*4 Casiano, cient to find that defendants Cor- WILLIAMS, RUBIN, and Before GARZA dova, the plaintiffs’ and Yanez had violated Judges. Circuit rights; (3) that First Amendment WILLIAMS, instructions on the First Judge. jury JERRE Circuit court’s S. and prej- Amendment claim were erroneous filed suit in plaintiffs The in this case udicial; (4) Magallanes, proba- that Jose Donna, City court of district employee, possess property did not tionary Texas, and various elected officials of that trigger employment sufficient under 42 1985 and city1 U.S.C. §§ (5) that the process protection; plain- due either contending dis- resignations had alleged tiffs who forced charged resign posi- or forced to from their rights; (6) that process waived their due city tions with the in retaliation for their to support there was insufficient evidence support opponents of the defendants’ in a award, (7) that the jury’s damage and that their They alleged election. also city failing jury erred in to instruct the court violated resignations dismissals and forced good the defendants were entitled to a guar- process protection the minimum due Plaintiffs Victor immunity faith defense. anteed the Fourteenth Amendment. by Leon Trevino on cross- Alegría and The returned a verdict that de- denying that the court erred in appeal had or acted conspired individually fendants reinstatement. resignation to cause the dismissal or of the in this case are former plaintiffs in violation of their First Amend- The department works non-supervisory public further found that it rights. ment Donna, Texas.3 city, acting employees City policy was a custom or City finding defend- defendants/appellants 2. This is not contested are the 1. The appeal. ants on present and former Donna as well as various city employees sued in officers who were and truck; Magallanes city dump Jose drove the capacities. their individual and official Alegría at the Jesus and Leon Trevino worked dump. garbage Noe Ramirez worked resigned position Each was fired from or his States, verdict. Kincaid v. United 682 F.2d (5th in 1978 during period Cir.1982); a two month which Byrd v. Hunt Inc., Tool preceded immediately Shipyards, and followed a mu- Cir.1981). in Donna in which nicipal election defend- Lugo ants ran for re-election Cordova We adequate jus find evidence to council. tify concluding reasonable minds sup undisputed port opposition It was Jesus for the candidates was the reason Garza, Mario Vic- for the Alegría, Magallanes, resignation Jose Alegría, Magallanes, Victor Jose tor Vela and Leon Trevino Leon Tre Alegría, Clara vino, Alegría, Jesus and Mario Garza. Each op- the candidates who actively supported of these men had been seen participating in Lugo. Each man posed openly Cordova the political “pachangas” for the opposition meetings or “pa- attended various candidates, and each admitted support changas” opposition on behalf candi- of the defendants’ opponents. We are less voiced his openly support dates and satisfied, however, with the reasonableness six, Magallanes, these candidates. Of these of the verdict with respect to Noe Ramirez. Trevino, Alegría, Jesus and Vela were fired Ramirez testified that he actually supported for the shortly support opposi- after fact, the re-election of the defendants. In Alegría tion became known. Victor he he hoped said these candidates would be resigned, Garza but each testified he did so re-elected so that he get would a raise in only “pressure” resulting under from his salary. Ramirez was fired days four fol refusal the defendants.4 Noe *5 lowing the refusing election for to place a hand, Ramirez, on the other supported the favoring sticker one of the defendants on a election, defendants but claimed he city vehicle days several before the election. refusing was fired after to attach one of explained, however, He that he refused to political their stickers to a city vehicle sticker, mount the not because he did not shortly before the election place. took candidates, the support only but because he None of the men was given any reason did city not believe that vehicles should be termination, for his nor was he told of his used to political advertise candidates. Ra right hearing to a at which he could contest mirez admitted that he was told he was his discharge. at Testimony trial indicated fired because the “didn’t city need me.” that in part Donna of a city employee’s job Although testimony was somewhat con responsibility was assumed to be support inconsistent, voluted and say Ramirez did re-election, councilmembers in their bids for injured prior that he had been to his dis and that employees who refused this politi- could no longer perform missal and the type cal support would be fired. of work he had done previously. Several I. The First Amendment Claim testified that persons general Ramirez was ly inattentive to his duties. A. Sufficiency of the Evidence jury’s While a verdict is “presumptively 1. The defendants first claim that the correct”, it is not invulnerable. Kincaid v. evidence presented was insufficient sup- States, supra, 682 United F.2d at 1225. The the port jury’s finding that the plaintiffs simply evidence in this case cannot support were fired or forced to resign because of jury’s finding that Ramirez’ political support opposition for the activity was the cause of his dismissal. candidates. In order to support jury’s verdict, we only evaluate evidence The defendants 2. also claim that decide if impartial reasonable and minds evidence was support insufficient could flowing reach the result from the jury verdict directed specifically defend- department; “pressure” being maintenance Mario Garza and 4. This consisted of transfer- Alegría steady position
