Ipcia M. Kercado-Melendez v. Awilda Aponte-Roque, Etc.

BREYER, Before BOWNES and CAFFREY,* Judges, Circuit Senior Judge. District BOWNES, Judge. Circuit Defendant-appellant Aponte-Ro- Awilda que, Secretary Department of Public (DPI) Rico, appeals Instruction in Puerto judgment entered her in a section brought by plaintiff-appellee Ipcia 1983 suit M. Kercado-Melendez. Kercado had al- leged position that she was fired from her superintendent of the Dorado School political District because of her affiliation Progresista (PNP). Partido with the Nuevo The United States District Court for the Rico, sitting of Puerto without a District jury, ordered Kercado reinstated to for- $37,000 position, and her over mer awarded * Of Massachusetts, sitting by desig- District of nation. damages. appeal by appeal the This did not cancellation within ten pay back days, binding.” it would become “final and

Aponte followed. On November Kercado filed an I. BACKGROUND Appeals, appeal with Board of Depart- for the Ipcia Kercado worked for scheduled eighteen Instruction ment of Public 27. On November November through the until she rising ranks years, instituted an action in the United States for superintendent of position attained for District Court the District of Puerto Kercado was District. the Dorado School Rico, claiming that her dismissal was mem- prominent in Dorado as a well known prompted by her affiliation with the PNP. Progresista, Partido Nuevo ber of the also Kercado asserted that she had been ruling deposed as Puerto Rico’s which was process, denied due because she had Popular Democrático party by the Partido given respond been an opportunity to to the January, In (PPD) election of 1984. in the charges against prior her 1985, a PPD mem- Aponte-Roque, Awilda sought termination action. She either a ber, Secretary of the DPI. appointed restraining temporary prelimi- order or a received a On Kercado following October nary injunction. day, The No- complaint1 Secretary Public of 8, Kercado appeal vember withdrew her cancelling teaching her certifi- Instruction the Board of Appeals. from dismissing superintendent her cate as and After Kercado had filed her action in charged District. It the Dorado School court, federal and her adminis- withdrawn incompetence, negligence, in- Kercado with appeal, the her to Secretary trative invited subordination, improper Ker- and conduct. appear hearing at an scheduled informal keeping cado two teachers was accused for November 1985. Kercado wrote a positions during the in administrative de- Secretary letter to the in which she August, they month should infor- appear clined the invitation to at the teaching begun have resume their letter, hearing. In the noted that a mal she im- It was also that she duties. hearing scheduled in “show cause” impeded the as- properly Dorado district’s court on which would November Mal- superintendent, Lopez Hector sistant the issue of the failure address whether donado, performing from his duties. hearing grant the issuance her before addition, failing charged Kercado was order her due the cancellation violated fourteen assistant teacher rights. On the Secre- cess November pointments. Kercado tary charges against dismissed all complaint Kercado that The informed her as of the superintendent and reinstated Aponte, capacity Secretary of the in her Dorado School District. DPI, “permanently cancel had decided to later, again tried One week certificate(s) your you hold teacher Kercado. November to dismiss On public private order to teach and requesting her Kercado received letter of Puerto schools of the Commonwealth hearing charges presence at an informal you your post.” Rico and dismiss [to] place took against her. order effec- cancellation which became following day, Elba November before that, upon receipt by tive stated Kercado Fuentes, Legal Rodriguez Director law, pursuant ten to Puerto Rico she had read the the DPI. Kercado was Division at days appeal the order the Board given opportu- her charges and Appeals System. of the Public Education respond. No or witnesses nity to evidence stay effect of the appeal Such an would at the hear- either side presented order, substituting in its stead cancellation ing. employment and suspension Kercado’s was served appeal. December Kercado salary pending the outcome of her On superintend- cancelling her further stated if Kercado with an order order "Complaint.1 1. The is a combined notice and entitled document dismissing and her from could filed appeal ent’s certifícate have an administrative DPI. The employment with the December and a hearing received termi- charges Third, enumerated the con- fully operative. 9 order same nation became order, in a Secretary tained October albeit also contends that district more condensed form. The order notified in finding court erred that Kercado had right to file an political administra- for been dismissed She reasons. appeal, argues and informed her that a failure tive brought appeal days to file such an within ten legitimate were substantive and binding.” order “final and grounds Fourth, would render the argued dismissal. it is granted erroneously district court to file an administra- Kercado declined Kercado compensatory punitive dam- instead, appeal; pressed her action tive ages. We consider each these conten- in the federal court. She amended tions seriatim. sought original complaint injunctive re- damages under 42 lief and U.S.C. § Abstention agreed

