Rosaly v. Ignacio

• Decision Date: 09 November 1978
• Docket Number: No. 78-1217,78-1217
• Citation: 593 F.2d 145
• Parties: Rafael ROSALY et al., Plaintiffs-Appellees, v. Rafael L. IGNACIO et al., Defendants-Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 145

593 F.2d 145

Rafael ROSALY et al., Plaintiffs-Appellees, v. Rafael L. IGNACIO et al., Defendants-Appellants.

No. 78-1217.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 1978.

Decided Feb. 23, 1979.

Americo Serra, Asst. Sol. Gen., Dept. of Justice, Rio Piedras, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellants.

Hector M. Laffitte, Hato Rey, P. R., with whom Jesus M. Hernandez Sanchez, San Juan, P. R., and Laffitte & Dominguez, Hato Rey, P. R., were on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendants-appellants Rafael L. Ignacio, Roberto Lugo Torres, ¹ and Hamilton Ramierz appeal a decision of the district court which found that they conspired together to bring about the resignations of plaintiffs-appellees Rafael Rosaly, Abraham Alvarez, Andres Alvarado Cordero, and Vincente Guzman in violation of their rights to due process of law, that the terminations were politically motivated and violated the plaintiffs' first amendment rights to political association protected by the fourteenth amendment. The complaint was brought under 42 U.S.C. §§ 1983 and 1985; jurisdiction was premised on 28 U.S.C. § 1343. ²

THE FACTS

In 1972, the incumbent New Progressive Party lost the election in Puerto Rico to the Popular Democratic Party. All four of the plaintiffs are members of the New Progressive Party and all three defendants are members of the Popular Democratic Party.

The Highway Authority, where all plaintiffs were employed, was created as a public corporation by state law in 1965. P.R. Laws Ann. tit. 9 § 2001 Et seq. In 1973, under a reorganization plan, the legislature created the Department of Transportation and Public Works to oversee the Highway Authority. P.R. Laws Ann. tit, 3, App. III §§ I-VIII. Section V abolished the Board of Directors of the Highway Authority and provided that the powers and duties of the Highway Authority were to be discharged by the Secretary of Transportation and Public Works.

Defendant Ignacio was appointed Secretary of Transportation and Public Works in 1974. In about August of 1975, Ignacio created a five person confidential committee to study the serious financial situation of the Highway Authority. This committee presented Ignacio with three alternative recommendations in mid-January of 1976, suggesting the administrative integration of the Highway Authority with the Department of Transportation and Public Works as the best option.

On February 5, 1976, Ignacio called a staff meeting of the Highway Authority announcing the integration of the Authority with the Department of Transportation and Public Works. He requested that all twenty-seven staff employees submit their resignations so that he would have flexibility in this task. The four plaintiffs complied with this request, as did the other employees. Ignacio accepted plaintiffs' resignations, along with those of three other employees, and did not reappoint them elsewhere. Plaintiffs maintained that they tendered their resignations on the understanding that they would be assigned to another post. Ignacio and several other witnesses testified that Ignacio made no guarantee to keep any of the Highway staff at the time that he requested the resignations.

Plaintiffs' action sought reinstatement to the Highway Authority as well as compensatory and punitive damages. The parties agreed to have the jury decide the issue of damages and act in an advisory capacity as to the liability issue. The district court tried all claims simultaneously and submitted special interrogatories to the jury for advisory findings. After a seven day trial, the jury returned a verdict on October 29, 1976, finding that plaintiffs were unlawfully dismissed from the Highway Authority for political reasons and that they were regular permanent employees whose termination of employment was not at the discretion of the Secretary of Transportation and Public Works, defendant Ignacio. Each plaintiff was awarded $100,000 as compensatory damages and $25,000 for punitive damages. The district court rendered its findings of fact and conclusions of law on March 31, 1978, agreeing with the jury's advisory verdict and ordering reinstatement. It Sua sponte remitted the compensatory award to $50,000 but let the award of punitive damages stand. The money judgment was stayed pending appeal, but not the injunctive relief. ³ The district court also ordered the defendants to pay plaintiffs $15,000 for attorney's fees, noting that defendants filed no objection when plaintiffs requested the award and that defendants appeared "obstinate" to the court.

