Citations
- 357 F. Supp. 2d 385
Full opinion text
OPINION AND ORDER
LAFFITTE, District Judge.
Before the Court is the United States Magistrate Judge’s Report and Recommendation (“Report”) (Docket No. 73) recommending that defendants’ amended motion for summary judgment (Docket No. 42) be granted in part and denied in part. Also before the Court are defendants’ objections to the Report (Docket No. 81); plaintiffs’ objections to the Report (Docket No. 79); and plaintiffs’ reply to defendants’ objections (Docket No. 88). For the reasons stated below, the Court ADOPTS in part the Magistrate Judge’s Report and Recommendation (Docket No. 73). Accordingly, defendants’ amended motion for summary judgment is GRANTED in part and DENIED in part (Docket No. 42).
Plaintiffs bring this action under 42 U.S.C. § 1983, claiming political discrimination in their employment in violation of the First, Fifth, and Fourteenth Amendments of the United States Constitution, as well as violations under state law. Defendants argue that plaintiffs’ claims should be dismissed because plaintiffs have failed to establish a prima facie case of political discrimination, plaintiffs lack a due process entitlement in their employment, and defendants enjoy legislative and/or qualified immunity in their employment decisions as to plaintiffs.
STANDARD OF REVIEW
A district court, may on its own initiative, refer a pending matter to a United States Magistrate Judge for a report and recommendation. Fed.R.Civ.P. 72(b); D.P.R. R. 72. Under Rule 72(b) of the Federal Rules of Civil Procedure, the Court is obligated to make a “de novo determination ... of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule.” Fed.R.Civ.P. 72(b). The Court thereafter “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir.1999) (quoting 28 U.S.C. § 636(b)(1)(C)).
FACTUAL BACKGROUND
The facts leading up to the employment actions in question are undisputed. The Magistrate Judge aptly summarized these facts in her Report and Recommendation. (Docket No. 73 at 1-3.) In the 2000 general elections the Popular Democratic Party (“PDP”) gained a majority in both houses of the Puerto Rico legislature. On January 2, 2001, in the interim before the newly elected President took charge, the Acting President Luis D. Pastrana Roman ordered a six (6) month renewal of all transitory employees’ contracts that had expired oh December 31, 2000. Defendant Antonio Faz Azamora was elected President of the Senate on January 8, 2001. Defendant Faz Azamaroa took office later that month and reversed the six-month renewals, allowing an extension of the transitory employees’ contracts until only January 31, 2001. Thereafter, a reorganization of the various Senate offices was implemented, resulting in the creation of new offices, as well as, a classification plan for administrative employees that entailed a description of duties and a uniform pay scale.
From January 2001 to June 2001, plaintiffs were all dismissed from their positions in Senate offices. Plaintiffs allege that they were dismissed because they are affiliated with the New Progressive Party (“NPP”). Plaintiffs filed the present case for monetary and injunctive relief, claiming political discrimination in their employment which caused violations to their federal constitutional and state rights. Plaintiffs bring this action against Antonio Faz Azamora, President of the Senate of the Commonwealth of Puerto Rico; José A. Nazario Avarez, Secretary of the Senate of the Commonwealth of Puerto Rico; and Luis D. Pastrana Roman, Director of the Office of Human Resources of the Senate of the Commonwealth of Puerto Rico. Defendants filed an amended motion for summary judgment {Docket -No. 42) claiming that the employment actions were not politically motivated, plaintiffs did. not establish a prima facie, case of political discrimination, plaintiffs had no due process entitlement in their employment, and defendants enjoy legislative and/or qualified immunity. This motion and its corresponding objections and replies were referred to a magistrate judge for report and recommendation. (Docket No. 66.)
The Magistrate Judge issued a Report and Recommendation recommending that defendants’ amended motion for summary judgment be granted in part and denied in part. (Docket No. 73.) The Report recommends that all plaintiffs due process claims be dismissed on the grounds that all plaintiffs lacked a property interest in their positions. Id. at 14. The Report identifies ten plaintiffs as employees who performed functions with meaningful input in the legislative process and for whom political affiliation was a proper employment requirement. Id. at 32. The Report recommends that defendants be afforded legislative and/or qualified immunity as to these ten plaintiffs. Id. The Report further recommends that summary judgment be denied as to the remaining plaintiffs’ First Amendment claims. Id. at 33.
Defendants object to the Magistrate Judge’s Report on the following grounds: (1) plaintiffs have not met their burden of establishing a prima facie case of political discrimination, (2) the Report does not include any recommendation regarding plaintiffs José Alicea Lugo, José Castro Lassus, and José Burgos, and (3) defendants are entitled to legislative or qualified immunity as to all plaintiffs. (Docket No. 81.) Plaintiffs have the following objections to the Report: (1) none of the plaintiffs’ positions were at-will, (2) the due process analysis of the Report failed to address the plaintiffs that held permanent positions, (3) the positions classified as transitory had a due process interest in their continued employment, (4) plaintiffs’ job descriptions are contested, so triable issues remain as to whether any employee held a position for which political affiliation was an appropriate job requirement. (Docket Nos. 79, 88.)
DISCUSSION
I. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court will grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties’ differing versions of the truth at trial. Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). A fact is material only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 471 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining if a material fact is “genuine” the Court does not weigh the facts but, instead, ascertains whether “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id.; see also Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).
To aid the Court in the task of identifying genuine issues of material fact in the record, the District for Puerto Rico has adopted Local Rule 56(b) (formerly Local Rule 311.12). D.P.R. R. 56(b). Local Rule 56(b) requires that a party moving for summary judgment submit, in support of the motion, “a separate, short, and concise statement of material facts as to which the moving party contends there is no genuine issue to be tried and the basis of such contention as to each material fact, properly supported by specific reference to the record.” Id., Leary, 58 F.3d at 751. The Court will only consider the facts alleged in the parties’ Local Rule 56 statements when entertaining the movant’s arguments. Rivera v. Telefonica de Puerto Rico, 913 F.Supp. 81, 85 (D.P.R.1995).