The district court with Kercado that position she had been from her dismissed Secretary avers that the district superintendent political of her because when court erred it failed to dismiss the affiliation the PNP. The court found with in case accordance the with doctrine estab brought Secretary the the Harris, Younger 37, lished in 401 U.S. against be without merit. It 746, 91 S.Ct. that, accepting noted further even the fa- plaintiff Younger, Harris, federal in John validity the allegations, cial Jr., being prosecuted a under state enough they were not serious “to warrant syndicalism criminal statute. He asked a an discharge employee plaintiff’s the three-judge federal enjoin district court to who been caliber had with the DPI for proceedings state criminal instituted eighteen years.” (Emphasis in original.) him, against alleging prosecution that his The court also held that Kercado had been immediately irreparably injure would and deprived process rights due rights. his first amendment The three- 28, Secretary the dismissed her on October judge syndical court held that the criminal 1985, granting pretermina- without vagueness, ism statute was void due and hearing. Accordingly, tion the district prosecu restrained the state from further Secretary court ordered the to reinstate Supreme tion of Harris. The Court re superintendent Kercado as of the Dorado versed, holding that the district court District, 641 F.Supp. School 1326. Kercado should from hearing have abstained Harris’ $12,074.50 $15,- pay, was awarded in back claim. The Court stated that considera $10,000 damages puni- 000 in actual comity tions of federalism and dictated damages. tive federal refrain court should from decid

ing challenges broad constitutional II. THE ISSUES legitimacy proceeding, of a state criminal provided proceeding that the state was un First, appeal. There are four issues on good dertaken in federal faith the Secretary urges court the district given adequate opportuni should have abstained ty press his constitutional claims case because Kercado pressed could have Harris, Younger forum. 401 U.S. state her claims in the state administrative at 91 S.Ct. at 751-55. peal that was available to her. The Secre- points that, tary Supreme out has Younger, had Kercado been Since Court dissatisfied result the adminis- doctrine to overturn invoked the abstention proceeding, challenges trative she appealed could have federal court constitution- the decision ality pending proceedings. to the commonwealth state civil courts — Second, Inc., U.S.-, Texaco, Puerto Aponte Rico. submits Penzoil Co. v. 1519, (1987); the court holding erred in 95 1 Mid- that Kercado’s 107 S.Ct. L.Ed.2d due rights violated, she v. Garden State dlesex Ethics Committee since 423, University Association, by Florida International on the 102 S.Ct. 457 U.S. Bar pursue Rather than v. basis (1982); of race and sex. Moore 2515, remedies, 2371, state administrative 415, 60 available Sims, 99 S.Ct. Hernandez, to file a section 1983 claim in federal chose (1979); Trainor v. L.Ed.2d 994 Supreme rejected “the court. The Court 52 L.Ed.2d 97 S.Ct. should argument that a section 1983 action Vail, U.S. Juidice (1977); has not dismissed where be 51 L.Ed.2d Huff- state administrative remedies.” exhausted Pursue, Ltd., 95 S.Ct. man v. Regents, Board Patsy v. Florida (1975). Those cases 43 L.Ed.2d at 2559. U.S. lodged who had plaintiffs federal featured legiti- attacks on constitutional broad heavily relies on the proceedings instituted civil macy of state Rights Court’s decision Ohio Civil Com- case, federal In each them. Schools, Dayton Christian mission v. contemporane- enjoin a was asked to 91 L.Ed.2d pending proceeding civil ous state (1986), principles held that sought by the relief plaintiff; Younger apply pending abstention specifical- plaintiff was directed the federal administrative, judicial, as well as state Here, proceeding. pending state ly at the Rights proceedings. The Ohio Civil Com- federal dis- requested the had not a state mission instituted proceed- civil enjoin any state trict court to proceeding against Dayton Christian prayer against her. Such ing pending Schools, alleging that it had dismissed a the Secre- futile because have been would teacher because of her sex and her efforts pro- already completed dismissal tary had legal rights. Dayton respond- to assert Kercado; by its own ceedings against asserting amendment by ed that the first terms, became effec- order of dismissal exercising prohibited the Commission from Accord- receipt by Kercado. upon its tive authority the dismissal of the because for the proceedings no ingly, there were pursuant to teacher had been undertaken enjoin. to district court sincerely guidelines grounded in internal of its religious held beliefs to which all however, urges, that be- Secretary The employees the state ad- subscribed. While appealed the dis- Kercado could have cause proceeding pending, Day- ministrative Appeals, the DPI Board of missal to the filed a section ton Christian Schools and should have abstained district court claiming court action in federal litigate her con- thereby forced Kercado to proceeding by instituted administrative forum. in a Puerto Rico claims stitutional Rights its Civil Commission violated Ohio effect, argues Kerca- In right to free exercise first amendment bring to permitted do should not have been religion. 1983 suit in federal because a section appeal within the availability of an of the ruled that the inter- Supreme The Court judicial and Rico administrative Puerto comity and federalism rendered ab- ests of Court, however, Supreme The paratus. under such circum- appropriate stention that section 1983 claim- expressly impor- held had an has It held that Ohio stances. schools, of state regulating avail themselves even ants need not in tant interest remedies religious and administrative The Court also judicial private schools. Patsy v. Florida would going Dayton to federal court. Christian Schools noted 496, 102 Regents, constitu- Board opportunity 457 U.S. to raise its have an in the state administrative tional claims Steffel 472-73, writing for Rehnquist, Thompson, proceeding. 94 S.Ct. Justice deci- (1974). the Court’s 1222-23, majority, stressed that 39 L.Ed.2d did not Dayton Christian Schools Patsy sion plaintiff holding Patsy:2 its earlier opportunities conflict with employment had been denied — U.S.-, Housing Authority, 107 S.Ct. by recently and Patsy holding was reaffirmed 2. The ("the (1987) existence L.Ed.2d 781 Wright Redevelopment Court in v. Roanoke Younger principle of the Puerto Rico application administrative framework. Patsy holds that proceed she was required administrative not pending state do so. Patsy fully is consistent ings Regents, is Board important There another

