Miriam Estrada-Izquierdo v. Awilda Aponte-Roque, Etc.

SELYA, Circuit Judge

(dissenting).

If I may borrow a phrase from an English poet,1 my colleagues, I fear, are “straining at particles of light in the midst of a great darkness” in a well-intentioned— but fundamentally flawed — effort to give the district court the deference that Fed.R. Civ.P. 52(a) demands. Though that deference is considerable in the context of facts found during a bench trial, I think that the majority carries it to an impermissible extreme. For that reason, and because I believe that the opinion fails to accord full faith and credit to a judgment of the Puer-to Rico Superior Court, I respectfully dissent.

*20A.

In this case, the district court’s conclusions rested largely (if not exclusively) on a quartet of points:

1. The Secretary, a PPD member, was aware of plaintiffs membership in the PNP. Estrada Izquierdo v. Aponte Roque, Civ. No. 86-0195, slip op. (D.P.R. May 4, 1987) (hereinafter “Slip op.”) at 14.

2. The Secretary could have offered plaintiff a superintendent’s position in another district, but did not. E.g., id. at 11, 12.

3. In Estrada’s “new” role as an assistant superintendent in Maricao, most of the important work was assigned to the other assistants. E.g., id. at 4-5, 12.

4. Rodriguez did not join in the recommendation to settle Vega’s claim because the Secretary told her “this was a personal matter.” Id. at 5, 13.

As I read the record, it seems very clear that the district court’s reliance on at least three of the four enumerated factors was misplaced. This leads me to the next, logical, more sweeping conclusion: the court’s finding of a politically inspired dismissal was clearly erroneous. To be sure, circumstantial evidence may be used to create an inference of discriminatory motive — yet the inference must flow rationally from such facts as are available. Where, as here, the circumstantial evidence is fragile at best, speculation — though inferential in nature— does not rise to the level of proof. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 n. 25, 99 S.Ct. 2282, 2296 n. 25, 60 L.Ed.2d 870 (1979). Because the case is sui generis, I must write at some length to explain my position.

Although the record references are sparse and I can find no direct evidence contradicting the Secretary’s testimony that she was unaware of plaintiff’s PNP affiliation when she ordered the transfer, I assume arguendo that such knowledge was properly inferable. Moreover, I do not question that knowledge of an employee’s political preference is a datum relevant to a showing of politically-motivated discrimination. But that abstraction must be reified in the evidentiary cauldron of a given case. The mere fact that an employer and an employee belong to opposing political parties, and are aware of it, does not by itself provide an adequate basis for inferring the existence of political discrimination. See Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). Not every Republican who fires, demotes, or reassigns a Democrat acts out of political animus.

The second piece of evidence concerned the Secretary’s ostensible “failure” to transfer Estrada into another superintendency in a different region after Vega’s return. As I parse the key passage of the departmental regulations, Article 9.2, § 1(a), quoted ante at 16, it proves very little. Admittedly, the language raises the possibility that the Secretary could perhaps have transferred plaintiff to another superintendency — even this is unclear, as the enumeration of illustrative “special needs” strongly suggests to me that the need must be systemic, not merely conveniently conciliatory — but that is hardly the point. There is certainly nothing in the language which required the Secretary to transfer the plaintiff laterally, or which allowed her to transfer credits toward tenure across municipal lines in what I perceive would be outright violation of the Permanency Act. See P.R. Laws Ann. tit. 18, § 214.2

There are other, equally cogent, reasons why the “failure” to shift Estrada to a vacant superintendency elsewhere cannot be considered evidence of discrimination. As the majority concedes, it was Caballero —the chief of personnel and herself an attorney — who, “on her own accord,” id. at 5, determined that under the Permanency *21Act “any settlement would have to involve the Maricao position and no other.” Id. at 6. What my colleagues refer to as “Aponte’s ‘no transfer’ policy,” id. at 13, was formulated independently by Caballero. Aponte, new to the Secretary’s post, did no more than approve her subordinate’s recommendation. Caballero is not a defendant. There is not a scintilla of evidence which casts doubt upon her motives. Likewise, the record is barren of proof which calls into legitimate question appellant’s entitlement to rely upon Caballero’s interpretation or her good faith in doing so. The record, I suggest, makes it plain that appellant reasonably relied upon Caballero to investigate both the wisdom of settling the Cabiya case and the mechanics of resolving any attendant problems.3

