*1 TEJADA-BATISTA, Bernabé
Plaintiff, Appellee,
Lydia MORALES, Individually and in respective capacity;
her official Dom
ingo Alvarez, Individually and in his
respective capacity, official Defen
dants, Appellants. Fuentes-Agostini, Individually
José A. capacity Secretary
and in his
Justice the Commonwealth Rico; Fernández,
Puerto Ernesto In
dividually respective and in his offi capacity; Franco,
cial Antonio Indi
vidually respective and in his official
capacity; Irrizary, Cristóbal Individu
ally respective and in his official ca
pacity; Doe, 97CV1430, John Individ
ually respective and in his official
capacity; Miguel Gierbolini, De
fendants.
No. 03-1841.
United Appeals, States Court of
First Circuit.
Heard Nov. 2004. Sept.
Decided *2 Fernández-Romeu, Tejada of named Office Hernandez told Camelia gang of the Merced had disclosed to members General Commonwealth the Solicitor Justice, Rico, Tejada’s identity Department of undercover officer. of Puerto Sánchez-Ramos, Franco, Tejada J. so advised Franco with whom Roberto When General, Tejada and Kenneth Pamias- discipline speak- threatened to for Solicitor General, to Vázquez, Deputy Solicitor Hernandez without authorization. appellants. on brief for Thereafter, Tejada a hit man whom Valldejuli appellee. Irma R. and, in helped put prison was released believed, Tejada Teja- began to search for BOUDIN, Judge, Before Chief Fearing family’s safety da. for his his and TORRUELLA, Judge, Circuit own, Tejada asked Franco for a transfer CARTER,* Judge. District Senior Tejada out of his division. then wrote to Morales, setting forth complaints about BOUDIN, Judge. Chief Merced, posed the threat the latter court, plaintiff In Ber- the district investigations, posed by and the threat (“Tejada”) Tejada nabé Batista recovered hit man. in damages against superiors two of his Teja- responded by transferring Morales Department Rico Justice the Puerto Tejada da into what described as a dead- (“PRJD”) instigating Tejada’s dis- job headquarters, end at bureau one charge in of his First Amendment violation often left him without work to do. rights. underlying easily events are receiving threatening After a number of described; complications arise out of home, phone Tejada calls at his contacted governing legal doctrine. Alvarez, Franco respond who did not 1987, Tejada began working as a law 1996, Tejada to his In May concerns. was agent Special enforcement Investi- duty; activated for National Guard Mor- (“the bureau”) gations Bureau abusing military ales accused him of leave stints, Tejada PRJD. After other was as- and withheld in pay. Eventually, Jan- signed organized 1995 to the bureau’s uary Tejada family moved his division, operated crime where he under- expense. Florida at his own cover, infiltrating drug Dominican traffick- 1996, Tejada, In December while still on ing rings. According Tejada’s later tes- leave, spoke reporter with a for the El timony, he came to be troubled certain newspaper; Vocero on December “irregularities”: off on drug busts called short appeared, article entitled “S.I.B. Di- arrest, explanation; eve of without rector Agent and Assistant Denied Trans- misuse agent; of funds another fer Although Danger.” His Life Was in shady informant dealings by government day, The next appeared another with the named Ivan Merced. title, “Domingo Alvarez of the S.I.B. For- Tejada reported these concerns to Anto- in Drug bids Arrest Transactions.” The (his nio supervisor) Franco and to the two problems Tejada articles touched on the higher held officials later liable complained internally; each cited (division Domingo this case: Alvarez aas source. head) (bureau Lydia Morales di- rector). article, substance, in response No action was taken The first short re- still, to his complaints. ported Worse trafficker that Morales and Alvarez failed * Maine, sitting by designation. Of the District of
