Tejada-Batista v. Fuentes-Agostini

United States Court of Appeals
For the First Circuit
No. 03-1841

BERNABÉ TEJADA-BATISTA,

Plaintiff, Appellee,

v.

LYDIA MORALES, Individually and in her respective official
capacity; DOMINGO ÁLVAREZ, Individually and in his respective
official capacity,

Defendants, Appellants.
__________

JOSÉ A. FUENTES-AGOSTINI, Individually and in his capacity as
Secretary of Justice of the Commonwealth of Puerto Rico; ERNESTO
FERNÁNDEZ, Individually and in his respective official capacity;
ANTONIO FRANCO, Individually and in his respective official
capacity; CRISTÓBAL IRRIZARY, Individually and in his respective
official capacity; JOHN DOE, 97CV1430, Individually and in his
respective official capacity; and MIGUEL GIERBOLINI,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Justo Arenas, U.S. Magistrate Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Carter,* Senior District Judge.

*
Of the District of Maine, sitting by designation.
 Camelia Fernández-Romeu, Office of the Solicitor General of
the Commonwealth of Puerto Rico, Department of Justice, with whom
Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth Pamias-
Vázquez, Deputy Solicitor General, were on brief for appellants.
Irma R. Valldejuli for appellee.

September 20, 2005
 BOUDIN, Chief Judge. In the district court, the

plaintiff Bernabé Tejada Batista (“Tejada”) recovered damages

against two of his superiors in the Puerto Rico Justice Department

(“PRJD”) for instigating Tejada’s discharge in violation of his

First Amendment rights. The underlying events are easily

described; the complications arise out of governing legal doctrine.

In 1987, Tejada began working as a law enforcement agent

in the Special Investigations Bureau (“the bureau”) of the PRJD.

After other stints, Tejada was assigned in 1995 to the bureau’s

organized crime division, where he operated undercover,

infiltrating Dominican drug trafficking rings. According to

Tejada’s later testimony, he came to be troubled by certain

"irregularities”: drug busts called off on the eve of arrest,

without explanation; misuse of funds by another agent; and shady

dealings by a government informant named Ivan Merced.

Tejada reported these concerns to Antonio Franco (his

supervisor) and to the two higher officials later held liable to

Tejada in this case: Domingo Alvarez (division head) and Lydia

Morales (bureau director). No action was taken in response to his

complaints. Worse still, a trafficker named Hernandez told Tejada

that Merced had disclosed to gang members Tejada’s identity as an

undercover officer. When Tejada so advised Franco, Franco

threatened to discipline Tejada for speaking to Hernandez without

authorization.

-3-
 Thereafter, a hit man whom Tejada had helped put in

prison was released and, Tejada believed, began to search for

Tejada. Fearing for his family’s safety and his own, Tejada asked

Franco for a transfer out of his division. Tejada then wrote to

Morales, setting forth his complaints about Merced, the threat the

latter posed to investigations, and the threat posed by the hit

man.

Morales responded by transferring Tejada into what Tejada

described as a dead-end job at bureau headquarters, one that often

left him without any work to do. After receiving a number of

threatening phone calls at his home, Tejada contacted Franco and

Alvarez, who did not respond to his concerns. In May 1996, Tejada

was activated for National Guard duty; Morales accused him of

abusing military leave and withheld his pay. Eventually, in

January 1997, Tejada moved his family to Florida at his own

expense.

In December 1996, Tejada, while still on leave, spoke

with a reporter for the El Vocero newspaper; on December 10, a

short article appeared, entitled "S.I.B. Director and Assistant

Denied Agent Transfer Although His Life Was in Danger." The next

day, another appeared with the title, "Domingo Alvarez of the

S.I.B. Forbids Arrest in Drug Transactions." The articles touched

on the problems Tejada had complained of internally; each cited

Tejada as a source.

-4-
 The first short article, in substance, reported that

Morales and Alvarez failed to protect Tejada despite threats on his

life; that when he was transferred, it was only to an "inoperative

section"; that Alvarez quashed another agent's complaint by

threatening a transfer like Tejada's; and that Tejada had no

regular car to use while at his new job, since the bureau

prohibited agents from using their private cars and claimed that

there were insufficient cars available.

The second article alleged that Alvarez once suddenly and

without explanation cancelled an imminent drug bust. It also said

that a certain "Ivan Rodriguez"--a disguised name for the informant

Ivan Merced--had blown Tejada's cover, "ruined" expensive

investigations, was "negotiating drug transactions" without

authorization from the bureau, and "was working for the Bureau and

for the underworld." It described one investigation involving

Merced as follows (in translation):

[Tejada] alleges that the confidant ruined an
investigation in which a 50 kilos (which is
valued at about $250,000) transaction was
going to be made and "which was going great
and overnight it was ruined."

