USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2287
MYRIAM E. LABORDE-GARCIA,
Plaintiff, Appellee,
v.
PUERTO RICO TELEPHONE CO., ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________

Jacqueline D. Novas with whom Jose J. Santiago, Jose L.

_____________________
__________________
_______
Verdiales and Fiddler, Gonzalez & Rodriguez were on brief for
_________
_______________________________

appellants.
Guillermo Ramos Luina
_____________________
brief for appellee.

with whom

Harry Anduze Montano was

_____________________

____________________
May 18, 1993
____________________

BREYER, Chief Judge.

___________
that

Puerto Rico's

officials,
providing
Federal

Telephone Company,

deprived
her

Myriam Laborde-Garcia claims

with

her

of

her

an injunction ordering
the

immunity."

individual

job

protections

of its
without

that

the

requires. Cleveland Bd. of Educ. v.

________________________

Loudermill, 470 U.S. 532 (1985).

__________

denied

government

the procedural

Constitution

and several

The district court entered

the Company to reinstate her, and it

defendants'

claims

of

The defendants appeal these orders.

"qualified
28 U.S.C.

on

1291; Mitchell v. Forsyth, 472 U.S. 511 (1985).

________
_______

We affirm.

I
Background
__________
Ms.

Laborde

is

Commonwealth-owned Telephone
since 1975.

On July 7,

career

employee

Company, where she

1986, she was

She received treatment

Insurance

year later,

returned to work.
7,

One

Fourteen months

1988, Ms. Laborde went

July 6,

at the State
1987,

she

Fund for treatment.

month) the Company wrote to

her that it was dismissing

of absences related to her "prolonged illness."

-22

work-

after that, on September

back to the

In early October (the following

Ms. Laborde to tell

on

the

has worked

injured in a

related auto accident.

Fund.

of

her because

Ms. Laborde, almost

Company

officials that they had made a mistake.

treatment

at the Fund (in

"prolonged illness."
her

immediately thereafter,

absence from

September) was not

Rather, she said,

work)

resulted from

told

Her latest
related to a

the treatment (and

a new

work-related

accident, involving moving boxes. That accident had occurred

in

August

1988,

only

two

months

before

her

current

treatment.
This "mistake" seemed important, for Puerto Rico's
workers' compensation law requires
the job of
Fund,

an employer to "reserve"

an injured employee undergoing treatment

at the

and to "reinstate" the employee in that job, but only

if, inter alia, at the time the worker seeks

__________
no more than "twelve months" have
_____________
date of the

reinstatement,

"lapse[d] . . . from

accident." P.R. Laws Ann., tit. 11,

Appendix for

complete text

7.

of statutory provision).

the
(See
More

than "twelve months" had "lapse[d]" from Ms. Laborde's first

accident; but only two

months had "lapse[d]" from the

time

of the second.
The Company, either because it did not believe Ms.
Laborde, or

because it

difference, neither

thought her

changed its

mind

factual claim

made no

about dismissal

nor

granted Ms. Laborde a hearing at which she could dispute the

-33

basis for

her dismissal.

this lawsuit.
depriving

She

Ms.

Laborde subsequently brought

claimed that the Company, in

effect, by

her of her job without any kind of prior hearing,

violated the Fourteenth Amendment's Due Process Clause.

district court held that Ms. Laborde was correct.

The

We agree.

II
The Law
_______
Like the district court, we find the law clear and
in Ms. Laborde's favor.
the

Commonwealth

may not

without due process

clear

that

employee who
for

The

Fourteenth Amendment says that

deprive

of law."

"good cause."

Kercado-Melendez
________________

person of

The Supreme

"property" includes
(under local

the

job

law) cannot be

"property

Court has
of a

made

government

dismissed except

Loudermill, 470 U.S. at 538-39; see also

__________
___ ____
v. Aponte-Roque,
____________

829 F.2d

255,

Cir. 1987), cert. denied, 486 U.S. 1044 (1988).

____________

262 (1st

The Supreme

Court has also

made clear

employee normally includes

. . . discharge."
here

agree that

that the process

"due" such

"'some kind of hearing' prior to

Loudermill, 470 U.S. at 542.