Victor stockroom red from work in one to almost clerks. Clara other, daily transfers to various more superintendent. menial Vela was water and sewer assignments. Cordova, Casiano, Healthy L.Ed.2d 471 In Mt. council members city ant prevail that “the de- held in order to jury Supreme found Court and Yanez. individually to conspired alleging discharge or acted action in retaliation fendants in an rights.” deprive rights, for the exercise of First Amendment knew contend that first, These councilmen proving, has the burden of plaintiff be held and cannot firings of the nothing constitutionally pro- that his conduct was manager. city of the for the actions liable second, tected and that this conduct was a motivating” “substantial or factor behind as a duty, that our We stress discharge. has made plaintiff Once reweigh is not to Appeals, showing, may this initial the defendant jury will overturn a in a case. We evidence if he liability “by prepon- avoid can show is such that if the evidence only verdict would derance evidence that [he] impar in the exercise of persons reasonable have reached same decision as to [termi- reach such a conclu judgment tial couldnot even in nating plaintiff’s employment] undisputed It was coun sion. protected the absence of the conduct.” Mt. responsible city’s personnel for the cil was Healthy, supra, 429 at and Yanez Defendants Casiano policies. case, In the instant the trial court fire, Lopezwho to and there told defendant that it must determine instructed offered at trial that Casiano testimony discharged that of at least one responded resign forced to “because of” their that “that was plaintiffs by saying candidate The court the defend- Testimony by a former activities. refused politics”. each and councilman indicated that had ants’ be instructed request Casiano, Yanez, company been in the have the burden of show- “plaintiffs during discussions about Lopez Cordova and [they] .. would not have been ing. who did not terminating city employees defendants herein but for terminated no re politically. There is amendment having exercised first have of quirement proof must been speech.” of freedom of these defendants de fered to establish that we must preliminary
cided to fire the individual As a matter specifically *6 objec when the plaintiffs for their activities determine whether defendants’ persuasive support timely, evidence was offered to tion to the court’s instructions the assertion that these defendants under Fed.R. preserved appeal and thus to fire who failed to willing any employee offering charge his to 51.6 Prior to Civ.P. there politically. Certainly, them that he was judge the the told counsel jury, jury’s was a “reasonable basis” for the find charges that “all require proposed to going ing liability against these defendants. filed, the anything given by and that be proposed by court inconsistent with that
B.
Instructions
Jury
in full.” The
preserved
counsel would be
for the de
attorney
The defendants next
that the trial
court then asked
any
he had filed
other
erroneous and fendants whether
court’s
instructions were
attorney re
charges with the court. The
prejudicial
constituted
error.
they
that
affirmative,
that
explained
but
Specifically,
plied
the defendants contend that
office,
were in his
where he
failed to
the instructions
the instructions
give
the trial court
The court then
typed.
in Mt. had left them to
Supreme
mandated
not
said,
having
“You waive them for
District Board of Edu
Healthy City School
274,
568,
Following
to the court.”
429
97
them
Doyle,
presented
cation v.
U.S.
S.Ct.
objects
plaintiffs’ support
he
before
candi-
instruction unless
thereto
5. That the
verdict,
activity
constitutionally protected
stating
is
dates was
retires to consider its
dis-
disputed
appeal.
objects
tinctly
on
not
he
and the
the matter to which
objection.”
grounds of his
may
party
provides
“no
FedR.Civ.P. 51
that
give
assign
giving
an
as
or failure
error the
however,
judge
charge
jury,
sufficiently
his
directed the
court’s attention
prong
whether
had
of the
again asked
the defendants
second
Mt.
stan
Healthy
charge. The
dard.
it
objections
Accordingly,
duty
to the court’s
was the
stated, Your
trial court to instruct
on
jury correctly
as
Hon-
replied,
defense
“Not
we
law of
or,
urged.”
applicable
that
the case. Failure to
request
other than
do so
not be
solely
on
could
excused
on the
point,
judge
relented
At
this
basis of defects in the request. United
and stated that “I am
previous position
Goss,
1344;
v.
supra,
States
650 F.2d
timely filed.”
to consider them as
going
231,
Barham,
United
States
595 F.2d
conditions,
these
we consider
de-
Under
(5th Cir.1979),
denied,
& n. 18
cert.
made,
objections timely
prop-
fendants’
1711,
(1981).
