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

_______________________
__________________________
on brief for appellant.
James D. Noel III, with whom Ledesma, Palou & Miranda was
___________________
_________________________
brief for appellees.
____________________
September 28, 1994
____________________

____________________
*Of the District of Massachusetts, sitting by designation.

CYR,
CYR,
(Jirau) appeals

Circuit Judge.
Circuit Judge.
_____________
from a

Plaintiff

district court judgment

political discrimination claims against the

Rico (UPR) and
Pico,

Haydee Jirau

Bernal

disallowing her

University of Puerto

UPR officials Fernando Agrait, Jose Luis Martinez

Jesse Roman Toro,

and Saul Hernandez

effecting her constructive discharge

Gaya, for allegedly

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
200 UPR employees.
swept the

and required her to supervise

Following the 1984

general elections, which

Popular Democratic Party (PDP)

Puerto Rico,

into office throughout

defendant Fernando Agrait was

dent, the first

of several key UPR posts to

nent PDP members.

more than

appointed UPR presi-

be filled by promi-

In August 1986 the UPR administration informed

Jirau that her position as Assistant Director was to be abolished

in an overall

reorganization of

Extension Service, and

the "inefficient"

that henceforth

Jirau would

Agricultural
serve as

Specialist in Consumer Education, which neither entailed supervi2

sory responsibility
secretary,
former

nor entitled her to

direct phone

position.

position

line)

Shortly

the prerogatives (e.g.,

____

and salary

after UPR

associated with

formally

abolished

her

the

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

was appointed to a newly-named position incorporating the identical job functions.

As part and parcel of the reorganization, UPR

"demoted" five other employees,

them with PDP members.
with one
that

of the five

the new

all NPP affiliates, and replaced

Contemporaneously, during a conversation

demotees, defendant Hernandez

PDP administration

loyal to the ideology of

"had to

Gaya stated

select its

the party in power."

As

own team,

Jirau consid-

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

August 1986.
Jirau, and others similarly
four

individual administrators,

were politically motivated in

rights, and had

situated, sued UPR and the

alleging

that the

"demotions"

violation of their First Amendment

been effected without a pre-demotion

violation of their procedural due

hearing in

process rights under the Fifth

and Fourteenth Amendments.

The plaintiffs sought declaratory and

equitable

relief as

punitive
defendants

(reinstatement)
damages.

After

well

settling with

as compensatory
the other

plaintiffs,

moved for summary judgment on both Jirau claims.

district court

ultimately adopted the report

and

The

and recommendation

of a magistrate judge, concluding that Jirau had neither generated 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.
A.

First Amendment Claim: Politically Discriminatory Demotion

First Amendment Claim: Politically Discriminatory Demotion
__________________________________________________________
1.
1.

Evidence of Discriminatory Animus

Evidence of Discriminatory Animus
_________________________________
Jirau contends

that the

summary judgment must

aside because

the district court ignored

sufficient to

generate

a trialworthy

be set

or discounted evidence

issue as

to whether

the

defendants harbored a discriminatory animus.

We review the grant

of summary judgment de
__

standards incumbent

on

the

district court,

novo, under the same

____
to

determine

whether "the

depositions, answers to interrogatories, and

together

with

the affidavits,

if any,

show

pleadings,

admissions on file,
that there

is no

genuine issue as to any material

is

entitled to judgment as

56(c);

fact and that the moving

a matter of

law."

Fed.

party

R. Civ. P.

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 producing

competent direct

or circumstantial evidence

that political

affiliation played a "substantial" role in the adverse employment

decision.
See
___

Ferrer
______

v. Zayas, 914
_____

F.2d 309, 311 (1st

Anthony v. Sundlun, 952 F.2d 603,

_______
_______

Cir. 1990).

605 (1st Cir. 1991).

The

district court
been "demoted"
reduced

salary

animus,

because

aptly observed that mere evidence

that Jirau had

by reassignment to a nonsupervisory position at

was
it

is

"reorganization" defense.

insufficient evidence
entirely

consistent

However, Jirau

of discriminatory
with

defendants'

proffered other

cir-

cumstantial evidence probative of possible discriminatory motivation:

all

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

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

___

e.g.,
____

Acevedo-Diaz v.
____________

Rodriguez-Pinto
_______________

Aponte, 1
______

v. Tirado-Delgado,
______________

1993); Kercado-Melendez
________________
Cir.

previous

982

69 (1st

F.2d 34,

positions,

U.S. 1044 (1988);

though

formally

Cir. 1993);
40 (1st

v. Aponte-Roque, 829 F.2d

____________

1987), cert. denied, 486

_____ ______

tiffs'

F.3d 62,

Cir.

255, 264 (1st

and (2) plainabolished,

were

promptly reconstituted under different titles and filled by known

PDP

members, see, e.g., Rodriguez-Pinto,

___ ____ _______________

importantly, however,
criminatory

select
power."

its own
E.g.,
____

the

affidavit attesting

statement that
team,

allegedly told plaintiff that

the ideology
1 F.3d

to defendant

69-70 n.6

Tirado-Delgado, 990 F.2d 701,

______________

"had to

the party

she was "not a person

1993) (defendants told plaintiff

because of her NPP

at

of

Most

of a dis-

the UPR administration

loyal to

Acevedo-Diaz,
____________

Nereida-Gonzalez v.
________________

40.