__________
the

government employer,

an

Puerto Rico

Telephone

The parties
Company is

Kauffman v. Puerto Rico Tel. Co., 841

________
_____________________

F.2d 1169, 1173 (1st Cir. 1987), and that it can dismiss Ms.
-44

Laborde, a permanent
Ann.,

tit.

3,

officials, has
work.

employee, only for

1336(4).

The

told Ms. Laborde

cause.

Company,

P.R.

Laws

through

its

that she cannot

return to

They did not, and have not yet, provided her with any

significant

opportunity for

deprived her

of "property"

a hearing.

without the "process"

Federal Constitution requires.

The

defendants

Hence,

make

they have
that the

Loudermill, 470 U.S at 546.

__________
three

arguments

to

the

contrary.

First, they say

Ms. Laborde

lost her job

that, under Puerto

when she did not

the workmen's compensation statute

"reinstatement" (after an
injury).

The Federal

appear at work;

provides only a right to

absence caused
Constitution,

by a

they

fulfilled.

of employment, which

job-related

add, does

protect rights to "reinstatement" because such

only expectations

Rico's law,

'rights' are

may or

may not

See Board of Regents v. Roth, 408 U.S. 564,

___ ________________
____

(1972) (due process clause "is

of interests

that person

benefits"); cf.
___
is illegally

a safeguard of the

has already acquired

Kauffman, 841 F.2d

________

hired, property

not

be
576

security

in specific

at 1173 (where employee

right in employment

is never

created).
As
argument

seems

a matter
wrong,

of Commonwealth law,
for

the statute
-55

however, this

itself

does

not

separate "discharge" from "reinstatement;" rather, it speaks

both of "reserv[ing]" the job of an employee under treatment
and

"reinstat[ing]"

that

conditions) on request.

employee

(under

specified

See P.R. Laws Ann., tit. 11,

___

Carron-Lamoutte v. Tourism Co. of Puerto Rico,

_______________
___________________________
(1992); In Re Hotel Da Vinci, Inc., 797
____________________________

7;

92 J.T.S 97

F.2d 33, 35

(1st

Cir. 1986), citing Rojas v. Mendez & Co., 84 J.T.S. 3 (1984)

______ _____
____________
(employer cannot validly discharge employee missing work due
to

medical treatment

during twelve-month

period following

disability); but see Union Tronquistas de Puerto Rico, Local

_______ _______________________________________
901 v. Emery Air Freight Corp., 596 F.Supp. 829, 833 (D.P.R.
___
_______________________
1984)

(referring

to

separate

steps

of

"discharge"

and

"reinstatement").
Regardless,

as

matter

of

federal

law,

the

argument is wrong because the workmen's compensation statute

so

narrows

the

reinstate Ms.
that

it

government's

Laborde (during

provides

entitlement" to

her

with

discretion
the relevant
a

to

refuse

to

twelve months)

"legitimate

that continued employment. That

claim

of

is to say,

local law's narrowing of the employer's discretion to decide

not

to reinstate

have believed, and

means that

Ms. Laborde

relied upon her

would likely permit her

could reasonably

belief, that local

to remain employed.

Based

law

on this

-66

reasonable expectation created by local law, Ms. Laborde had

a

federally

protected

"property"

employment. See Roth, 408

___ ____
interest

in a

interest

in

U.S. at 577 (to "have

benefit," a person

must "have

continued
a property

a legitimate

claim of entitlement to it"); id. at 578 (implying existence

__
of

"property"

in

renewal

of

employment

if

employer's

discretion to choose not to renew had been narrowed); Bishop

______
v.

Wood, 426 U.S. 341, 344-45 (1976); cf. Kentucky Dept. of

____
___ _________________

Corrections
___________

v.

Thompson,
________

490

(liberty interest created if

expect

that visit

listed conditions).
actions

as

taking

would

U.S.

454,

be allowed

Ms.

(1989)

prison inmate could reasonably

absent occurrence

Thus, whether one

away

463-65

Laborde's

of

views the Company's

present

job,

as

refusing to reinstate her,

at

the same time, the

or (realistically) as doing both

Company deprived Ms.

Laborde of the

sort of "property" that the Constitution protects.