I find it significant, too, that Estrada, by her own admission, never requested a lateral transfer. The Secretary cannot be expected to be a mind reader. If in fact the regulations permitted the accommodation of an employee’s job preference in this manner — and I do not think that they do— the employee has some obligation to trigger the mechanism by making a request. Appellee argues that she had no opportunity to request relocation because she only learned of the Cabiya decree when she received a letter signifying her removal and reassignment to the auxiliary superintendent’s position. My brothers appear to accept this as a full explanation. See ante at 17. But a day later Estrada wrote to appellant protesting her ouster, without mentioning a willingness to accept a superintendency in another region or suggesting such an alternative. Nor did she ask, directly or by fair implication, for such a transfer during the weeks that followed.

For all of these reasons, the district court was clearly wrong in treating the Secretary’s “failure” to reassign plaintiff elsewhere as evidencing discriminatory intent.

The district court’s third focus concerned evidence which indicated that, after Yega was restored to the superintendency, “the work of the assistant superintendents in the school district of Maricao was mostly assigned to the two other assistant superin-tendents_ [and] plaintiff was also ordered to substitute a school principal in an isolated rural area who was on vacation when, at the same time, there was a vacancy as a director in an urban school and nobody was sent there.” Slip op. at 12. Unlike the majority, I am at a loss to see how these facts evidence discrimination. Transferring the vacant assistant superintendent’s slot to Maricao seems a reasonable effort to accommodate plaintiff after Vega replaced her. Since two assistant superintendents were already in place, it is not surprising that the newcomer on the block was given fewer responsibilities when she started. Nor was there evidence to suggest that the stint as a substitute principal was a particularly onerous one, that it was out of the ordinary for an assistant superintendent to pinch-hit for a vacationing principal, or that Estrada ever asked to substitute for the school director instead. It is, in my view, chancy business for the courts to attempt to nitpick such interstitial administrative decisions.

Moreover, plaintiff’s quondam work assignments were never casually linked to any actions of the defendant. Generally speaking, there is no respondeat superior liability in a section 1983 action. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Guzman v. City of Cranston, 812 F.2d 24, 26 (1st Cir.1987). Chongris v. Board of Appeals, 811 F.2d 36, 39 n. 5 (1st Cir.), cert. denied, — U.S. -, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987). In this instance, no evidence was presented indicating that the *22Secretary either knew the details of plaintiff’s work situation following her demotion or approved — let alone dictated — the particular features of the work environment. There was no evidence that Estrada complained to appellant about the details of her assignments, that her immediate superiors discussed those assignments with appellant, or that appellant was on actual notice of them. The Secretary heads a department employing over seventy thousand individuals. It strains credulity to assume, on this exiguous record, that she was responsible for plaintiff’s diminished work load or monotonous day-to-day assignments. In the absence of the necessary linkage with the defendant, I believe that the district court erred in treating the events which transpired after Estrada’s transfer as evidence of this defendant’s improper motive. With respect, the majority perpetuates this error.

The fourth piece of evidence was that the Secretary settled the Cabiya case despite the fact that the Department’s general counsel “had not recommended a settlement ... because the Secretary had told her that this was a personal matter.” Slip op. at 13. The majority concedes that this must be ignored because it was an “auditory mixup,” ante at 17, wherein the court below misunderstood the testimony. The dysphemism being acknowledged, I need not dwell upon it. There was simply no basis for concluding that any recommendation was withheld due to the Secretary’s “personal” interest.

