Bueno v. City of Donna

• Decision Date: 12 September 1983
• Docket Number: No. 81-2391,81-2391
• Citation: 714 F.2d 484
• Parties: Jose BUENO, et al., Plaintiffs, Leon Trevino and Victor Alegria, Plaintiffs-Appellees Cross-Appellants, v. CITY OF DONNA, et al., Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 484

714 F.2d 484

Jose BUENO, et al., Plaintiffs Leon Trevino and Victor Alegria, Plaintiffs-Appellees Cross-Appellants, v. CITY OF DONNA, et al., Defendants-Appellants Cross-Appellees.

No. 81-2391.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1983.

Ramon Garcia, Edinburg, Tex., for defendants-appellants.

Edward J. Tuddenham, Texas Rural Legal Aid, Inc., Hereford, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before RUBIN, GARZA and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

The plaintiffs in this case filed suit in district court against the City of Donna, Texas, and various elected officials of that city ¹ under 42 U.S.C. §§ 1985 and 1986, contending that they were either discharged or forced to resign from their positions with the city in retaliation for their support of the defendants' opponents in a city election. They also alleged that their dismissals and forced resignations violated the minimum due process protection guaranteed by the Fourteenth Amendment. The jury returned a verdict that the defendants had conspired or acted individually to cause the dismissal or resignation of the plaintiffs in violation of their First Amendment rights. The jury further found that it was a custom or policy of the city, acting through its officials, to cause the dismissal or resignation of city employees because of their support for opposition candidates in city elections. ² The district court further ruled as a matter of law that the defendants had violated the plaintiffs' Fourteenth Amendment rights by not informing them of their right to a hearing to contest their termination, and that the defendants were not entitled to the defense of good faith immunity. The court awarded damages to each plaintiff in the amount of $2,000 for lost wages and $4,000 for violation of constitutional rights. The plaintiffs were also awarded costs and reasonable attorneys fees. Two of the plaintiffs, Leon Trevino and Victor Alegria, moved for reinstatement to their former or equivalent positions, but no reinstatement was ordered.

On appeal, the defendants claim (1) that the evidence was insufficient to support the jury's finding that the plaintiffs were fired or forced to resign because of their political activities; (2) that the evidence was insufficient to find that defendants Casiano, Cordova, and Yanez had violated the plaintiffs' First Amendment rights; (3) that the court's jury instructions on the First Amendment claim were erroneous and prejudicial; (4) that Jose Magallanes, a probationary employee, did not possess a property right in employment sufficient to trigger due process protection; (5) that the plaintiffs who alleged forced resignations had waived their due process rights; (6) that there was insufficient evidence to support the jury's damage award, and (7) that the court erred in failing to instruct the jury that the defendants were entitled to a good faith immunity defense. Plaintiffs Victor Alegria and Leon Trevino argue on cross-appeal that the court erred in denying them reinstatement.

The plaintiffs in this case are former non-supervisory public works department employees of the City of Donna, Texas. ³ Each was fired from or resigned his position during a two month period in 1978 which preceded and immediately followed a municipal election in Donna in which defendants Cordova and Lugo ran for re-election to the city council.

It was undisputed that plaintiffs Jesus Alegria, Jose Magallanes, Mario Garza, Victor Alegria, Clara Vela and Leon Trevino actively supported the candidates who opposed Cordova and Lugo. Each man openly attended various political meetings or "pachangas" on behalf of the opposition candidates and openly voiced his support for these candidates. Of these six, Magallanes, Trevino, Jesus Alegria, and Vela were fired shortly after their support for the opposition became known. Victor Alegria and Garza resigned, but each testified he did so only under "pressure" resulting from his refusal to support the defendants. ⁴ Noe Ramirez, on the other hand, supported the defendants in the election, but claimed he was fired after refusing to attach one of their political stickers to a city vehicle shortly before the election took place.

None of the men was given any reason for his termination, nor was he told of his right to a hearing at which he could contest his discharge. Testimony at trial indicated that in Donna part of a city employee's job responsibility was assumed to be to support councilmembers in their bids for re-election, and that employees who refused this political support would be fired.

