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Figueroa v. Alejandro

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Before Lynch, Chief Judge, Boudin and Stahl, Circuit Judges.

A judge and a jury, between them, rejected all of the multitude of employment claims John Uphoff Figueroa, an environmental attorney, brought against his employer, the Puerto Rico Electric Power Authority (PREPA) and at least seven PREPA officials. His basic theory, dressed in many garbs, was that the new Popular Democratic Party (PDP) regime discriminated against him by denying him a permanent appointment as the administrator of PREPA’s environmental law office and by creating hostile working conditions because he was a member of the New Progressive Party (NPP). He alleges the NPP regime then retaliated against him after he filed a federal lawsuit in 2003. We find no merit to his claims and affirm.

We hold as a matter of law under Branti v. Finkel, 445 U.S. 507 (1980), and its progeny that the position of administrator is not within First Amendment protection because it is a policy position. PREPA officials could have considered political affiliation when deciding whether to give Uphoff the permanent position. Once again we remind litigants that political discrimination and retaliation claims under the First Amendment cannot be restated as claims under the Equal Protection Clause. And we hold that Uphoff did not state a claim under the Fair Labor Standards Act (FLSA) because he did not allege he was involved in FLSA-protected activity.

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