Jirau proffered direct evidence

______

motivation:

Hernandez Gaya's

982 F.2d at

in

(defendant

of trust");

706 (1st Cir.

"outright" she would be demoted

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
5

its truth, as

we must on

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

___ ___________

affidavit

satisfied the

Jirau for

threshold burden of

proof incumbent on

present purposes.
The magistrate-judge's reliance
rebut

the reorganization

defense was

on Jirau's failure

flawed.

to

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

production has shifted

__________

to the

proof
_____
burden

the challenged

See
___

to assert

action, in

as

to

whether "efficiency"

Jirau demotion.
other

Acevedo-Diaz, 1 F.3d
____________

the

at 66-67 (con-

Defendants

the absence of a trialworthy

was their

only motivation

Summary judgment would have been

words, only if

meeting her own threshold

trasting Burdine and Mt. Healthy "burden shifting").

_______
____________
were required to establish

of limited

successfully foisted the burden of

onto these defendants simply by

of persuasion.

the burden

Title VII defendant

nondiscriminatory motivation for

First Amendment context Jirau

after

defendants' evidentiary

dispute

for the

warranted, in

proffer compelled

_________
the finding
"but for"

that political
cause for

discrimination did not

the demotion.

See id.
___ ___

constitute a

at 68.

Since the

affidavit directly evidenced a discriminatory animus at odds with

their reorganization defense, and required credibility determinations appropriate

to

the trier

of

fact, defendants

were

not

entitled to summary judgment.

Secondly,

though Jirau

reorganization defense

in order

was not

required to
________

to avert summary

meet the

judgment, she

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 coworkers and department.
efficiently
(citing

performed

cases).

generated a

Thus,

See id. at 71 (evidence

___ ___
job

may

Jirau's

credibility dispute

rebut

that plaintiff

reorganization

"rebuttal"
critical to

evidence

defense)

likewise

the reorganization

defense and appropriate for resolution by the trier of fact.

2.
2.

Evidence of "Constructive Discharge"

Evidence of "Constructive Discharge"
___________________________________
The

ground that

defendants

nonetheless

Jirau did not

urge

affirmance

proffer sufficient evidence

on

the

that her

reassignment was so onerous or intolerable as to be actionable as

a "constructive discharge."
(1st

Cir. 1993)

See Levy v. FDIC,

___ ____
____

(appellate

ground, whether or

not raised

court may

affirm

7 F.3d 1054, 1056

on any

or addressed below).

adequate
We

reject

their contention.1
Defendants
confined to
has

contend

that

Jirau

should

establishing a "constructive discharge,"

used continually throughout the litigation.

be

strictly

a term she

Were we to hold

____________________

1The magistrate-judge's report notes that Jirau's reassignment 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 culminates 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 decision" issue.
7

Jirau

to the

rigid

nomenclature advocated

would have to demonstrate

which

victims

establish

of

actionable
the

for employment

Supreme

Illinois,
________

patronage

1209 (1st

hiring, promotions,

discrimination

were

decisions short of

62 (1990)

in Rutan
_____

to

claims may

be

"discharge"), and

v. Republican Party of
____________________

(patronage

claims may

transfers, and recalls).2

however, Jirau simultaneously

required

in Agosto-de-Feliciano v. Aponte___________________
_______

Cir. 1989) (patronage

Court's decision

497 U.S.

she

the heightened constitutional "injury"

before our decision

______

Roque, 889 F.2d

_____

by defendants,

extend to

From the outset,

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"
have been

and "demotion."

particularly loathe to hold

discrimination claims

Moreover, we

First Amendment political

forfeit on such insubstantial

bases.

Balaguer-Santiago v. Torres-Gaztambide, 932 F.2d 1015, 1016

_________________
_________________
Cir. 1991).

Finally,

the evidence

that Jirau

See
___

(1st

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
under

employment decision

constituted an

either Agosto or Rutan.

______
_____

702-03,

706

lower-paying

(holding that

See Nereida-Gonzalez, 990 F.2d at

___ ________________

similar demotion

position generated

actionable demotion

to nonsupervisory,

triable issue);

Rivera-Ruiz v.
___________

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

Fifth Amendment Claim: Denial of Pre-demotion Hearing

Fifth Amendment Claim: Denial of Pre-demotion Hearing
______________________________________________________
Lastly,

claim

Jirau insists that

was improperly

dence that she

her procedural due process

disallowed notwithstanding

was denied

a pre-demotion hearing

competent eviand 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).

The

We agree.

magistrate-judge's

apparently

assumed, incorrectly,

failure on

Jirau's part

criminatory

animus would

claim as well.
were she to
assistant

to adduce

report

and

that what

recommendation

was perceived

sufficient evidence

warrant dismissal

of her

as a

of dis-

due process

Jirau would be entitled to a pre-demotion hearing

establish that

she held a

directorship position,

Maine Systs., ___

____________

F.3d ___,

"property right" to

see Cotnoir
___ _______

___ (1st Cir.

her

v. University of
______________

1994) [No.

94-1113,

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

We therefore vacate the summary judgment and

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