Free Speech Doesn’t Protect Against Discrimination By Commander’s Own Political Party

Israel Rojas-Velázquez began working for the Puerto Rico Police Department in 1986. Over more than two decades, he made steady progress. Even though he was a card-carrying member of the New Progressive Party (NPP), one of Puerto Rico’s two major political parties, he received promotions during times when the NPP’s main rival, the Popular Democratic Party (PDP), dominated the executive branch of the Commonwealth’s government. In 2008, he received such a promotion to the rank of Commander.

Ironically, Rojas–Velázquez’s career path became rocky when his own party, the NPP, won the 2008 general election and regained control of the government. At that point, some departmental hierarchs began openly questioning his fealty to the NPP in light of his promotion to Commander during the previous PDP administration. In short order, the Department’s newly entrenched leadership eliminated many of his former duties, retrieved his official cellphone and departmental car, evicted him from his office, and reassigned him to the performance of mundane tasks that he viewed as beneath the dignity of his rank.

Rojas-Velázquez sued the Department and several of its leaders in the federal district court, alleging the Department violated his First and Fourteenth Amendment rights by taking adverse employment actions against him based on political animus. The federal First Circuit Court of Appeals recently upheld the dismissal of the lawsuit.

The problem, the Court found, was that it was Rojas-Velázquez’s own political party that was taking action against him. The Court held that “even assuming, for argument’s sake, that the curtailment of his job functions and perquisites might qualify as an adverse employment action, Rojas-Velázquez has not plausibly alleged that his participation in constitutionally protected activities drove that adverse action. We explain briefly.

“Rojas-Velázquez alleges that the defendants’ misperception of his political leanings played a decisive role in his plunge into obscurity. He explains that this misperception came about as a result of his professional advancement during PDP administrations. The rub is that professional success is not an activity that the First Amendment protects. This is a matter of considerable import: where, as here, a plaintiff fails to tie the alleged adverse employment action to some protected activity, a political discrimination claim cannot prosper.

“To be sure, political affiliation itself is a constitutionally protected activity. But Rojas-Velázquez has not alleged that he is being discriminated against because of either his party preference or any other affiliation of a political nature. He – like the defendants – is a member of the NPP, and he does not in any way suggest that his party membership is at the root of his troubles.

“This would be a different case if the defendants’ misperception of Rojas-Velázquez’s political leanings arose from protected activity or affiliation. Here, however, Rojas-Velázquez has not averred that the defendants’ misperception regarding his political loyalty (or lack thereof) was based on his membership in the PDP, his support for PDP candidates, his advocacy of pro-PDP policies, or any other protected activity. Instead, he frankly admits that he is a member of the NPP and alleges in substance that he has been penalized for his successful professional relationships with members of prior PDP administrations. This may be an undeserved penalty, but discrimination based on non-political associations does not implicate the First Amendment.”

Rojas-Velazquez v. Figueroa-Sancha, 676 F.3d 206 (1st Cir. 2012).