Second, the

defendants argue

that they

need not

have given Ms. Laborde any further hearing because a hearing

could not have
247, 266-67
cases
clearly

helped her.

Cf. Carey v.
___ _____

(1978) (recovery limited to

where employer
justified).

refuses

to a

U.S.

nominal damages in

hearing but

They point

Supreme Court case, Santiago v.

________

Piphus, 435
______

dismissal still

recent Commonwealth

Kodak, 92 J.T.S. 11 (1992),

_____

-77

which
protect

held that

the

Workmen's Compensation

Act does

not

a person who concededly did not report the relevant

accident until after the employer dismissed him.

_____
that, like the

plaintiff in Santiago,
________

They claim

Ms. Laborde did

not

report her accident until after her dismissal.

Santiago, however, does not obviate the need for a
________
hearing in this case.
Laborde

does

accident

not

until

Unlike the plaintiff in Santiago, Ms.

________

concede

after

she

that

she

was dismissed.

Laborde says that she reported her

sought
her

treatment at the

employer

initially

dismissed

mixed up

These facts,

Instead,

Ms.

7, 1988, before
______

her.

that

She

adds

but later

the

Fund

amended that

occurrence of her second accident.

if proven, might

well bring her

of Santiago's holding.
________

the

to

determine

the

Fund on September

the scope
need

report

second accident when she

its paperwork,

paperwork to reflect the

did not

case outside

Santiago, by emphasizing
________

the facts,

does

not

avoid, but,

rather, reinforces the need for a hearing.

Third,
entitled to
the relevant
unclear.
(1987)

the individual

defendants

"qualified immunity,"

(state

Anderson v. Creighton,
________
_________
actors

have
-88

they

because, at the

events, their federal

See
___

say

time of

legal obligations
483 U.S. 635,

qualified

immunity

are

were
638-41
unless

precedent would have

would

infringe

alerted reasonable person

"clearly

established"

that action

constitutional

principle); Harlow v. Fitzgerald, 457 U.S. 800 (1981).

______
__________

They

correctly point out

Rico

that the Supreme

did not decide until

that

1992 (after the events here

Commonwealth

termination
issues

in

have

where

dispute.

Carron-Lamoutte,
_______________
federal

employees

hearing

are

Court of Puerto

right

to

accident-related,
Carron-Lamoutte,
_______________

however,

simply

constitutional requirements.

In

pre-

time-limit

92

applied

in issue)

J.T.S

97.

pre-existing

1985, Loudermill
__________

made clear that permanent government employees possessed the

federal

right to

Kauffman,
________

this circuit applied

Telephone Company,
its career employees
hiring

pre-discharge hearing.

in

Loudermill to Puerto Rico's

__________

making clear that the

company must give

pre-discharge hearings (unless illegal

meant they had never

first place).

In 1987,

See Kauffman,
___ ________

become career employees in the

841 F.2d at

1173.

Thus,

in

1988, the basic law governing Ms. Laborde's claims was clear

and in her favor.

We concede
that Ms. Laborde
property, have

that defendants, in an

effort to show

did not possess constitutionally-protected

succeeded in creating an

their interpretation of the workmen's

argument (based on

compensation statute)

-99

that is complicated, counterintuitive, and ultimately wrong.

We also concede
had

not yet

that one who understood that

worked out

the proper

argument, but

legal response,

might

doubt whether or not the Constitution protected Ms. Laborde.

Yet,

we do not believe

that the potential

existence of an

unusual, sophisticated, and ultimately wrong legal argument,

is sufficient, legally speaking, to muddy what, for immunity
purposes,

would

otherwise amount

to

clear legal

waters.

Were that not so, given the ingenuity of the bar, "qualified
immunity"

would become

absolute

in that

it would

become

available in virtually any case argued by a creative lawyer.

We conclude

that the Company's legal

obligation to provide

Ms. Laborde with an appropriate hearing before depriving her

of her

job was

denial of

clear in 1988.

And, the

the defendants' claims of

district court's

qualified immunity was

legally correct.
The Telephone
argument.