protect Tejada despite life; threats on his tion or “diversion” program. Alvarez’s that when he transferred, only memorandum to Morales mentions the di- to an “inoperative section”; that Alvarez version program, but not that its comple- quashed another agent’s complaint by tion entailed erasure *3 threatening a transfer like Tejada’s; and (even though he later testified that he that Tejada had regular no car to use knew diversion entailed expungement). while at his job, new since the bureau Morales, who was stepping down as bu- prohibited agents using from private their reau director, passed both of Alvarez’s cars and claimed that there were insuffi- memoranda —one about leaks, the oth- cient ears available. er about the past conviction—to the incom- The second alleged article that Alvarez ing (Morales’ acting director own former once suddenly and without explanation deputy), Miguel Gierbolini. On February an cancelled imminent drug bust. also 4, 1997, Gierbolini recommended to the said that a certain “Ivan Rodriguez”—a newly appointed Secretary of Justice, José disguised name for the informant Ivan Fuentes Agostini, that Tejada be dis- Merced—had blown cover, charged for the 1993 domestic violence “ruined” expensive investigations, was “ne- conviction on the ground that someone gotiating drug transactions” without au- with this record should not be a police thorization from bureau, and “was agent. working for the Bureau and for the under- world.” It described one investigation in- Fuentes signed Tejada’s pa- termination volving (in Merced as translation): follows pers on February 27, 1997; Tejada, still on
[Tejada] alleges military leave, confidant learned of this in early ruined an March, investigation in which a and an informal agency hearing (which kilos is valued at $250,000) about held on November 1997. The transaction was going to hearing be made and officer recommended discharge “which was going great and overnight because the conduct leading to Tejada’s was rained.” conviction represented, in violation of the bureau’s regulations, “improper On behavior day the second article appeared, or damaging [behavior] good Alvarez name sent Morales memorandum rec- of the agency or the Government of Puerto ommending Tejada’s discharge on the ba- Rico” and “commission of acts for sis of which is leaks, saying they endan- charged or may charged gered felony both an investigation that was “still misdemeanor crime.” open” and the life of the informant. The day, next Alvarez wrote another memoran- Tejada brought suit in federal district dum Morales, again recommending dis- court, seeking damages injunctive re- charge time prompted (supposedly) —this lief under section § U.S.C. by an anonymous tip saying (2000), for violation his First Amend- had, in 1993, been convicted of domestic ment rights. Named as defendants were abuse. Whether Alvarez had earlier Fuentes, Morales, Alvarez, Gierbolini, known of the conviction disputed. Franco, two other supervisors named Cris- The 1993 conviction, which occurred tobal Irrizary Fernández, Ernesto while Tejada was on military leave, result- an unnamed PRJD employee. Defense ed from Tejada’s hitting wife, but it motions for summary judgment based on had been formally expunged by court or- qualified immunity denied, but the der when completed a rehabilita- court eventually dismissed the claims Fernández, Fuentes, Irrizary appeal implicates several different
against
law,
support
liability.
beginning
bodies of court-created
with
for lack of evidence
Although
the cause of action itself.
dismissing
against
the claim
statutory,
section 1983 cause of action is
the evidence was insuf-
judge
said
claim
the substance
here derives
motive,
“point[ed]
as it
to” a
ficient as to
Supreme
precedents
constru-
valid, nondiscriminatory
“very
reason.”
nutshell,
In a
the First Amendment.
explained
opinion:
in a written
He later
Pickering/Connick
line of decisions
plaintiffs
evidence estab-
Nothing
firing
employee
forbids officials from
[Secretary]
Agosti-
lished
“protected speech”
unless under a bal-
signing
the termi-
ni’s motivation
*4
ancing
governmental
test the
interests out-
way
in any
nation letter was
related to
weigh
protection.1
the need for
newspaper
of the
articles
publication
corrup-
of
plaintiffs
denouncement
The claim thus
turns
first instance
tion.
on
speech,
balancing
the nature of the
interests,
of
and the motivation for the
Instead,
that
the evidence showed
instance,
firing.
the defendants
letter
merely “signed
had
the termination
purposes
appeal
concede for
of this
based on Te-
adopting
recommendation”
Tejada’s “speech”
disclosures to the
jada’s prior conviction.