S.Ct.
L.Ed.2d 205
appeal.
erly preserved
conclude, therefore,
We
issue
A second asserted obstacle to the
the jury instructions is
us.
properly before
success on review is that
they
defendants’
We now evaluate the
de-
substance of the
now
an
which would place
seek
instruction
objection
given.
fendants’
to the instruction
on the
to show that
burden
gave
The trial court
the following instruc-
would not
terminated
have been
“but
tion:
the exercise of their First
for”
Amendment
you
that,
is,
can
Before
determine
instruction
error.
It
rights. Such an
is
is
the plaintiffs
whether
deprived
plaintiffs’
clear
in order to rebut
deter-
right, you
constitutional
must
showing, “the
initial
burden shifts to the
I
mine —and
think this is
case is
what the
may
liability by
who
avoid
show
employer,
about,
all
I really do—from a preponder-
preponderance
a
ing by
of the evidence that
ance
evidence
whether the defend-
decision
been
same
would have
made
words,
ants committed the acts.
In other
absent
constitutionally protected con
you
if
don’t believe that
the defendants
979, 983
Watkins,
duct.” Bowen v.
you
in this
case —if
do not believe
(5th Cir.1982).
not satisfied
you are
from the evidence
A
requested instruction
properly
that the plaintiffs presented to you —dis-
refused if it is improper, and a trial court is
charged
people
resigned
all these
or they
required
request.
to correct a defective
they put political pressure
because
on
v. Capitol
Co.,
Stewart
Transit
The effect but chose to order to obtain during job of Donna the relevant time a favorable reference. City recognized The Court that the teacher had “department that heads period provided a cause, constitutionally protected property right may, just terminate services so, in continued Even it employment. any employee supervision.” of under violation, found there due process was no policies provided proba The further that a because, by resigning, teacher “know- tionary employee could dismissed when ingly and chose intelligently to waive his department “in the head or judgment of right to a hearing improve in order to is not of a supervisor, quali his work record possibility obtaining of other employment.” em ty city’s merit continuation Id. at 286. policy, ployment.” any employ Under this ee, employee, was including probationary a Stewart does control this case. employment entitled until to continued opinion resignation makes clear that alone for his “just there arose cause” dismissal.8 automatically does not of constitute waiver it clear Consequently, is due process Stewart, In safeguards. a possessed constitutionally who were fired director of the had advised school the teach- in their protected property interest contin proposed er of the his reasons for dismissal Regents employment, ued Board of State testimony against and the nature of the 564, Roth, 577, Colleges v. 408 92 U.S. S.Ct. him, shortly before teacher had sub- 2701, 2709, (1972); 548 Shawgo 33 L.Ed.2d resignation mitted his letter. It is impor- 470, (5th 474 Spradlin, Cir.1983), v. 701 F.2d tant that the had administrator advised the process and were entitled to minimum due teacher several times the school would considerations before could be de provide hearing him with a if he wished to Arnett v. prived Kennedy, that interest. charges. defend himself against Under 154, 1644; supra, 416 94 at U.S. at S.Ct. conditions, college these met its initial Dekle, 1264, F.2d (5th Thurston v. 531 1272 a duty offering hearing. As the Stewart Cir.1976), vacated and remanded on other Court a explained, opportunity for “[t]he 901, grounds, 3118, 438 98 U.S. S.Ct. 57 meaningful hearing clearly existed and was L.Ed.2d 1144 (1978). declined.” No similar “opportu- Id. nity” intelligent or waiver of that “opportu- question
The more
is
difficult
whether
nity” existed here.