On the day the second article appeared, Alvarez sent

Morales a memorandum recommending Tejada's discharge on the basis

of his leaks, saying that they endangered both an investigation

that was "still open" and the life of the informant. The next day,

Alvarez wrote another memorandum to Morales, again recommending

-5-
discharge--this time prompted (supposedly) by an anonymous tip

saying that Tejada had, in 1993, been convicted of domestic abuse.

Whether Alvarez had earlier known of the conviction was disputed.

The 1993 conviction, which occurred while Tejada was on

military leave, resulted from Tejada’s hitting his wife, but it had

been formally expunged by court order when Tejada completed a

rehabilitation or "diversion" program. Alvarez's memorandum to

Morales mentions the diversion program, but not that its completion

entailed erasure of Tejada's conviction (even though he later

testified that he knew diversion entailed expungement).

Morales, who was stepping down as bureau director, passed

both of Alvarez's memoranda--one about the leaks, the other about

the past conviction--to the incoming acting director (Morales’s own

former deputy), Miguel Gierbolini. On February 4, 1997, Gierbolini

recommended to the newly appointed Secretary of Justice, José

Fuentes Agostini, that Tejada be discharged for the 1993 domestic

violence conviction on the ground that someone with this record

should not be a police agent.

Fuentes signed Tejada's termination papers on February

27, 1997; Tejada, still on military leave, learned of this in early

March, and an informal agency hearing was held on November 17,

1997. The hearing officer recommended discharge because the

conduct leading to Tejada’s conviction represented, in violation of

the bureau's regulations, "improper behavior or [behavior] damaging

-6-
to the good name of the agency or the Government of Puerto Rico"

and "commission of acts for which is charged or may be charged a

felony or misdemeanor crime."

Tejada brought suit in federal district court, seeking

damages and injunctive relief under section 1983, 42 U.S.C. § 1983

(2000), for violation of his First Amendment rights. Named as

defendants were Fuentes, Morales, Alvarez, Gierbolini, Franco, two

other supervisors named Cristobal Irrizary and Ernesto Fernández,

and an unnamed PRJD employee. Defense motions for summary judgment

based on qualified immunity were denied, but the court eventually

dismissed the claims against Fuentes, Fernández, and Irrizary for

lack of evidence to support liability.

In dismissing the claim against Fuentes, the judge said

that the evidence was insufficient as to motive, as it "point[ed]

to" a "very valid, nondiscriminatory reason." He later explained

in a written opinion:

Nothing in the plaintiff's evidence
established that [Secretary] Fuentes
Agostini's motivation for signing the
termination letter was in any way related to
the publication of the newspaper articles or
plaintiff's denouncement of corruption.

Instead, the evidence showed that Fuentes had merely "signed the

termination letter adopting a recommendation" based on Tejada’s

prior conviction.

As to the remaining defendants, the judge wrote that

"[t]here is sufficient evidence . . . from which a reasonable trier

-7-
of fact could find in favor of plaintiff." He noted Tejada's

internal complaints of corruption, appellants’ inaction, the timing

of Alvarez's memoranda, the possibility that Alvarez had long known

of the conviction, and Morales' role in forwarding the memoranda to

Gierbolini. In other words, the judge thought that their motive

could be deemed retaliatory.

On February 27, 2003, after a four-day trial, the jury

returned a verdict against Morales and Alvarez, assessing damages

of $125,000 for Tejada's lost income. The district court denied

post-trial motions for judgment in favor of the defendants, a new

trial, and remittitur. Morales and Alvarez now appeal, contesting

both the verdict against them and the amount of damages.

The appeal implicates several different bodies of court-

created law, beginning with the cause of action itself. Although

the section 1983 cause of action is statutory, the substance of the

claim here derives from Supreme Court precedents construing the

First Amendment. In a nutshell, the Pickering/Connick line of

decisions forbids officials from firing an employee for “protected

speech” unless under a balancing test the governmental interests

outweigh the need for protection.1

1
See Pickering v. Bd. of Educ. of Township High Sch. Dist.
205, 391 U.S. 563, 564, 88 S.Ct. 1731, 1732-33, 20 L.Ed.2d 811
(1968); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 281-82, 97 S.Ct. 568, 573-74, 50 L.Ed.2d 471 (1977); Givhan v.
Western Line Consol. Sch. Dist., 439 U.S. 410, 411-13, 99 S.Ct.
693, 694-95, 58 L.Ed.2d 619 (1979); Connick v. Myers, 461 U.S. 138,
140-41, 103 S.Ct. 1684, 1686-87, 75 L.Ed.2d 708 (1983); Board of

-8-
 The claim thus turns in the first instance on the nature

of the speech, the balancing of interests, and the motivation for

the firing. In this instance, the defendants concede for purposes

of this appeal that Tejada’s “speech”–-his disclosures to the

reporter–-was at least in part protected speech under the governing

case law. The disclosures, indeed, involved alleged serious

mismanagement and possible corruption in the bureau, see Guilloty

Perez v. Pierluisi, 339 F.3d 43, 52-53 (1st Cir. 2003), and they

occurred only after Tejada had properly sought relief through

internal complaints, cf. Wagner v. City of Holyoke, 404 F.3d 504,

508 (1st Cir. 2005) (per curiam).