Florida difference be- Patsy (1982), tween L.Ed.2d and the abstention cases. In Dayton litigants not need ex Christian Schools and similar holds that which cases, prior remedies proceeding their administrative state itself haust wrong in federal court. bringing 1983 suit which the federal seeks to Ltd., Pursue, injunctive correct via relief under section Cf. Huffman 1209-12, 1983. Those by cases involved claims Patsy, plaintiffs Unlike rights constitutional would are here coer be violated proceedings operation virtue of the remedial, began before state proceedings. Comity rather than cive and federalism highest advancement fed concerns are at any substantial their in such cases place, involve an action took since the legitimacy eral both the state important ceeding state interest. and its underlying statutory predi- cate are at appropri- stake. Abstention is Schools, Dayton Christian S.Ct. at because, ate in such instances absent bad 2. 2723 n. adequate faith or an opportunity to raise challenge constitutional in the state Dayton between crucial distinction forum, state courts should have the first Patsy is that Schools Christian opportunity to construe the constitutionali- option anwas proceeding state Patsy ty of proceedings. their own “Minimal re- on her own to the federal available spect course, for the processes, wrong inflicted redress initiative precludes any presumption that the state Schools Dayton Christian the state. courts not safeguard will federal constitu- above, noted cases other abstention and the rights.” MiddlesexEthics Comm. v. tional enjoin sought plaintiffs the federal Ass’n., Garden Bar State 457 U.S. at they did proceeding pending state initiate, presence their in which but Dayton Chris- Here, inquiry unlike An mandatory. appropriateness into the Schools, proceed- of administrative abstention tian is if warranted the relief sought by plaintiff than coercive. ing remedial rather is addressed is trig- be directly ongoing could an appeal proceeding. to state administrative Sims, if Moore v. she only initiative at gered on Kercado’s 99 S.Ct. at Patsy her remedies within 2381. pursue it,3 cases to and like absten- wished remedy of a state administrative does not ordi- required mandate abstention since he was not narily 1983”). foreclose resort to § This circuit to exhaust his pri- state administrative remedies has on a expressly cert, number occasions re- — filing suit), or to granted, the federal holding Patsy plain- affirmed the § U.S.-, tiffs need prior not exhaust state remedies to Dist., Community Clark v. College Yosemite filing suit in federal court. Exeter-West Green- (9th Cir.1986) (federal F.2d plaintiff Regional 47, Pontarelli, wich School District v. alleged teaching who his duties were interfered (1st Cir.1986); F.2d salles, Ver- Urbanizadora with because of the exercise of his first amend- Rios, (1st Inc. v. Rivera 701 F.2d rights ment need not exhaust his state adminis- Cir.1983); Developmental Advocacy Disabilities remedies); trative City Stana v. School Dist. of Melton, (1st Cir.1982). 689 F.2d 286 n. 15 Pittsburgh, (3d Cir.1985) 775 F.2d 129-30 E.g., Praprotnik Louis, (public City employment op- school St. teacher denied 798 F.2d (8th Cir.1986) (district portunities remedies); 1172-73 4& n. need not exhaust state required court was Surtes, not to (5th abstain from Brantley case 718 F.2d 1358-60 brought by city employee who Cir.1983) he (public was school dis- cafeteria worker exercising laid off for his first amendment charged exercising rights her constitutional rights; fact that federal had initiated an remedies). need not exhaust state appeal to the civil service commission did not may aggrieved thereby ap- file a writ of unnecessary the federal because tion was peal Appeals____” the Board from, with P.R. allege arising injury plaintiffs did not added). (emphasis Ann. tit. 274c to, Laws ongoing state directed an or relief seek description The dissent’s of the administra- Instead, the federal proceeding. appeal scheme fact: tive omits a crucial injury arising from action claimed actual teacher dismissed must take affirmative actors. completed by state and undertaken steps appeal to initiate to the Board of se- Thus, interest stake was the state Appeals. She cannot coerced into be plain- the federal because verely diminished pearing broad, Appeals, Board of but is seeking to mount a tiffs not were provided an remedy legitimacy of attack constitutional should she choose to underlying avail herself of it. or their proceedings the state Undoubtedly, appeal the administrative statutory predicate. perfectly adequate scheme here is for han- conclude asserts that we can The dissent dling majority the vast of teacher dismis- ongoing challenge no to an there is sals, ordinarily which do not involve federal “artificially sepa- only by proceeding claims. constitutional But a teacher who re- “notice” rating” the which Kercado alleges by that her dismissal motivated 9 from the administra- ceived on December purpose pur- an unconstitutional need not to her. remedy tive which available sue her administrative remedies within the which We note first document system, may proceed Commonwealth but received on December was directly press to federal an order “notice,” simply a but was also holding claims. This is precisely the and dis- cancelling her teacher’s certificate Patsy. The dis- missing employment. her from sent’s assertion the dismissal holding in Pat- Despite the Court’s clear only “effect the Board would take after sy, dissent contends that the District System Appeals of the Public Education Rico heard of Puerto should not have Court is public a full on the record” holds she her admin- pursued her claim until had by language of the flatly contradicted recognize remedy. istrative This fails present order itself. It states: “The Order significant is a difference be- there effective upon shall notification become rights plaintiff seeks to a civil who tween receipt same by the accused.” stop nullify courts or the federal use order, issuance the dismissal based is proceeding in ongoing state motive, on an unconstitutional constituted defendant, rights plaintiff a civil who wrong the legal suffered Kercado. proceeding option has an initiate a state rights mo- triggered Kercado’s at the wrong perpetrat- remedy a constitutional allegedly wrongful ment the dismissal be- case, former state actor. In the ed “artifi- came effective. We have made no latter, the appropriate; in the abstention here; sepa- separation simply cial” we have Patsy rule prevails. wrong alleged upon inflicted Ker- rated the cado the remedies to her. available in ed entirely appropriate abstention is complaint Kercado also in her that the such circumstances. Such circumstances do pretermination hearing granted prior not, however, prevail here. 9, 1985, December dismissal was constitutional- Secretary argue by does not 5. The reinstat- ly inadequate. The district court did not decide 18, 1985, ing injury Kercado on November issue, this and we have no occasion to do so alleged deprivation caused on October 28 here. was somehow cured or rendered moot. Kerca-

