Mercado-Berrios v. Compania de Turismo, et al

Filing 920100630

Opinion

var gAgent = navigator.userAgent.toLowerCase()
var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) )
var gIE = ( gAgent.indexOf( "msie" ) != -1 )
var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )
var floatwnd = 0

var WPFootnote1 = '                   Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = '                   Mercado-Berrios ended up serving for seven months. In\
December of 2003, the Executive Director of the Tourism Company\
extended the transitory appointments for one month because\
permanent employees had not yet been hired.\
'

var WPFootnote3 = '                   The district court entered judgment as a matter of law\
for the other defendants. That ruling is not challenged in the\
present appeal.\
'

var WPFootnote4 = '                   This portion of the award constitutes legal damages\
rather than an equitable award of backpay and frontpay. See\
Negrón-Almeda v. Santiago, 528 F.3d 15, 26-27 (1st Cir. 2008).\
'

var WPFootnote5 = '                   Neither party disputes that Cancel-Alegría\'s decision not\
to hire Mercado-Berrios to a permanent position constitutes an\
adverse employment action for purposes of the First Amendment\
claims at issue here. See Morales-Tañon v. P.R. Elec. Power Auth.,\
524 F.3d 15, 19 (1st Cir. 2008).\
'

var WPFootnote6 = '                   In total, two hundred fifty people applied for twenty\
permanent positions.\
'

var WPFootnote7 = '                   In resisting this conclusion, Mercado-Berrios relies\
heavily on Gutiérrez-Rodríguez v. Cartagena, a due process police\
brutality case in which we discussed the standard of causation\
under section 1983. See 882 F.2d 553, 561 (1st Cir. 1989) (holding\
that police officers could be held liable for unconstitutional\
shooting because they "directed and participated in the acts that\
led to the shooting"). That case is not illuminating here. There\
is substantial evidence that Cancel-Alegría exercised direct\
control over the hiring decisions for the Tourism Transportation\
Division. If there were proof that the decision not to hire\
Mercado-Berrios to a permanent position was motivated by her\
political affiliation, Cancel-Alegría could be held liable for\
having directly "subject[ed]" Mercado-Berrios to a deprivation of\
constitutional rights. 42 U.S.C. § 1983.\
'

var WPFootnote8 = '                   Cancel-Alegría makes several remarks in her brief that\
could be taken as allusions to other exceptions. For example, she\
says that any restriction on Mercado-Berrios\' speech was justified\
because the Tourism Company\'s "interest was to intervene with firm\
hands, but courteous and that the user be the priority." That may\
be a reference to the Pickering balancing test. The argument is\
not developed, however, and we therefore deem it waived. See\
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\
'

var WPFootnote9 = '                   As we recently emphasized, this does not mean that the\
employer must have expressly required the employee to speak. See\
Foley, 598 F.3d at 6; see also Weintraub v. Bd. of Educ., 593 F.3d\
196, 203 (2d Cir. 2010). Many employees enjoy significant\
discretion in determining what actions ought to be taken "pursuant\
to" their job responsibilities. The voluntary or discretionary\
aspect of their actions does not exempt them from employer control. \
See Foley, 598 F.3d at 7.\
'

var WPFootnote10 = '                   For example, the Court referred to speech that "owes its\
existence to a public employee\'s professional responsibilities,"\
547 U.S. at 421; speech that the employer "has commissioned or\
created," id. at 422; speech that the employee "was paid to" make,\
id.; speech that the employee\'s "duties . . . required him to"\
make, id.; speech that amounts to the employee\'s "work product,"\
id.; and speech that is an "official communication[]," id. at 423.\
'

var WPFootnote11 = '                   We also will not address Cancel-Alegría\'s qualified\
immunity argument, which simply refers back to her misguided merits\
argument. \
'

var WPFootnote12 = '                   She also argues that the district court should have\
granted a new trial because the verdict was against the weight of\
the evidence. The district court did not abuse its discretion in\
denying that request.\
'

var WPFootnote13 = '                   Because Cancel-Alegría has not raised the issue, we do\
not consider what effect, if any, the Supreme Court\'s decision in\
Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), has had on our\
section 1983 damages jurisprudence. Cf. Mendez v. County of San\
Bernardino, 540 F.3d 1109, 1122 (9th Cir. 2008); Kunz v. DeFelice,\
538 F.3d 667, 678 (7th Cir. 2008).\
'

function WPShow( WPid, WPtext )
{
if( bInlineFloats )
eval( "document.all." + WPid + ".style.visibility = 'visible'" );
else
{
if( floatwnd == 0 || floatwnd.closed )
floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" );
floatwnd.document.open( "text/html", "replace" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( WPtext );
floatwnd.document.write( 'Close');
floatwnd.document.write( "