Jirau-Bernal v. Agrait

• Court: Court of Appeals for the First Circuit
• Decided: September 28, 1994
• Docket: 94-1147
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                                     
                                 ____________________

        No. 94-1147

                                 HAYDEE JIRAU-BERNAL,

                                Plaintiff, Appellant,

                                          v.

                            FERNANDO AGRAIT, ETC., ET AL.,

                                Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
                                          __________________________

____________________

Cyr and Stahl, Circuit Judges,
                                           ______________

                           and Zobel,* U.S. District Judge.
                                       ___________________

____________________

Jesus Hernandez Sanchez, with whom Hernandez Sanchez Law Firm was
             _______________________            __________________________
        on brief for appellant.
             James  D. Noel  III, with  whom Ledesma,  Palou & Miranda  was on
             ___________________             _________________________
        brief for appellees.

____________________

                                  September 28, 1994
                                                     
                                 ____________________

____________________

             *Of the District of Massachusetts, sitting by designation.

CYR,  Circuit Judge.    Plaintiff  Haydee Jirau  Bernal
                    CYR,  Circuit Judge.    
                          _____________

          (Jirau) appeals  from a  district court judgment  disallowing her

          political discrimination claims against the  University of Puerto

          Rico (UPR) and  UPR officials Fernando Agrait, Jose Luis Martinez

          Pico,  Jesse Roman Toro,  and Saul Hernandez  Gaya, for allegedly

          effecting her constructive discharge  from a tenured UPR position

          in violation of the First, Fifth and Fourteenth Amendments to the

          United States  Constitution.  See  42 U.S.C.    1983 (1993).   We
                                        ___

          vacate the judgment, and remand for further proceedings.

I
                                          I

                                      BACKGROUND
                                      BACKGROUND
                                      __________

Jirau,  a known  member  of the  New Progressive  Party

          (NPP), worked for the UPR Agricultural Extension Service/Mayaguez

          for thirty years.   In 1982 she was appointed  Assistant Director

          of the UPR Home Economics and Nutrition Program, a position which

          carried a higher salary  and required her to supervise  more than

          200 UPR employees.   Following the 1984  general elections, which

          swept the  Popular Democratic Party (PDP)  into office throughout

          Puerto Rico,  defendant Fernando Agrait was  appointed UPR presi-

          dent, the first  of several key UPR posts to  be filled by promi-

          nent PDP members.  In August 1986 the UPR administration informed

          Jirau that her position as Assistant Director was to be abolished

          in an overall  reorganization of  the "inefficient"  Agricultural

          Extension Service, and  that henceforth  Jirau would  serve as  a

          Specialist in Consumer Education, which neither entailed supervi-

2

sory responsibility  nor entitled her to  the prerogatives (e.g.,
                                                                      ____

          secretary,  direct phone  line)  and salary  associated with  her

          former  position.    Shortly  after UPR  formally  abolished  the

          position  held by Jirau, Ms. Colon Hernandez, a known PDP member,

          was appointed to a newly-named position incorporating the identi-

          cal job functions.  As part and parcel of the reorganization, UPR

          "demoted" five other employees,  all NPP affiliates, and replaced

          them with PDP members.   Contemporaneously, during a conversation

          with one  of the five  demotees, defendant Hernandez  Gaya stated

          that  the new  PDP administration  "had to  select its  own team,

          loyal to the ideology of  the party in power."  As  Jirau consid-

          ered her "demotion" intolerable, she accepted early retirement in

          August 1986.

                    Jirau, and others similarly  situated, sued UPR and the

          four  individual administrators,  alleging  that the  "demotions"

          were politically motivated in  violation of their First Amendment

          rights, and had  been effected without a pre-demotion  hearing in

          violation of their procedural due  process rights under the Fifth

          and Fourteenth Amendments.  The plaintiffs sought declaratory and

          equitable  (reinstatement)  relief as  well  as compensatory  and

          punitive  damages.   After  settling with  the other  plaintiffs,

          defendants  moved for summary judgment on both Jirau claims.  The

          district court  ultimately adopted the report  and recommendation

          of a magistrate judge, concluding that Jirau had neither generat-

          ed a trialworthy issue  as to whether defendants harbored  a dis-

          criminatory animus, nor rebutted the nondiscriminatory motivation

3

alleged by defendants.   Summary judgment entered for defendants,

          and Jirau appealed. 