The “balancing”--ordinarily a question of law for the

court--is a much closer question. The defendants argue that Tejada

potentially endangered the life of an informant (Ivan) and could

have jeopardized ongoing investigations. This solicitude may

appear to contrast with defendants’ own limited interest in

Tejada’s safety. Furthermore, only Ivan's first name was revealed,

and Ivan was himself in jail (for unauthorized drug dealing while

acting as an informant) by the time of the newspaper reports.

Nevertheless, had Tejada been fired because he revealed

information jeopardizing an informant and an ongoing investigation,

defendants would have an excellent argument that Tejada was fired

County Comm'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668,
670, 116 S.Ct. 2342, 2345, 135 L.Ed.2d 843 (1996).

-9-
for unprotected speech. See United States v. Chagra, 701 F.2d 354,

365 (5th Cir. 1983). However, so far as Morales and Alvarez were

responsible for the firing–-a separate question to which we will

return–-the jury could on the evidence before it conclude that

their motives were not based on these concerns about Ivan and the

investigation, but that they acted because of Tejada’s protected

speech.

Tejada’s main disclosures were of mismanagement and

possible corruption; hostility to him had been demonstrated because

of his internal complaints well before his newspaper disclosures;

and the addition of the domestic violence charge could have been

viewed as a gratuitous gesture undermining the claim by appellants

that they were centrally concerned with the threat to Ivan or

ongoing investigations. In short, the jury could have concluded

that the appellants acted because of Tejada's protected speech.

The focus of the appellants’ brief, so far as liability

is concerned, is on a multi-step claim: that Fuentes, not the

appellants, fired Tejada; that Fuentes did so on an entirely

different ground unconnected with protected speech; and that these

circumstances insulate the appellants from liability under the so-

called Mt. Healthy defense, which arises where the firing would

have occurred even without the protected speech. See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

-10-
 To start with the factual premises, we agree that Fuentes

purported to discharge Tejada because of the domestic violence

conviction, and for the present appeal we accept that this was

indeed Fuentes’s ground. This is not because the district court's

ruling to this effect binds us, as appellants assert, but because

there is no direct evidence that Fuentes acted on any other

ground.2 A circumstantial case to the contrary might be attempted

(based on implausibility), but it would not be easy and Tejada does

not attempt such an attack on appeal.

Strictly speaking, Mt. Healthy is not on point here. It

deals with actions taken by an official or agency out of “mixed

motives.” It says, in substance, that where there was a

permissible and impermissible ground for a firing, the

impermissible ground should be ignored where the employee would

have been discharged anyway based on the permissible motive.

Although clear policy considerations are invoked, the main

rationale is that in such a case the impermissible ground was not

a but-for cause of the firing; it would have happened anyway. 429

U.S. at 285-87.

2
Although appellants say that the dismissal of Fuentes created
“law of the case” that settles the question on appeal, this
reflects a basic misunderstanding of the doctrine. The branch of
the doctrine invoked here is simply a prudential (but not
obligatory) rule that the same court will ordinarily not revisit an
earlier ruling made in the same case. See Conley v. United States,
323 F.3d 7, 12 (1st Cir. 2003) (en banc). The doctrine does not
determine whether the district court's ruling as to Fuentes is
correct nor bar a challenge to it on this appeal.

-11-
 Thus, Mt. Healthy comports with the traditional tort-law

principle that if the wrongful act did not cause the injury, the

wrongdoer is not liable. See Prosser & Keeton on Torts, § 41 at

263 (5th ed. 1984). By contrast, in this case, the actions of the

appellants were a “but-for” cause of Tejada’s firing. The jury

could easily have concluded that Tejada would not have been fired

if appellants had not disclosed Tejada’s prior conviction and

passed along the recommendation to Fuentes. The appellants'

actions were also surely a “proximate cause” as well, in the sense

that the result was foreseeable (indeed, desired).

So the problem in this case is not one of a single actor

with multiple motives, but of sequential actors having different

motives–-the first actor's motive being unlawful and the second

actor's motive at least permissible. In such a case, the first

actor may be (and here was) a but-for cause of the firing. The

question is whether the intervening step-–a final decision maker

acting on a permissible ground-–should as a matter of policy (not

lack of causation) insulate the wrongdoer from liability.