263 upon process of due is came “effective the service and re- principle An essential life, liberty prop- ceipt” plain meaning or of it Kercado. The deprivation that a opportu- discharge notice and of these words that Kercado’s erty preceded by “be receipt to the na- took effect on her of the hearing appropriate order on nity for a binding That October 28. effect of of the case.” Mullane Central ture Co., suspended upon such an order would be Trust Hanover Bank & 656-57, filing 313, 652, “appeal,” 94 L.Ed. of an does not 306, transform “appeal” (1950). pretermination “the root into a hear- We have described Eighth stated Process Clause Circuit requirement” ing.6 of the Due As the given an Baumgart, an individual be case Schultz v. 738 F.2d 231 being “that Cir.1984): (8th hearing he is opportunity for a before property in- deprived any significant Schultz was indeed fired in violation [I]f employment.” Boddie v. terest in his process rights, availability of his due 371, 379, Connecticut, S.Ct. grievance post-deprivation proce- (1971) (emphasis 28 L.Ed.2d hearing dures or a board would not have Burson, 402 U.S. original); see Bell v. cured the violation. Schultz was entitled 1586, 1591, 29 L.Ed.2d meaningful opportunity to notice and a (1971). requires principle This “some respond he was terminated. If before discharge hearing” prior to the kind of a protec- he was terminated without those employee who has a constitutional- tions, deprivation the constitutional was property in his em- ly protected interest complete. then Schultz need not have Roth, Regents v. ployment. Board exhausted other state remedies before 569-70, 2705; 408 U.S. at S.Ct. at bringing section his 1983 claim. Silnderman, Perry v. (emphasis original). 738 F.2d at 237 S.Ct. opportunity appeal Kercado’s Sec- being retary’s order after informed of the Board Education v. Louder- Cleveland constitutionally inadequate; action is due mill, at 105 S.Ct. at 1493. process requires given that she notice of be Secretary dispute that Ker- does not opportunity respond and an pretermination cado entitled to a hear- the action is taken. Cleveland ing prior to the first effort to dismiss her in Loudermill, Education v. Board of however, argued, It is October 1985. recog- at 1496. We U.S. at appeal the administrative Secretary obliged nize that the pursued pretermina- could have was itself a evidentiary hearing prior to conduct a full Secretary points hearing. tion out dismissing at Kercado. Id. filing appeal by that the of an Kercado to 1495; Weymouth, 805 Moody v. Town of Appeals suspend- the Board of would have (1st Cir.1986). But Kercado F.2d of the dismissal order. She ed the effect charges and given notice of the was not contends, therefore, availability that the prior to the any opportunity respond appeal provided an administrative af- Secretary’s action on October We pretermination since the holding firm the district court’s fully dismissal order would not become ef- rights procedural were violat- due by the fective until after a final decision ed. Appeals. Board of Motives Behind Kercado’s reject argument. this The dis We Dismissal 28 in missal received October prohibits The first amendment formed Kercado that the had act dismissing public “permanently your government agency from ed to cancel teacher certificate(s) political affil you employees on their ... and ... dismiss based appropriate membership is an your post.” The order stated that it be- iation unless filing especially here because the 6. This is true rights; employment pay be would do’s suspended decision. appeal adversely until the Board’s final would still affect Kerca- particular position. a requirement for Director for the region which included the Frankel, district, 100 S.Ct. Dorado Regional Branti v. and the Di- deputy, L.Ed.2d Elrod v. rector’s all were the members of Burns, judge 96 S.Ct. 49 PPD. trial The noted that one the parties agree charges The against that filed L.Ed.2d 547 Kercado was based proper qualifica solely is not a political affiliation on a statement superin- assistant superintendent position. Maldonado, Lopez for school tendent Hector tion a a well- known PPD member who had once run for Secretary challenges dis The the mayor of Dorado. The evidence revealed trict court’s conclusion that Kercado was Lopez extremely that Kercado and an had trial, political purposes. . dismissed for At antagonistic relationship. The trial court the initial burden of Kercado bore demon Secretary’s held that willingness the to strating her political that affiliation was a point Lopez superintendent— assistant motivating underlying or substantial factor despite widespread knowledge of his hos- discharge the decision to her. relationship stronger tile with Kercado Healthy Doyle, City Mt. School District v. support appointments committee 274, 285-87, 568, 575-76, , for two other and her refusal candidates — (1977); Rosaly Ignacio, v. investigate complaints Lopez’ about con- (1st Cir.1979). 593 F.2d 148-49 Once duct, willingness evidenced her politicize met, showing that threshold had been the personnel Finally, decisions. the trial court obliged demonstrate noted various instances in DPI which the Kercado would have been dismissed irre investigating officials Kercado’s conduct spective membership of her in the PNP. failed to elicit Kercado’s version uphold We cannot the the verdict unless underlying against events charges her. trial correctly court found that she would The court investigators’ surmised po not have been dismissed “but for” her conduct indicated in- they more litical affiliation with the PNP. Mt. building against terested in case City Healthy v. Doyle, School District support actually her dismissal than 576; U.S. at Rosaly S.Ct. at v. assessing merits Ignacio, 593 F.2d 149. The district agree her. We with the district court findings made extensive with fact circumstances, together, these when taken respect leading up to the events to Kerca support finding political that Kercado’s findings do’s dismissal. These factual affiliation was a substantial factor motivat- accepted must be unless we are “left with a ing her dismissal. definite firm conviction that mistake has been committed.” making Anderson Bes After this threshold determina- tion, semer City, 470 U.S. the trial court then focused wheth- 1504, 1511, 84 (1985); Scarpa discharged er Kercado would have been (1st Cir.1986). Murphy, 806 F.2d political for” her “but affiliation eighteen PNP. The court noted that in The district court ruled that Ker years employee, as a DPI Kercado had cado carried her initial proving burden of reprimanded job per- never been for that her political affiliation awas substan formance, “steadily but instead had been motivating