Once a party moves for summary judgment, it bears the initial burden. Specifically, “ ‘a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact.’ ” Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 1598 n. 22, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). Once this threshold is met, the burden shifts to the nonmoving party. The nonmovant may not rest on mere eon-clusory allegations or wholesale denials. Fed.R.Civ.P. 56(e); Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995). Instead, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Furthermore, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
II. Political Discrimination
To make a prima facie case of political discrimination a “plaintiff must show that [s/he] engaged in constitutionally protected conduct, and that this conduct was a substantial or motivating factor for the adverse employment decision.” Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.2000). This requires more than merely “juxtaposing a protected characteristic — someone else’s politics— with the fact that plaintiff was treated unfairly.” Id. (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir.1990)). Indeed, evidence that a plaintiff is politically active and that a defendant is aware of plaintiffs opposing views is not sufficient to meet this burden. Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 (1st Cir.1998). Instead, to prevail, a plaintiff must point to evidence in the record that would “permit a rational fact finder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus.” Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.1994).
“The First Amendment protects assoeiational rights. Incorporated with this prophylaxis is the right to be free from discrimination on account of one’s political opinions or beliefs.”, Galloza v. Foy, 389 F.3d 26, 28-29 (1st Cir.2004) (citing LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.1996)). Generally, a government employer cannot discharge public employees on the basis of their political affiliation. Id. (citing Elrod v. Burns, 427 U.S. 347, 350, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). An exception to this rule is when “political affiliation is- an ‘appropriate requirement for the effective performance of the public office involved.’ ” Id. (citing Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980)). “[T]he Supreme Court has decreed that a public employer, as a prerequisite for discharging an employee for political reasons, must demonstrate that political affiliation is an appropriate requirement for the position in question. This means, in effect, that the employer must show that the position is confidential or policymaking in nature.” Id. (citing Elrod, 427 U.S. at 362-63, 367, 96 S.Ct. 2673)).
Therefore, as an initial matter the Court must determine whether the plaintiffs’ positions were confidential or policy-making in nature. Such a determination necessitates a two part inquiry. First, the Court must make an inquiry into the purpose of the employing agency and the role that the particular position occupies with in it. Id. at 29. Specifically, the Court must ascertain “whether the agency employing the plaintiff handle[s] matters potentially subject to partisan political differences,” and whether the particular employee’s position has the capacity to “influence the resolution of such matters.” Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987). Second, the Court must consider “whether the specific responsibilities of the position sufficiently resemble those of a policymaker or officeholder whose functions are such that party affiliation is an appropriate criterion for tenure.” Galloza, 389 F.3d at 29 (1st Cir.2004) (citing Mendez-Palou, 813 F.2d at 1258)). Factors that may be considered in discerning between non-policymakers and policymakers include: the relative compensation level for the position; technical expertise required for the job; supervision and control over others; authority to speak in the name of policymakers; influence of the position over programs or policy initiatives; public perception of what the position entails; the relationship of the position to elected officials, party leaders, and partisan politics; and “whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” Id. (quoting Elrod, 427 U.S. at 368, 96 S.Ct. 2673).
The parties both object to the Magistrate’s Report and Recommendation on the grounds that the plaintiffs’ job duties are in dispute. After review of the record, the Court finds that no genuine issue of fact exists in respect to the plaintiffs’ positions or duties. The determination of whether a position is policymaking or confidential in nature does not focus on the “functions a particular occupant of the position may in fact carry out from time to time, but, rather, on the essential attributes of the position itself.” Id. (citing O’Connor v. Steeves, 994 F.2d 905, 911 (1st Cir.1993); Jimenez Fuentes, 807 F.2d at 242)) (emphasis ours). The Court therefore adopts the descriptions of the plaintiffs’ positions and duties contained in the Magistrate’s Report and Recommendation. (See Docket No. 73 at 5-13.)
A. “Policymaking” Employees
. As it is undeniable that the employing agency, the Puerto Rico Senate, handles matters “potentially subject to partisan political differences,” the Court must turn its attention to the plaintiffs’ individual positions and responsibilities in the specific offices in which they were employed to determine whether the positions “sufficiently relate to partisan political interest or concerns to warrant application of the policymaker exception.” Galloza, 389 F.3d at 30. Consistent with the Magistrate’s Report and Recommendation, the Court finds that the following plaintiffs’ positions fall into the policymak-ing exception and thus are immune from the constitutional prohibition against politically-motivated dismissals: Nery Yanes Bosch as Sub-Director of the Office of Protocol and Activities; Carmen Zavala Vázquez as Protocol and Activities Officer; Olga Alicea Cardona and Francisca Melén-dez Cátala as Interagency Liaison Officers; Debra Feliciano, Ketzy Melecio Alamo-, and Wendy Rodríguez Román as Communication Officers; and Maria Alvarez Villafañe as Programmatic Analysis Assistant.
The functions of the Office of Protocol and Activities (“OPA”) include representing the Senate- and its President in the organization and promotion of Senate activities and within the executive and judicial branches; planning and coordinating visits of high-ranking officers of the government; and planning activities and formal affairs of the President of the Senate with foreign representatives or other government branches. This office also implements public policy regarding international relations between the Senate and other nations’ legislative institutions. Plaintiff Nery Yanes Bosch held the position of Sub-Director of the Office of Protocol and Activities. Her job responsibilities included coordinating the above activities and drafting press releases and other documents to communicate Senate policies to the public. This position coordinated activities that directly represented the Senate and its President to the domestic, as well as, the international public. Intrinsic in this position was the potential for influence over policy initiatives concerning the Senate’s international relations with foreign governments.
