Rodriguez-Rios v. Cordero

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 97-1491



                   CARMEN M. RODRIGUEZ-RIOS, ET AL.,



                        Plaintiffs, Appellants,



                                  v.



                      MIGUEL A. CORDERO, ET AL.,



                        Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF PUERTO RICO



            [Hon. Jos‚ Antonio Fust‚, U.S. District Judge]


Before



                        Torruella, Chief Judge,



                      Cyr, Senior Circuit Judge,



and DiClerico, District Judge.


Carlos Del Valle Cruz for appellants.

     Benicio Sanchez-La Costa, with whom Jorge Rodriguez-Micheo,

Goldman Antonetti & Cordova, Sigfredo Rodriguez-Isaac, Assistant

Attorney General, Department of Justice, Carlos Del Valle-Cruz and

Lespier & Munoz Noya were on brief for appellees.


March 12, 1998

                                                       CYR, Senior Circuit Judge.  Plaintiff Carmen Rodriguez-

Rios, along with her husband and their conjugal partnership, appeal

from a district court judgment rejecting her political

discrimination claims against various executives and managers

employed at the Puerto Rico Electric Power Authority ("PREPA") who

demoted Rodriguez, due allegedly to her political affiliation.  We

vacate the district court judgment and remand for further

proceedings.

                               I

BACKGROUND

          Plaintiff, a longtime activist in the Popular Democratic

Party ("PDP"), served as Executive Secretary to both the Chief of

Staff of the Governor of Puerto Rico and the Secretary of State

while the PDP held sway in the Commonwealth of Puerto Rico between

1985 and 1990.  Plaintiff commenced her employment with the Human

Resources Department at PREPA in 1990 and became its Coordinator of

Eligible Personnel Affairs on July 5, 1992.

          Shortly after Pedro Rossell¢ of the opposition New

Progressive Party ("NPP") was elected Governor of Puerto Rico on

November 4, 1992, he appointed a fellow NPP member, defendant

Miguel Cordero, as Executive Director of PREPA.  Cordero in turn

appointed the other named defendants, all NPP members, to

managerial positions in the Human Resources Department.

          Following the new NPP appointments, plaintiff was

assigned employment duties theretofore performed by persons holding

employment classifications well below the M-IV level in which

plaintiff continued to be classified.  Ultimately, on July 29,

1994, defendant Eckart, the PREPA Personnel Director, formally

demoted plaintiff to Confidential Secretary I (M-I level),

Warehouse Section, Administrative Services Department, Supplies

Division, ostensibly pursuant to a Human Resources Department

reorganization orchestrated by defendant Verge under the direction

of defendant Cordero.

          On March 14, 1995, plaintiff, her husband and their

conjugal partnership filed the present action in which plaintiff

alleged that defendants had demoted her based solely on her PDP

affiliation.  See 42 U.S.C.  1983.  For their part, plaintiff's

husband and the conjugal partnership invoked the supplemental

jurisdiction of the district court, see 28 U.S.C.  1367(a), and

alleged violations of their derivative rights under Puerto Rico

law, see P.R. Laws Ann. tit. 31,  5141, resulting from the alleged

political discrimination against plaintiff in violation of P.R.

Laws Ann. tit. 29,  136, 140, 146.  See Nieves Domenech v. Dymax

Corp., 952 F. Supp. 57, 66 (D.P.R. 1996); see also Santini Riverav. Serv Air, Inc., 94 J.T.S. 121 (1994).

          The defendants were awarded summary judgment on the

ground that the challenged demotion had been effected pursuant to

a bona fide reorganization.  The commonwealth-law claims brought by

the husband and conjugal partnership were dismissed, apparently due

to lack of standing to sue under section 1983.

                               II

DISCUSSION

A.   Political Discrimination

          In political discrimination cases, nonpolicymaking

employees have the threshold burden to produce sufficient direct or

circumstantial evidence from which a rational jury could find that

political affiliation was a substantial or motivating factor behind

the adverse employment action.  See Larou v. Ridlon, 98 F.3d 659,

661 (1st Cir. 1996); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st

Cir. 1993).  At that point the employer must articulate a

nondiscriminatory basis for the adverse employment action and prove

by a preponderance of the evidence that it would have been taken

without regard to plaintiff's political affiliation.  See Larou, 98

F.3d at 661; see also Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977).