We have found only a few circuits that have addressed

this sequence-of-actors issue in the present context, and they are

nominally in conflict. The Fifth Circuit says that the final

action by the properly motived superior insulates the ill-motivated

subordinate, Beattie v. Madison County Sch. Dist., 254 F.3d 595,

603-05 (5th Cir. 2001); three other circuits say that the

-12-
subordinate remains liable if he is a but-for cause of the firing,

Gilbrook v. City of Westminster, 177 F.3d 839, 854-56 (9th Cir.

1999), cert. denied, 528 U.S. 1061 (1999); Saye v. St. Vrain Valley

Sch. Dist., 785 F.2d 862, 867 (10th Cir. 1986); Hickman v. Valley

Local Sch. Dist. Bd. of Educ., 619 F.2d 606, 610 (6th Cir. 1980).

Whether any of these cases intends a wholly mechanical rule in all

cases is open to doubt.

Our own recent decision in Webber v. Int'l Paper Co., 417

F.3d 229 (1st Cir. 2005), far from assisting appellants, appears to

assume arguendo that a tainted adverse recommendation from a

supervisor to a superior might create liability even if the

superior's own motive was pure. Ultimately, the court did not

decide the issue; it found that (unlike the present case) the

superior had determined to terminate the employee on legitimate

grounds before any contact with the supervisor and that the

supervisor had no causal influence on the firing.

In any case, a rigid rule would not comport with sound

policy.3 Suppose that the appellants had disclosed that Tejada was

taking payoffs from the mob and Fuentes had discharged Tejada on

that basis; it is hard to imagine any court upholding damages to

3
Section 1983, as we have already noted, provides only a
skeletal civil remedy for violations of federal law. Much of the
remedial law under section 1983 is court made, see Chemerinsky,
Federal Jurisdiction § 8.11, at 578-85 (4th ed. 2003), and the kind
of interstitial problem presented here is especially suited for
development through case law.

-13-
Tejada for the firing, even if appellants' motives were unlawful.

Conversely, suppose in retaliation for protected speech the

appellants misled Fuentes into thinking that Tejada had shirked his

duties; surely they should be held liable even if Fuentes’s own

motives were innocent.

Our case falls between such extremes. Even accepting

that Fuentes' own motive was "pure," a jury could reasonably doubt

that the firing would have occurred if Fuentes had stumbled across

the prior conviction on his own. Appellants cite authority under

Puerto Rico law for discharging a police officer for domestic

abuse. But here Tejada’s conviction was over three years old, and

the conviction had been expunged under local law after he had

received counseling. It is highly unlikely that absent the

appellants’ prompting, the firing was inevitable.

Nor was Tejada’s misconduct of such a kind that would

make it unthinkable to retain him as a policeman after its

disclosure, as would be the case if he was guilty of mob ties or

murder. His misconduct was serious, to be sure; but it was one

incident, well in the past, and Tejada had been rehabilitated.

This is not a case in which it offends public policy to sanction a

defendant who, for improper reasons, revealed Tejada's earlier

offense in order to prompt his discharge.

Appellants make a final merits-related claim of qualified

immunity. The interplay between qualified immunity and First

-14-
Amendment violations is a difficult subject, partly because the

former normally employs an objective standard and the latter–-in

contrast to the ordinary Fourth Amendment claim--turns heavily upon

motive. This does not mean that qualified immunity can never

succeed in a First Amendment case, see Dirrane v. Brookline Police

Dept., 315 F.3d 65, 69-71 (1st Cir. 2002), but only that the

opportunities may be narrowed.

On appeal, appellants’ brief describes qualified immunity

doctrine in general terms but makes no effort to apply it to the

facts of this case. An argument not seriously developed in the

opening brief is forfeit, see United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990), cert. denied, 494 U.S. 1082 (1990), and that

rule certainly applies in this case. Given that the jury almost

surely found that appellants’ purpose was improper retaliation, it

is not clear how a qualified immunity defense could easily have

prevailed.

As for damages, the award of damages corresponds to

Tejada’s lost police salary between the period of his discharge and

the date of judgment in this case. Appellants say that the jury

should have subtracted amounts Tejada apparently earned from other

odd jobs during this period (for example, at a gasoline station).

But it might well have been for appellants to elicit such proof,

cf. Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 77 (1st

-15-
Cir. 2001) (mitigation), and they may be fortunate not to have been

held liable for future wages as well.

The district court has detailed the relevant evidence and

calculations that may have led a jury rationally--even

"conservative[ly]"--to set compensatory damages at $125,000. Faced

with the "formidable burden" of showing that the district court

abused its discretion in rejecting their motion for remittitur,

Davignon v. Clemmey, 322 F.3d 1, 11 (1st Cir. 2003), appellants

have not come close.