Plaintiff Carmen Zavala Vázquez worked in the OPA as Protocol and Activities Officer. Her responsibilities included coordinating activities promoted by the Senate, participating in the development of work plans related to dissemination and advisement of Senate duties, and working with government and private entities in planing and executing OPA activities. Similar to the Sub-director, this position represented the Senate and its President in high-profile activities and provided ample potential for influence in politically-sensitive Senate programming. Applying the factors set out in Galloza, Mendez-Palou, and Elrod it is evident that the OPA Sub-Director and the Protocol and Activities Officer positions were policy-making in nature.
The function of the Interagency Liaison Office (“ILO”) is to maintain communication between legislators and their constituents and to attend to constituents’ needs. Plaintiffs Olga Alicea Cardona and Francisca Meléndez Cátala were employed in the ILO as Interagency Liaison Officers. Their duties included addressing and directing citizen applications and requests to the Senate, maintaining resource lists, and visiting other agencies to coordinate services. The Interagency Liaison Officer position represents the Senate to the general public by providing the communication link between the public and their elected representatives. The combination of the position’s intimate relationship to and role in partisan politics and the public’s inevitable perception of the officers as the representatives of Senate policymakers and office-holders, make party affiliation an appropriate employment criterion for this position. See Galloza, 389 F.3d at 29; Mendez-Palou, 813 F.2d at 1259.
The functions of the Public Information Office (“PIO”) include providing information on the legislative process, preparing press releases and press conferences for the Senate President, maintaining and promoting working relationships between the President and the press, and handling confidential information. Plaintiffs Debra Feliciano, Ketzy Melecio Alamo, and Wendy Rodríguez Román held the position of Public Information Communication Officers within the PIO. The responsibilities of Communication Officers included planning and developing PIO activities, providing advising on appropriate public policy in matters concerning the press and Senate President, and participating in the correction of press releases and written information generated by the PIO. Political affiliation was an acceptable criteria for the PIO Communication Officer position because this position implicates a close relationship with the President of the Senate and a genuine capacity to influence the resolution of partisan matters through generating or diminishing public support through the press.
As part of the Office of Public Policy and Legislation (“OPL”), the Programmatic Analysis Office works on production and promotion of legislation initiated by the President, produces legislation proposals, identifies legislative solutions to problems and evaluates their impact on public policy. Plaintiff Maria Alvarez Villafañe was employed in the OPL as a Programmatic Analysis Assistant. Her duties included providing direction and coordination on the output of Senate bills and resolutions, representing her supervisor or concentration area in conferences, meetings, and activities, as well as investigating and processing requests for legislative donations and preparing reports for the President of the Senate. Party membership was an appropriate job requirement for this position because of the position’s close connection to the Senate President and the capacity to influence partisan political matters through the production of legislation proposals and legislative problem-solving.
For the foregoing reasons the Court finds that plaintiffs Nery Yanes Bosch, Carmen Zavala Vázquez, Olga Ali-cea Cardona, Francisca Meléndez Cátala, Debra Feliciano, Ketzy Melecio Alamo, Wendy Rodríguez Román, and Maria Alvarez Villafañe occupied positions that had “sufficient policymaking implications to avoid the constitutional proscription against politically motivated discharges.” Galloza, 389 F.3d at 29. As the Court conducted its analysis, it was mindful that the goal of the two prong test set out in Galloza “is not to shackle a new administration in the legitimate pursuit of the policies that led to its electoral success.” Id. at 30; see also Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir.1986). For, “ ‘an employee is not immune from political firing merely because the employee stands apart from “partisan” politics, or is not the ultimate decision maker in the agency, or is guided in some of his or her'functions by professional or technical standards. Rather it is enough that the official be involved in policy, even if only as an adviser, implementer or spokesperson.’ ” Id. (quoting Flynn v. City of Boston, 140 F.3d 42 (1st Cir.1998)).
B. “Non-Policymaking” Employees
The Court finds that the following plaintiffs were not employed in positions that were policymaking or confidential in nature, and thus held positions which are afforded constitutional protection from dismissals on the basis of political affiliation: Edwin León Boneta as Administrative Officer I; Isabel Alburquerque and Lucila Martínez Pantoja as Records and Procedures Officers; José Alicea Lugo, José Burgos Escalera, José Castro Lassus as Driver-Messenger; Carmen Bermudez Colon as Office Systems Administrator II; Luis Candelario Osorio, Maria Pacheco Navedo, Mayra Reyes Rivera, and Valenti-na Rivera Meléndez as Office Clerks; Luis Donato Duque and Lucila Rivera Santana as Maintenance Workers; Ruwa Gómez Ruiz as Proofreader; Yatzka Marcano Iri-zarry, Maria Romero Jackson, and Sherrie Vélez Mendez as Tourist Guides; Carlos Rivera McDermott as Usher; Harold Ramos Alamo as Photographer; and Marisol Torres Colon as Accounting Assistant.
Analyzing the aforementioned plaintiffs’ positions and responsibilities under the test set out in Galloza v. Foy. Galloza, 389 F.3d at 29. These plaintiffs all held positions which were subordinate, did not entail significant supervision or control over other employees, and did not provide any authority to speak in the name of or otherwise significantly represent policymakers or office-holders. These positions did not have influence over programs or policy initiatives, nor could any such influence be reasonably inferred by the public. Many of the positions did involve handling or incidental contact with confidential or politically-sensitive materials (i.e. Messengers delivering documents or maintenance workers disposing trash). Mere incidental exposure to politically sensitive information or materials by nature of an employee’s job, does not qualify the worker as a “confidential public employee” that is divested of constitutional protection from politically motivated firing. Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 325-26 (1st Cir.1987). Moreover, these positions provided identical services to all senators irrespective of their political party. Hence, there is no indication that affiliation with one party instead of another would be a valid job requirement. In sum, these positions simply did not have any capacity to influence the resolution of matters potentially subject to partisan political difference and thus, political affiliation was not an appropriate criterion for tenure. See Id.; Galloza, 389 F.3d 26, 2004 WL 2537341 at *3.
