de Feliciano v. de Jesus, 88-1977

• Decision Date: 01 March 1989
• Docket Number: No. 88-1977,88-1977
• Citation: 873 F.2d 447
• Parties: Margarita Rivera DE FELICIANO, etc., et al., Plaintiffs, Appellees, v. Francisco DE JESUS, etc., et al., Defendants, Appellees. Farm Credit Corporation, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 447

873 F.2d 447

Margarita Rivera DE FELICIANO, etc., et al., Plaintiffs, Appellees, v. Francisco DE JESUS, etc., et al., Defendants, Appellees.

Farm Credit Corporation, Defendant, Appellant.

No. 88-1977.

United States Court of Appeals, First Circuit.

Heard March 1, 1989.

Decided April 27, 1989.

Rehearing and Rehearing En Banc Denied

May 24, 1989.

Carlos Del Valle, Hato Rey, P.R., with whom Hector Rivera Cruz, Secretary of Justice, Bayamon, P.R., Rafael Ortiz Carrion, Sol. Gen., Jaime Brugueras and Ramirez & Ramirez, Hato Rey, P.R., were on brief for defendant, appellant.

Ramon L. Walker Merino, San Juan, P.R., for plaintiffs, appellees.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

BREYER, Circuit Judge.

The plaintiffs in this case worked for Puerto Rico's Farm Credit Corporation ("FCC") as "career" civil service employees. In 1985, Francisco de Jesus, the President of the FCC, dismissed them. They sued de Jesus and the FCC, claiming that their dismissals were unlawful, for two reasons: (a) de Jesus fired them because of their political affiliation (they are all members of the New Progressive Party); and, (b) he fired them without the hearing to which they were entitled under the Fourteenth Amendment's due process clause. A jury found against plaintiffs in respect to their claims against de Jesus, but in their favor in respect to their claims against the FCC. The district court entered a judgment awarding them damages, back pay, and reinstatement. The FCC appeals, arguing that: (a) the jury's "political discrimination" verdict against the FCC cannot stand in light of the jury's verdict in favor of de Jesus; and (b) the plaintiffs have no constitutionally protected property interest in their jobs, because the FCC hired them unlawfully in the first place. They add that (c) the FCC, as an integral part of the Commonwealth's government, enjoys Eleventh Amendment immunity from liability for damages. We agree with the FCC in respect to the first two claims, so we need not reach the third.

I. Background

The key facts include the following:

1. Between 1980 and 1984, the FCC hired all the plaintiffs.

2. During 1982 the Commonwealth's Department of Agriculture began an audit of the FCC. In a 1982 report, the auditors said that FCC personnel decisions had been made improperly at the "management level," which fact had deprived the FCC's Personnel Director of control over hiring. The report added that, as a result, "several recruitments, appointments and changes were made which go astray from the provisions contained in the Personnel Regulation" of the FCC. The report then gave several examples of improper hiring procedures.

3. In January 1985, the Popular Democratic Party's candidate became governor and Francisco de Jesus, a PDP member, became President of the FCC.

4. In February 1985, de Jesus saw both the 1982 audit report and a 1985 supplemental report. He appointed a committee to "evaluate everything referring to personnel files" of the FCC's 37 career employees. (The FCC employed about 120 people, 3 in "trust" positions, 37 in "career" positions, and 80 in "unionized" positions.)

5. In late February 1985, the committee reported back. It said that the FCC had hired 30 of its 37 career employees in violation of various personnel regulations. It listed the employees' names and the relevant violations; the list included all six plaintiffs.

6. In May and June 1985 de Jesus sent letters to the six plaintiffs, dismissing them on the ground that the FCC had not legally hired them.

At trial, the plaintiffs presented evidence designed to show that, contrary to the committee's report, they had in fact taken examinations when applying for their jobs, and they had served probationary periods, as the personnel regulations required. They argued that, insofar as the FCC did violate its own personnel regulations when it hired them, the fault was that of the FCC's Personnel Director; it was not theirs. They added that de Jesus and the FCC, in any event, did not dismiss everyone who was hired illegally; instead, they dismissed only six persons, all of whom belonged to the NPP. de Jesus denied any political motive. He said he had not known what political party the plaintiffs belonged to.

