# Jose Bueno, Leon Trevino and Victor Alegria, Cross-Appellants v. City of Donna, Cross-Appellees

> Court of Appeals for the Fifth Circuit · September 12, 1983 · 714 F.2d 484

URL: https://www.frixlaw.com/law-library/cases/9470990

## Case

- **Full name:** Jose BUENO, Et Al., Plaintiffs, Leon Trevino and Victor Alegria, Plaintiffs-Appellees Cross-Appellants, v. CITY OF DONNA, Et Al., Defendants-Appellants Cross-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 12, 1983
- **Citations:** 714 F.2d 484; 1983 U.S. App. LEXIS 16995
- **Precedential status:** Published
- **Opinion:** Concurrence by Rubin
- **Judges:** Rubin, Garza, Williams
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470990

## How later opinions describe it (automated extraction)

- affirming jury verdict under plain error standard because defendants failed to move for. judgment notwithstanding the verdict, file motion for a new trial, or seek remittitur

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
specially concurring:
Unlike the majority, I cannot read the jury charge as instructing the jury “that it could not find for plaintiffs unless it found that the improper motive was the sole reason for the discharge.” (Emphasis in original.) The jury was instructed to determine whether the plaintiffs were discharged “because of their political activities.” (It responded affirmatively to an interrogatory using these very words.) Numerous causes of an employer’s dissatisfaction may in aggregate prompt it to discharge an employee though no single cause alone would move it to take such action. Under those circumstances, the employee would be discharged “because of” each cause contributing to this employer’s dissatisfaction. Thus, the instruction and the jury’s answer in this case permitted a verdict in the plaintiffs’ favor even if the plaintiffs’ exercise of their first amendment rights was but one among several reasons for their discharge.
In this respect, the jury instruction was correct, for Mt. Healthy does not require that constitutionally protected conduct be the sole reason for discharge. The Mt. Healthy Court held that a plaintiff’s burden is to establish that protected conduct was a “substantial factor” or “motivating factor” in the defendant’s decision not to rehire him. 429 U.S. at 287, 97 S.Ct. at 576, 50 L.Ed.2d at 484. In holding that the plaintiff had carried this burden, the Court did not disturb the district court’s finding that other reasons existed for the teacher-employee’s discharge as well; to the contrary, the Court acknowledged additional reasons specifically. Id. 573-75.
Mt. Healthy does not, therefore, require that, to recover, the employee exclude contributing reasons. He must instead exclude alternative reasons. Assuming that an em *497 ployee was discharged (solely or in part) because he exercised his constitutional rights, the employer can still escape liability by persuading the jury that, if the employer had not discharged him for that reason, it would have discharged him for another reason. 1 The alternative reason can preclude liability even if it in fact played no part in the employer’s decision. Therefore, the finding that exercise of a constitutional right was the sole reason that prompted the employer to discharge the employee does not alone impose liability under Mt. Healthy.
When in the future a similar issue is raised, the proper Mt. Healthy charge should be given. It is succinct and clear. Truncating it to a two-word preposition does not adequately present the serious constitutional question or the defenses to it. Under similar circumstances, 2 however, we approved a charge substantially like this. Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir.1979). Moreover, the overwhelming weight of the evidence supports the jury’s verdict. Therefore, I concur in the result reached by the majority.
I concur also in reversal of the verdict for Noe Ramirez, but for a reason other than the majority’s. The first amendment, in my opinion, protects refusals to engage in campaign activity whether in support of or against the candidate favored by the person refusing to campaign. 3 But Ramirez failed to request an interrogatory on this issue. The question put to the jury was not whether Ramirez was discharged for refusing to campaign but whether he was discharged for the opposite: “because of [his] political participation in the city election of Donna.” While the evidence concerning the reason for his firing was contradictory, his own testimony, at best, supported the thesis that he objected to partisan displays on city property. There was much evidence that he was discharged for unsatisfactory job performance. There was literally no evidence that he was discharged for political participation in the city election. I would, therefore, hold that Ramirez failed to create a jury question regarding discharge for political participation and waived the right to protest his discharge as being based on political abstinence.
. Once the plaintiff establishes that “his conduct was constitutionally protected ... [and was] a ‘substantial factor’ ... [i.e.] ‘motivating factor’ in ... [a state actor’s] decision,” the burden shifts to the defendant to prove “that it would have reached the same decision ... even in the absence of the protected conduct.” 429 U.S. at 287, 97 S.Ct. at 576, 50 L.Ed.2d at 484. Cf. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 , 270 n. 21, 97 S.Ct. 555 , 566 n. 21, 50 L.Ed.2d 450 , 468 n. 21 (1977) (to establish violation of equal protection clause, plaintiff must prove that discriminatory purpose was a motivating factor; burden then shifts to the defendant to prove that the challenged decision would have been reached absent the discriminatory purpose).
. The defendants asserted categorically that each of the plaintiffs was terminated for a job-related reason or resigned voluntarily, and that the plaintiffs’ political activities had nothing to do with their termination.
. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 232-37 , 97 S.Ct. 1782, 1798-1800 , 52 L.Ed.2d 261 (1977) (state cannot condition employment on financial contribution to union’s expression of political views or support for political candidates); Wooley v. Maynard, 430 U.S. 705, 714-16 , 97 S.Ct. 1428, 1435-36 , 51 L.Ed.2d 752, 762-63 (1977) (state cannot compel display of state motto on license plate); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 631-41 , 63 S.Ct. 1178, 1182-87 , 87 L.Ed. 1628, 1633-39 (1943) (state cannot compel flag salute and pledge of allegiance); see generally Gaebler, First Amendment Protection against Government Compelled Expression and Association, 33 B.C.L.Rev. 995, 1004-OS (1982).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470990. Public record. Not legal advice.