tial factor her dismissal. Proof for job rewarded her work with of such improper may an motive be shown motions.” The court then undertook via Rosaly Ig circumstantial evidence. evaluation of the merits the four nacio, 593 F.2d judge at 149. The trial charges brought Secretary against highly charged political aware Kercado. atmosphere in following Puerto Rico PPD’s victory election charge over the PNP levied first highlighted He long, Kercado’s ac failed fourteen tive and membership visible appointments, the PNP. teacher assistant contra- Cintron, evidence that the DPI showed Secre vention of Leida tary and Undersecretary, Regional Regional Bayamon. DPI DPI Director insubordinate, that such conduct was since appoint teacher as- assigned to committee 20,1985, August ordering DPI on it defied a directive that all Dorado met in sistants agree only three candi- located in the to personnel to on be work unit was able but assigned. found that the they The district court An amendment dates. eleven candidates the other provided personnel failure to select directive Regional the Di- part in because reassigned permanent occurred be from their could Cordova, refused to Maria deputy, rector’s “special in order to take care of positions recommendations. accept the committee’s in may arise a school or situations a consen- inability to reach The committee’s district.” Kercado maintained that school herself would meant that Cintron sus the temporary use of two teachers was assistants. remaining teacher choose the “special situation” of se- prompted the after the six weeks On October understaffing in her office. It is un- vere Kercado a August meeting, Cintron sent disputed that Kercado’s office was short on appointees. additional eleven list of the during In- personnel the summer of 1985. failure Secretary avers that Kercado’s deed, Kercado July on sent letter three appointments the within process complaining fourteen the Governor an act of insubordination. days constituted in office remained positions vacant. analysis of the evidence The district court’s letter that she had unsuc- She stated The court point is unassailable. on this shortage cessfully complained about failed copy A through proper channels. honestly could be- to see how defendant Secretary. letter was also sent to the this have realized lieve that should deny does not that Kerca- urgency of the situation and suffering personnel short- do’s office was immediately it when cessed the aides “understaffing does ages, submits that but Director, Regional Bayamon took the justify hierarchical disobedience.” herself, to make the selec- over six weeks shows that Kercado re- The evidence 20, 1985 August when tion—from permission to use the two teachers ceived aides met and no to select the committee respective principals. There from their reached, until October consensus was temporary reas- was no evidence that with her she sent a letter disrupted signment the teachers Plaintiff appointments. for the choices The trial they worked. schools which the letter October claims she received reassignments temporary judge found that dismissed October 1985 and she was per- expressly “special situations” were three weeks 1985. This left her less than 29 amendment to the by the June mitted appointments. Given the reassignment. teacher DPI directive on Regional Director never fact it has a com- been There was evidence make the gave plaintiff a time limit to temporarily use teachers to practice to mon given appointments and the situation super- tasks perform she was short- plaintiff’s office—that Moreover, neither the office. intendent’s beginning handed and it was the reassignments, nor its DPI directive year of which defendant school facts —all amendment, specify particular proce- June aware, that defend- was we cannot find temporari- in order to to be followed dures believing plaintiff’s ant was sincere in special needs ly teacher to meet use a refusal to fol- purposeful conduct was a court, there- The district of the district. superior or an low the directives of her respect fore, that with concluded worthy of overt act of insubordination against filed Kerca- charges and three two dismissal. “to indicate no evidence do there was charges brought The second and third by plain- act of insubordination purposeful concerned her decision Kercado dismissal.” warrant a tiff which would working superin- keep two teachers in- charge The fourth during August, after office tendent’s superin- dealings assistant regular volved their they had been reinstated to As men- Maldonado. Lopez tendent Hector Secretary averred teaching positions. The earlier, it evident that there The trial judge’s tioned was cado. assessment of the Lopez friction between considerable merits of those is entitled to con- dating long before he back siderable deference. See Jimenez-Fuentes with her in the assigned to work same Torres-Gaztambide, 236, v. 807 F.2d 238- — Nevertheless, 19, cert, September on office. (1st Cir.1986)(en banc), denied, 39 1985, slightly more than a month before U.S.-, 1888, 95 L.Ed.2d 496 dismissed, Secretary ig- Kercado was the (1987); De Choudens v. Government De- appoint- the recommendation of the nored (1st velopment Bank, 5, 801 F.2d 7 Cir. assigned Lopez committee and — cert, ments to the 1986)(en banc), denied, U.S.-, position superintendent. of assistant 1886, (1987). 95 L.Ed.2d 494 We agree that, the with district court charged even The Kercado with al- conceding validity charges the facial of tering superin- the of the duties the assistant tendent, Kercado, thereby disrupting they the are not so serious as smooth functioning discharge of the Dorado office. the of capable eigh- Kercado warrant a Lopez perform teen-year claimed that refused to employee. his career The district assignments problems and caused for correctly that, the court concluded the ample staff the office. There was evi- considered, charges merits of these are it is by submitted documenting dence Kercado they provide support evident that “little for by complaints per- levied Dorado district Secretary's] claim [the [Kercado’s] essence, against Lopez. sonnel this requiring conduct insubordinate the charge fourth a credibility involved contest of employment termination her with DPI.” Lopez between and Kercado: each testified Accordingly, we affirm the district court’s antagonism of harassment and determination that not Kercado would have other; each accused the of inhibiting other political been dismissed for” “but her affil- operation the efficient of the Dorado super- iation with the PNP. office; and intendent’s there was evidence political engendered motives the hostil- Damages ity they displayed toward one another. Secretary challenges The the