The First Amendment protects government employees in non-policymak-ing positions from discrimination based on their political affiliation: LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.1996); see also Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 30 (1st Cir.2004). Nonpolicymak-ing government employees who allege political discrimination have a threshold burden to produce evidence sufficient to allow a rational factfinder to find that their political affiliation was a substantial or motivating factor behind the adverse employment action taken against them. Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 28 (1st Cir.1998); Rodriguez-Rios, 138 F.3d at 24. Once a plaintiff has met this threshold, the burden shifts to the employer to articulate a nondiscriminatory basis for the adverse employment action and prove by a preponderance of the evidence that it would have been taken without regard to the plaintiffs political affiliation. LaRou, 98 F.3d at 661; Rodriguez-Rios, 138 F.3d at 24; see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).
The non-policymaking plaintiffs, enumerated above, have met their burden by providing evidence that their dismissals were due to their' political affiliation. This evidence includes deposition testimony that indicates that defendants were aware of plaintiffs’ political affiliation, that political affiliation was a factor used discharge and hiring decisions, and that new hires have been overwhelmingly from the defendants’, political party, the PDP. This evidence is augmented by circumstantial evidence, such as the proximity in time between defendants’ appointment and plaintiffs! dismissals. See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 238-39 (1st Cir.1986). Triable issues of fact remain as to whether the non-policymaking plaintiffs were discharged on the basis of their political affiliation; and if political affiliation was a substantial or motivating factor, whether a legitimate non-discriminatory basis for these dismissals existed.
III. Due Process
To establish a procedural due process claim, a plaintiff must show that he held a property interest as defined by state law and that defendants, acting under color of state law, deprived him of his property interest without constitutionally adequate process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct., 1148, 1154, 71 L.Ed.2d 265 (1982); Mimiya Hosp., Inc. v. U.S. Dept. of Health & Human Servs., 331 F.3d 178, 181 (1st Cir.2003). In order to establish a constitutionally protected property interest, plaintiff must “demonstrate that [s/he] has a legally recognized expectation that [s/he] will retain her position .... ” Santana v. Calderon, 342 F.3d 18, 24 (1st Cir.2003). “Under Puerto Rico law, career employees have a property interest in their continued employment.” Gonzalez-De-Blasini v. Family Dept., 377 F.3d 81, 86 (1st Cir.2004).
In their amended motion for summary judgment, defendants argue that plaintiffs were not entitled to due process because they lacked a constitutionally protected property interest in continued employihent because they were all at-will employees (Docket No. 42 at 37-38). It is settled that “an at-will employee lacks a reasonable expectation of continued employment, and, thus, has no property interest in her job” Gomez v. Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir.2003) (internal punctuation omitted) (citing King v. Town of Hanover, 116 F.3d 965, 969 (1st Cir.1997)). Moreover, “transitory employees generally do not have a property interest in continued employment beyond their yearly terms of appointment.” King v. Town of Hanover, 116 F.3d 965, 969 (1st Cir.1997).
The following plaintiffs were transitory employees (see Amended Complaint, Docket No. 20): Isabel Alburqu-erque, José Alicea Lugo, Carmen Bermu-dez Colon, José Burgos Escalera, Luis Candelario Osorio, José Castro Lassus, Luis Donato Duque, Ruwa Gómez Ruiz, Yatzka Marcano Irizarry, Lucila Martínez Pantoja, María Pacheco Navedo, Mayra Reyes Rivera, Carlos Rivera McDermott, Lucila Rivera Santana, Maria Romero Jackson, Sherrie Vélez Mendez, Nery Yanes Bosch, and Carmen Zavala Vazquez. As these plaintiffs were transitory employees, they lacked a property interest in their employment and thus, were not entitled to due process. Therefore, defendants’ amended motion for summary judgment on the grounds that plaintiffs were not entitled to due process in their dismissals is granted as to these plaintiffs. This determination does not alter the Court’s First Amendment analysis. “[T]he fact that a transitory employee does not have a reasonable expectation of renewal in his or her employment ... does not defeat a First Amendment claim.” Gomez v. Rivera Rodriguez, 344 F.3d 103 (1st Cir.2003) (quoting Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 98 (1st Cir.1997)). Accordingly, although these plaintiffs’ due process claims are dismissed, their First Amendment claims remain.
As discussed above, the following plaintiffs’ positions were ones for which political affiliation is a valid criteria: Olga Alicea Cardona, Francisca Meléndez Cáta-la, Debra Feliciano, Ketzy Melecio Alamo, Wendy Rodríguez Román, and Maria Alvarez Villafañe. As political affiliation was a valid criteria for tenure, these plaintiffs had no legitimate expectation of continued employment, and thus, were not entitled to due process. See Galloza, 389 F.3d at 33-34. Therefore, defendants’ motion for summary judgment on the grounds that plaintiffs were not entitled to due process in their dismissals is granted as to these plaintiffs.
Regarding the remaining plaintiffs: Edwin León Boneta, Harold Ramos Alamo, Marisol Torres Colon, and Valentina Rivera Meléndez, triable issues of fact remain about whether these plaintiffs were career employees and thus entitled to due process. Therefore, summary judgment on the grounds that plaintiffs were not entitled to due process is denied as to these plaintiffs.
In summary, defendants’ petition for summary judgment is granted in part and plaintiffs’ due process claims are dismissed for all plaintiffs except Edwin León Bone-ta, Harold Ramos Alamo, Marisol Torres Colon, and Valentina Rivera Meléndez.
IV. Immunity
A. Qualified Immunity
In determining whether the defendants are entitled to qualified immunity, the threshold question the Court must ask is, “[tjaken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If the facts alleged show that the officer’s conduct violated a constitutional right, the Court must ask whether “the contours of this right are ‘clearly established’ under then-existing law so that a reasonable officer would have known that his conduct was unlawful.” Santana v. Calderon, 342 F.3d 18, 23 (1st Cir.2003) (citing Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir.2003)). If both inquires are answered in the affirmative, a defendant will not be afforded qualified immunity.
