Cordero v. De Jesus-Mendez

• Decision Date: 26 July 1988
• Docket Number: 87-1012,87-1530,88-1126 and 87-1531,D,88-1006,R,Nos. 87-1011,VARGAS-HIDALG,JESUS-MENDEZ,87-1532,JESUS-MENDE,88-1005,s. 87-1011
• Citation: 867 F.2d 1
• Parties: William CORDERO, et al., Plaintiffs, Appellees, v. Juan De, etc., Defendant, Appellant. William CORDERO, et al., Plaintiffs, Appellees, v. Juan De, etc., et al., Defendants, Appellees. (Two Cases) Appeal of MUNICIPAL GOVERNMENT OF MOCA, Defendant, Appellant. William CORDERO, et al., Plaintiffs, Appellees, v. Juan De, Defendant, Appellant. Appeal of Irmaamonita Bourdon, Jose Conty-Loperena, Luis A. Perez-Nieves, Eugenio L. Perez and Vicente Mendez, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

867 F.2d 1

William CORDERO, et al., Plaintiffs, Appellees, v. Juan De JESUS-MENDEZ, etc., Defendant, Appellant.

William CORDERO, et al., Plaintiffs, Appellees, v. Juan De JESUS-MENDEZ, etc., et al., Defendants, Appellees. (Two Cases)

Appeal of MUNICIPAL GOVERNMENT OF MOCA, Defendant, Appellant.

William CORDERO, et al., Plaintiffs, Appellees, v. Juan De JESUS-MENDEZ, Defendant, Appellant.

Appeal of Irma VARGAS-HIDALGO, Ramonita Bourdon, Jose

Conty-Loperena, Luis A. Perez-Nieves, Eugenio L.

Perez and Vicente Mendez, Appellants.

Nos. 87-1011, 87-1532, 88-1005, 87-1012, 87-1530, 88-1006,

88-1126 and 87-1531.

United States Court of Appeals, First Circuit.

Heard July 26, 1988.

Decided Jan. 24, 1989.

As Amended Jan. 27, 1989.

Rehearing and Rehearing En Banc Denied March 7, 1989.

Jose Angel Rey with whom Manuel Alvarado, Elba Rosa Rodriguez, Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., Hector Rivera-Cruz, Secretary of Justice, Rafael Ortiz-Carrion, Sol. Gen., Norma Cotti-Cruz, Deputy Sol. Gen., and Vanessa Ramirez, Hato Rey, P.R., Asst. Sol. Gen., were on joint briefs for defendants in Nos. 87-1011, 87-1012, 87-1530, 87-1532, 88-1005, and 88-1006.

Juan Rafael Gonzalez Munoz with whom Hector Rivera-Cruz, Secretary of Justice, Rafael Ortiz-Carrion, Sol. Gen., Norma Cotti-Cruz, Deputy Sol. Gen., and Vanessa Ramirez, Asst. Sol. Gen., Hato Rey, P.R., were on brief for defendant Mun. Government of Moca.

Miguel Pagan, San Juan, P.R., with whom Eliezer Aldarondo Ortiz, Hato Rey, P.R., and Aldarondo & Lopez Bras were on briefs for plaintiffs in Nos. 87-1011, 87-1012, 87-1530, 87-1532, 88-1005, and 88-1006.

Jose Angel Rey with whom Paul B. Smith, Jr., Olivette Sagebien and Saldana, Rey, Moran and Alvarado, Hato Rey, P.R., were on brief for defendants in No. 88-1126.

Miguel Pagan, San Juan, P.R., for plaintiffs in No. 88-1126.

Israel Roldan Gonzalez, Aguadilla, P.R., for plaintiffs-appellants Irma Vargas-Hidalgo, Ramonita Bourdon, Jose Conty-Loperena, Luis A. Perez-Nieves, Eugenio L. Perez and Vicente Mendez in No. 87-1531.

Jose Angel Rey with whom Elba Rosa Rodriguez, Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., Hector Rivera-Cruz, Secretary of Justice, Rafael Ortiz-Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., were on joint brief for defendants in No. 87-1531.

Before BOWNES, NOONAN ^* and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This case involves appeals from jury verdicts and judgments in a group of consolidated civil rights actions brought pursuant to 42 U.S.C. Sec. 1983 and the laws of Puerto Rico by municipal employees against the Municipality of Moca, Puerto Rico, and its Mayor, Juan de Jesus Mendez. Originally, forty employees brought suit. Thirty of them received judgments in their favor in the district court; they are plaintiffs-appellees in the appeal by defendants-appellants, the Municipality of Moca and its Mayor. The district court granted judgment n.o.v. against six of the employees. They are plaintiffs-appellants in an appeal against defendants-appellees, the Municipality of Moca and the Mayor. The district court dismissed the suits of four employees who did not testify at the trial for insufficiency of evidence; no appeal in those suits has been taken. At the outset, there was an additional defendant, the Personnel Officer of Moca, Juan de Betran. The complaint was dismissed as to him for insufficiency of evidence, and there has been no appeal. There is also an appeal by the Mayor from a post-judgment order holding him in contempt.