“[Findings on credibility based witness are district lodged firmly province compensatory court’s award and of the trial punitive damages. court and we loathe Kercado proved are to disturb them compelling absent a showing job had error.” been dismissed for Scarpa Murphy, 328; political 806 F.2d at reasons deprived and had been Anderson v. Bessemer 470 City, procedural U.S. at process rights. due The 575, 105 judge S.Ct. at 1512-13. The trial district court Kercado and reinstated accepted Lopez’s Kercado’s assertion that $12,074.50 awarded her pay. back uncooperative and abusive behavior forced reading Based on our of the and record the her to relieve him of some of his duties. briefs, appears this to be in error. The court characterized apparently computed pay court its back charge give that Kercado Lopez refused to plaintiff's award from the date of dismis proper assignments, his as the “weakest” sal, 28, claim, Appellants October allegations brought against all her. however, paid through Kercado Indeed, judge the trial stated that “it is not deny December and she does not an unfounded conclusion that the Secre- $15,- granted this. also tary, knowing antagonism between compensate pain 000 to for the and suffer Lopez, appointed Lopez and as As- ing by deprivation caused consti of her Superintendent sistant harass rights. damages Compensatory tutional plaintiff.” for and are re mental emotional distress see rights protected

We no any reason to coverable violations of disturb findings factual made by Memphis Community section 1983. the district court. 299,106 Secretary, effect, Stachura, sought has School Dist. v. reargue 2542-43, this court the merits of S.Ct. originally it brought against Carey Piphus, Ker- (1978). L.Ed.2d 252 remedies that state law makes available.