          The plaintiff attested, without evidentiary

contradiction, that her PDP affiliation was widely known and that

the defendants were prominent members of the opposition NPP.  See,

e.g., supra at p. 2.  The district court nevertheless concluded, in

reliance on Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49 (1st

Cir. 1990), that the politically charged atmosphere at PREPA,

without more, did not demonstrate a direct causal link between

plaintiff's PDP affiliation and her demotion.

          Our affirmance of the district court ruling in Correa-

Martinez was explained as follows:

          The complaint did not say that plaintiff

          possessed, or expressed, any significant

          political views; indeed, implicit in

          plaintiff's arguments is the suggestion that

          he, himself, scrupulously avoided partisan

          political involvement. . . . [The complaint]

          did not maintain that defendants knew anything

          about plaintiff's politics or that their

          motivation related in the slightest to

          plaintiff's exercise of any first amendment or

          other constitutionally protected right.



Id. at 57-58 (emphasis added) (footnote omitted).  In contrast,

here the plaintiff alleged in her complaint and proffered competent

evidence that the defendants were NPP activists who were well aware

that she was a prominent PDP activist.

          Although a highly charged political atmosphere alone

cannot support an inference of discriminatory animus, "'[a] highly

charged political atmosphere' . . ., coupled with the fact thatplaintiffs and defendants are of competing political persuasions,

may be probative of discriminatory animus."  Acevedo-Diaz, 1 F.3d

at 69 (emphasis added).  Thus, unlike in Correa-Martinez, but just

as noted in Acevedo-Diaz, here "[a] jury reasonably could have

concluded that [plaintiff] . . . [was a] conspicuous target[] for

political discrimination."  Id.  Therefore, even standing alone

such circumstantial evidence "would give us serious pause."  Id. 

But there was more.

          Viewed in the light most favorable to plaintiff, seeLarou, 98 F.3d at 660 n.1, other evidence adduced by plaintiff

established a prima facie case of political discrimination.  For

example, plaintiff adduced evidence that every employment task for

which she had been responsible prior to her demotion was performed

thereafter by an NPP member and that at least three new recruits to

the Human Resources Department were NPP members, whereas there is

no evidence that any new recruit was a PDP member.  Moreover, the

summary judgment record reflects that the putative reorganization

witnessed seven PDP-member demotions, with no evidence that any NPP

member was either demoted or discharged.

          The district court ruled this evidence immaterial,

explaining that "this case does not directly concern other parties

outside those in the caption . . . ."  However, as we pointed out

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

1993), and in Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 40

(1st Cir. 1993), given similar evidentiary showings it is for the

jury to determine whether the defendants were motivated by a

discriminatory animus.  Since there can be no serious question that

the aforementioned circumstantial evidence, viewed in the light

most favorable to plaintiff, established a prima facie case that

she had been demoted due to her political affiliation, see id., we

now consider the nondiscriminatory motivations relied upon by the

defendants.

          The defendants were required to prove by a preponderance

of the evidence that their challenged employment actions were

prompted by legitimate, nondiscriminatory motives.  At this point

"the plaintiff-employee will prevail unless the fact finder

concludes that the defendant has produced enough evidence to

establish that the plaintiff's [demotion] would have occurred in

any event for nondiscriminatory reasons."  Acevedo-Diaz, 1 F.3d at

67.

          The defendants ventured that the demotion was due to a

bona fide reorganization at PREPA.  The district court accepted

their contention that the PREPA labor force had become "extremely

bloated" and that defendant Verge, who managed the reorganization,

had not even known the plaintiff personally.  In addition, the

court correctly noted that the position formerly held by plaintiff

required a bachelor's degree, which she lacked.

          Plaintiff responded that the bachelor's degree

requirement had been waived for at least one NPP member recruited

to the Human Resources Department around the time she was demoted. 

Further, she pointed out ÄÄ and defendants do not dispute ÄÄ that

the reorganization relied upon by defendants had not been

authorized by the PREPA Governing Board.  Although defendant

Cordero concedes that no other reorganization plan has ever been

undertaken without Governing Board approval, he maintains that the

PREPA by-laws did not require that this reorganization receive

Governing Board approval.  Yet neither Cordero nor any other

defendant proffered a copy of the PREPA by-laws or pointed to

language in the by-laws supporting this contention.