—his
reporter
part protected
at least in
—was
defendants,
remaining
As to the
speech
governing
under the
case law. The
judge
is sufficient evi-
“[t]here
wrote
disclosures, indeed,
alleged
involved
seri-
...
trier of
dence
from which reasonable
mismanagement
ous
and possible corrup-
plaintiff.”
fact could find in favor of
He
bureau,
tion in the
Guilloty
see
Perez v.
Tejada’s
complaints
noted
internal
of cor-
Pierluisi,
43,
339 F.3d
52-53
Cir.
inaction,
ruption,
timing
of
appellants’
2003),
they
only
Tejada
occurred
after
memoranda,
possibility
Alvarez’s
had properly sought
through
relief
internal
conviction,
Alvarez
long
known
complaints, Wagner City Holyoke,
v.
cf.
of
forwarding
the memo-
Morales’ role
(1st Cir.2005)
504,
404
(per
508
cu
words,
randa to
In other
Gierbolini.
riam).
judge thought that their motive could be
retaliatory.
deemed
“balancing” ordinarily
question
—
27, 2003,
February
four-day
On
after a
of
for
law
the court—is a much closer
trial,
jury
against
question.
returned a verdict
argue
The defendants
that Te-
Alvarez, assessing damages
jada
Morales
of
potentially endangered
the life of an
$125,000
(Ivan)
Tejada’s
for
lost income. The
informant
jeopar-
and could have
district
post-trial
ongoing
court denied
motions for
investigations.
dized
This solici-
defendants,
judgment in
may
favor of the
a new tude
appear to contrast with defen-
trial, and remittitur. Morales and Alvarez
dants’ own limited interest
appeal, contesting
safety. Furthermore,
now
the verdict
only
both
Ivan’s first
against
revealed,
damages.
them and the amount of
name was
and Ivan was himself
411-13,
693, 694-95,
Pickering
Township
v. Bd.
Educ.
1. See
99 S.Ct.
101
(for
jail
fense,
drug dealing
unauthorized
while
which arises
firing
where the
would
informant)
acting
as
the time of the
have occurred even without
reports.
newspaper
speech.
See Mt.
City Sch. Dist.
Bd.
Doyle,
274, 287,
Educ. v.
429 U.S.
Nevertheless,
been
(1977).
S.Ct.
L.Ed.2d
fired because he revealed information jeop
To start with the factual premises, we
ardizing an informant
in
ongoing
and an
agree that
purported
vestigation, defendants would have an ex
Tejada because of the domestic violence
argument
cellent
fired
conviction, and for
present
appeal we
unprotected speech. See United
States
accept
this was indeed Fuentes’
(5th
Cir.1983).
Chagra, 701 F.2d
ground. This is not because the district
However, so far as Morales and Alvarez
court’s ruling
us,
to this effect binds
responsible
firing
separate
—a
appellants assert, but because there is no
to which we will return —the
direct evidence that Fuentes
acted on
could on the evidence
before
conclude
ground.2
other
A circumstantial case to
that their motives were not based on these
(based
the contrary might be attempted
concerns about Ivan and
investigation,
*5
implausibility),
but would not
easy
be
they
but that
acted
because of
Tejada
attempt
does not
such an at-
protected speech.
tack
appeal.
on
Tejada’s main disclosures were of mis-
Strictly speaking,
management
possible
not on
corruption; hos-
point here.
It
tility
him
deals with actions
had
taken
been demonstrated be-
by an official or agency out of
cause of his internal
“mixed
complaints well before
says,
substance,
motives.”
disclosures;
newspaper
that
and the addi-
where there was a permissible and imper-
tion of the
charge
domestic violence
could
ground
missible
firing,
for a
imper-
have been
the
gratuitous gesture
viewed as a
missible ground should
ignored
where
undermining
the claim appellants that
the employee would
they
discharged
have been
centrally
were
concerned with the
anyway based on
permissible
the
threat
to Ivan or
motive.
ongoing investigations.
short,
Although
policy
clear
In
are
jury
the
considerations
could have concluded
invoked,
the main
appellants
that the
rationale is that
Teja-
acted because of
impermissible
such a case the
ground
speech.
da’s
was
not a but-for cause of
firing;
the
it would
brief,
The focus of the appellants’
far
so
happened
have
anyway.
