Figueroa v. Aponte-Roque, APONTE-ROQUE

• Citation: 864 F.2d 947
• Decision Date: 02 November 1988
• Docket Number: Nos. 88-1525,88-1526,APONTE-ROQUE,s. 88-1525
• Parties: 51 Ed. Law Rep. 70 Aurora FIGUEROA, et al., Plaintiffs, Appellants, v. Hon. Awilda, etc., et al., Defendants, Appellees. Aurora FIGUEROA, et al., Plaintiffs, Appellees, v. Hon. Awilda, etc., et al., Defendants, Appellants. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 947

864 F.2d 947

51 Ed. Law Rep. 70

Aurora FIGUEROA, et al., Plaintiffs, Appellants, v. Hon. Awilda APONTE-ROQUE, etc., et al., Defendants, Appellees.

Aurora FIGUEROA, et al., Plaintiffs, Appellees, v. Hon. Awilda APONTE-ROQUE, etc., et al., Defendants, Appellants.

Nos. 88-1525, 88-1526.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 1988.

Decided Jan. 4, 1989.

Frank Rodriguez Garcia, Ponce, P.R., with whom Francisco J. Rodriguez Juarbe was on brief, for plaintiffs.

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

Before COFFIN and TORRUELLA, Circuit Judges, and WISDOM, ^* Senior Circuit Judge.

COFFIN, Circuit Judge.

Eight office clerks and a janitor filed suit against top officials in the Puerto Rico Department of Education claiming that their jobs were not renewed because of their political affiliation. A jury found for the janitor against the Secretary of Education, but held for the defendants on all other claims. Both sides appeal. We uphold the jury's verdict except in the janitor's case, in which the plaintiff failed to demonstrate a causal link between the Secretary and the alleged harm to her.

We shall consider first the case involving the clerical employees, outlining the factual background of their discharges in Section I and examining the issues raised on appeal in Section II. We then, in Section III, shall turn to the janitor's case.

I.

Until the spring of 1985, the eight plaintiffs-appellants worked as office clerks in various schools in the Yauco School District in Puerto Rico. Their positions were "transitory," meaning that they were hired for a fixed term, which in this instance was eleven months. Although the jobs technically would end each June 30, the customary practice was for the appointments to be renewed at the start of the next school year. Four of the appellants had been in their jobs for four years, and the others had been employed for either a year or eighteen months.

The jobs held by plaintiffs were categorized as "comparability" positions, named for a federal program under the Elementary and Secondary Education Act, 20 U.S.C. Secs. 2701-3386, in which federal funding for the positions is contingent on all schools in a certain area receiving services "comparable" to services provided in other areas of the district. See also 20 U.S.C. Sec. 3807(c) (describing comparability requirements).

Consistent with the usual practice, appellants received form letters in April 1985 notifying them that their transitory appointments would end on June 30. During the summer, however, they learned that their positions would not be renewed for the fall term starting in August. Awilda Aponte Roque, who had been named Secretary of Education in January, testified that she froze all transitory comparability positions throughout Puerto Rico for the fall semester pending completion of a study to determine which schools needed such positions to fulfill the federal requirements. The Department of Education at that time was operating under a Consent Order that specified certain comparability obligations for Puerto Rico schools, including the requirement that positions be assigned in the fall in accordance with comparability studies performed the previous March. See Lopez Perez v. Bell, Civil No. 80-2352 (JP).

Aponte also had changed hiring procedures for classified personnel shortly after she took over the Department of Education. ¹ Circular Letter 16-84-85 provides that vacancies at the school district level will be filled by a three-person committee comprised of the school superintendent, the director of the school with the vacancy, and a representative of the regional director. The committee is supposed to reach a consensus on which applicant to recommend for the job. In the absence of consensus, the choice is made by the regional director.

Clerical comparability positions similar to the ones in which appellants had been employed were reassigned for the semester beginning January 1986. In mid-January, the superintendent of the Yauco district, Maria A. Vivaldi, notified appellants to appear for interviews for typist positions. None of the plaintiffs were selected for the three positions filled through that interview process. The applicants chosen were all members of the Popular Democratic Party, which was Aponte's party and the party that had come to power in the 1984 gubernatorial election. Appellants are all members of the New Progressive Party.