I. The First Amendment Claim

A. Sufficiency of the Evidence

1. The defendants first claim that the evidence presented was insufficient to support the jury's finding that the plaintiffs were fired or forced to resign because of their political support for the opposition candidates. In order to support the jury's verdict, we evaluate the evidence only to decide if reasonable and impartial minds could reach the result flowing from the jury verdict. Kincaid v. United States, 682 F.2d 1220, 1225 (5th Cir.1982); Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44, 48 (5th Cir.1981).

We find adequate evidence to justify reasonable minds concluding that support for the opposition candidates was the reason for the discharge or resignation of Victor Alegria, Jose Magallanes, Leon Trevino, Jesus Alegria, and Mario Garza. Each of these men had been seen participating in the political "pachangas" for the opposition candidates, and each admitted his support of the defendants' opponents. We are less satisfied, however, with the reasonableness of the verdict with respect to Noe Ramirez. Ramirez testified that he actually supported the re-election of the defendants. In fact, he said he hoped these candidates would be re-elected so that he would get a raise in salary. Ramirez was fired four days following the election for refusing to place a sticker favoring one of the defendants on a city vehicle several days before the election. He explained, however, that he refused to mount the sticker, not because he did not support the candidates, but only because he did not believe that city vehicles should be used to advertise political candidates. Ramirez admitted that he was told he was fired because the city "didn't need me." Although his testimony was somewhat convoluted and inconsistent, Ramirez did say that he had been injured prior to his dismissal and could no longer perform the type of work he had done previously. Several persons testified that Ramirez was generally inattentive to his duties.

While a jury's verdict is "presumptively correct", it is not invulnerable. Kincaid v. United States, supra, 682 F.2d at 1225. The evidence in this case simply cannot support the jury's finding that Ramirez' political activity was the cause of his dismissal.

2. The defendants also claim that the evidence was insufficient to support the verdict directed specifically against defendant city council members Casiano, Cordova, and Yanez. The jury found that "the defendants conspired or acted individually to deprive the plaintiffs of their rights." These councilmen contend that they knew nothing of the firings and cannot be held liable for the actions of the city manager.

We stress that our duty, as a Court of Appeals, is not to reweigh the evidence in a case. We will overturn a jury verdict only if the evidence is such that reasonable persons in the exercise of impartial judgment could not reach such a conclusion. It was undisputed that the city council was responsible for the city's personnel policies. Defendants Casiano and Yanez told defendant Lopez who to fire, and there was testimony offered at trial that Casiano responded to the discharge of at least one of the plaintiffs by saying that "that was politics". Testimony by a former candidate and councilman indicated that each had been in the company of Casiano, Yanez, Cordova and Lopez during discussions about terminating city employees who did not support them politically. There is no requirement that proof must have been offered to establish that these defendants decided specifically to fire the individual plaintiffs for their political activities when persuasive evidence was offered to support the assertion that these defendants were willing to fire any employee who failed to support them politically. Certainly, there was a "reasonable basis" for the jury's finding of liability against these defendants.

B. Jury Instructions

The defendants next argue that the trial court's jury instructions were erroneous and that they constituted prejudicial error. Specifically, the defendants contend that the trial court failed to give the instructions mandated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In Mt. Healthy the Supreme Court held that, in order to prevail in an action alleging discharge in retaliation for the exercise of First Amendment rights, a plaintiff has the burden of proving, first, that his conduct was constitutionally protected ⁵ and second, that this conduct was a "substantial or motivating" factor behind the discharge. Once the plaintiff has made this initial showing, the defendant may avoid liability if he can show "by a preponderance of the evidence that [he] would have reached the same decision as to [terminating the plaintiff's employment] even in the absence of the protected conduct." Mt. Healthy, supra, 429 U.S. at 287, 97 S.Ct. at 576. In the instant case, the trial court instructed the jury that it must determine that the plaintiffs were discharged or forced to resign "because of" their political activities. The court refused the defendants' request that the jury be instructed that "plaintiffs have the burden of showing... that [they] would not have been terminated...