Alegría
Garza,
Victor
and Mario
who ad-
resigning
positions,
mitted
from
for measuring
The standard
an
process
entitled to the
protection
same due
a
right
effective waiver of
constitutional
plaintiffs.
as were the discharged
Al-
an
requires that the waiver be
“intentional
though the
no case
defendants state
author-
relinquishment or abandonment of a known
ity in support
position, they
contend
Zerbst,
right
privilege.”
Johnson v.
304
employee
resign
that an
who chooses to
458, 464,
1019, 1023,
U.S.
58
82 L.Ed.
S.Ct.
process protection
outside
due
afforded
waivers,
(1938).
evaluating
1461
In
these
by the Fourteenth Amendment.
courts indulge every reasonable presump
In
556
tion
against finding
Stewart v.
F.2d 281
waiver. Parham v.
Bailey,
Cir.1977),
Cortese,
95,
2001,
brought
67,
1983,
a teacher
suit
U.S.
proc-
(1972); Mosley
school district for violation
his due
L.Ed.2d 556
Louis
St.
rights,
professor
Railway,
ess
as a
claiming
with Southwestern
denied,
protected
(5th Cir.),
in continued em-
property
cert.
he
ployment,
Purport
was entitled
notice and an S.Ct.
of
excessive or
allegedly
inadequate
rights
dam
tional
to have been proper. Several
ages if the
court was not given
trial
of the plaintiffs testified to the disruption
exercise its discretion
opportunity to
on a
caused their marriages
and families
Dillon,
motion for a new trial. Baker v.
389
jobs.
loss of their
Several others were
57,
Accord,
(5th Cir.1968).
Calcagni
F.2d
58
forced to leave their homes in Donna and
Corp.,
1049,
v.
603
Waterways
Hudson
F.2d
seek employment
in the northern United
Owens,
(2d
v.
446
Cir.1979); Ryen
1051
F.2d
migrant
States as
farm workers. The hu-
Brown,
1333, 1334(D.C.Cir.1971); DeWitt v.
miliation, uncertainty, and stress inherent
516,
(8th Cir.1982).
669 F.2d
Since
being
in
an unemployed Mexican-American
there
no motion for a new trial in this
was
in the Rio
Valley
Grande
with little or no
case,
reviewing
we have no basis for
education or
literacy
English is self-evi-
discretion,
trial court’s exercise of
dent.
reviewing
no
for
the ade
therefore
basis
Qualified
IV.
Immunity
quacy
damages.
defendants next
that the trial
properly preserved
An issue not
court erred in not submitting
proposed
its
will
not
appeal
generally
be considered in instruction on the affirmative defense of
of exceptional
absence
circumstances.
faith,
qualified,
good
immunity to the
Loflin,
1213,
D.H.
Overmyer Co.
jury. They contend
because
they
(5th Cir.),
denied,
851,
cert.
404 U.S.
all times
in compliance
acted
with the city
(1971).
We likewise consider the
faith,
award
you
can’t rule
them. The
be,
emotional distress and violation of
would
constitu-
standard
reasonable and pru-
Referring both
or similar
would not be available.
under the same
persons
dent
added.)
elements,
subjective
(Emphasis
objective
circumstances.”
*11
qualified immunity
held that
we have
instruc-
that this
The
contend
defendants
defeated if an official ‘knew or
would be
only to
in that it referred
tion was deficient
should have known that
the
reasonably
the
im-
qualified
element of
“objective”
the
sphere
action he took within his
of offi-
Supreme
the
by
test announced
munity
the con-
responsibility
cial
would violate
Strickland,
and
supra,
v.
in Wood
Court
[plaintiff]
or if he
rights
stitutional
subjective
reference to
any
omitted
took the action with malicious intention
of their ten-
was the focus
standard which
deprivation
to cause a
of constitutional
instruction.
dered
’” 102
at
rights
injury
or other
...
S.Ct.
The de
reject
argument.
this
We
Strickland,
2737,
420
Wood v.
quoting
a stan
upon
dependent
fendants’
is
position
321-22,
(original
95
at 1000
U.S. at
S.Ct.
In Har
law.
longer good
dard which is no
emphasis).
800,
457
102
Fitzgerald,
low v.
U.S.
S.Ct.
even if the court’s failure
Consequently,
(1982),
Supreme
charged “because of” each cause contribu-
ting
employer’s
to this
dissatisfaction.