As discussed above, dismissals of employees that held position for which political affiliation was a valid criteria do not implicate violations of due process or the First Amendment. See Galloza v. Foy, 2004 WL 2537341 at 28, 33-34 (1st Cir.2004). Hence, the plaintiffs that held such positions have not demonstrated violation of a constitutional right. Thus, defendants are entitled to qualified immunity as to the following plaintiffs: Nery Yanes Bosch, Carmen Zavala Vázquez, ■ Olga Alicea Car-dona, Francisca Meléndez Cátala, Debra Feliciano, Ketzy Melecio Alamo, Wendy Rodríguez Román, and Maria Alvarez Vil-lafañe.
Triable issues of fact remain as to whether defendants violated the First Amendment rights of the following plaintiffs: Isabel Alburquerque, José Alicea Lugo, Carmen Bermúdez Colon, José Bur-gos Escalera, Luis Candelario Osorio, José Castro Lassus, Luis Donato Duque, Ruw'a Gómez Ruiz, Yatzka Marcano Irizarry, Lu-cila Martinez Pantoja, Maria Pacheco Na-vedo, Mayra Reyes Rivera, Carlos Rivera McDermott, Lucila Rivera Santana, Maria Romero Jackson, and Sherrie Vélez Mendez. Additionally, triable issues of fact remain as to whether defendants violated plaintiffs Edwin León Boneta, Harold Ramos Alamo, Marisol Torres Colon, and Va-lentina Rivera Meléndez’s First Amendment and due process rights. Thus, it would be premature at this time for the Court to find that defendants are entitled to the protection of qualified immunity as to these plaintiffs.
B. Leyislative Immunity
Legislative immunity attaches to functions that are “significantly related to legislating.” Agromayor v. Colberg, 738 F.2d 55, 59 (1st Cir.1984). In determining whether legislative immunity applies, “the test has been stated as whether the challenged activities were ‘an integral part of the deliberative and communicative processes’ ” Id. (citing Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972)). Although not all employment decisions raise a legislative interest, the hiring or firing of an employee whose position has “meaningful input with regard to the legislative function” is of direct legislative importance and may implicate legislative immunity. Id. at 60.
Consistent with the Magistrate’s Report and Recommendation (Docket No. 73) the Court finds that the plaintiffs that held positions for which political discrimination was an appropriate criterion also occupied positions which required meaningful input into the legislative function and dealt with the deliberative and communicative processes of legislation to the extent that legislative immunity should be granted. Therefore, defendants petition for summary judgment under legislative immunity is granted as to these plaintiffs: Nery Yanes Bosch, Carmen Zavala Vázquez, Olga Alicea Cardona, Francisca Meléndez Cátala, Debra Feliciano, Ketzy Melecio Alamo, Wendy Rodríguez Román, and Maria Alvarez Villafañe.
The remaining plaintiffs did not occupy positions that were policy-making or confidential in nature, and did not have meaningful input into the legislative process. Therefore defendants petition for summary judgment under legislative immunity is denied as to the remaining plaintiffs: Isabel Alburquerque, José Alicea Lugo, Carmen Bermudez Colon, José Bur-gos Escalera, Luis Candelario Osorio, José Castro Lassus, Luis Donato Duque, Ruwa Gómez Ruiz, Yatzka Marcano Irizarry, Lu-cila Martínez Pantoja, María Pacheco Na-vedo, Mayra Reyes Rivera, Carlos Rivera McDermott, Lucila Rivera Santana, Maria Romero Jackson, Sherrie Vélez Mendez, Edwin León Boneta, Harold Ramos Alamo, Marisol Torres Colon, and Valentina Rivera Meléndez.
CONCLUSION
In view of the aforementioned, the Court ADOPTS in part the Magistrate Judge’s Report and Recommendation (Docket No. 73). The Court therefore GRANTS in part and DENIES in part defendants’ amended motion for summary judgment (Docket No. 42).
The following plaintiffs’ claims are dismissed in their entirety:
1. Nery Yanes Bosch
2. Carmen Zavala Vázquez
3. Olga Alicea Cardona
4. Francisca Meléndez Cátala
5. Debra Feliciano
6. Ketzy Melecio Alamo
7. Wendy Rodríguez Román
8. María Alvarez Villafañe.
The following plaintiffs’ due process claims are dismissed but First Amendment claims remain:
1. Isabel Alburquerque
2. José Alicea Lugo
3. Carmen Bermudez Colon
4. José Burgos Escalera
5. Luis Candelario Osorio
6. José Castro Lassus
7. Luis Donato Duque
8. Ruwa Gómez Ruiz
9. Yatzka Marcano Irizarry
10. Lucila Martínez Pantoja
11. María Pacheco Navedo
12. Mayra Reyes Rivera
13. Carlos Rivera McDermott
14. Lucila Rivera Santana
15. Maria Romero Jackson
16. Sherrie Vélez Mendez.
The following plaintiffs’ due process and First Amendment claims remain:
1. Edwin León Boneta
2. Harold Ramos Alamo
3. Marisol Torres Colon
4. Valentina Rivera Meléndez
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
VELEZ-RIVE, United States Magistrate Judge.
INTRODUCTION
In the year 2000, after general elections were held, the Popular Democratic Party (“PDP”) won over the presiding opposing New Progressive Party (“NPP”) and gained a majority in both Houses of the Legislative Branch in the Commonwealth of Puerto Rico. Defendant, Hon. Antonio Fas Azamora, was elected President of the Senate on January 8, 2001. Until the new elected President took charge, the Acting President Luis D. Pastrana Román, ordered on January 2, 2001, the renewal for six (6) months of all transitory employees’ contracts that had expired on December 31, 2000. On that same month, when co-defendant Fas Azamaroa took office, the six-month renewals were reversed and extended solely until January 31, 2001.
