Date: 02-01-2016

Case Style: Falto-de Roman v. Municipal Government

Case Number: 14-1470

Judge: Juan R. Torruella, David Jeremiah Barron

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Israel Roldán-González

Defendant's Attorney: Claudio Aliff-Ortiz, Eliezer Aldarondo-Ortiz, Eliezer A. Aldarondo-López, Aldarondo & López-Bras

Description: The plaintiff and appellee -- Elba Falto-De Román
(Falto) -- was a career employee of the Town1 and the director of
the Town's Head Start Program (the "Program"). The appellants are
members of the Program's governing board and policy council, a
subset of the defendants in the case, which also included the Town
and the Town's mayor. Falto's suit concerns the lawfulness of her
termination and the appellants' role in bringing it about.
Under federal law, the governing board of a Head Start
program has the responsibility of "approving personnel policies
and procedures, including policies and procedures regarding
the . . . termination of the . . . Head Start Director." 42 U.S.C.
§ 9837(c)(1)(E)(iv)(IX). Similarly, the policy council of a Head
Start program has the responsibility to "approve and submit to the
1 "Under Puerto Rico law, public employees are categorized into either career or trust/confidential positions" and career employees are removable only for cause. Ruiz-Casillas v. CamachoMorales, 415 F.3d 127, 134 (1st Cir. 2005) (citing P.R. Laws Ann. Tit. 3, § 1349.)

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governing body decisions about . . . Program personnel policies
and decisions regarding the employment of program staff." Id.
§ 9837(c)(2)(D)(vi).
In December of 2010, the United States Department of
Health and Human Services ("HHS") reviewed the Town's Program and
issued a very negative report. In July of 2011, the Program's
governing board asked Falto to respond within twenty-four hours to
questions about whether HHS's findings were being addressed.
Falto responded a month later, on August 12, 2011, and
complained about the deadline. She stated that the request was
"an act of harassment, persecution, and disrespect." She also
claimed that she had already provided the information that had
been requested of her.
The Program's policy council then met on September 9,
2011, at the request of the mayor. At that meeting, the policy
council's chairman "announced that the Governing Board had
determined by a majority of votes to dismiss Ms. Elba Falto from
her position as Director of the Head Start Program."2 The policy
council then voted unanimously "to support the decision taken by
the Governing Board."
On September 12, 2011, the Program's governing board
informed the Town's mayor that the governing board and the policy
2 It is unclear from the record when that vote occurred.

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council "ha[d] made the decision to remove" Falto. In a September
20, 2011, letter, the mayor told Falto that the Program's governing
board and policy council had each "decided to remove [her] as
Director of the Head Start Program," and that the mayor was
"adopt[ing]" that decision, due to a "withdrawal of trust." The
Town then ceased paying Falto in October 2011 and reported to the
Puerto Rico Department of Labor that her last day of employment
was October 5, 2011.
In response, Falto filed suit in the United States
District Court for the District of Puerto Rico. She named as
defendants the Town, the mayor, and the members of the Program's
governing board and policy council. See Falto de Román v.
Municipal Government of Mayaguez, Civil No. 12–1011 (BJM), 2014 WL
460865 (D.P.R. Feb. 5, 2014). Her suit alleged a claim under
section 1983, in which she contended that she had been deprived of
"[t]he property interest [she] had in her continued employment" in
violation of her right to procedural due process under the
Fourteenth Amendment of the United States Constitution. She also
alleged a Title VII retaliation claim and various claims under
Puerto Rico law, both statutory and constitutional.
Both sides moved for summary judgment and consented to
proceeding before a magistrate judge. Id. at *1. The Magistrate
Judge dismissed Falto's Title VII claim with prejudice because
Falto failed to exhaust the required administrative remedies. Id.

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at *7. The Magistrate Judge then declined to exercise supplemental
jurisdiction over the related Puerto Rico law claims. Id. at *8.
With respect to the section 1983 claim, the Magistrate
Judge granted Falto partial summary judgment, ruling that Falto's
right to procedural due process had been violated, but that a
hearing would be needed to establish damages. Id. at *6. The
Magistrate Judge also denied the defendants' motion for summary
judgment, which was based, in part, on the contention that the
mayor and the members of the Program's governing board and policy
council were entitled to qualified immunity. Id. at *8. In
denying that motion, the Magistrate Judge concluded, among other
things, that none of the defendants were entitled to qualified
immunity. Id. at *5-6.
The members of the Program's governing board and policy
council then filed this interlocutory appeal. They challenge only
the Magistrate Judge's qualified immunity ruling.
II.
Before ruling on qualified immunity, the Magistrate
Judge first held that Falto had been deprived of a constitutionally
protected property interest. Id. at *4-5. He explained that "no
reasonable juror could find Falto was not terminated." Id. at *4.
He further explained that even if there had not been "a complete
termination of her employment," Falto at most remained employed
"in the abstract" as "an employee with neither title nor function"

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after "she lost all of her duties and was left with none" and "she
was taken off payroll." Id. at *5.
The Magistrate Judge then addressed the qualified
immunity issue. In denying qualified immunity to the defendants
who bring this appeal, the Magistrate Judge explained that:
[T]he defendants only assert qualified immunity on the basis that Falto failed to allege deprivation of a protected interest. . . . [H]owever, plaintiff has shown that the city's actions constitute a deprivation of a constitutionally protected interest. Therefore, defendants' only argument on qualified immunity falls flat, and they fail to meet their burden of proving entitlement to the defense.
Id. Accordingly, the Magistrate Judge denied the defendant's
motion for summary judgment.
In this appeal, the members of the Program's governing
board and policy council do not challenge the merits of the
Magistrate Judge's qualified immunity ruling insofar as he
concluded that Falto was deprived of a constitutionally protected
property interest. But they do contend that the Magistrate Judge's
ruling cannot be sustained. And that is because they contend that
the Magistrate Judge failed to address the additional ground for
qualified immunity that they had asserted below. Specifically,
they contended below that the actual decision to terminate Falto's
employment with the Town was the mayor's alone and thus that their
role as policy council and governing board members in "request[ing]

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and/or approv[ing]" Falto's removal from the particular position
of director of the Program was so remote from the ultimate decision
to terminate her employment with the Town that they are entitled
to qualified immunity. See Sanchez v. Pereira-Castillo, 590 F.3d
31, 50-51 (1st Cir. 2009) (A "causal connection . . . can be
established not only by some kind of personal participation in the
deprivation, but also by setting in motion a series of acts by
others which the actor knows or reasonably should know would cause
others to inflict the constitutional injury. . . . Put another
way, an actor is responsible for those consequences attributable
to reasonably foreseeable intervening forces, including the acts
of third parties." (citations, brackets, and quotation marks
omitted)).

Outcome: The appellants are right that the Magistrate Judge did
not address this argument. But we have jurisdiction to hear an
interlocutory appeal from a denial of qualified immunity only
insofar as the appeal "turns on a pure issue of law." Thus, rather than attempt to resolve the merits of this potentially fact-dependent argument
for qualified immunity on interlocutory appeal, we vacate the
Magistrate Judge's order and remand. Cf. Payne v. Britten, 749
F.3d 697, 701 (8th Cir. 2014) ("Our court, therefore, has
jurisdiction over interlocutory appeals arising not only from a
district court's reasoned denial of qualified immunity, but also
from a district court's failure or refusal to rule on qualified
immunity. In the latter instance, however, our court only
exercises its jurisdiction to compel the district court to decide
the qualified immunity question."). The parties shall bear their
own costs.

Plaintiff's Experts:

Defendant's Experts:

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