In fine, none of the four legs of the contraption which the district court constructed to underbrace its holding can bear the assigned weight. Nor do my colleagues, despite heroic efforts, succeed in shoring up the apparatus. The reliance upon the timing of events, ante at 15, is mislaid. It is not as if defendant, immediately upon taking office, initiated discussions aimed at sacking Estrada. Rather, it was a Justice Department lawyer, Irene Reyes — a person whose politics remain unknown — who started the ball rolling by sending word that a trial date had been set in Cabiya and that the presiding justice, Judge Lopez, was pressing the parties to settle. Nor does the sweeping statement that “there were, at least theoretically, many conceivable ways to settle [Vega’s] case,” ante at 14, add measurably to the equation. The question is whether the chosen way, based on the trial record, necessarily evidenced a discriminatory animus.

All in all, once the impermissible conclusions drawn by the district court have been sifted out, the essentially uncontradicted facts which remain show, at most, that Vega staked his claim to the superintendency long before the PPD came to power. His suit for reinstatement was open — pending — when Estrada became superintendent. The Education Department did not invent the suit. It could not reasonably be expected to ignore either the imminence of trial or Judge Lopez’s prodding towards settlement. Once Cabiya loomed on the horizon, settlement was originally advocated ab extra — not by the Secretary or her subalterns, but by the superior court judge and two different DOJ attorneys, first Reyes and later Algarin (her superior). No one suggests that Judge Lopez was less than scrupulously impartial or that either of the DOJ lawyers knew of plaintiff’s existence —never mind her political preference. And the record seems uncontradicted that Vega’s case was likely meritorious.

When the idea of settlement was broached, Caballero was asked to evaluate it. After looking into the matter, she favored a compromise and reported as much to the Secretary. The Secretary then authorized settlement along the lines structured by the attorneys associated with the litigation. Afterwards, the parties’ agreement was embodied in a decree and presented to the judge, who entered it.

Putting surmise to one side, this chain of circumstances admits of but a single reasoned conclusion. Even if one assumes the worst about the Secretary’s intentions— and I do not suggest that there is any record-rooted cause for such a drastic assumption — there were too many other cooks stirring the broth. In the absence of any evidence of collusion or discriminatory intent on the part of people such as Alga-rin, Reyes, Caballero, or Judge Lopez, *23there can be no basis adequate to support a conclusion that the settlement was merely an ejectory vehicle for unseating plaintiff.

B.

All of this being so, there is yet another reason why the decision below must be reversed and why Estrada’s reinstatement cannot be ordered: the district court, in a very real sense, was barred by the imperatives of full faith and credit, 28 U.S.C. § 1738, from making “any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment (was) based_” Bergeron v. Estate of Loeb, 111 F.2d 792, 796 (1st Cir.1985), cert denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986) (quoting Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)). Because the reinstatement order flies squarely in the face of the Cabiya decree, it cannot stand.

I begin by noting that, not only was the Secretary obligated to abide by the judgment of the Puerto Rico Superior Court, but the federal district court was bound to accord that judgment full faith and credit— and so are we. See Medina v. Chase Manhattan Bank, N.A., 737 F.2d 140, 142 (1st Cir.1984) (federal courts “must give full faith and credit to the judgments of the courts of Puerto Rico”). Nothing in the record, fairly viewed, suggests that the Cabiya judgment was subject to any disqualifying infirmity: there was, for example, no showing of fraud, collusion, or want of jurisdiction. It is immaterial that the decree was entered by submission; consent decrees, like other forms of judgments, are not generally subject to collateral attack. See Marino v. Ortiz, 806 F.2d 1144, 1146 (2d Cir.1986), cert. granted, — U.S. -, 107 S.Ct. 2177, 95 L.Ed.2d 833 (1987); Dennison v. Los Angeles Dep’t of Water and Power, 658 F.2d 694, 695 (9th Cir.1981); Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir.1980). It is equally immaterial that Estrada was not a party to the original litigation. The Cabiya case was a matter of public record, antedated her assumption of the Maricao superintendency, and laid direct claim to the office. She could have attempted to intervene in that case, but did not. She cannot now ask a federal court to subvert the commonwealth court’s judgment by indirection. Marino, 806 F.2d at 1146-47; Black and White Children of the Pontiac School System v. School District, 464 F.2d 1030 (6th Cir.1972) (per curiam). Federal power to effect collateral revision of the decree in such a high-handed fashion is lacking.