By (1st Cir. Co., 417 F.3d Paper Teja- Int’l cause a “but-for” were appellants ap appellants, assisting 2005), from far have easily could The firing. da’s a tainted that arguendo been to assume pears have would that concluded supervi a from Teja- recommendation disclosed adverse had not appellants if fired liability create might along superior the a passed sor prior da’s was motive own superior’s appel- The if the even Fuentes. recommendation not decide the did Ultimately, a court surely “proxi- pure. also were actions lants’ (unlike present the that issue; well, sense it found as cause” mate desired). to ter (indeed, case) determined superior foreseeable result grounds legitimate employee minate not one case is in this problem So supervisor with the any contact motives, but before multiple with single actor a influence causal had no supervisor mo- having different actors sequential firing. on the being unlaw- motive actor’s first tives—the least at motive actor’s second ful and not com- would case, rigid rule first actor case, the In such permissible. Suppose policy.3 sound with port was) cause but-for (and here may be had disclosed appellants is whether firing. the mob and from taking payoffs maker decision step intervening —a basis; it is Tejada on discharged ground permissible on a acting —should dam- upholding any court imagine hard causation) (not lack of policy a matter appel- if firing, even Tejada for ages liability. wrongdoer insulate Conversely, unlawful. lants’ motives circuits a few only found haveWe *6 speech for in retaliation suppose is- sequence-of-actors have addressed into think- misled appellants they are context, and present sue duties; his shirked Tejada had Fifth Circuit The in conflict. nominally if liable even be held should surely they properly action that the says innocent. motives were Fuentes’ own ill-motivat- insulates superior motived extremes. such between falls case Our County Madison subordinate, Beattie v. ed motive own Fuentes’ (5th accepting Even Cir. 595, 603-05 Dist., F.3d 254 Sch. reasonably doubt jury could “pure,” was say that circuits 2001); other three if occurred have firing would is a but-for if he liable remains subordinate prior across stumbled City v. firing, Gilbrook cause of au- cite Appellants own. (9th 839, 854-56 Westminster, F.3d 177 dis- for law Rico under Puerto thority 1061, 120 denied, 528 U.S. Cir.1999), cert. domestic for officer police charging a (1999); Saye v. 614, 509 L.Ed.2d 145 S.Ct. was Tejada’s conviction here 862, But abuse. Dist., F.2d 785 Valley Sch. St. Vrain old, the conviction years three over Valley v. Cir.1986); (10th Hickman 867 after law local under expunged had been Educ., 619 Bd. Dist. Sch. Local highly It is counseling. he received any of Cir.1980). (6th Whether 606, 610 appellants’ unlikely absent mechanical wholly intends cases these inevitable. firing prompting, doubt. open to in all cases is rule 8.11, § at Jurisdiction noted, Chemerinsky, Federal already 1983, have we 3. Section ed.2003), of intersti- kind (4th 578-85 remedy viola- for only civil provides skeletal suit- especially presented here problem tial remedial Much law. of federal tions through law. case development made, ed for see is court section law under Tejada’s Nor was misconduct of such a earned jobs from other odd during this (for kind that would make it unthinkable to period station). example, at a gasoline policeman retain him as a after its disclo- might But it well have been appellants sure, guilty as would be the case if he were proof, elicit such Conetta v. Nat’l cf. mob ties murder. His misconduct Ctrs., Inc., (1st 67, Hair Care 236 F.3d serious, sure; to be but it was one Cir.2001) (mitigation), they may incident, past, well in the had fortunate not to have been held liable for been rehabilitated. This is not a case wages future as well. public policy
which offends to sanction a The district court has detailed the rele- who, reasons, defendant improper re- vant evidence and may calculations that vealed earlier offense order to have led a rationally “conserva- —even prompt discharge. tive[ly]” set compensatory damages at —to Appellants make a final merits-related $125,000. Faced with the “formidable bur- qualified immunity. claim of interplay showing den” of the district court qualified immunity between and First abused its discretion in rejecting their mo- Amendment subject, violations is a difficult remittitur, tion for Davignon Clemmey, partly because the normally former em (1st 322 F.3d Cir.2003), appellants objective ploys an standard and the lat have not come close. ter —in ordinary contrast Fourth Affirmed. Amendment heavily upon claim—turns
motive. This does not mean that qualified CARTER, Senior Judge, District immunity can never succeed in a First dissenting. case, Amendment see Dirrane v. Brookline
Police Dept., 315 F.3d
69-71
Cir.