Thereafter, a reorganization of the various Senate offices was implemented with the creation of new offices,' as well as a classification plan for administrative employees that entailed a description of duties and a uniform pay scale. Plaintiffs had occupied positions which were considered of free selection and removal. The new Senate administration did not adopt the personnel regulation applicable to employees of the Puerto Rico Senate which had been in effect during the presidencies of the two prior Senate Presidents since 1982, namely, Honorable Roberto Rexach Benitez and Honorable Charlie Rodriguez.
Plaintiffs filed the present action for money damages and injunctive relief, among others, claiming political discrimination in their employment which caused violations to their federal constitutional rights, as well as under state law. In essence, it is alleged the changes implemented by the Senate in the year 2001 caused numerous employees, plaintiffs herein, to suffer adverse employment actions because their positions were eliminated and/or they were removed for alleged lack of requirements to the positions they had been holding, among other reasons.
Defendants filed an Amended Motion for Summary Judgment (Docket No. 42) claiming these actions were not politically motivated and relying on the inherent power of each Legislative Assembly to regulate its internal business and affairs which has state constitutional protection, as well as state law support. See Article III § 9 of the Commonwealth of Puerto Rico Constitution. As such, defendants argue plaintiffs have no due process entitlement for lacking any expectation of right to their employment and/or property right. Defendants have also raised in their petition for summary" judgment they enjoy legislative and/or qualified immunity in their employment decisions as to plaintiffs. As to this matter, defendants submit the positions occupied by many plaintiffs were ones of confidence for which political loyalty is an appropriate job criteria and/or involve decision-making issues where political agreement on goals and implementation would be required, and as such, defendants are entitled to, legislative and/or qualified immunity.
Plaintiffs submitted their Response to Amended Motion for Summary Judgment (Docket No. 52). Thereafter, defendants submitted a reply and plaintiffs requested leave to submit a response, which was thereafter filed, in addition to, a sur-reply (Docket No. 64, 65, 72).
The Amended Motion for Summary Judgment and all related pleadings were referred to this Magistrate Judge for report and recommendation. (Docket No. 66).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Lipsett v. Univ. of P.R., 864 F.2d 881, 894 (1st Cir.1988); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment is appropriate where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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). A fact is material if, based on the substantive law at issue, it might affect the outcome of a case. A material issue is “genuine” if there is sufficient evidence to permit a reasonable trier of fact to resolve the issue in the non-moving party’s favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
BACKGROUND
As discussed in detail below, plaintiffs in this case were not entitled to due process because they lacked a constitutionally protected property right in their employment since there is no genuine controversy of fact that plaintiffs were not tenured, career or regular employees but rather transitory and/or fixed-term contract employees.
Nonetheless, the fact plaintiffs’ due process claims should be dismissed does not hinder their First Amendment claim to prevail summary disposition under Elrod v. Burns and Branti v. Finkel. See defendants’ Statement of Uncontested Facts, p. 27.
There is ample jurisprudence as to political discrimination cases in this district after the various waves of government employees’ dismissals generated in the 1980s and early 1990s, where the contours of discharge because of party affiliation resulted in the Court of Appeals for the First Circuit delineating the applicable law when First Amendment rights were involved. Looking to the inherent duties of a position, it is to be determined then whether defendants’ employment actions were predicated on a reasonable believe that the positions at issue are ones which potentially concern matters of partisan political interest and involve at least a modicum policymaking responsibility, access to confidential information, or to official communication. Figueroa Rodríguez v. López Rivera, 878 F.2d 1478, 1480 (1st Cir.1989) (granting qualified immunity in light of responsibilities inherent to the positions).
Because of the concentrical examination of the relation as to the positions occupied by plaintiffs and their functions, which analysis may be dispositive of the defenses raised by defendants as to legislative immunity and/or necessary political affiliation and/or qualified immunity, it is appropriate to discuss in particular each of plaintiffs’ functions and duties within the various dependencies of the Legislative Branch, insofar as their trust requirement and their in-depth involvement in the legislative process.
UNCONTESTED FACTS
The Senate dependencies, which include plaintiffs’ positions and duties, as would be applicable to summary judgment, are not in controversy and they are the following:
A. Office of the Sergeant of Arms.
Function: providing and guaranteeing safety and order within the Senate and its members, its facilities and premises; administering the postal office, including official correspondence; serving processes of orders; enforcing those functions even if requiring use of force upon orders given by the President or by the Senate body; arranging and implementing possession and carrying of firearms by members of the Senate and personnel; attending the nutritional and personal needs of legislators; controlling and designating session rooms for public hearings; allowing and accommodating the public during the process of public hearings or Senate floor discussions.
Positions held by plaintiffs:
Carlos Rivera McDermott — Usher (Duties: maintaining order and supply materials and equipment for sessions and hearings; interacting with legislators during hearings; attending the public; disposing of drafts, personal notes and comments of legislators produced in hearings as part of the legislative process. Works under the direct supervision of a functionary of higher hierarchy who issues detailed instructions to the usher).
Edwin León Boneta — Administrative Officer I (Duties: studying and applying regulations, norms and procedures to administrative process; orientation to citizens, maintaining communication with government and private entities regarding petitions to the Senate; drafting correspondence and reports; working under the general supervision of the Sergeant of Arms).
José Alicea Lugo — Driver/Messenger (Duties: picking up correspondence and documents; taking it to the senators and others being privy to conversations and information).
José Castro Lassus — Messenger (Duties: picking up correspondence, documents and messages; obtaining signatures on confidential forms and information being delivered).
See defendants’ Motion for Summ. Judg. pp. 39-42; Statement of Uncontested Facts items 20 and 40 c, e, i, y.
B. Office of Protocol and Activities.
Function: representing the Senate and its President in the organization and promotion of activities; coordinating of same with other branches of government; planning and coordinating visits of high ranking officers of the government; planning activities and formal affairs of the President of the Senate with foreign representatives or other government branches; coordinating transportation, lodging and other personal needs of foreign officers invited by the Senate; selecting and presenting gifts offered; coordinating protocol activities; acting within delegated authority of the President of the Senate; implementing the public policy.