Affirmed.

Dissent follows.

-16-
 CARTER, Senior District Judge, dissenting. The majority

opinion in this case represents a startling anomaly in the

established jurisprudence of American compensatory justice–-it

holds that Plaintiffs may recover damages where it is established

without question and as a matter of law that no action of the

Defendants proximately caused the damages for which recovery is

allowed. The majority founds the result upon an attempted

distinction of the case of Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274 (1977), and its own views of correct

“policy” in the application of a holding of the United States

Supreme Court. See maj. op. at 11-12.

I believe that a proper analysis in this case should look

to the posture in which the case was submitted to the jury.

Thereafter, the application of the clearly articulated holding of

the United States Supreme Court in Mt. Healthy yields the proper

result. There should be neither occasion nor need to create a

circuit “policy” to abrogate the rule of Mt. Healthy. Law, not

local “policy,” should control the result in this case. Hence, the

cause for my dissent.

The majority opinion correctly describes the conduct of

Alvarez and Morales. However, the record clearly shows that the

conduct of these underlings, even if improperly motivated, never

came to the knowledge or attention of Secretary Fuentes, who is the

official who made and executed the decision to discharge the

-17-
Plaintiff. It is undisputed that Fuentes was the “final decision-

maker.” The majority opinion specifically recognizes that:

Gierbolini [the incoming acting director] recommended to
the newly appointed Secretary of Justice, Jose Fuentes
Agostini, that Tejada be discharged for the 1993 domestic
violence conviction on the ground that someone with this
record should not be a police agent.

Maj. op. at 6 (emphasis added).

Fuentes executed Plaintiff’s discharge papers about three

weeks later. There is not a scintilla of evidence in this record,

nor do I understand the majority to make any assertion to the

contrary, that Fuentes ever had communicated to him or that he

discovered by any other means any other reason to discharge the

Plaintiff than the one he gave (e.g., Plaintiff’s prior domestic

violence conviction). The majority states that the hearing officer

who reviewed Fuentes’ discharge action

recommended discharge because the conduct leading to
Tejada’s conviction represented, in violation of the
Bureau’s regulations, “improper behavior or [behavior]
damaging to the good name of the agency or the Government
of Puerto Rico” and “commission of acts for which it is
charged or may be charged a felony or misdemeanor crime.”

Id. at 6-7 (emphasis added). There is no evidence that the hearing

officer had any knowledge of any basis for discharge of Plaintiff

other than the referenced conviction.

The district court found at trial that it was Secretary

Fuentes who made the ultimate decision to terminate Mr. Tejada and

that Fuentes’ decision was based solely on Tejada’s conviction for

-18-
domestic violence.4 When the district court granted Judgment as a

Matter of Law, before submission of the case to the jury, in favor

of Secretary Fuentes, it stated, as the basis for its ruling:

I’m dismissing the case as to the former Secretary of
Justice. I find that there is no legally sufficient
evidentiary basis from which a reasonable jury can
determine that the motivating factor between the
dismissal letter, his action, and plaintiff’s actions,
that there was a motivating factor in freedom of speech,
in violation of his freedom of speech, and I find that
there is a very valid nondiscriminatory reason and that’s
what the evidence points to.

Appendix Volume I, Trial Transcript at 276-77. The district court

reaffirmed its factual findings and legal conclusions based on

those findings in a post-trial Opinion and Order:

The evidence also demonstrated that Fuentes Agostini
signed plaintiff’s termination letter on February 27,
1997, adopting the recommendation of Miguel Gierbolini
that plaintiff be discharged for his domestic violence
conviction. Nothing in plaintiff’s evidence established
that Fuentes Agostini’s motivation for signing the
termination letter was in any way related to the
publication of the newspaper articles or plaintiff’s
denouncement of corruption. The evidence similarly fell
short of establishing Fuentes Agostini’s knowledge of
plaintiff’s protected expressions. Plaintiff
nevertheless contends that a reasonable inference can be
drawn from the evidence presented. He suggests that from
the scanty evidence described above, a reasonable
inference can be made that co-defendant Fuentes Agostini

4
The district court’s findings on this point were not appealed
are not called into question for review on this appeal. I also
note that on appeal Mr. Tejada argues that under Puerto Rican law
an employee cannot be terminated for a conviction of domestic
violence when the employee has engaged as he did in a
rehabilitation program. However, Mr. Tejada did not file a cross-
appeal challenging the district court’s decision to grant Judgment
as a Matter of Law to Secretary Fuentes. Therefore, the Court
cannot reconsider this issue on appeal.