Ultimately, the jury found in de Jesus' favor on both the "political discrimination" and the "due process" claims. It found against the FCC on both claims. The FCC, before the court dismissed the jury, asked the court to "strike" the political discrimination verdict against it, in light of the verdict in de Jesus' favor. The district court decided that the verdicts for de Jesus but against the FCC were consistent. It decided that the evidence adequately supported the verdict against the FCC, and it denied the FCC's request. The FCC now appeals.

II. The Political Discrimination Claim

The plaintiffs' political discrimination claim consists of their assertions that: (1) de Jesus, the President of the FCC, dismissed them because they belonged to the NPP; and (2) de Jesus, in doing so, was carrying out an official policy of the FCC. Both these assertions are legally necessary, for the Supreme Court has made clear that a government agency is liable for a deprivation of a constitutional right only where (1) a constitutional harm takes place, and (2) the "execution of a government's policy or custom ... inflicts" that harm. See Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). In Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986), for example, the Supreme Court said that the district court correctly dismissed plaintiffs' claims against a city, because it could not be held liable for an injury that its police officers inflicted, despite proof of an unconstitutional city policy, after a jury had exonerated the individual police officers (in the first phase of a bifurcated trial). The Court wrote that

neither Monell ... nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in Id., 475 U.S. at 799, 106 S.Ct. at 1573; see also City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 921, 99 L.Ed.2d 107 (1988). The FCC now argues, citing Heller, that the jury's finding in favor of de Jesus destroys an essential element of plaintiffs' case against the FCC, because that verdict means that no one dismissed plaintiffs because of their political affiliation, so no constitutional deprivation took place.

fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.

The basic question before us is whether, as a matter of logic and evidence, the jury's two verdicts are inconsistent. How could the jury have found that the FCC fired plaintiffs for political reasons, while also finding in favor of de Jesus? Obviously, in some political discrimination cases, jury verdicts of this sort could prove consistent. There may well be a basis for an agency's liability other than the conduct of the individual defendants that the jury exonerated. Alternatively, a verdict in an employee's favor might reflect the jury's belief that the employee, while acting pursuant to the agency's unlawful policy, nonetheless acted in good faith. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (discussing "qualified immunity" doctrine); Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1043 & n. 7 (1st Cir.1988) (qualified immunity defense applies only to individual defendant, not to agency defendant). For example, in Lincoln v. Board of Regents of University System, 697 F.2d 928, 934-36 (11th Cir.1983), the Eleventh Circuit reasoned that a judgment against a university Board of Regents was consistent with verdicts in favor of the two individual defendants, because the jury could have based the Board's liability on the acts of another university official who was not named as a defendant. See also Batista v. Rodriguez, 702 F.2d 393, 396-99 (2d Cir.1983) (jury found city liable, but exonerated individual police officer defendants; the court considered reconciling the verdicts by assuming the jury thought the police acted unlawfully but in good faith, but rejected that possibility for lack of proof that the police officers acted pursuant to city policy).

We cannot similarly reconcile the jury's findings, however, in this case. The jury could not have exonerated de Jesus on the basis of qualified immunity, because that issue was decided by the court in plaintiffs' favor, and did not reach the jury. And, the conduct of FCC officials other than de Jesus cannot support a finding that the FCC discriminated in dismissing the plaintiffs. To establish an agency's liability, the plaintiffs must show that the discriminatory acts were done by persons with "final authority to establish [the agency's] policy with respect to the action ordered," Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986); see also Praprotnik, 108 S.Ct. at 926 ("authority to make ... policy is necessarily the authority to make final policy"). In this case, the only person plaintiffs claimed to have such authority was de Jesus. The record contains no evidence that any other FCC officials--such as the Personnel Director or the Committee appointed to report to de Jesus on the personnel files--had final policymaking authority. And, it is not within the jury's power to "define for itself which officials' decisions should expose [the FCC] to liability." Praprotnik, 108 S.Ct. at 928. Thus, the only legally adequate basis for the FCC's liability was eliminated by the jury's verdict in favor of de Jesus.

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