CONCLUSION
VI.
Thus,
jury’s
instruction
the
the
and
answer
We find
the evidence
insuffi-
that
was
case permitted
in this
a verdict in the plain-
cient
the jury’s
to
verdict that Noe
even
plaintiffs’
tiffs’ favor
if the
exercise of
Ramirez
because of
was fired
his
rights
their first amendment
was but one
activity,
judgment
and the
in his favor on
several
among
discharge.
reasons for
the
First Amendment claim must
re-
respect,
jury
In this
the
instruction was
versed.
the
on the
jury’s
We affirm
verdict
correct, for Mt.
does
Healthy
not require
First
claim
the
Amendment
all
de-
constitutionally protected
that
conduct be
fendants as
Alegría,
Magal-
to Jesus
Jose
discharge.
the
reason for
The
sole
Mt.
lanes,
Garza,
Alegría,
Victor
Mario
Clara
plaintiff’s
Court held
Healthy
that a
burden
Vela and Leon Trevino.
that protected
to establish
conduct was a
judg-
We also affirm the district court’s
“motivating
factor” or
“substantial
factor”
ment that the
the
defendants violated
due
defendant’s
not to
the
decision
rehire
process rights
all the plaintiffs, including
him.
AFFIRMED IN IN tributing REMANDED reasons. He must instead exclude Assuming PART. reasons. alternative an em- jury’s process rights 11. Because we for Noe affirm verdict his due violation of his n claim, process Ramirez rights on his due we likewise under the First Amendment or both. damage affirm his award. awarded damages The court punitive The not but were com- $4,000 $2,000 wages Ramirez lost for for damages pensatory. Compensatory justi- are suffering pain the mental resulted which in the same amount whether there fied was one job. from the It not loss of matters violation or two. constitutional job Ramirez because of lost his a violation (solely or But ployee discharged part) refusing was to Ramirez failed campaign.3 because he exercised his constitutional request to an on this interrogatory issue. employer escape can still rights, liability The question put was not jury if the by persuading employer whether Ramirez was for discharged re reason, discharged had not him for it fusing campaign but he whether was another discharged would have him for rea- discharged the opposite: “because of can preclude son.1 alternative reason political participation city elec [his] if it in no liability played part even fact in tion of While the Donna.” evidence con Therefore, employer’s decision. cerning the for his firing reason was contra finding that exercise of a constitutional best, dictory, testimony, sup his own prompted was the sole reason that ported objected parti the thesis that he employer employee does city san There displays property. on was impose alone under Mt. liability much discharged evidence that he was Healthy. performance. There unsatisfactory job literally discharged no evidence that he was When in future a similar issue is for political participation elec raised, Healthy Mt. proper charge would, therefore, tion. I hold that Ramirez It and clear. given. should be is succinct failed to question regarding create *13 preposition it to a Truncating two-word discharge political participation serious adequately present does not con- protest waived the as or the defenses to it. question stitutional being political based on abstinence. circumstances,2 however, we Under similar approved charge substantially like this. College, 588
Goss v. San Jacinto Junior Moreover, (5th Cir.1979).
96 over- weight supports
whelming evidence Therefore, I jury’s verdict. concur in
the result by majority. reached
I concur also reversal of verdict for Ramirez,
Noe but for a reason other than amendment, The first majority’s.
my opinion, protects engage refusals to
campaign activity support whether in of or
against
the person
candidate favored
plaintiff
plaintiffs’
1.
had
Once the
establishes
“his con-
activities
noth-
constitutionally
protected
ing
duct was
...
[and
to do with their termination.
‘motivating
a ‘substantial factor’ ...
was]
[i.e.]
decision,”
factor’ in ...
state
Educ.,
[a
actor’s]
See Abood v. Detroit Bd. of
431
U.S.
prove
burden shifts to the
“that it
defendant
209, 232-37,
1782, 1798-1800,
97 S.Ct.
52
would have reached the same decision ... even
(state
(1977)
L.Ed.2d 261
cannot condition em-
protected
in the absence of the
conduct.”
ployment
on financial contribution
union’s
287,
576,
U.S. at
S.Ct. at
2. The defendants asserted Association, sion and B.C.L.Rev. 1004- each of was terminated for a OS job-related resigned voluntarily, reason