-19-
 knew of the newspaper articles and was motivated by them.
He further claims that it is reasonable to expect that a
newly appointed Secretary of Justice will be informed of
all the media publications that relate to the Department
of Justice, and that when he signed the termination
letter he must have been presented with plaintiff’s file
in which the memoranda containing plaintiff’s expressions
were addressed. All of these, plaintiff contends,
creates a reasonable inference that Fuentes Agostini was
motivated by the plaintiff’s exercise of First Amendment
rights at the time he signed the termination letter. I
disagree.

. . .

In this case plaintiff’s evidence of Fuentes Agostini’s
motivation is nothing but conjecture and guesswork.

. . .

There is simply nothing in the evidence proffered by
plaintiff to affirmatively link co-defendant Fuentes
Agostini to any intentional deprivation of constitutional
rights. All the evidence established is that he signed
the termination letter adopting the recommendation that
plaintiff had violated internal regulations and that his
domestic abuse conviction mandated dismissal. Plaintiff
has failed to “introduce[] at trial sufficiently adequate
evidence for the jury to determine the plausibility of”
co-defendant's [Fuentes'] motivations in order to survive
a motion under rule 50.

Tejada-Batista v. Fuentes Agostini, 251 F. Supp. 2d 1048, 1053-54

(D.P.R. 2003) (emphasis added).5

Hence, the conduct and motivation of Ms. Morales and Mr.

Alverez cannot be, as a matter of law, any part of a legally

sufficient causative factor in Secretary Fuentes’ employment

action. Even though the evidence might be construed to establish

5
Secretary Fuentes entered office in January 1997, after the
articles were published in El Vocero.

-20-
that their termination recommendations were potentially driven by

some unconstitutional motivation, they cannot be liable under

section 1983 without some evidence of causation between that

motivation and the decision by Secretary Fuentes to discharge the

Plaintiff. See Beattie v. Madison County Sch. Dist., 254 F.3d 595,

605 (5th Cir. 2001); see also Johnson v. Johnson, 369 F.3d 826, 830

(5th Cir. 2004) (“[I]f the decision-maker who imposed the adverse

employment action was not motivated by the speech, then the speech

did not cause the adverse employment action.”).

Here, as found by the district court, there is no

evidence that the final decision-maker, Secretary Fuentes, even

knew of Mr. Tejada’s protected conduct. Indeed, the district court

specifically found that Secretary Fuentes made his own independent

decision to terminate Mr. Tejada based on Tejada’s prior domestic

violence conviction and that there was no evidence upon which to

impute any of Ms. Morales’ and Mr. Alverez’s motives to Secretary

Fuentes. Without at least being able to impute appellants’

unlawful motives to Secretary Fuentes, those wrongful motives

cannot be found to be a motivating factor in the adverse employment

action.

Hence, the conduct of the minions, Morales and Alvarez,

that the majority imagines to be the “but for” cause of Plaintiff’s

discharge never, as a matter of law, had any legally cognizable

influence or impact of any kind in bringing about the decision by

-21-
Fuentes, as affirmed by the reviewing hearing officer, to discharge

the Plaintiff. Any conclusion, even any inference, to the contrary

is manifestly in conflict with the district court’s conclusion at

trial as a matter of law that Fuentes, the final decision-maker,

acted without any improper knowledge or motivation. As a matter of

law, there simply cannot be any causal link here between any

supposed improper motives of the minions and the discharge

implemented by Secretary Fuentes’ solitary decision to discharge

plaintiff for a proper, stated reason.

It is precisely the purpose and role of the holding in

Mt. Healthy to cut off such noncontributory conduct from serving as

an efficient causal link to support recovery of damages where the

Defendant puts forth a legitimate reason for the discharge. The

United States Supreme Court had its own “policy” basis for casting

that holding out into the world of legal precedent; it stated that

policy to be its response to fairness considerations that may arise

in the course of truly mixed motive cases. I believe that it is

wrong for the majority to casually shunt aside a clearly applicable

holding of the Supreme Court in reliance on its own previously

-22-
unrecognized “policy”6 of aversion to rigid rules of burden-of-

proof allocation.

In the Mt. Healthy case, the challenged employment action

in question consisted of facts that the superintendent of the

Defendant school system recommended to the School Board at year-end

that the Plaintiff, along with nine other teachers, not be rehired

and the action of the School Board in accepting that

recommendation. The Court expressly established “a rule of

causation,” 429 U.S. at 285, that did not focus solely on whether

the protected conduct “played a part, ‘substantial’ or otherwise,

in a decision not to rehire . . . .” Id. It found such a rule

would unfairly unbalance the framework of permitted decision-

making. The evil addressed by the holding was stated to be that:

A borderline or marginal candidate should not have the
employment question resolved against him because of
constitutionally protected conduct. But that same
candidate ought not to be able, by engaging in such
conduct, to prevent his employer from assessing his
performance record and reaching a decision not to rehire
on the basis of that record, simply because the protected
conduct makes the employer more certain of the
correctness of its decision.

