
USCA1 Opinion

	




                    _________________________No. 91-1712                      JANE ANTHONY, ET AL.,                     Plaintiffs, Appellees,                               v.                    BRUCE G. SUNDLUN, ET AL.,                     Defendants, Appellants.                    _________________________          APPEAL FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF RHODE ISLAND          [Hon. Francis J. Boyle, U.S. District Judge]                    _________________________                             Before                      Selya, Circuit Judge,                  Bownes, Senior Circuit Judge,                     and Cyr, Circuit Judge.                    _________________________     Casby Harrison, III, Associate Executive Counsel, Office ofthe Governor, for appellants Sundlun and Cruise.     Richard B. Woolley, Assistant Attorney General, State of RhodeIsland, for remaining appellants.     Arthur M. Read, II, with whom Gorham & Gorham, Inc. was onbrief for appellees.                    _________________________                    _________________________          SELYA, Circuit Judge.  The defendants, state officials,adamant in their refusal to recognize that discriminatory animuscan be proven circumstantially as well as by direct evidence,appeal from an order suspending the operation of terminationnotices addressed to the plaintiffs, seven seasonal stateemployees.  We affirm.          The circumstances of the case can be succinctlysummarized.          1.  In November 1990, Rhode Island's incumbent governor,a Republican, was defeated at the polls.  His successor, BruceSundlun, is a Democrat.  Governor Sundlun took office on January 1,1991.          2.  Because parimutuel wagering is permitted at theprivately-owned jai alai fronton in Newport, Rhode Island, pursuantto a state license, state employees are assigned to work there. The fronton is open on a seasonal basis.  The 1991 jai alai seasonbegan on May 2, 1991.            3.  Toward the end of April, 1991, the state hired tenpersons, including the seven plaintiffs, to fill various non-policymaking positions (e.g., parimutuel monitors, auditors, etc.)based at the fronton.  All seven plaintiffs had worked therewithout incident during the previous season.  All were Republicans.          4.  On April 26, the governor's chief of staff, R. DavidCruise (himself a Democratic state senator), demanded that thehiring agency (the Division of Racing and Athletics of the state'sDepartment of Business Regulation) furnish him a roster ofpositions at the fronton.  The list was delivered the same day.  Itenumerated thirteen positions and contained an explicit statementthat:  "All but three (3) of the positions listed above arecurrently filled."  The three vacant positions were specified.          5.  Senator Cruise, who testified that he read the listbut not the explanatory statement, immediately consulted aDemocratic general officer and a prominent Democratic staterepresentative concerning potential appointees.  On May 1, 1991,the chief of staff transmitted thirteen names to the hiring agency,denominating the job that each person was to perform at thefronton.  The plaintiffs' positions were encompassed.  Twelve ofthe newcomers were Democrats.  The thirteenth, registered as an"unaffiliated" voter, was Cruise's close personal friend.          6.  The plaintiffs were cashiered the next day, just asthe jai alai season opened.          On these, and other, facts, the district court concludedthat, apart from political spoils, it would be "difficult if notimpossible to find any other rational explanation [for thefirings]."   Applying the familiar four-part test for ascertainingwhether a preliminary injunction should be granted, see, e.g.,Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991), the court determined that interim relief was warranted. It thereupon issued a restraining order which had the effect,pending a trial on the merits, of reinstating the sacked plaintiffsto the jobs that had been snatched away from them sounceremoniously.  This appeal followed.          We linger little over the appellants' importunings.  Theparties agree that partisan political affiliation was not alegitimate requirement for the due performance of any of theaffected jobs; and that, therefore, under principles elucidated bythe Supreme Court, the plaintiffs were protected against patronagedismissals by a clearly established First Amendment right.  SeeRutan v. Republican Party of Ill., 110 S. Ct. 2729, 2737 (1990);Branti v. Finkel, 445 U.S. 507, 517-18 (1980); Elrod v. Burns, 427U.S. 347, 367-68 (1976).  The only question, then, is whether thedistrict court erred in concluding that the plaintiffs were likelyto succeed on the claim that their discharges were politicallymotivated.          Refined to bare essence, the appellants' argument seemsto be that political favoritism must be proved by direct evidence. We disagree.  Victims of heavy-handed uses of the spoils system arenot limited to redress in only those (relatively rare) instances inwhich a "smoking gun" can be produced.  To the exact contrary, wehave held, time and again, that circumstantial evidence alone cansupport a finding of political discrimination.  