [nonmovant] must present affirmative evidence

    in order to defeat a properly supported motion for summary

    judgment." Anderson, 477 U.S. at 257.
    ________

    In this case, plaintiff's burden is more onerous

    than that of the usual civil litigant opposing a summary

    judgment motion. Ordinarily, for the nonmovant to avoid the

    entry of summary judgment, the record must be such that a

    reasonable factfinder could determine by a preponderance of

    the evidence that the nonmovant is entitled to a verdict.

    See id. at 252. Here, however, the record must contain
    ___ ___

    evidence which would allow the factfinder to conclude, by

    clear and convincing evidence, that the nonmoving employee's

    new position is "unreasonably inferior to the norm." Agosto-
    _______

    de-Feliciano, 889 F.2d at 1220; see also Anderson, 477 U.S.
    ____________ ___ _____________

    at 254 (holding that the clear and convincing evidence

    standard, when applicable, must be taken into account at the

    summary judgment stage). Although the "unreasonably inferior

    to the norm" standard is not self-defining and its contours,

    at times, may be difficult to ascertain, we have specifically

    noted some situations where a factfinder would, in all

    likelihood, be entitled to find an employee's new job

    situation to be "unreasonably inferior." See generally id.
    ___ _________ ___

    at 1219. Included among these are situations where (1) the

    employee has been stripped of responsibilities that



    -10-
    10















    previously were legitimately his/hers and the

    responsibilities have been reassigned to someone who was the

    employee's subordinate; (2) the employee has been stripped of

    both supervisory status and his/her right to work

    independently on projects of significance; and (3) the

    employee has endured a sustained and significant general

    worsening of employment conditions. See id.
    ___ ___

    Even if the plaintiff has established the existence

    of at least one genuine and material issue of fact under the

    aforementioned standard, s/he is not necessarily entitled to

    go to trial. Instead, the record also must permit the

    factfinder to conclude by a preponderance of the evidence

    that the changes in the nonmoving employee's work situation

    were motivated by discrimination on the basis of political

    affiliation. See id. at 1220. Assuming the nonmovant meets
    ___ ___

    that burden, "an employer then may seek to establish by a

    preponderance of the evidence that the changes would have

    been made regardless of political affiliation." Id. (citing
    __________ ___

    Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287
    _______________________________ _____

    (1977); Cordero v. DeJesus- Mendez, 867 F.2d 1, 5 (1st Cir.
    _______ ________________

    1989); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264
    ________________ ____________

    (1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988)).
    _____ ______

    Reading the record in the light most favorable to

    plaintiff, we believe there exist genuine and material

    questions of fact which, if resolved in plaintiff's favor,



    -11-
    11















    could result in his prevailing at trial. First of all, we do

    not agree with the district court that the allegations in

    plaintiff's sworn complaint, as elaborated upon in his sworn

    declaration, are "conclusory." Rather, our review reveals a

    series of factual assertions that are probative of whether

    defendants are discriminating against plaintiff on the basis

    of his political affiliation.7

    More importantly, we find that plaintiff's sworn

    allegations, if believed, could allow a reasonable factfinder

    to find for plaintiff. We note that the following

    allegations by plaintiff have in no way been conclusively

    rebutted:

    (1) that prior to his reassignment, plaintiff
    directed, supervised, and coordinated the
    Fund's Finance Division;

    (2) that since his reassignment, plaintiff has been
    assisting a person who previously was under his
    supervision;

    (3) that since his reassignment, plaintiff has not
    been delegated the functions and duties of his
    new job title;

    (4) that since his reassignment, plaintiff only has
    been assigned clerical tasks which take ten
    minutes a day to perform;

    (5) that since his reassignment, plaintiff has been
    deprived of his supervisory status;

    (6) that since his reassignment, plaintiff has been
    placed in a lower pay scale where he no longer
    can obtain certain pay raises;


    ____________________

    7. The assertions at issue are set forth in Section I of
    this opinion.

    -12-
    12















    (7) that plaintiff is a known member of the NPP;

    (8) that plaintiff's prior position was filled by
    members of the PDP; and

    (9) that everyone who was demoted during the 1985
    reorganization was affiliated with the NPP.