6
The majority states, “The question is whether the intervening
steps--a final decision-maker acting on a permissible ground--
should as a matter of policy (not lack of causation) insulate the
wrongdoer from liability.” Id. at 12 (emphasis added).

This formulation evades rational footing as Mt. Healthy
establishes it to be the dominant legal policy that “lack of
causation” does, in fact, insulate from liability one whose conduct
is not a motivating factor for the wrongful employment action. The
majority has substituted its own policy for the holding of the
United States Supreme Court.

-23-
Id. at 286. The Court went on to state:

[I]n other areas of constitutional law, this Court has
found it necessary to formulate a test of causation which
distinguishes between a result caused by a constitutional
violation and one not so caused. We think those are
instructive in formulating the test to be applied here.

Id.

After reviewing a compendium of cases that it found to be

instructive, the Court found:

that the proper test to apply in the present context is
one . . . which protects against the invasion of
constitutional rights without commanding undesirable
consequences not necessary to assure those rights.

Id. at 287. Accordingly, it held that the appropriate analytical

inquiry, in terms of causation, should go beyond the question of

whether constitutionally protected conduct was a “motivating

factor” and that a determination should be made as to whether the

Defendant would have taken the same employment action “even in the

absence of the protected conduct.” Id. The failure of the court

below to reach that second question was found to require reversal

in Mt. Healthy. In the present case the court below did reach that

second question and did resolve it, but in a way that the Mt.

Healthy holding clearly contemplates requires that these Defendants

be “insulated from liability.”7

7
I believe that the majority’s fundamental error here lies in
its inability to accept and respect the fact that a seminal mistake
was made by the district court at trial when it made the ruling
insulating Secretary Fuentes from liability on the causation
analysis of Mt. Healthy and then failed to recognize that its
ruling also should have necessarily insulated Morales and Alvarez

-24-
 This result has very recently been recognized as the

correct application of the holding of Mt. Healthy by another panel

of this Court in the case of Webber v. International Paper Co., 417

F.3d 229 (1st Cir. 2005). There, the question was whether the

motivations of the Plaintiff’s immediate supervisors, Schaub and

Moser, could be taken to be adequate circumstantial evidence that

the final decision-maker, Oetinger, who testified that Schaub and

Moser neither participated in nor contributed to the decision,

acted from an improper motivation in taking the adverse employment

action in question. The Court there stated, “[t]he pivotal

question thus becomes: whether the jury could rationally infer from

from liability. If it be correct that Fuentes is not liable
because there is no causal link between his discharge action and
the purportedly improper motivations of the minions, then it must
also be that the minions are not liable because there is no causal
link between their supposed motivations and the damage caused by
the proper discharge by Fuentes.

Hence, once the district court made its ruling in favor of
Fuentes, it should have also granted judgment in favor of Morales
and Alvarez on the basis of that ruling. It was legally wrong to
submit the case to the jury as to them because there was no
evidentiary predicate, on the court’s own finding, on which
causation could be sustained.

I believe that it is not proper, as the majority would do,
simply to ignore the fact that there is no rational basis in the
record for these Defendants’ liability. It is not right or
reasonable to ignore the occurrence of and the legal significance
of the error and to bless a judgment that is patently without any
foundation in the law. A simple recognition of the force and
effect of the error in assessing these Defendants’ liability (e.g.,
that the judgment imposes liability without causation) will yield
a legally sustainable result and respect the rights of these
Defendants and the Agency to be insulated from liability because
the Agency’s final decision-maker acted properly.

-25-
these record facts that Moser [the underling] conceivably

‘influenced’ the decision to fire [the plaintiff].” Id. at 237.

Concluding that the evidence would not support such an inference,

the panel found that Plaintiff, “failed to meet his burden of proof

to show that the proximate cause of his termination was [defendant

employer’s] discriminatory animus.” Id. at 240 (emphasis added).

Thus, causation, not local circuit “policy,” was taken to drive the

decision to affirm the district court’s grant of Judgment as a

Matter of Law to the Defendant.

The Webber case is a clear application of the Mt. Healthy

rule requiring the presence of causational linkage between the

conduct of those who are found to harbor discriminatory motivation

and the making of the actual, challenged employment decision. It

is, I suggest, not proper for this panel to depart from this

holding. In this Circuit, each panel of the Court is bound by

prior panel decisions directly on point. Jusino v. Sayas, 875 F.2d

986, 993 (1st Cir. 1989).