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

          A.   First Amendment Claim: Politically Discriminatory Demotion
          A.   First Amendment Claim: Politically Discriminatory Demotion
               __________________________________________________________

               1.   Evidence of Discriminatory Animus
               1.   Evidence of Discriminatory Animus
                    _________________________________

                    Jirau contends  that the  summary judgment must  be set

          aside because  the district court ignored  or discounted evidence

          sufficient to  generate  a trialworthy  issue as  to whether  the

          defendants harbored a discriminatory animus.  We review the grant

          of summary judgment de  novo, under the same  standards incumbent
                              __  ____

          on  the  district court,  to  determine  whether "the  pleadings,

          depositions, answers to interrogatories, and  admissions on file,

          together  with  the affidavits,  if any,  show  that there  is no

          genuine issue as to any material  fact and that the moving  party

          is  entitled to judgment as  a matter of  law."  Fed.  R. Civ. P.

          56(c);  Velez-Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874-75
                  ___________    ______________________

          (1st Cir.  1993).  We view the record evidence, and draw all fair

          inferences, in the light  most favorable to the nonmoving  party.

          Id.
          ___

                    A plaintiff asserting a political  discrimination claim

          under the First Amendment bears the preliminary burden of produc-

          ing  competent direct  or circumstantial evidence  that political

          affiliation played a "substantial" role in the adverse employment

          decision.  Ferrer  v. Zayas, 914  F.2d 309, 311 (1st  Cir. 1990).
                     ______     _____

          See  Anthony v. Sundlun, 952 F.2d 603,  605 (1st Cir. 1991).  The
          ___  _______    _______

                                          4

district court  aptly observed that mere evidence  that Jirau had

          been "demoted"    by reassignment to a nonsupervisory position at

          reduced  salary     was  insufficient evidence  of discriminatory

          animus,  because  it  is  entirely  consistent  with  defendants'

          "reorganization" defense.   However, Jirau  proffered other  cir-

          cumstantial evidence probative of possible discriminatory motiva-

          tion:  (1) all defendants were known PDP members, while Jirau and

          all  her fellow demotees were members of the opposition NPP, see,
                                                                       ___

          e.g.,  Acevedo-Diaz v.  Aponte, 1  F.3d 62,  69 (1st  Cir. 1993);
          ____   ____________     ______

          Rodriguez-Pinto  v. Tirado-Delgado,  982  F.2d 34,  40 (1st  Cir.
          _______________     ______________

          1993); Kercado-Melendez  v. Aponte-Roque, 829 F.2d  255, 264 (1st
                 ________________     ____________

          Cir.  1987), cert. denied, 486  U.S. 1044 (1988);  and (2) plain-
                       _____ ______

          tiffs'   previous  positions,  though  formally  abolished,  were

          promptly reconstituted under different titles and filled by known

          PDP  members, see, e.g., Rodriguez-Pinto,  982 F.2d at  40.  Most
                        ___  ____  _______________

          importantly, however,  Jirau proffered direct evidence  of a dis-
                                                 ______

          criminatory  motivation:   the  affidavit attesting  to defendant

          Hernandez Gaya's  statement that  the UPR administration  "had to

          select  its own  team,  loyal to  the ideology  of  the party  in

          power."   E.g.,  Acevedo-Diaz,  1 F.3d  at  69-70 n.6  (defendant
                    ____   ____________

          allegedly told plaintiff that  she was "not a person  of trust");

          Nereida-Gonzalez v.  Tirado-Delgado, 990 F.2d 701,  706 (1st Cir.
          ________________     ______________

          1993) (defendants told plaintiff  "outright" she would be demoted

          because of her NPP  affiliation); Aviles-Martinez v. Monroig, 963
                                            _______________    _______

          F.2d 2, 6-7 (1st Cir. 1992) (defendant asked plaintiff whether he

          had  met with NPP  members).  Assuming  its truth, as  we must on

5

summary judgment, see Velez-Gomez, 8 F.3d at 877, this  affidavit
                            ___ ___________

          satisfied the  threshold burden of  proof incumbent on  Jirau for

          present purposes.

