
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