    Simply put, we view sworn allegations (1)-(6) as a sufficient

    evidentiary basis for a reasonable factfinder to find by

    clear and convincing evidence that plaintiff's current

    position is "unreasonably inferior to the norm."8

    Similarly, we believe that allegations (7)-(9) could

    constitute an adequate foundation for that same factfinder to

    conclude by a preponderance of the evidence that defendants

    were motivated by discrimination on the basis of political

    affiliation. Accordingly, we find that the district court

    should not have entered summary judgment on plaintiff's

    Agosto-de-Feliciano claim insofar as that claim was seeking
    ___________________

    equitable relief.9


    ____________________

    8. We note the similarity between these allegations and the
    examples of situations that we previously indicated should go
    to the jury. See Agosto-de-Feliciano, 889 F.2d at 1219.
    ___ ___________________

    9. In their brief, defendants go to great lengths to assert
    a "changeover" defense. See generally Agosto-de-Feliciano,
    ___ _________ ___________________
    889 F.2d at 1220-22. In so doing, they argue that plaintiff
    was transferred as part of a legitimate reorganization of the
    Fund in 1985. See supra note 1. As stated, defendants'
    ___ _____
    changeover defense may articulate a legitimate reason for
    plaintiff's reassignment. However, it makes no attempt to
    explain why the reorganization took place along the political
    lines alleged by plaintiff. Accordingly, there remain
    genuine issues of material fact as to whether the 1985
    reorganization was pretextual. See id. at 1221-22.
    ___ ___
    Moreover, in presenting us with their changeover
    argument, defendants do not deny or attempt to explain why

    -13-
    13



















    B. The Due Process Clause
    B. The Due Process Clause
    __________________________

    Plaintiff's final argument is that the district

    court erred in granting defendants summary judgment on his

    claim, as set forth generally in his complaint, that

    "plaintiff's property interests are being adversely affected

    by defendants['] actions . . . in violation of [plaintiff's]

    rights to due process under the Fourteenth Amendment. . .

    ."10 We disagree with plaintiff's contention.

    Plaintiff's due process claim depends on his having

    been deprived of a property right without due process of law.

    See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
    ___ _______________________ __________

    (1985). To establish such a right, "a person clearly must

    have more that an abstract need or desire for it. [S/h]e

    must have more than a unilateral expectation of it. [S/h]e



    ____________________

    plaintiff (1) has not been delegated the functions and duties
    of his new job title, (2) is assigned only clerical tasks
    which take ten minutes a day to perform, or (3) is now
    assisting a former subordinate. Nor do defendants
    conclusively refute plaintiff's claim that he now is in a
    lower pay scale. Accordingly, defendants' changeover defense
    does not provide us with an alternative basis for affirming
    the district court's entry of summary judgment in favor of
    defendants on plaintiff's Agosto-de-Feliciano claim for
    ___________________
    equitable relief.

    10. On appeal, plaintiff alleges for the first time that the
    property interests of which he was unconstitutionally
    deprived were the right to remain Chief of the Fund's Finance
    Division and the right to remain in the same salary scale
    regardless of his reassignment.

    -14-
    14















    must, instead, have a legitimate claim of entitlement to it."

    Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
    ___________________ ____

    Moreover, a property right is not created by the

    Constitution, but is created and defined in dimension "``by

    existing rules or understandings that stem from an

    independent source such as state law.'" Loudermill, 470 U.S.
    __________

    at 538 (quoting Roth, 408 U.S. at 577).
    ____

    In the proceedings below, plaintiff's attempts at

    explication of his due process claim consisted of the

    aforementioned paragraph in his complaint and two paragraphs

    in his memorandum of law in opposition to defendants' motion

    for summary judgment, wherein he recaps the paragraph in his

    complaint and points out, irrelevantly, that defendants are

    not claiming qualified immunity on his due process claim. In

    fact, plaintiff never clearly identified the property right

    or rights of which he allegedly was deprived.11 Nor did he

    attempt (1) to identify the source of any such right or

    rights; (2) to explain how the right or rights are entitled

    to constitutional protection; (3) to specify the facts which

    allegedly support his due process claim; or (4) to cite any

    legal authority tending to strengthen his claim. In light of


    ____________________

    11. At one point in his memorandum in opposition to
    defendants' summary judgment motion, plaintiff seems to be
    asserting that he was deprived of continued public employment
    to which he was legitimately, and therefore constitutionally,
    entitled. See Roth, 408 U.S. at 577. As the district court
    ___ ____
    noted, this argument fails for the simple reason that
    plaintiff has remained employed by the Fund.