S.Ct. Patsy Regents, of See v. Board challenge reviewing basis When L.Ed.2d 172 compensatory damages, “we award for Harris, Younger hand, On the other judgment the trial rely heavily on (1971), L.Ed.2d 669 court, had the benefit of who has if a progeny and its hold that state has observing de- all of evidence begun already judicial or adminis- Tay- witnesses.” Clark v. meanor proceeding against person, trative Cir.1983). lor, (1st F.2d may proceed court, in federal person dis- emotional mental testified suit, even with a if that suit risks abrupt tress dismissal caused interfering important state interests second, Secretary’s 28 and the October plaintiff if the can raise federal consti- successful, discharge effort and more challenges proceed- tutional in the state find the in We district December. County Ethics ings. Middlesex Commit- $15,000 compensatory for court’s award of Association, tee v. Garden Bar State 457 damages under the circumstanc- reasonable 423, 2515, 432, 2521, U.S. 73 es.7 (1982) (setting 116 L.Ed.2d out basic test judge also awarded Ker The trial invoking see abstention); Younger-type for $10,000 damages. punitive cado v. Rights Dayton Ohio Civil Commission the court concluded Schools, 619, Christian plaintiff’s “callously indifferent federal (1986) (extend- 91 L.Ed.2d 512 rights,” warranting thus the ly protected doctrine, Younger ing the context of v. damages. Smith imposition punitive of action, a to state administrative § Wade, 30, 56,103 1625,1640, S.Ct. ceedings). Taylor, Clark disagree however, I majority, conduct, Secretary’s at F.2d 14. The application principles about the of those court, a found the district demonstrated was, I this case. think the Kercado, discharge irre steadfast intent to suit, brought very she her federal much rights spective of her constitutional or the midst of Commonwealth administrative charges brought actual merits of Commonwealth, proceedings. In the as in punitive of her. The award dam states, many local authorities cannot dis- ages appropriate, do was therefore and we fairly miss a tenured teacher without elabo- not find it excessive. proceedings in- rate administrative recompu- a and remanded Affirmed for charges, notice a full-blown volve of admin- pay tation the back award. Costs hearing, istrative and either administra- appellee. awarded to review, appeal, judicial or both. P.R. tive 274-274o; see, e.g., 18, Ann. Laws tit. §§ BREYER, Judge (dissenting). Circuit 44932-44945; Educ. Cal. Code NJ.Stat. §§ -27; I not Ann. Wash.Rev. Code disagree majority do with the about 18A:6-10 §§ Puerto Rico’s statute federal law that 28A.70.160-.170. principles basic §§ hand, “suspend” or a ply person provides to this one to “cancel” case. On the certificate, has his tenured teacher’s educational who claims that someone violated Education ... shall serve rights may bring “Secretary civil suit in federal suspension exhausting on the teacher an order of or under 1983 without U.S.C. § Here, dis- 7. The Kercado testified that suffered specify court below did not much of how damages compensatory these stemmed ever action on Octo- tress since the deprivation procedural process -28, due process rights procedural ber when her due rights, stemmed from the im- and how much She also testified of distress were violated. proper Supreme Court has stat- dismissal. The job. she suffered to the actual loss due alleging procedural that a ed identify not We do think the failure process must the trier due of fact of violation "convince damages arising portion compensatory from actually suffered distress because that he consequence under cir- claim each to be of procedural due itself.” the denial of cumstances of this case. 263, Carey Piphus, U.S. at 98 S.Ct. at 1052. jointly complaint cancellation ... with a proceeding renders a “pending” pur- charges.” specifying poses P.R. Laws Ann. of Younger-type abstention); Huff- Ltd., 274a. The Pursue, tit. order “shall be man §§ 607-09 days only final” after ten if the teacher & n. & n. “appeal” does not it. Laws (1975) P.R. Ann. (holding that “a neces- possible excep- tit. 274b. With few sary concomitant Younger par- is § that a relevant, (regard- tions here ty ... must exhaust his appellate state says) legally less of what it effect seeking takes remedies before relief in the Dis- only Appeals the Board of noting trict Court” and that according such after System public Public Education holds a full already-initiated deference to proceed- record, ings on the at which the teacher general consistent with a no-exhaus- counsel, may represented by present doctrine); be tion Patsy see v. Board Re- evidence, and cross-examine the gents, witnesses 457 U.S. at presented by (White, J., the education authorities. concurring (not- 2568-69 part) tit. P.R. Laws Ann. 274d-274h. If ing that the holding in Patsy §§ Court’s “is teacher, the Board decides he fully also consistent with deci- [the Court’s] may judicial obtain review in the Common- sions that a defendant a civil or adminis- P.R. wealth courts. Laws Ann. tit. proceeding trative may enforcement not en- 274?. join and proceeding by sidetrack that re- sorting to a 1983 action federal court” § majority plain- can How find that the (citing Huffman))-, see also Malachowski procedure tiff the midst of this City Keene, (1st F.2d 787 708 she brought her federal law suit? Cir.) (holding must § majority only by seems to do so artifi- cert, first take appeals), available state de- cially separating “sending-the- the statute’s — -, nied, U.S. provision order” from the rest of the stat- Jersey, Coruzzi v. New majority “sending-of- ute. The reads the F.2d (3d Cir.1983) (similar); provision permitted the-order” as if it Maryland Carter v. Commission Medi- on dismiss Commonwealth to a teacher with- Discipline, cal F.Supp. (D.Md. hearing out a simply sending full-blown 1986)(similar). reasons, For these it seems piece “order”, paper called an as if to me majority’s view both misreads sending piece paper of that constitut- and, event, Puerto Rico’s in any law runs legal ed the wrong provided and all the rest contrary Supreme to relevant Court author- by the remedy. statute were but a state ity. any case, however, contested sending “order” hearing “appeal” and the steps are integrated, within an statutory

