Anthony v. Sundlun, 91-1712

• Decision Date: 03 December 1991
• Docket Number: No. 91-1712,91-1712
• Citation: 952 F.2d 603
• Parties: Jane ANTHONY, et al., Plaintiffs, Appellees, v. Bruce G. SUNDLUN, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 603

952 F.2d 603

Jane ANTHONY, et al., Plaintiffs, Appellees, v. Bruce G. SUNDLUN, et al., Defendants, Appellants.

No. 91-1712.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1991.

Decided Dec. 27, 1991.

Casby Harrison, III, Associate Executive Counsel, Office of the Governor, Providence, R.I., for defendants, appellants Sundlun and Cruise.

Richard B. Woolley, Asst. Atty. Gen., Providence, R.I., for remaining defendants, appellants.

Arthur M. Read, II, with whom Gorham & Gorham, Inc., Providence, R.I., was on brief, for plaintiffs, appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

The defendants, state officials, adamant in their refusal to recognize that discriminatory animus can be proven circumstantially as well as by direct evidence, appeal from an order suspending the operation of termination notices addressed to the plaintiffs, seven seasonal state employees. We affirm.

The circumstances of the case can be succinctly summarized.

1. In November 1990, Rhode Island's incumbent governor, a Republican, was defeated at the polls. His successor, Bruce Sundlun, is a Democrat. Governor Sundlun took office on January 1, 1991.

2. Because parimutuel wagering is permitted at the privately-owned jai alai fronton in Newport, Rhode Island, pursuant to a state license, state employees are assigned to work there. The fronton is open on a seasonal basis. The 1991 jai alai season began on May 2, 1991.

3. Toward the end of April, 1991, the state hired ten persons, including the seven plaintiffs, to fill various non-policymaking positions (e.g., parimutuel monitors, auditors, etc.) based at the fronton. ¹ All seven plaintiffs had worked there without incident during the previous season. All were Republicans.

4. On April 26, the governor's chief of staff, R. David Cruise (himself a Democratic state senator), demanded that the hiring agency (the Division of Racing and Athletics of the state's Department of Business Regulation) furnish him a roster of positions at the fronton. The list was delivered the same day. It enumerated thirteen positions and contained an explicit statement that: "All but three (3) of the positions listed above are currently filled." The three vacant positions were specified.

5. Senator Cruise, who testified that he read the list but not the explanatory statement, immediately consulted a Democratic general officer and a prominent Democratic state representative concerning potential appointees. On May 1, 1991, the chief of staff transmitted thirteen names to the hiring agency, denominating the job that each person was to perform at the fronton. The plaintiffs' positions were encompassed. Twelve of the newcomers were Democrats. The thirteenth, registered as an "unaffiliated" voter, was Cruise's close personal friend.

6. The plaintiffs were cashiered the next day, just as the jai alai season opened.

On these and other facts, the district court concluded that, apart from political spoils, it would be "difficult if not impossible to find any other rational explanation [for the firings]." Applying the familiar four-part test for ascertaining whether a preliminary injunction should be granted, see, e.g., Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991), the court determined that interim relief was warranted. ² It thereupon issued a restraining order which had the effect, pending a trial on the merits, of reinstating the sacked plaintiffs to the jobs that had been snatched away from them so unceremoniously. This appeal followed.

We linger little over the appellants' importunings. The parties agree that partisan political affiliation was not a legitimate requirement for the due performance of any of the affected jobs; and that, therefore, under principles elucidated by the Supreme Court, the plaintiffs were protected against patronage dismissals by a clearly established First Amendment right. See Rutan v. Republican Party of Ill., --- U.S. ----, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 517-18, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 367-68, 96 S.Ct. 2673, 2686-87, 49 L.Ed.2d 547 (1976). The only question, then, is whether the district court erred in concluding that the plaintiffs were likely to succeed on the claim that their discharges were politically motivated. ³

Refined to bare essence, the appellants' argument seems to be that political favoritism must be proved by direct evidence. We disagree. Victims of heavy-handed uses of the spoils system are not limited to redress in only those (relatively rare) instances in which a "smoking gun" can be produced. To the exact contrary, we have held, time and again, that circumstantial evidence alone can support a finding of political discrimination. See, e.g., Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 14-15 (1st Cir.1988); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir.1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d 621 (1988); Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir.1979). Circumstantial evidence is often particularly helpful when, as here, a case turns on a protean issue such as an actor's motive or intent. As the Court wrote in a closely analogous context almost half a century ago:

[W]hile objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does .... [C]ourts and juries every day pass upon knowledge, belief and intent--the state of men's minds--having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.

American Communications Ass'n v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925 (1950). The test, then, as applied to the plaintiffs' dismissals, reduces to a question of persuasiveness: does the circumstantial evidence, taken as a whole give rise to a plausible inference of discriminatory animus which, ultimately, possesses enough convictive force to persuade a rational factfinder that the defendants' conduct was politically motivated?

In the case at bar, the circumstantial evidence is damning and, consequently, the inference of discrimination is virtually inescapable. To start with, all the plaintiffs were registered Republicans. By and large, they were replaced by Democrats. As the defendants asseverate, these raw numbers alone are likely insufficient to ground a finding of patronage dismissal. See Estrada-Izquierdo, 850...