The majority opinion in
repre
this case
2002), but only
opportunities
may
startling anomaly
sents a
in the estab
be narrowed.
jurisprudence
lished
of American compen
satory justice
On appeal, appellants’ brief
holds that
may
describes
Plaintiffs
—it
qualified immunity
damages
recover
general
doctrine
where it is established
terms but
no
apply
makes
effort to
it to without
and as a matter
lato
*7
the facts of this
An
argument
case.
no action of
proxi
the Defendants
seriously developed in
opening
mately
the
brief is
caused
damages
the
for which re
forfeit,
Zannino,
see
covery
United States v.
is allowed.
majority
The
founds
1,
Cir.1990),
denied,
upon
cert.
494 the result
an attempted distinction of
1082,
1814,
U.S.
110 S.Ct.
As for the award of dam case should posture look to the in which ages corresponds lost police the case was jury. submitted to the salary period Thereafter, between the discharge application clearly and the date of judgment this case. holding articulated of the United States Appellants say jury Supreme should have Healthy yields Court Mt. Tejada subtracted apparently amounts proper result. There should be neither “poli- regulations, create a circuit “improper need to behavior or [be- occasion nor Healthy. damaging good the rule of Mt. to the cy” abrogate havior] name Law, agency “policy,” not local should control the or the Government of Puerto Hence, the cause for result in this case. Rico” and “commission of acts for which my it is charged may charged felony dissent. be or misdemeanor crime.” majority opinion correctly describes
The the conduct of Alvarez and Morales. How- added). at (emphasis Id. 99 -100 There is ever, clearly the record shows hearing no evidence that the officer had if im- underlings, even conduct of these any knowledge any discharge basis motivated, properly never came of Plaintiff other than the referenced con- Secretary knowledge or attention viction. Fuentes, the official who made and who is The district court at found trial that it discharge executed the decision Secretary Fuentes who made ulti- undisputed Plaintiff. that Fuentes mate decision to terminate Mr. was the “final decision-maker.” The ma- that Fuentes’ solely decision was based jority opinion specifically recognizes that: Tejada’s conviction for domestic violence.4 incoming acting Gierbolini [the director] granted Judgment When the district court newly appointed recommended Law, as a Matter of before submission of Justice, Agos- Secretary of Jose jury, Secretary the case to the in favor of tini, discharged stated, as the basis for its 1993 domestic violence conviction on the ruling: ground that someone with this record agent. police should not be a I’m dismissing the case as to the former Secretary of I Justice. find that there is added). Maj. (emphasis op. at 99 legally evidentiary no sufficient basis Plaintiffs Fuentes executed from which a reasonable can deter- papers later. There is about three weeks motivating mine factor between record, not a scintilla of evidence in this letter, action, the dismissal majority nor I do understand the make actions, plaintiffs that there was a moti- any contrary, that assertion to the vating speech, factor in freedom of ever had to him or that communicated he speech, violation of his freedom of I by any discovered means other other very find that there is a valid nondis- reason to Plaintiff than discharge the criminatory reason and that’s what the prior one he Plaintiffs gave (e.g., domestic points evidence to. conviction). majority violence states hearing officer who reviewed I, Appendix Trial Transcript Volume at *8 discharge Fuentes’ action 276-77. The district court reaffirmed its findings legal recommended because the factual conclusions leading findings post-trial conduct conviction based on those in a represented, in Opinion violation of the Bureau’s and Order: However, findings point program. 