Gierbolini-Colon v. Aponte-Roque, GIERBOLINI-COLO

• Decision Date: 03 February 1988
• Docket Number: P,No. 87-1675,APONTE-ROQUE,GIERBOLINI-COLO,87-1675
• Citation: 848 F.2d 331
• Parties: 47 Ed. Law Rep. 399 Edgardolaintiff, Appellee, v. Awilda, etc., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 331

848 F.2d 331

47 Ed. Law Rep. 399

Edgardo GIERBOLINI-COLON, Plaintiff, Appellee, v. Awilda APONTE-ROQUE, etc., et al., Defendants, Appellants.

No. 87-1675.

United States Court of Appeals, First Circuit.

Heard Feb. 3, 1988.

Decided June 10, 1988.

Jose Andreu Garcia with whom Hector Rivera Cruz, Secretary of Justice, and Andreu Garcia & Andreu Garcia were on brief for defendants, appellants.

Pedro Miranda Corrada with whom Hector Urgell Cuebas was on brief for plaintiff, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and CAFFREY, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Government officials of the Commonwealth of Puerto Rico appeal from a district court judgment holding them liable for violating the First Amendment rights of plaintiff-appellee Edgardo Gierbolini Colon ("Gierbolini"). 666 F.Supp. 334 (1987).

In 1970 Gierbolini began work at WIPR, a radio station owned and operated by the Department of Education of the Commonwealth of Puerto Rico. Initially a scriptwriter, Gierbolini progressed through the ranks and in January 1980 was appointed interim director of the station. On September 6, 1984, he received a permanent appointment as station director, subject to his satisfactory completion of a probationary period, which was to expire on April 30, 1985. See P.R. Laws Ann. tit. 3, Sec. 1333(9)(c) & (10) (1978) (probationary appointments). In elections held in November 1984, the incumbent governor of Puerto Rico, Carlos Romero Barcelo, a member of the New Progressive Party ("NPP"), was defeated by Rafael Hernandez Colon, the gubernatorial candidate of the rival Popular Democratic Party ("PDP"). ¹ In December 1984, just before Romero Barcelo's NPP administration was due to expire, Gierbolini received a favorable job evaluation from one Quinones, who was the General Manager of Radio and Television within the Department under the Romero Barcelo administration. In January 1985, the new PDP administration took power. Appellants Awilda Aponte Roque and Agustin Mercado Rosa, appointees in Governor Hernandez Colon's incoming PDP administration, assumed their respective positions as Secretary of the Department of Education and General Manager of Radio and Television, replacing the former officeholders. In April 1985, Gierbolini, a member of the NPP, received a negative evaluation from Mercado Rosa, Quinones's successor. On May 22, 1985, Gierbolini received a letter from Secretary Aponte Roque, informing him that since he had not satisfactorily completed the probationary period, he could not continue as director, and would revert to his position as a scriptwriter.

Gierbolini brought suit under 42 U.S.C. Sec. 1983 (1982) for injunctive relief and damages, alleging that his demotion ² violated both the First Amendment (it was politically motivated) and the Due Process Clause of the Fourteenth Amendment (he was not given a prior hearing). The complaint named as defendants Awilda Aponte Roque and Agustin Mercado Rosa, in both their official and individual capacities. After a bench trial the district court entered judgment for plaintiff, ordering his reinstatement as director of the station and finding defendants jointly and severally liable for a damages award composed of back pay, compensatory damages, and punitive damages. ³

Appellants, Mercado Rosa and Aponte Roque, claim that two of the district court's factual findings, essential to its decision, were clearly erroneous. ⁴ These findings are 1) that political animus was the motivating factor in the decision to demote Gierbolini and 2) that appellants did not prove a valid alternative reason (assuming there was political animus) for demoting Gierbolini.

Our standard of review here is dictated by Fed.R.Civ.P. 52(a): "Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses." To conclude that the court's findings were clearly erroneous, we must, upon examination of the evidence in its entirety, be "left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

1. POLITICAL MOTIVATION

Appellants' argument on this issue is simple. They contend the court could not have found their demotion of Gierbolini to have been politically motivated because there was no evidence that they actually knew of Gierbolini's political affiliation. Appellants both denied such knowledge in their sworn testimony.