          The district court engaged in impermissible factfinding

at this point by concluding that plaintiff's demotion was simply

the neutral byproduct of a bona fide reorganization.  The evidence

revealed that the so-called reorganization, in its entirety,

consisted of (i) defendant Cordero's request that defendant Verge

evaluate the functions of the Human Resources Directorate in order

to determine the need for its various services; (ii) defendant

Verge's subsequent recommendations to Cordero as to which services

were to be eliminated and the individual employees who were to be

demoted or discharged as a result; and (iii) Cordero's subsequent

approval of every recommendation made by Verge, without further

action or review by any higher authority in PREPA.

          Furthermore, even assuming the challenged employment

action constituted a "reorganization," its motivation remained very

much in question, especially since ÄÄ unlike all previous

reorganization plans at PREPA ÄÄ it was never reviewed or approved

by the Governing Board.  Instead, the reorganization plan

memorandum was simply marked "Confidential and Privileged."

          Absent record evidence to substantiate the asserted

nondiscriminatory motive for bypassing the PREPA Governing Board

before proceeding with the "reorganization" plan, a rational

factfinder reasonably could infer that defendants' true purpose was

political discrimination.  See Woodman v. Haemonetics Corp., 51

F.3d 1087, 1092 (1st Cir. 1995) ("Where the elements of a

sufficient prima facie case combine with the factfinder's belief

that the ostensible basis for [demoting an] employee was

pretextual, . . . the factfinder is permitted to infer . . .

intentional [political] discrimination . . . .").

          Finally, it seems reasonably clear, as the district court

observed, that the PREPA labor force was bloated.  For example, the

NPP report which prompted defendant Cordero to launch the

reorganization plan stated:

               The number of employees [at PREPA] has

          increased alarmingly.  As of January 1985

          [i.e., when the PDP took over power in Puerto

          Rico], [PREPA] had 8,472 employees, equivalent

          to 1 employee for every 125 subscribers.  In

          1991, the number of employees had increased to

          10,616 or 1 employee for every 110

          subscribers.  This excess of employees imposes

          an unbearable burden on the finances of

          [PREPA].  (Emphasis added).



Nevertheless, defendants have not explained or demonstrated how the

bloating in the 10,000-plus PREPA labor force was addressed by

plaintiff's demotion and transfer to a different department in

PREPA, as distinguished from her discharge.

          At the very least, therefore, the proffered justification

for her demotion lacked conclusive force, especially since the

defendants point to no record support for an inference that her

demotion materially reduced the cost of operating the Human

Resources Directorate.  Moreover, particularly in light of the

uncontested evidence that twenty new recruits were hired by the

Human Resources Department during the reorganization, none of whom

were shown to have been PDP members, we can discern no rational

record basis for concluding that the putative reorganization was

motivated by cost savings.

          Accordingly, we are unable to agree that the evidence

proffered by the defendants compelled a finding that plaintiff was

demoted for nondiscriminatory reasons, see Jirau-Bernal v. Agrait,

37 F.3d 1, 4 (1st Cir. 1994) ("Summary judgment [is] warranted . .

. only if defendants' evidentiary proffer compel[s] the finding

that political discrimination did not constitute a 'but for' cause

for the demotion."), since a reasonable jury certainly could infer

that the so-called "reorganization" was a pretext for relegating

plaintiff to a less "sensitive" position in PREPA due to her

affiliation with the opposition PDP.

B.   The Commonwealth-Law Claims

          Plaintiff's husband and the conjugal partnership asserted

derivative claims under Puerto Rico law, see Nieves Domenech v.

Dymax Corp., 952 F. Supp. 57, 66 (D.P.R. 1996); P.R. Laws Ann. tit.

31,  5141, which were dismissed because plaintiff's discrimination

claims under section 1983 were deemed deficient.  Since the section

1983 claims must be reinstated, so must the commonwealth-law

claims.  See Rodriguez v. Comas, 888 F.2d 899, 905 (1st Cir. 1989)

(holding that federal district court may exercise pendent

jurisdiction over state-law claims of  1983 plaintiff's spouse,

provided the claims share a common nucleus of operative fact with

the section 1983 claims).

          The district court judgment is vacated and the case is

remanded for further proceedings consistent with this opinion. 

Costs are awarded to appellants.

          SO ORDERED.