Appellants claim that their annual appointments were not renewed, and that they were not chosen to resume clerical duties in January, solely because of their political affiliation. ² Their theory is that Aponte froze their jobs to clear out NPP members from the comparability program, and then used the new hiring procedure outlined in Circular Letter 16-84-85 to ensure that the comparability positions would be filled by members of the PDP. This can be accomplished, appellants explain, because the regional director makes the decision about whom to hire when the three-person hiring committee fails to agree, and the regional director is a political appointee who inevitably will choose a party faithful.

After a five-day trial, the jury returned a verdict for defendants. Appellants now claim that this verdict was against the weight of the evidence and that improper instructions unfairly prejudiced the jury in favor of the defendants. We shall consider each argument in turn. ³

II.

Appellants presented extensive evidence to the jury of their theory of political retaliation. They attempted to show that Aponte's decision to freeze comparability positions conflicted with the Consent Order, and therefore was not justifiable as an effort to comply with federal comparability requirements. They emphasized that the Consent Order provided that fall assignments be based on a March study of school enrollment and staffing patterns, and that Aponte's professed need to conduct a study in the fall before allocating comparability positions was therefore simply a pretext.

In addition, several appellants testified that the three women hired to replace them were inexperienced and had trouble completing the typing test administered at the January 1986 interview session. Testimony also revealed that of the eight schools where appellants previously had worked, only three had directors who were PDP members, and those were the only schools to which comparability clerks were assigned when the freeze was lifted.

For plaintiffs to prevail on their argument that they are entitled to a new trial because the jury misperceived the evidence, we must find that the jury's findings were " 'so clearly against the weight of the evidence that they produce a manifest miscarriage of justice.' " Union Mutual Life Insurance Co. v. Chrysler Corp., 793 F.2d 1, 6 (1st Cir.1986) (quoting Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir.1980)). We do not so find. Although appellants' evidence was sufficient to allow a jury to find in their favor, a review of the record as a whole makes it clear that the jury also was justified in reaching the opposite conclusion.

The evidence showed that all transitory clerk-typists in the comparability program throughout Puerto Rico were released in the spring of 1985, not just those who belonged to the NPP. Although there was evidence that the three women hired in January 1986 in the Yauco district were all PDP members, plaintiffs did not show that only PDP members were hired for such positions throughout Puerto Rico after the freeze. Although the only three comparability clerks hired in the Yauco district were placed at schools with PDP directors, there also was evidence that non-clerical comparability positions were assigned to schools with NPP directors.

Evidence that employees lost jobs regardless of political affiliation, and that new employees were placed in schools regardless of the director's politics, supports Aponte's assertion that the freeze was motivated by valid administrative concerns rather than politics. Although the freeze may have appeared inconsistent with one part of the Consent Order, the jury was entitled to believe Aponte's testimony that she thought a freeze was necessary so that a study could be done to ensure that positions were allocated in compliance with the Order.

In addition, the defendants presented evidence suggesting that at least two of the women hired as clerk-typists in January 1986 had superior credentials to appellants. The jury was entitled to credit documentary evidence of their qualifications over appellants' claims that the women appeared incapable of performing the job.

This is not a case like Fernandez v. Chardon, 681 F.2d 42, 56 (1st Cir.1982), aff'd sub nom. Chardon v. Fumero Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983), cited by appellants, where the plaintiffs' evidence included direct statements made by defendants that the then-in-power NPP administration intended to "clean out" members of the PDP in temporary positions. These statements included an assertion by the Secretary of Education that the NPP would seek to keep PDP members out of available jobs. There is no such direct evidence of discrimination by the defendants here. ⁴ This case turned largely on the credibility of the government's witnesses, and it is not our place to second-guess the jurors' conclusion that appellants' terminations were not based on their political affiliations. ⁵

As for appellants' challenges to the jury instructions, we note first that they failed to raise timely objections at trial. We therefore will reverse the judgment only if "there is plain error in exceptional or under peculiar circumstances to prevent a clear miscarriage of justice," Kelley v. Schlumberger Technology Corp., 849 F.2d 41, 44 (1st Cir.1988) (quotation marks and citations...