Normally, we would not treat jury instructions to which as here, no specific objections were made. However, since these instructions were for advisory purposes only and thus in the nature of findings and reflected the district court's understanding of the applicable law and since there must be a new trial, we feel that comments on both the instructions and the findings are in order.

THE FIRST AMENDMENT ISSUE

In Garzaro v. University of Puerto Rico, 575 F.2d 335, 339 (1st Cir. 1978), we noted the pendency of a case before the Supreme Court which we thought might clarify the legal standard applicable to cases involving an employer's alleged retaliation for an employee's exercise of his/her first amendment rights. That case has now been decided and, in the light of Givhan v. Western Line Consolidated School District, --- U.S. ----, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), we must remand.

Givhan deals with the refusal of a school district to renew the contract of a black English teacher. She sought reinstatement on the grounds that the nonrenewal of her contract violated the rule laid down in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969), Rev'd and remanded sub nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), On remand, 425 F.2d 1211 (5th Cir. 1970), and infringed her rights of free speech secured by the first and fourteenth amendments. The district court in Givhan held that the teacher was terminated in violation of the first amendment, concluding that "the primary reason" for the school district's failure to renew her contract was her criticism of the policies and practices of the school district and the school to which she was assigned to teach. The court of appeals reversed, but the Supreme Court found that in so doing, the appellate court reached its decision under an erroneous view of the first amendment. Additionally, and of importance in the instant action, the Supreme Court held that, although the case was tried before the decision in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), in light of that case, a remand was necessary because the school district presented a permissible reason for its action in discharging the employee. The district court's finding that the teacher's criticism was the "primary" reason for the school's failure to hire her was not sufficient in the eyes of the Court. The Court explained "it (the district court) 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." Id. --- U.S. at ----, 99 S.Ct. at 697 (emphasis in original, footnote omitted). The Court's reference to the school district's "Mt. Healthy claim" was shorthand for the school district's argument that it presented legitimate, constitutionally unprotected reasons for the nonrenewal of the teacher's contract. Among the reasons proffered by the school district for not renewing Ms. Givhan's contract were her refusal to administer standardized tests to pupils, an announced intention to be uncooperative, an antagonistic attitude towards the school administration, and downgrading the papers of white students. Givhan, supra, --- U.S. at ----, nn.1 & 2, 99 S.Ct. 693.

The case before us presents a similar first amendment issue. Although the case was tried in 1976, prior to Mt. Healthy, the district court's opinion was entered subsequent to it in 1978, and we find no mention of that decision in the court's opinion or in the briefs.

The defendants maintained throughout the proceedings that the plaintiffs' terminations were necessitated by a financial crisis in the Highway Authority and were not due in any way to their political affiliation. This, then, was a Mt. Healthy claim. The court did not adequately treat this issue. It included in its findings of fact plaintiffs' compilation of employee statistics which indicated that after plaintiffs' discharges the Department of Transportation granted a number of raises Although the record is lengthy, we do not feel that it provides the proper basis for us to make the factual determination called for in Givhan, supra, --- U.S. at ----, 99 S.Ct. 693. The Givhan decision adopted the procedural guidelines set out in Mt. Healthy, supra, 429 U.S. at 287, 97 S.Ct. 568, but articulated more precisely the test to be applied. Under Givhan, the initial burden is upon plaintiffs to show that their conduct was constitutionally protected. Plaintiffs must next establish that this conduct was a "substantial factor" or a "motivating factor" in defendants' decision to discharge them from the Highway Authority.

and promotions. We acknowledge that circumstantial evidence may be used to show discriminatory motive in a patronage dismissal case. Gabriel v. Benitez, 390 F.Supp. 988, 993 (D.P.R.1975), Aff'd sub nom. Rivera Morales v. Benitez de Rexach, 541 F.2d 882 (1st Cir. 1976). However, the recital of these numbers alone does not establish conclusively a discriminatory motive, especially in light of the defendants' alleged economic justification for these increases, I. e., two of the employees who...