Positions held by plaintiffs:
Nery Yanes Bosch — Sub-Director (Duties: coordinating above activities, drafting of press releases, bulletins, brochures, and documents to communicate with the public as to policies .of the Senate).
Carmen Zavala Vázquez — Protocol and Activities Officer (Duties: coordinating activities promoted, by the Senate consonant with above functions; serving as host or usher or guest; participating in development work plans related with dissemination and advisement of Senate duties; relating with government and private entities for the planing and execution of activities).
See defendants’ Motion for Summ. Judg. pp. 42-45; Statement of Uncontested Facts, items 20 and 40 w, x.
C.Tourism Office.
Function: providing services and attention to individuals and groups to provide orientation as to historical process of the Capitol Building, a historic monument; coordinating activities with other organization related to tourism; preparing and printing relevant audiovisual and printed material for tours within the historic building; preparing and keeping the registry of visitors; offering educational activities.
Positions held by plaintiffs:
María A. Romero Jackson, Sherrie Lee Vélez Méndez and Yatzka Marcano Irizar-ry — Tourist Guides (Duties: planning the historical tours within the Capitol Building and interacting with the public who comes daily to see the facilities).
See defendants’ Motion for Summ. Judg. pp. 45-47; Statement of Uncontested Facts items 12 and 40 s, t, u.
D. Maintenance Office.
Function: providing maintenance services to the physical facilities of the Senate, including the senators personal offices and the offices of the President of the Senate.
Positions held by plaintiffs:
Lucila Rivera Santana and Luis Donato Duque — Maintenance Workers (Duties: maintenance).
See defendants’ Motion for Summ. Judg. pp. 47-48; Statement of Uncontested Facts item 21 and 40 p, q.
E. Interagency Liaison Office.
Function: maintaining effective communication between legislators and their constituents; attending to constituents’ needs.
Positions held by plaintiffs:
Olga Alicea Cardona and Francisca Me-léndez Cátala — Interagency Liaison Officers (Duties: addressing and channeling applications and request by citizens to the Senate; maintaining list of personal resources; visiting other agencies to coordinate services).
José E. Burgos Escalera — Driver/Messenger (Duties: picking and distributing documents and correspondence in and out of the Capitol Building; transporting officials and preparing reports as to their trips).
Luis Candelario Osorio — Office Clerk (Duties: processing of documents and forms; maintaining registries ■ and control logs on office matters; preparing and drafting routine administrative reports; organizing forms and documents; maintenance of all files assigned to the work area as to legislation).
See defendants’ Motion for Summ. Judg. pp. 48-50; Statement of Uncontested Facts items 11 and 40 d, m, n.
F.Public Information Office.
Function: divulging information on the legislative process; preparing press releases and conferences of the President; handling confidential information; maintaining and promoting good relationship between the President and the press.
Positions held by plaintiffs:
Debra Feliciano, Ketzy Melecio Alamo and Wendy Rodríguez Román — Public Information Officers (Duties: planning and developing of activities; participating in correction of press releases and written information generated in said office; and advising as to appropriate public policy in relation to the press and the President of the Senate).
Harold Ramos — Photographer (Duties: taking and developing of photographs in different activities carried out by the Senate. Works under the direct supervision of a functionary of higher hierarchy who issues detailed instructions to the photographer. The photographer’s work is reviewed while being performed and upon finishing same).
See defendants’ Motion for Summ. Judg. pp. 50-52; Statement of Uncontested Facts items 9 and 40 f, g, h. r.
G. Office of the Secretary of the Senate.
Function: principal office responsible for the functioning of the Puerto Rico legislative system; acting as secretary of the caucus of the majority party and his office; providing necessary materials to be used during legislative sessions; managing and conserving historical legislative process; maintaining relationship between the bicameral législative system which exists in the Commonwealth of Puerto Rico.
Position held by plaintiff:
Carmen Bermudez Colón — Office Systems Administrator II (Duties: secretarial work, using computer systems, transcribing and taking dictations, drafting communications for the' supervisor’s signature; handling of confidential documents and files in her work area).
See defendants’ Motion for Summ. Judg. pp. 52-54; Statement of Uncontested Facts items 18 and 40 aa.
H. Records and Procedures Office.
Function: working within the wing of the Office of the Secretary of the Senate keeps track and recording of live transmissions of the legislative sessions; maintaining day to day books on each legislative measure and including in the system all legislative proceedings on proposed legislative measures; referring to the Rules and Calendar Commission all measures culminating a legislative process which are ready for consideration by the Senate Ordinary Session.
Positions held by plaintiffs:
Isabel Alburquerque Hernández and Lu-cila Martínez Pantoja — Records and Procedures Officers (Duties: processing and filing of assorted documents; forwarding bills to Senate Commissions; operating electronic equipment to update information on Senate projects; drafting and translation of calendars in the English language and distribution thereof and the dissemination of this information to the public).
See defendants’ Motion for Summ. Judg. pp. 54-56; Statement of Uncontested Facts items 15 and 40 a, b.
I. Documents Administration and Archives Office.
Function: dealing with active and inactive archives; serving as a connection between the Records and Procedures Office and the Legislative Sessions Diary Office; keeping custody of legislative materials; providing each legislators with all documents necessary for the legislative discussion; custodian of the legislative archives and distribution of information therein to third parties.
Positions held by plaintiffs:
Maria Pacheco Navedo and Mayra Reyes Rivera — Office Clerks (Duties: processing documents and forms; maintaining registers and control logs; reviewing and organizing forms and documents for the signature and/or certification of higher ranking officers; maintaining all files assigned to the work area).
See defendants’ Motion for Summ. Judg. pp.- 56-57; Statement of .Uncontested Facts items 17 and 40 v, z.
J. Legislative Sessions Diary Office.
Functions: preserving the records of all legislative proceedings; transcribing and correcting all legislative process, including drafts, prior to promulgation as a public document; providing the version submitted by the House for specific legislative measures for acceptance of the Senate; advising that materials provided are in conformity with the legislative debate.