4. The district court’s on this rehabilitation Mr. appealed ques- were not are not called into cross-appeal challenging did not file a appeal. tion for review on this I also note grant Judgment district court's decision to as argues appeal that on that under Mr. Secretary a Matter of Law to Fuentes. There- employee Puerto Rican law an cannot be ter- fore, the Court cannot reconsider this issue on minated for a of domestic conviction violence appeal. employee engaged when the did has as he The evidence also demonstrated that There simply nothing in the evidence Agostini signed plaintiffs proffered Fuentes ter- by plaintiff to affirmatively 27, 1997, February mination letter on link Agostini Fuentes co-defendant of intentional adopting Miguel deprivation the recommendation constitu- of tional All plaintiff rights. discharged Gierbolini evidence estab- signed lished is that he for his domestic violence conviction. termination n plaintiff’s letter adopting the Nothing evidence estab- recommendation that plaintiff had violated internal Agostini’s regulations lished that Fuentes motiva- and that his domestic abuse signing tion the termination letter mandated dismissal. Plaintiff any way was in has publica- related to the failed to at trial sufficiently ] tion the newspaper plain- articles or “introduce! adequate evidence for to deter- corruption. denouncement tiff’s plausibility mine the of’ co-defendant’s similarly evidence fell short of establish- [Fuentes’] motivations order to sur- ing Agostini’s knowledge Fuentes vive a motion under rule 50. plaintiffs protected expressions. Plain- tiff nevertheless contends that a reason- Tejada-Batista v. Agostini, able inference can be drawn from the (D.P.R.2003) (em- F.Supp.2d 1048, 1053-54 presented. suggests added).5 evidence He phasis scanty from the evidence described Hence, the conduct and motivation of above, a reasonable inference can be be, Ms. Morales and Mr. Alverez cannot Agosti- made co-defendant Fuentes law, any a matter of part of a legally ni newspaper knew of the articles and sufficient causative in Secretary factor by was motivated them. He further employment Fuentes’ action. Even claims that it is to expect reasonable though the evidence might be construed to newly appointed Secretary that a of Jus- establish that their termination recommen- tice will of all be informed the media dations potentially by driven some publications that Depart- relate to the motivation, they unconstitutional cannot be Justice, ment of and that when he liable under section 1983without some evi- signed the termination letter he must dence of causation between motivation presented have been plaintiffs with file by Secretary and the decision Fuentes to in which containing the memoranda discharge the Plaintiff. See Beattie v. plaintiffs expressions were addressed. Dist., County Madison Sch. 254 F.3d these, contends, All of plaintiff creates a (5th Cir.2001); see also Johnson v. Agos- reasonable inference that Fuentes state, (5th Cir.2004) 369 F.3d tini by plaintiffs was motivated ex- (“[I]f the imposed decision-maker who ercise of First rights Amendment at the employment adverse action was not moti- signed time he the termination I letter. speech, speech vated then the did disagree. employment cause the adverse ac-
tion.”). plaintiff’s this case evidence Here, court, as found the district Agostini’s motivation is noth- there nois evidence that the final decision- conjecture guesswork. but maker, Secretary even knew *9 Indeed, protected
Mr. conduct. 5. Secretary January entered office in Vocero. 1997, published after the articles were in El specifically found that out into of legal precedent; court the world
the district made Secretary indepen- policy his own stated that to response be its dent decision to terminate Mr. may fairness considerations that arise in Tejada’s prior based on domestic violence truly the course of mixed I motive cases. and that there was no evidence that it wrong majority believe is for the impute any upon which Ms. Morales’ casually clearly applicable shunt aside a Secretary and Mr. Alverez’s motives to holding Supreme of the in reliance Court being Fuentes. Without at least able to previously unrecognized “poli- on its own impute appellants’ unlawful motives to cy” of aversion to rigid rules of burden- Fuentes, Secretary those wrongful motives of-proof allocation. be found to a motivating cannot be factor case, In the Mt. Healthy challenged employment adverse action. employment question action in consisted of Hence, minions, the conduct of the Mor- superintendent facts of the Defen- Alvarez, majority imag- ales system dant school recommended to the
ines to be the “but for” cause of Plaintiffs
year-end
School Board at
Plain-
never,
law,
discharge
as matter of
tiff,
teachers,
along with nine other
not be
any
cognizable
legally
impact
influence or
rehired and
action
of the School Board
any
in bringing
kind
about the decision
in accepting that recommendation. The
Fuentes,
by
as affirmed
reviewing
expressly
established “a rule of cau-
officer,
hearing
discharge
the Plaintiff.