    -15-
    15















    these omissions, it is apparent that plaintiff presented his

    due process claim to the district court in only a most

    perfunctory manner. And, it is well settled that arguments

    made in a perfunctory manner below are deemed waived on

    appeal. See, e.g., World Univ., Inc., slip op. at 13 (citing
    ___ ____ _________________

    Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992)); see
    __________ _______ ___

    also McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13,
    ____ _____ _________________________________

    22 (1st Cir. 1991) ("[T]heories not raised squarely in the

    district court cannot be surfaced for the first time on

    appeal.") (citations omitted), cert. denied, 112 S. Ct. 1939
    _____ ______

    (1992); cf. Kensington Rock Island Ltd. Partnership v.
    ___ ___________________________________________

    American Eagle Historic Partners, 921 F.2d 122, 125 (7th Cir.
    ________________________________

    1990) ("``A party opposing a summary judgment motion must

    inform the trial judge of the reasons, legal or factual, why

    summary judgment should not be entered. If it does not do

    so, and loses the motion, it cannot raise such reasons on

    appeal.'") (quoting Liberles v. County of Cook, 709 F.2d
    ________ _______________

    1122, 1126 (7th Cir. 1983)).

    Obviously, the district court made significant

    efforts to discern and address the merits of plaintiff's due

    process claim.12 In this instance, however, we prefer to


    ____________________

    12. The district court construed plaintiff's claim as one
    for the deprivation of the right to continue as Chief of the
    Fund's Finance Division and/or the right to remain in the
    same salary scale regardless of reassignment, and then found
    that plaintiff had no such right or rights. In fact, it
    appears that the district court's construction of his claim
    provided the basis for plaintiff's due process argument on

    -16-
    16















    avoid the constitutional ruling.13 See, e.g., El Dia, Inc.
    ___ ____ _____________

    v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992) ("``It
    _______________

    has long been a basic tenet of the federal courts to eschew

    the decision of cases on constitutional grounds unless and

    until all other available avenues of resolution [are]

    exhausted.'") (quoting Aggarwal v. Ponce School of Medicine,
    ________ ________________________

    745 F.2d 723, 726 (1st Cir. 1984)). Nonetheless, we affirm

    the district court's entry of summary judgment against

    plaintiff on his due process claim.







    III.
    III.
    ____

    CONCLUSION
    CONCLUSION
    __________

    For the reasons herein stated, we affirm the

    district court's entry of summary judgment in favor of

    defendants on plaintiff's constructive discharge claim and

    plaintiff's Agosto-de-Feliciano claim for civil damages. We
    ___________________

    also affirm the court's entry of summary judgment in favor of

    defendants on plaintiff's due process claim. However, we

    reverse and remand for further proceedings the court's entry


    ____________________

    appeal.

    13. We may, of course, "``affirm the entry of summary
    judgment on any independently sufficient ground made manifest
    by the record.'" World Univ., Inc., slip op. at 4 (quoting
    _________________
    Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st
    _____________________ ____________
    Cir. 1992)).

    -17-
    17















    of summary judgment in favor of defendants on plaintiff's

    Agosto-de-Feliciano claim for equitable relief.
    ___________________

    Affirmed in part, reversed in part. Remanded for
    ___________________________________________________

    further proceedings consistent with this opinion.
    _________________________________________________









    "Concurrence follows"



































    -18-
    18















    TORRUELLA, Circuit Judge (Concurring). Although I
    _____________

    concur with the majority I am of the view that Agosto-de-
    __________

    Feliciano v. Aponte-Rogue, 889 F.2d 1209 (1st Cir. 1989) (en
    _________ ____________

    banc), particularly its so-called "changeover" defense, see
    ___

    ante at 13 n.9, no longer reflects the law of the land as
    ____

    articulated by the Supreme Court in Rutan v. Republican Party
    _____ ________________

    of Illinois, 110 S. Ct. 2729 (1990). I therefore do not
    ___________

    consider Agosto-de-Feliciano authoritative circuit precedent.
    ___________________





































    -19-
    19