                    The magistrate-judge's reliance  on Jirau's failure  to

          rebut  the reorganization  defense was  flawed.   First Amendment

          political discrimination  claims are not subject to the Title VII

          burden-shifting device.  Whereas a Title VII claimant retains the

          burden  of proof  throughout, even  after  the burden  of limited

          production has shifted  to the  Title VII defendant  to assert  a
          __________

          nondiscriminatory motivation for  the challenged  action, in  the

          First Amendment context Jirau  successfully foisted the burden of

          proof  onto these defendants simply by  meeting her own threshold
          _____

          burden  of persuasion.  See  Acevedo-Diaz, 1 F.3d  at 66-67 (con-
                                  ___  ____________

          trasting Burdine and Mt.  Healthy "burden shifting").  Defendants
                   _______     ____________

          were required to establish  the absence of a trialworthy  dispute

          as  to  whether "efficiency"  was their  only motivation  for the

          Jirau demotion.   Summary judgment would have been  warranted, in

          other  words, only if  defendants' evidentiary  proffer compelled
                                                                  _________

          the finding  that political  discrimination did not  constitute a

          "but for"  cause for  the demotion.   See id.  at 68.   Since the
                                                ___ ___

          affidavit directly evidenced a discriminatory animus at odds with

          their reorganization defense, and required credibility determina-

          tions appropriate  to  the trier  of  fact, defendants  were  not

          entitled to summary judgment. 

                    Secondly,  though Jirau  was not  required to  meet the
                                                      ________

          reorganization defense  in order  to avert summary  judgment, she

6

did so.  Notwithstanding defendants' proffer that the Agricultur-

          al Extension Service and  its directors had proven "inefficient,"

          Jirau countered with several affidavits from former UPR officials

          attesting to her efficiency, as well as the efficiency of her co-

          workers and department.   See id. at 71 (evidence  that plaintiff
                                    ___ ___

          efficiently  performed  job  may  rebut  reorganization  defense)

          (citing  cases).   Thus,  Jirau's  "rebuttal"  evidence  likewise

          generated a  credibility dispute  critical to  the reorganization

          defense and appropriate for resolution by the trier of fact.  

               2.   Evidence of "Constructive Discharge"
               2.   Evidence of "Constructive Discharge"
                    ___________________________________

                    The  defendants  nonetheless  urge  affirmance  on  the

          ground that  Jirau did not  proffer sufficient evidence  that her

          reassignment was so onerous or intolerable as to be actionable as

          a "constructive discharge."  See Levy v. FDIC,  7 F.3d 1054, 1056
                                       ___ ____    ____

          (1st  Cir. 1993)  (appellate  court may  affirm  on any  adequate

          ground, whether or  not raised  or addressed below).   We  reject

          their contention.1 

                    Defendants  contend  that   Jirau  should  be  strictly

          confined to  establishing a "constructive discharge,"  a term she

          has  used continually throughout the litigation.  Were we to hold
                              
          ____________________

               1The magistrate-judge's report notes that  Jirau's reassign-
          ment  to a  nonsupervisory position  at reduced  salary  was "not
          sufficient for a prima  facie showing of constructive discharge."
          The  context  nevertheless  belies any  interpretation  that  the
          magistrate judge purportedly assessed the adversity occasioned by
                                                    _________
          the challenged  employment action.   The quoted  statement culmi-
          nates  a lengthy  discussion on  the distinct  "political animus"
          element  of the    1983  claim, see  supra Section  II.A.1, which
                                          ___  _____
          cites no  authority pertinent to  the "adversity" matter.   Thus,
          the  district court did  not reach the  "adverse employment deci-
          sion" issue.