sation,”
at
U.S.
S.Ct.
conclusion,
inference,
Any
any
even
solely
did not focus
pro-
on whether the
contrary manifestly
is
in conflict with the
“played
tected conduct
part,
‘substantial’
district court’s conclusion at trial as a mat-
otherwise,
in a decision not
to re-
”
ter
law that
the final decision-
....
hire
Id. It found such a rule would
maker,
any
acted without
improper knowl- unfairly unbalance the
per-
framework of
edge
law,
or motivation. As a matter of
mitted decision-making. The evil ad-
simply
there
cannot be
causal link
dressed
holding
was stated to be
any supposed
here between
improper mo-
that:
tives of the
discharge
minions and the
A
marginal
borderline or
candidate
implemented by Secretary Fuentes’ soli-
employment
should not have the
ques-
tary
decision to
plaintiff for a
tion
against
resolved
him
because
proper, stated reason.
constitutionally protected conduct. But
that same
precisely
ought
candidate
not to
purpose
and role of
able, by
conduct,
holding
engaging
in such
Healthy
Mt.
to cut off
such
noncontributory
prevent
employer
assessing
conduct from
from
serving as
performance
efficient causal link to
record
support recovery
reaching
a deci-
of damages
sion not
puts
where the Defendant
to rehire on the
basis of
record,
forth a legitimate
discharge.
simply
reason for the
because the
The United
Supreme
States
Court had
employer
its
conduct makes the
more cer-
“policy”
own
casting
basis for
that holding
tain of the correctness of its decision.
states,
majority
does,
legal policy
"The
is wheth-
that "lack of causation”
intervening steps
er the
fact,
final decision-
liability
insulate from
one whose conduct
—a
acting
maker
permissible ground—
on a
motivating
wrongful
is not a
factor for the
(not
policy
should as a matter
lack of causa-
employment
majority
action. The
has substi-
tion)
wrongdoer
liability.”
insulate the
policy
holding
tuted its own
for the
added).
(emphasis
Id. at 12
Supreme
United States
Court.
This
footing
formulation evades rational
establishes it to be the dominant
*10
Id. at
support such Plaintiff, panel “failed to meet his burden of to depart holding. that In this proximate that the cause Circuit, panel each proof to show the Court is bound employer’s] by prior panel directly point. [defendant his termination was decisions on (em- Zayas, Id. at 240 Jusino v. discriminatory animus.” Cir.1989). added). causation, Thus, not local phasis taken to “policy,” circuit drive the Webber, The seminal holding pres- grant the court’s decision to affirm district purposes, ent is that where the evidence Judgment as a Matter of Law to the fails to show that the decision-maker Defendant. adversely by is influenced the motivation actors, The Webber case application is a clear type of lower level the and level of the Mt. Mt. Healthy is ab- requiring pres- required by rule the causation recognized,8 sent and must be linkage the ence of causational between A second conduct of those who are found to harbor echelon of “but for” causational conduct making and the discriminatory bridge gap motivation will not suffice to between actual, challenged employment liability of the deci- damage by and that is created found, majority attempts panel Oettinger, plaintiff's 8. The to dismiss the con- that by decision-maker, trolling peremptory two superior effect of Webber ultimate and final (1) reasons, unexplained that the proper and asides: Webber discharge had decided for panel "appears arguendo” plaintiff. to assume that the underlings, He then went to the underling Moser, tainted action of communicated notify Schaub and them of his ini- pure-minded supervisor may decision, to a be the basis opinion, tial not to seek their but (2) liability, and that the that he, Oettinger, rather to ascertain if found superior "had determined to terminate "any missed material termination-related any employee legitimate grounds facts.” Id. simply before Schaub and ac- Moser supervisor contact with the [occurred] decision, quiesced apparently in the without supervisor that the had no causal influence on plaintiff they comment. The conceded that firing.” Maj. (emphasis op. at 102 in Oettinger any did not