See, e.g., Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 14-15 (1st Cir. 1988);Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir.1987), cert. denied, 486 U.S. 1044 (1988); Rosaly v. Ignacio, 593F.2d 145, 149 (1st Cir. 1979).   Circumstantial evidence is oftenparticularly helpful when, as here, a case turns on a protean issuesuch as an actor's motive or intent.  As the Court wrote in aclosely analogous context almost half a century ago:          [W]hile objective facts may be proved          directly, the state of a man's mind must be          inferred from the things he says or does.  . .          .  [C]ourts and juries every day pass upon          knowledge, belief and intent þ the state of          men's minds þ having before them no more than          evidence of their words and conduct, from          which, in ordinary human experience, mental          condition may be inferred.American Communications Ass'n v. Douds, 339 U.S. 382, 411 (1950). The test, then, as applied to the plaintiffs' dismissals, reducesto a question of persuasiveness: does the circumstantial evidence,taken as a whole, give rise to a plausible inference ofdiscriminatory animus which, ultimately, possesses enoughconvictive force to persuade a rational factfinder that thedefendants' conduct was politically motivated?           In the case at bar, the circumstantial evidence isdamning and, consequently, the inference of discrimination isvirtually inescapable.  To start with, all the plaintiffs wereregistered Republicans.  By and large, they were replaced byDemocrats.  As the defendants asseverate, these raw numbers aloneare likely insufficient to ground a finding of patronage dismissal. See Estrada-Izquierdo, 850 F.2d at 15.  But, there was much more.          The timing itself was suggestive:  the transmogrificationoccurred on the heels of a major shift in political power.  Theevidence showed beyond peradventure that the plaintiffs werequalified for their jobs; indeed, they had performed the same worksatisfactorily during the preceding season.  They were dischargedwithin a week after they were rehired.  To this date, thedefendants have not articulated a legitimate reason for the massfirings.  Moreover, the dismissals occurred after the governor'schief of staff had inquired specifically about the jobs and hadconferred privately with two party leaders.            To be sure, Cruise testified that he had no partisanmotives.  But, what an actor says is not conclusive on a state-of-mind issue.  Notwithstanding a person's disclaimers, a contrarystate of mind may be inferred from what he does and from a factualmosaic tending to show that he really meant to accomplish thatwhich he professes not to have intended.  On this pregnant record,the district judge acted well within his province in refusing tocredit Cruise's claim of wounded innocence.  Trial judges, afterall, are not required to ignore that which is perfectly obvious orto take a witness' word for his state of mind, no matter howstrongly the circumstances point in a different direction.  And we,in turn, ought not to disturb supportable findings, based onwitness credibility, made by a trial judge who has seen and heardthe witnesses at first hand.  See Anderson v. City of BessemerCity, 470 U.S. 564, 575 (1985); Deguio v. United States, 920 F.2d103, 106 (1st Cir. 1990).          The defendants also argue that, because the evidencefails to show that Senator Cruise knew the plaintiffs or wasexplicitly aware of the plaintiffs' efforts on behalf of Republicancauses, the plaintiffs are unlikely to succeed at trial.  Thisargument is sheer sophistry.  Given the nature of the positions,the defendants' knowledge that the plaintiffs had originally beenhired by the previous (Republican) administration, the timing ofthe moves, the identities of those consulted, the lack of anylegitimate reason for ousting the incumbents, and the partisanconnections of the replacement workers, it seems disingenuous tosuggest that Cruise acted without regard to the politics of thesituation.  We do not think that liability in a politicaldiscrimination case involving non-policymaking positionsnecessarily depends on a finding that the defendants knew to acertainty that the ousted jobholders were members of the oppositionparty.  Cf., e.g., Matlock v. Barnes, 932 F.2d 658 (7th Cir.)(demotion of non-policymaking municipal employee held to beimpermissible act of political reprisal; demoting official anddemoted employee belonged to same political party, but employee hadsupported losing candidate in party primary), cert. denied, 112 S.Ct. 304 (1991).          We need go no further.  The district court, on the basisof an impressive array of circumstantial proof, determined that theplaintiffs were likely to succeed in this political discriminationsuit.  At the same time, the court determined that the otherfactors conducive to the issuance of a preliminary injunction werepresent.  Those findings pass muster on three salient levels:  asa matter of law; as a matter of evidentiary sufficiency; and as amatter of common sense.  The restraining order that ensued was anappropriate exercise of the court's discretion.Affirmed.