In general terms, section 1738 requires federal courts to give a judgment of a Puerto Rico court “the same preclusive effect” that the judgment would receive in the Commonwealth’s judicial system. Arecibo Radio Corp. v. Commonwealth, 825 F.2d 589, 591-92 (1st Cir.1987). It has not been seriously suggested that, on a motion or in a proceeding prosecuted on Vega’s behalf, the courts of Puerto Rico would not enforce the Cabiya decree against the Secretary according to its literal terms and tenor. Whether or not Estrada, a nonparty, was bound by the judgment in Vega’s case, appellant was bound. Being bound, she was legally compelled to obey the reinstatement order. It is this effect which, in my opinion, deserves full faith and credit.

From and after entry of the Cabiya decree, the Secretary was constrained by it, that is, she had no lawful choice but to reinstate Vega. She was duty bound to honor the judgment, thereby making way for Vega’s return. And in this instance, two was a crowd: Vega could only be reinstated by removing Estrada. Appellant cannot be subjected to liability under section 1983 merely because she bowed to the judgment of a court of competent jurisdiction. Cf. Dennison, 658 F.2d at 695-96 (employer not liable to nonminority employees for benefits accorded to minority employees under “affirmative action” type consent decree entered to settle class action discrimination suit; relief sought seen as “conflicting” with consent decree and therefore unattainable). Nor can Vega’s rights under the superior court order be eliminated with so facile a stroke of the federal pen.

*24Under the majority’s reasoning, full faith and credit cannot possibly be accorded to the final judgment of the Puerto Rico Superior Court in Cabiya: placing Estrada back into the job necessitates ousting Yega from it, that is to say, the district court’s remedy — which the majority now affirms — requires the Secretary to disobey Judge Lopez’s decree. My brethren offer scant support for plowing under the consent decree, thereby intruding on the sovereignty of the Commonwealth. The lone case advanced by the majority on this point, F.S.E. v. J.R.T., 111 D.P.R. 505 (1981), cited ante at 19 n. 9, is completely inapposite. F.S.E. has nothing to do with either full faith and credit or with res judicata; the case concerns only the lack of binding effect possessed by an arbitration award emanating from procedures which transgress the stipulations of the applicable collective bargaining agreement. The relevance of F.S. E. in the present context, frankly, escapes me. By accepting the district judge’s ipse dixit — the bald statement that the commonwealth courts would not respect the Cabiya judgment — the majority perpetuates the error of the court below. With all due respect, it is difficult for me to see how a legal theory which (i) flouts full faith and credit, (ii) depends upon an analysis so meagre that even my colleagues term it “cursory,” ante at 18, and (iii) has no discernible roots in Puerto Rico law, can be thought deserving of categorization as a “reasonable construction of state law.” Rather, I continue to subscribe to the noti that “[a] final judgment does not lose its ... effect simply because another court might consider the decision erroneous.” Medina, 737 F.2d at 143. The district court was, I believe, powerless to extinguish the superior court order.

. John Keats, Letter to George and Georgiana Keats (Mar. 19, 1819).

. That Alvira, a former school superintendent, had been transferred, see ante at 13, proves nothing. Unlike Estrada, Alvira had achieved permanency before any transfer occurred. Moreover, he was not transferred into another municipality, but to a central office administrative post. Thus, the Permanency Act may not have been implicated in Alvira’s case. Be that as it may, it would be sorely trammelled by the majority’s hypothetical Lajas-for-Maricao swap.

. My brethren lay great weight on the fact that Vega, in the course of settlement negotiations, expressed a willingness to accept the superintendency in Lajas instead of Maricao. E.g., ante at 15-16. The terms of this "offer" are not contained in the record. In any event, Caballero decided to ply a different course. I can find no evidence to indicate either that (a) Aponte can be blamed for accepting the advice of her legal staff, or (b) Vega would have accepted the Lajas post without guaranteed permanency (an assurance which, as I read the Permanency Act, could not be given). On the record as it stands, the refusal to compromise with Vega on the basis of an assignment in Lajas was not evidence of the Secretary’s discriminatory intent.