There was, indeed, little direct evidence that appellants knew Gierbolini belonged to the NPP. Gierbolini testified on direct examination as follows:

Q. Mr. Gierbolini, what is your political affiliation?

A. I am a member of the New Progressive Party.

Q. Since when have you been a member of the New Progressive Party?

A. Since 1969.

Q. Do you know whether defendants knew about your political affiliation?

A. Yes.

Q. Did they know?

A. I am sure.

Q. Did you manifest your political affiliation publicly?

A. Yes, I have. I have always been a member of the New Progressive Party. I am a friend of ex-governor Carlos Romero Barcelo since we were young men. We used to live near. I have always known him. I performed in La Fortaleza [the governor's mansion] quite often during his tenure as governor concerts that were recorded and broadcasted by WIPR. So everybody at WIPR knows I am a member of the New Progressive Party.

This testimony was bolstered by the circumstantial evidence consisting of the fact that Gierbolini had been appointed as director in September 1984, when the NPP was still in power. The court could reasonably infer that appellants knew this, and that they would have deduced from the circumstances that Gierbolini was allied with the same party as was the administration that appointed him. Increasing the likelihood of appellants' knowledge was the timing of Gierbolini's appointment: he was named director on September 6, 1984, only days before the beginning of the statutory freeze imposed on personnel actions for a two-month period before and after the general election. See P.R.Laws Ann. tit. 3, Sec. 1337 (1978). Appellants might have doubted that an NPP administration would take such pains to appoint Gierbolini at the eleventh hour if he were not affiliated with the NPP. The case for appellants' political motivation was further strengthened by evidence that the person they promptly installed to replace Gierbolini was a member of their own party, the PDP. That appellants did not even discuss Gierbolini's alleged inadequacies with him, but simply proceeded to strip him of the director's post at the earliest opportunity, again suggests that a motive other than a simple concern for merit was at work.

To be sure, Gierbolini conceded on cross-examination that he was not a political "activist"; that he did not boast of his relationship with former governor Romero Barcelo; that he had not publicly expressed (through the media) his political preferences; and that he did not engage in political arguments while in the radio station. And appellants denied knowing Gierbolini's political affiliation. But given that his appointment had occurred when the rival party was still in power, that he was demoted almost immediately after appellants' party took office, and that his successor was of the latter party, we think the district court could reasonably infer that appellants believed Gierbolini belonged, as he did, to the rival NPP.

This is not to say there could not be more than one permissible view of this evidence. But we are left with no "definite and firm conviction" that the district court made a mistake in concluding on this record that appellants were aware of Gierbolini's political affiliation. ⁵

Appellants insist that the district court arbitrarily "presumed" their knowledge of Gierbolini's affiliation. They cite cases standing for the proposition that such a presumption is impermissible. See Laskaris v. Thornburgh, 733 F.2d 260, 265-66 (3d Cir.1984); Colon Velez v. Santiago de Hernandez, 440 F.Supp. 432, 433 (D.P.R.1977). Obviously the court could not just "presume" such knowledge in the absence of evidentiary support. However, the court was entitled to find knowledge if the record contained sufficient circumstantial evidence to support such a finding. ⁶ Circumstantial evidence can be as probative as direct evidence. And we owe the same deference to reasonable inferences the district court might properly draw from the facts properly before it as we do to the court's resolution of contested facts. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. As discussed, there is enough circumstantial evidence to support the court's finding of knowledge here.

2. ALTERNATIVE REASON

According to appellants, even if political animus were a motivating factor in their demotion of Gierbolini, they proved by a preponderance of the evidence that they would have reached the same decision in the absence of that factor (because Gierbolini was incompetent), and that their action was thus constitutionally valid. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The district court explicitly found that appellants' claims of Gierbolini's incompetence were not credible, and that appellants' "sole purpose in concocting the negative evaluation [that formed the basis for his demotion] was to remove Gierbolini as Director of the Radio Station because, as a member of the NPP, Gierbolini did not share defendants' political affiliation." The court thus concluded that appellants "would not have removed Gierbolini but for his political affiliation."

Appellants advanced at trial several examples of Gierbolini's alleged managerial incompetence:

1) During Gierbolini's tenure...