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
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
DISCUSSION
A. First Amendment Claim: Politically Discriminatory Demotion
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"
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
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
remanded for further proceedings consistent with this opinion.
9