It says that

entity, namely a
that

1983

officials

"municipal corporation."

damage award

unless those

pursuant

itself makes

to an

one

it is a special kind of

a "municipal corporation"

Section

taken

Company

actions
official

government

It points

cannot be ordered

based

on

the actions

are alleged
policy

further

to pay a
of

to have

or custom

out

of

its
been
the

-1010

corporation.

See Monell v. Dep't of Soc. Servs. of the City

___ ______
________________________________

of New York, 436 U.S. 658, 690-91 (1978).

___________

It

contends that

the court's order directing it to reinstate Ms. Laborde with

____
back pay constitutes a "damage award."
_________
Ms. Laborde's
allege

complaint is

the existence

practice which

of

And, it claims that

deficient in
an official

would justify

that it

fails to

policy, pattern,

this damage award,

or

as Monell
______

requires.
Assuming much in defendant's favor for the sake of
argument, we find a

short, conclusive answer to

this claim

in the fact that the complaint does properly allege that the
Company itself
responsible
claims

(whether or not a

for

that all

the violation
of

municipal corporation) is
of

the individual

the

Constitution.

defendants "were

It
duly

appointed officials and/or employees of [the Company];" that

each

of the

individual

defendants was

"charged with

the

administration" of the Company's employment regulations; and

that each
"within

of the individual defendants acted, at all times,

the

scope of

their

employment

as agents

and/or

employees of [the Company]."

These allegations amount to an

assertion

of the

that the

represented
responsible.

actions

Company
We

do

policy,
not read
-1111

for

individual
which

the

the complaint's

defendants
Company

is

conclusory

statement that plaintiff's "dismissal"

violated "applicable

laws . . . and . . . regulations" as alleging the contrary.

Moreover,
evidence

the

record

that the

before

employees'

us

contains

actions

considerable

represent

official

Company policy; and it contains no evidence to the contrary.

See
___

Monell, 436 U.S. at 690 ("Local

______

can be sued directly under

or

governing bodies . . .

1983 for monetary, declaratory,

injunctive relief where . . . the action that is alleged

to be

unconstitutional implements or executes [an official]

policy statement . . . or decision . . . .")

Finally, we
yet calculated back pay
the way in

court has not

or other damages.

realize that

which Puerto Rico

eventually determined
on

note that the district

such facts)

may

affect such

v. Piphus, 435
______

Valle
_____

v. Santa-Aponte, 575
____________

Brewer v. Chauvin,

law applies to

(whether or not

Carey
_____

We

U.S. at 260

the facts

as

it permits dismissal

calculations. See,
___
& n. 15

F.2d 321, 324

938 F.2d 860, 862 & n.2,

e.g.,
____

; Hernandez-Del
_____________
(1st Cir. 1978);
864 & n.4 (8th

______
Cir.

_______
1991); City of Chicago
________________

v. Dep't of Labor,
_______________

1466, 1471-73 (7th Cir. 1984).

the

proper outcome of the

can we

do so before the

737 F.2d

We express no opinion as to

question of Puerto
facts are finally

Rico law nor

determined.

We

here hold only that federal law clearly required the Company
-1212

to

provide Ms. Laborde with fair pre-termination procedures

--

procedures

opportunity to

that

would

have

present facts,

that she was entitled

given

and make

to keep her job.

her

reasonable

arguments, showing
The

district court

held the same, and its determinations are therefore

Affirmed.
________

-1313

Appendix
Appendix
________
"In the case of working disability according to
the provisions of this chapter, the employer shall be under
obligation to reserve the job filled by the laborer or
employee at the time the accident occurred, and to reinstate
him therein, subject to the following conditions: (1) that
the laborer or employee demand reinstatement from his
employer in his job within the period of fifteen (15) days
counted from the date the laborer or employee is discharged
from treatment, provided such demand is not made after the
lapse of twelve months from the date of the accident; (2)
that the laborer or employee be mentally and physically fit
to fill said job at the time he demands reinstatement from
his employer; and (3) that said job still exists at the time
laborer or employee demands reinstatement.
(The job shall
be understood to exist when the same is vacant or is being
filled by another laborer or employee....)"
P.R. Laws Ann., tit. 11,
7 (Article 5-A of the Puerto Rico
Workers' Accident Compensation Act).

-1414