administrative scheme—a scheme similar

those often used states to dismiss ten-

ured teachers. Unless one viewed Puerto Rico’s embodying law as effort dis- America, Appellee, UNITED STATES of miss tenured hearing teachers without a (which statutory language neither the nor suggest so) common sense case this fits MEJIA-LOZANO, Martha squarely Younger within the doctrine. Re- Defendant, Appellant. gardless, one even if calls the No. 86-1901. stage an “appeal” sending “order,” Supreme relevant United of Appeals, States Court precedent Court require still seem would First Circuit. appeal take such an Heard July 1987. bringing her 1983 action in federal court. Sept. Decided — Texaco, -, Pennzoil v. 1527 & n. 95 L.Ed.2d (1987) (holding in the context of a §

suit availability that the judicial appeal of a notes the Court The dissent Huff- Ltd., Pursue, 95 S.Ct. v.man 420 U.S. by suggesting The dissent errs (1975), that “a L.Ed.2d 482 stated hearing a by there must be the Board of Younger is that a necessary concomitant of Appeals before the dismissal order be- appellate party must exhaust his state ... binding; comes final and there is no such Dis- seeking relief in the before remedies requirement. P.R.Laws Ann. tit. re- Subsequently, the Court trict Court.” by Appeals Review the Board of 274b. § noting language, the reach of this stricted couched, by is the language of the statute applies a fed- only it when specifically that itself, remedy as a available to a teacher judicial seeks state eral to avoid who dissatisfied with a dismissal order: instead, and, courts the federal order, appeals “If use not satisfied with the teacher of trial.” results a state legitimacy pending proceeding, of a state annul the “to 710-11, Maynard, 430 U.S. Wooley reject v. contention that we (1977). 1428, 1433, L.Ed.2d abstained. the lower court should have course, plaintiff has Here, federal Both effort. no such made Huffman — -, Texaco, v. Pennzoil (1987), also cited Procedural Due Process S.Ct. plaintiffs dissent, hold that federal by The Secretary disputes the dis state trial results of a by aggrieved trict court’s conclusion that appeals Kercado’s judicial state due pursue their must process rights were violated The instant court. going to federal deprived of pretermination a prior a federal case, involves Patsy, like to receiving the dismissal order of allegedly unconstitutional October by aggrieved 28, 1985. process Kercado’s due by state offi- claim employment de deprivation pends on her having a property had require- imposed no inter has The Court cials. est in her employment.5 Cleveland Board pursue her administrative that she ment Loudermill, Education v. 470 U.S. circumstances.4 in such remedies 538, 105 matter is controlled that this believe We Regents Board Roth, v. Patsy. principles outlined by the 564, 576-78, appropriate occasion not an case is instant (1972). L.Ed.2d 548 Property interests are Kercado’s The thrust for abstention. not created by the Constitution, but are dismissal of the challenges basis claim rooted an independent source such as by completed action undertaken state law. Cleveland Board Education sought to could have Secretary. Kercado Loudermill, 470 U.S. at 105 S.Ct. at wrongful act in allegedly remedy this Regents Board Roth, but was proceeding, state 92 S.Ct. at 2708-10. The Secretary do so. She also required law to not admits that a superintendent school is a Secretary deprived her of claimed that career employee under Puerto Rico law. 3 preter- process by granting not due L.P.R.A. (1978). 1349-52 §§ Puerto Rico hearing prior issuing the letter mination clearly law gave Kercado a property inter impli- does not Such a claim of dismissal. position; est in her her status as a “career” does since it abstention concerns cate employee permitted her to be only fired pending challenge to a constitute a “good cause.” 3 (1978). L.P.R.A. completed proceeding. The had who, turn, against action proce- alleged the substance and Since property Kercado had a interest in completed employment, action dural effectuation the relevant constitutional question Kerca- process the Constitution. Because concerns what violated is due her. Supreme challenge claim not Court has stated: do’s did involve 4. The other lower court cases cited do's claim for the dis- emotional and mental distress inapposite. They sent are challenges by arising involve October due plaintiffs ongoing coercive state irrespective violation subsequent survives ceedings initiated them. The relief Carey Piphus, reinstatement. 247, 263-64, Cf. sought directly those cases runs 1042, 1052-53, 55 L.Ed.2d proceedings already We themselves. have not-

Case Details

Case Name: Ipcia M. Kercado-Melendez v. Awilda Aponte-Roque, Etc.

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 22, 1987

Citation: 829 F.2d 255

Docket Number: 86-1853

Court Abbreviation: 1st Cir.