I.

The gravamen of the case is that the federal constitutional rights of the employees to freedom of speech and due process of law were violated because they were

summarily discharged without a hearing for political reasons. The genesis of this case, as with most other Puerto Rico political firing cases that have come before us, was the election of 1984. Prior to this election the Mayor of Moca belonged to the New Progressive Party (NPP), as did a majority of the Municipal Assembly. After the election, a member of the Popular Democratic Party (PDP), Juan de Jesus Mendez, became Mayor. The NPP, however, still retained control of the Municipal Assembly. It has been stipulated that the Mayor is chief executive and hiring authority for the municipality and that he acted within "his functions and prerogatives" in the dismissals of the plaintiffs. The divided political control of the municipality, therefore, is not a factor in any of the issues before us.

II.

We deal first with certain issues raised on appeal by the municipality and its Mayor.

THE JURY INSTRUCTION ON CAUSATION

Appellants claim that it was reversible error for the court to refuse to instruct the jury that it could hold the defendants liable only if it found that the employees would not have been discharged "but for" their political affiliation. The force of this objection is considerably weakened by defendants' failure to follow the requirements of Fed.R.Civ.P. 51, which states in pertinent part: "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." No objection was made by defendants after the charge and "before the jury retire[d] to consider its verdict." We have consistently and emphatically held that failure to follow the letter of the rule constitutes a waiver of the objection. See Wells Real Estate Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (collecting cases), cert. denied, --- U.S. ----, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). Although there is a "plain error" exception for failure to follow the rule, we have held that such exception "should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Id. (quoting Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966)). The court's refusal to give the requested instruction did not, considering the charge as a whole, amount to plain error. Since, however, this may be a recurring issue, we think it advisable to review the instructions in light of the applicable law.

It is appellants' position that the "but for" requirement is mandated by Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) and Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). In Mt. Healthy, the court held that in a case alleging a constitutional violation for refusal to rehire, a necessary finding was whether the Board "had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's re-employment even in the absence of the protected conduct." 429 U.S. at 287, 97 S.Ct. at 576. The "but for" language, which appellants say is vital, is contained in Givhan:

Thus, the case came to the Court of Appeals in very much the same posture as Mt. Healthy was presented to this Court. And while the District Court found that petitioner's "criticism" was the "primary" reason for the School District's failure to rehire her, it did not find that she would have been rehired but for her criticism. Respondents' Mt. Healthy claim called for a factual determination which could not, on this record, be resolved by the Court of Appeals.

439 U.S. at 417, 99 S.Ct. at 697 (footnote omitted). We have explicitly adopted the "but for" test in political firing cases, as well as in other contexts. See Elwood v. Pina, 815 F.2d 173, 176 (1st Cir.1987).

The record discloses that defendants denied that the employees were discharged for political reasons and advanced several plausible reasons for their terminations. [I]f you find from the evidence that the Mayor and the Municipality of Moca ... discriminated against the twenty-three irregular employees on the basis of political affiliation, you must find for the plaintiffs.

                The district court so acknowledged in its instructions:  "They [defendants] claim that they acted in good faith following the law.  They claim that some employees were fired because of their trust or confidential status;  others because of lack of funds or tasks and others because their contracts had expired and could not be renewed."    The court gave two instructions on the standard to be applied
                

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Plaintiffs must prove that their political affiliation was the motivating factor in the decision to separate them from the positions they occupied. Once again, we don't isolate evidence. Isolated evidence that one party or the other was from a given political party should not be enough. You must look at all the evidence, direct and circumstantial, to determine if political affiliation was the motivating factor for the personnel actions taken by the Mayor.

Notwithstanding this fact, you must find for defendants if they proved the existence of other grounds that would have been bona fide grounds for the personnel actions, even in the absence of the alleged politically discriminatory motives.

While the second instruction comes close to the Mt. Healthy-Givhan standard, it can be argued that it does not quite measure up.

Although the words "but for" are not magic or talismanic, they are the words used in Givhan and expressly adopted by this Circuit as an indispensable part of the analysis in this kind of case. Elwood v. Pina, 815 F.2d at 176. The use of the phrase "but for" clarifies and focuses the issue. We think it should be used in the instructions in a case such as this. It follows that the phrase should also be used in written interrogatories submitted to the jury where the jury is determining whether or not an individual has been discharged for reasons of political affiliation.

THE POST-VERDICT AWARD OF BACK PAY BY THE DISTRICT COURT

The jury, in answer to written interrogatories, found the Mayor liable and awarded compensatory...