The seminal holding of Webber, for present purposes, is

that where the evidence fails to show that the final decision-maker

is influenced adversely by the motivation of lower level actors,

the type and level of causation required by Mt. Healthy is absent

and must be recognized.8 A second echelon of “but for” causational

8
The majority attempts to dismiss the controlling effect of
Webber by two peremptory and unexplained asides: (1) that the
Webber panel “appears to assume arguendo” that the tainted action

-26-
of an underling communicated to a pure-minded supervisor may be the
basis for liability, and (2) that the Court found that the superior
“had determined to terminate the employee on legitimate grounds
before any contact with the supervisor [occurred] and that the
supervisor had no causal influence on the firing.” Maj. op. at 13
(emphasis in original).

Both of these observations strike me as irrelevancies in
understanding the Webber opinion, and they perpetuate the
majority’s unwillingness to recognize the direct and focused thrust
of the holding in Mt. Healthy (e.g. that a pure-minded final
decision-maker is, in effect, an efficient intervening cause
destroying the existence of proximate cause between the adverse
animus of others than the final decision-maker and the damage
resulting from the employment decision).

The factual circumstances in Webber were that the underlings,
Schaub and Moser, had made remarks that plaintiff claimed showed
that they harbored discriminatory intent toward the plaintiff.
There was no evidence that they ever told Oettinger, the final
decision-maker, that plaintiff should be discharged in the RIF.
The panel concluded that it would be, on the record, excessively
speculative for a jury to conclude that “Moser conceivably
‘influenced’ the decision to fire [the plaintiff].” Id. at 237.
The record showed, the panel found, that Oettinger, the plaintiff’s
ultimate superior and final decision-maker, had decided for proper
reasons, to discharge the plaintiff. He then went to the
underlings, Schaub and Moser, to notify them of his initial
decision, not to seek their opinion, but rather to ascertain if he,
Oettinger, had missed “any material termination-related facts.”
Id. Schaub and Moser simply acquiesced in the decision, apparently
without comment. The plaintiff conceded that they did not
communicate to Oettinger any discriminatory animus that they may,
in fact, have harbored. Id. at 236. Oettinger implemented the
decision to discharge plaintiff.

What the panel “assumed arguendo” was clearly stated by the
panel in the opinion.

[W]e shall assume arguendo that, even in the absence of
any ... direct, affirmative communication between
Oettinger and Moser, a supervisor’s silence (viz., his
discriminatory failure to utilize the veto power
conferred upon him by his employer) could constitute
sufficient "participation" or "influence" to warrant
imputing [the supervisor’s] purported animus to [the

-27-
conduct will not suffice to bridge the gap between liability and

damage that is created by the absence of motivated causational

conduct of the final decision-maker. This case is much stronger

than Webber because here that absence is established in the record

whereas in Webber the contrary was established by concession of the

Plaintiff (assuming the record is to be given any weight in

appellate consideration) as a matter of law.

I suggest this panel is properly bound by the holding of

the Webber case since it has not been subsequently overruled and no

other exceptional circumstances apply to call in question the

final decision-maker].

Id. at 237. This appears to me to be an appropriate understanding
of the law under Mt. Healthy.

However, that understanding does not have the effect on the
application of Webber here that the majority attribute to it. The
operative finding of the panel in Webber was not that Oettinger
made the discharge decision before consulting with Schaub and Moser
but rather that he made it without any influence from them, and it
is easily argued from the panel’s language that the panel assumed
that had there been any evidence that the underlings had a bad
animus toward plaintiff, the failure to exercise in favor of
plaintiff the implicit “veto power” Oettinger gave them by
consulting with them would have been a sufficient causative
“influence” upon the final decision-maker for Mt. Healthy purposes
to result in a triable issue of proximate cause. That is the
controlling factual underpinning for the decision that the case
should not have gone to the jury because of the total absence of
any evidence of causation. That is, in both respects, a correct
application of the holding in Mt. Healthy. The state of mind of
the underlings is irrelevant once it is established, as the panel
in Webber found it to be, that that state of mind had no influence
on the decision-maker. In such a scenario it is also irrelevant
when, in the course of events, the final decision-maker reached his
final decision.

-28-
viability of that prior ruling. Maine General Medical Center v.

Shala, 205 F.3d 493, 497 (1st Cir. 2000); Williams v. Ashland

Engineering Co., 45 F.3d 588, 592 (1st Cir. 1995). The Webber

decision was recently rendered, on August 9, 2005, and there is no

circumstance that postdates that decision, “that offers a sound

reason for believing that the former panel, in light of fresh

developments, would change its collective mind." Williams, 45 F.3d

at 592.

Thus, I believe the judgment below should be reversed to

comply with the applicable, direct holding of the United States

Supreme Court in the Mt. Healthy case and the previously announced

rule of decision in this Circuit under that precedent in the Webber

case.

-29-