communicate to dis- original). fact, criminatory they may, animus that Oettinger imple- have harbored. Id. at 236. Both me of these observations strike discharge plaintiff. mented the decision to understanding irrelevancies in the Webber panel arguendo” What the "assumed opinion, they majority's perpetuate clearly panel opinion. stated unwillingness recognize the direct and fo- that, arguendo [W]e shall assume even in holding Healthy {e.g. cused thrust of the in Mt. direct, the absence of ... affirmative is, pure-minded that a final decision-maker Oettinger communication between effect, intervening destroy- an efficient cause Moser, (viz., supervisor’s silence his dis- proximate the existence of cause between criminatory power failure to utilize the veto animus of others than adverse the final upon employer) conferred him his could damage resulting decision-maker and the "participation” constitute sufficient decision). "in- employment from the imputing supervi- fluence” to warrant [the The factual circumstances in Webber were purported Moser, sor’s] to [the animus final deci- underlings, that the Schaub sion-maker]. plaintiff made remarks that claimed showed appears Id. at 237. they discriminatory This me be an harbored intent to- appropriate understanding of the law under plaintiff. ward the There was no evidence Healthy. they Oettinger, ever told the final deci- However, sion-maker, understanding does not have plaintiff be dis- should charged application the effect panel on the of Webber here the RIF. The concluded that be, record, majority excessively specu- opera- it would on the attribute to it. The finding panel lative for a tive to conclude that "Moser con- in Webber was not ceivably Oettinger 'influenced' [the the decision to fire made the decision showed, plaintiff].” consulting Id. at 237. The record with Schaub and Moser but before absence of motivated eausational conduct
of the final decision-maker. This case is Ali Abdul KARIM, Petitioner, much stronger than Webber because here
that absence is established in the record whereas in Webber the contrary was estab- Alberto GONZÁLES, Attorney lished (as- concession the Plaintiff General, Respondent. suming the record is to be given any weight in appellate consideration) as a No. 04-2206. matter of law. United States Court of Appeals,
I suggest this panel is properly bound First Circuit. by the holding of the Webber case since it has been subsequently overruled and April 28, Submitted no other exceptional circumstances apply to call in question the viability of that prior Decided Sept. 22, 2005. ruling. Mainegeneral Medical Ceter v. Shalala, F.3d Cir.2000);
Williams v. Ashland Co., Engineering (1st Cir.1995). The Webber
decision was recently rendered, August
9, 2005, and is there no circumstance that
postdates decision, “that offers a
sound reason believing that the former
panel, in light of fresh developments,
would change its collective mind.”
Williams,
Thus, I believe the judgment below
should be reversed to comply with the
applicable, direct holding of the United
States Supreme the Mt. Healthy
case and the previously announced rule of
decision in this Circuit under prece-
dent in the Webber case. rather that he made it any without decision that the influence case should not have them, and it is easily argued gone from the juiy because total absence panel's language that panel assumed any is, evidence of causation. That in both had there been evidence that the under- respects, application a correct holding lings had a bad animus plaintiff, toward Healthy. in Mt. The state of mind of the failure to exercise in plaintiff favor of underlings established, irrelevant once it is implicit power” "veto Oettinger gave them panel as the be, in Webber found to that that consulting with them would have been suffi- state of mind had no influence on the deci- cient causative upon “influence” de- sion-maker. In such a scenario it is also cision-maker for Healthy purposes when, to re- irrelevant events, in the course of sult in a triable proximate issue of cause. final decision-maker reached his final deci-
That is the controlling factual underpinning sion.