Position held by plaintiff:
Ruwa Gómez Ruiz — Proofreader (Duties: arranging transcripts from hearings and sessions and carrying out grammar and style corrections; verifying information transcribed with the audio tapes).
See defendants’ Motion for Summ. Judg. pp. 57-58; Statement of Uncontested Facts items 16 and 40 j.
K. Finance Office.
Function: management of disbursements, deposit and control of public funds assigned to the legislative body; pre-audit-ing daily expenses payments to legislators and invoices for professional services and phone bills.
Positions held by plaintiffs:.
Marisol Torres Colón — Accounting Assistant (Duties: pre-intervening with disbursement vouchers, travel expenses; preparing reports on fiscal transactions in her work area; preparing voucher records, per diem payments and other activities on her work area). •
Valentina Rivera Meléndez — Office Clerk (Duties: maintaining and updating registers and controls logs on offic'e related matters; preparing simple or routine administrative reports • on assorted matters; organizing forms and documents for certification and/or signature of higher ranking officers; maintaining all files assigned to her work area).
See defendants’ Motion for Summ. Judg. pp. 58-59; Statement of Uncontested Facts items 23 and 40 k, 1.
L. Programmatic Analysis Office.
Function: as part of the Office of Public Policy and Legislation works on production and promotion of legislation initiated by the President; ascertains that the legislative agenda is concluded by the four-year term of the existing Legislative Assembly; produces legislation proposals; identifies legislative solutions to problems and evaluates their impact on public policy and on the figure of the President of the Senate.
Position held by plaintiff:
María T. Alvarez Villafañe — Programmatic Analysis Assistant (Duties: direction and coordination on the output of bills and resolutions; attending conference, meetings and activities representing her supervisor or responsibilities within her work area).
See defendants’ Motion for Summ. Judg. pp. 59; Statement of Uncontested Facts items 13 and 40 bb.
ANALYSIS
I. Due Process Claim — Plaintiffs’ Property Rights.
To establish a procedural due process claim plaintiffs must show they held a property interest as defined by state law and the defendants, acting under color of state law, deprived them of their property interest without constitutionally adequate process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mimiya Hosp., Inc. v. U.S. Dept. of Health and Human Servs., 331 F.3d 178, 181 (1st Cir.2003) (stating as being well established that individuals whose property interests are at stake are entitled to notice and an opportunity to be heard) (quoting from Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002)).
It is undisputed plaintiffs in this action were mostly transitory, subject to six-month contract renewals, and the Puerto Rico Senate holding office at the time had not adopted the personnel regulations that would foster any claim of entitlement to continuous employment. As such, plaintiffs held no. property interest and thus hold no due process protection in their employment. Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 94 (1st Cir.1997) (explaining that transitory employees generally do not have a property interest in continued employment beyond their terms of appointment). See Gómez v. Rivera Rodríguez, 344 F.3d 103 (1st Cir.2003); Caro v. Aponte-Roque, 878 F.2d 1, 4 (1st Cir.1989).
Therefore, it is recommended that of all plaintiffs’ due process claims be dismissed and as such, defendants’ request for summary disposition on this issue be GRANTED.
II. Legislative Immunity.
The Speech and Debate Clause contained in Article I, § 6 of the Constitution of the United States immunizes members of the United States Congress and their aides in suits for damages and prospective relief.
As held in Agromayor v. Colberg, 738 F.2d 55 (1st Cir.1984), this legislative immunity is based on the need “for an independent legislative branch, free from the coercion or restraint imposed by inquiry from other governmental authority, as well as from the time-consuming problem of legislators having to defend their official acts in court.” In addition, this clause has not been limited to speech or debate, as protected by Article I-, § 6, but applied to protect members in “all things generally done in a Session in the House by one of its members in relation to the business before it.” See Kilbourn v. Thompson, 103 U.S. 168, 13 Otto 168, 26 L.Ed. 377 (1880).
Even when Article I, § 6 applies only to Congressional members, the United States Supreme Court has accorded state and local legislators similar absolute immunity, both to suits for money damages and equitable remedies under § 1983. Therefore, state legislators enjoy common-law immunity from liability for their legislative acts, an immunity that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause. See, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). In Ten-ney, the court held Congress did not intend § 1983 to abrogate the common-law immunity of state legislators. Although Tenney involved an action for damages under § 1983, its holding is equally applicable to § 1983 actions seeking declaratory or injunctive relief. See Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. at 719, 100 S.Ct. 1967; Eastland, 421 U.S. at 491, 95 S.Ct. 1813.
Nevertheless, it must be emphasized absolute immunity exists for legislative tasks. However, legislators do not have absolute immunity for their non legislative functions. For absolute immunity to exist the activity “must be an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places -within the jurisdiction of either house”. See Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).
In addition, the Supreme Court has strongly emphasized that “[t]he immunities of the Speech or Debate Clause are not written into the Constitution simply for the personal benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators”. See United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Thus, claims under said clause going beyond what is-needed to protect legislative independence are to be closely scrutinized.
There is a split in lower court authorities as to whether the hiring and firing of legislative personnel should be considered a legislative task for which absolute immunity exists. The issue of who is entitled to absolute legislative immunity also exists.
As to the hiring and firing of legislative personnel, the focus in applying absolute immunity‘to legislators is on the function performed by the employee rather than by the title he or she possessed [emphasis added]. In Agromayor, 738 F.2d at 55, the First Circuit held that “not all employment raises a legislative interest.”
As the First Circuit admonished in Ag-romayor “in applying the immunity we decline to inquire deeply into the functions performed by a particular personal legislative aide, inasmuch as such inquiry itself threatens to undermine the principles that absolute immunity was intended to protect. Personal aides may perform a variety of tasks, only some of which are vital to the legislative process.”
Therefore, the “test” ’ to decide whether employment’s decisions by legislative authority are immune from judicial scrutiny is whether the duties performed by the employee, either provide “enough opportunity for ‘meaningful input’ into the legislative process