                                          7

Jirau  to the  rigid  nomenclature advocated  by defendants,  she

          would have to demonstrate  the heightened constitutional "injury"

          which  victims  of  patronage  discrimination  were  required  to

          establish  before our decision  in Agosto-de-Feliciano v. Aponte-
                     ______                  ___________________    _______

          Roque, 889 F.2d  1209 (1st  Cir. 1989) (patronage  claims may  be
          _____

          actionable  for employment  decisions short of  "discharge"), and

          the  Supreme  Court's decision  in Rutan  v. Republican  Party of
                                             _____     ____________________

          Illinois,  497 U.S.  62 (1990)  (patronage  claims may  extend to
          ________

          hiring, promotions,  transfers, and recalls).2   From the outset,

          however, Jirau simultaneously  characterized the challenged  1986

          employment decision as a "demotion," an adverse employment action

          implicating  both the Agosto and Rutan  paradigms, and included a
                                ______     _____             ___

          copy of Rutan in her opposition to defendants' motion for summary
                  _____

          judgment.  The defendants therefore  cannot contend that they  or

          the magistrate judge were not fairly alerted to the intendment of

          the terms "constructive discharge"  and "demotion."  Moreover, we

          have been  particularly loathe to hold  First Amendment political

          discrimination claims  forfeit on such insubstantial  bases.  See
                                                                        ___

          Balaguer-Santiago v. Torres-Gaztambide, 932 F.2d 1015, 1016  (1st
          _________________    _________________

          Cir. 1991).   Finally,  the evidence  that Jirau  was transferred

          from a position with supervisory responsibility for more than 200

          employees, to a nonsupervisory  position carrying a lower salary,

          surely generated  a trialworthy  issue as to  whether defendants'

____________________

               2Since the individual defendants have not asserted qualified
                          __________
          immunity, see Aviles-Martinez, 963  F.2d at 6 (pre-Agosto employ-
                    ___ _______________                      ______
          ment actions generally must  rise to the level of  "discharge" to
          avert qualified immunity), we do not consider it. 

                                          8

adverse  employment decision  constituted an  actionable demotion

          under  either Agosto or Rutan.  See Nereida-Gonzalez, 990 F.2d at
                        ______    _____   ___ ________________

          702-03,  706  (holding that  similar demotion  to nonsupervisory,

          lower-paying  position generated  triable issue);  Rivera-Ruiz v.
                                                             ___________

          Gonzalez-Rivera, 983 F.2d 332, 334, 335 (1st Cir. 1993) (same). 
          _______________

B.   Fifth Amendment Claim:  Denial of Pre-demotion Hearing
          B.   Fifth Amendment Claim:  Denial of Pre-demotion Hearing
               ______________________________________________________

                    Lastly,  Jirau insists that  her procedural due process

          claim  was improperly  disallowed notwithstanding  competent evi-

          dence that she  was denied  a pre-demotion hearing  and that  her

          assistant directorship constituted a cognizable property interest

          under Puerto Rico law.  See Cleveland Bd. of Educ. v. Loudermill,
                                  ___ ______________________    __________

          470 U.S. 532, 538 (1985).  We agree.

                    The   magistrate-judge's   report  and   recommendation

          apparently  assumed, incorrectly,  that what  was perceived  as a

          failure on  Jirau's part  to adduce  sufficient evidence  of dis-

          criminatory  animus would  warrant dismissal  of her  due process

          claim as well.  Jirau would be entitled to a pre-demotion hearing

          were she to  establish that  she held a  "property right" to  her

          assistant  directorship position,  see Cotnoir  v. University  of
                                             ___ _______     ______________

          Maine Systs., ___  F.3d ___,  ___ (1st Cir.  1994) [No.  94-1113,
          ____________

          slip op. at 9 (1st Cir. Sept. 13, 1994)], an issue not reached by

          the district court.  We therefore vacate the summary judgment and

          remand  for further proceedings on the due process claim as well.

          See Nereida-Gonzalez, 990 F.2d at 706-07. 
          ___ ________________

                    The district court judgment is vacated and the  case is
                    The district court judgment is vacated and the  case is
                    _______________________________________________________

          remanded for further proceedings consistent with this opinion.
          remanded for further proceedings consistent with this opinion.
          _____________________________________________________________

                                          9