UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID GUZMAN,

Plaintiff-Appellee,

v.

JOSEPH POLISAR, Chief of Police; MARTIN CHAVEZ, Mayor,

Defendants-Appellants.

No. 99-2060

(District of New Mexico)

(D.C. No. CIV-97-1279-MV)

ORDER AND JUDGMENT*

Before TACHA, BRORBY, and MURPHY, Circuit Judges.

I. INTRODUCTION

Plaintiff David Guzman brought suit against defendants Joseph Polisar and Martin Chavez (collectively "Defendants"), respectively the former Chief of Police and Mayor of Albuquerque. See 42 U.S.C. § 1983. Following a non-jury trial, the district court found that Guzman had spoken out about discrimination in the Albuquerque Police Department ("APD"), and that the Defendants retaliated against Guzman because of that speech in violation of the First Amendment. The district court found that the Defendants retaliated by mediating a discrimination claim in bad faith, specifically by refusing to hand over certain documents requested by Guzman during the mediation. Defendants appealed, arguing inter alia that there was insufficient evidence to support the district court's finding that they were involved in the decision not to turn over the documents. This court agrees. Because there was no evidence to link these individuals to the alleged retaliatory act, we exercise our jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

II. FACTS AND PROCEDURAL HISTORY

Guzman, who is Hispanic, was a police officer with the Albuquerque Police Department from June 1976 until his resignation in August 1998. He rose to the position of Sargent in 1983, and in the years following he sought to be promoted to Lieutenant. The process by which an officer in the APD is promoted to Lieutenant includes both a written and an oral examination, with only the most successful candidates on the written examination qualifying to take the oral examination. Guzman passed the written examination on seven different occasions, but he failed the oral examination each time and, thus, was never promoted.

Throughout Guzman's career at APD, he was both a member of and held leadership positions in several police unions, including the Chicano Police Officers' Association, the Latino Peace Officers' Association, and the New Mexico Peace Officers' Association. As a union representative, Guzman met with Defendant Chavez when Chavez was a mayoral candidate. Guzman sought to discuss issues which included the perceived discrimination against Hispanic police officers at the APD and the selection of the next Chief of Police. Chavez became upset and refused to discuss these issues. The police unions thereafter endorsed another candidate.

When Polisar was appointed Chief of Police, he refused to meet with Guzman to discuss union members' concerns, including concerns over discrimination.1 Guzman asked then-mayor Chavez to persuade Polisar to meet with union leaders. Chavez refused Guzman's request, and he and Guzman exchanged threats.

In 1994, Guzman participated in a class action lawsuit, which became known as the "Alianza" lawsuit, in which the plaintiffs alleged various forms of anti-Hispanic discrimination in the APD. Defendants in the Alianza lawsuit included the City of Albuquerque ("City") and Defendants Chavez and Polisar. Guzman and the other plaintiffs eventually agreed to dismiss the suit in exchange for the City's agreement to toll the statute of limitations on most of the individual plaintiffs' claims. This arrangement was reduced to a written document, the "Tolling Agreement," in which the parties also stated their intention to mediate most of the Alianza plaintiffs' claims.2

Guzman participated in three mediation sessions. Participants at these sessions included Guzman, his attorney, and police officer Sal Baragiola. During the mediation, Guzman asked to see the documents which were prepared by examiners at his past oral examinations. Guzman hoped and believed that these documents would explain why he did not qualify for promotion, either by identifying mistakes he had made or by revealing any possible biases on the part of the examiners. Baragiola told Guzman that he requested the documents from Deborah Martinez, an employee of the City's Human Resources department, but that she refused to release them. Guzman's attorney also requested the documents directly from Martinez, but she was denied access to them as well. As a result of these refusals, Guzman terminated the mediation.

Guzman then initiated this lawsuit, in which he alleged that the Defendants: 1) discriminated against him by failing to promote him because of his Hispanic national origin, in violation of the Fourteenth Amendment; and 2) retaliated against him for his speech on discrimination, in violation of the First Amendment. Guzman originally named as defendants Polisar, Chavez, and Baragiola, all in their official and individual capacities. Pursuant to pre-trial motions, Guzman stipulated to the dismissal of Baragiola in both his individual and official capacity, and to the dismissal of Chavez and Polisar in their official capacities.

A bench trial was held in October 1998 and, following an extensive recess during which Guzman conducted additional discovery, was concluded in January 1999.3 The district court issued findings of fact and conclusions of law stating that: 1) Guzman had failed to show that Defendants discriminated against him by denying him a promotion; but 2) Defendants had retaliated against Guzman because of his protected speech by mediating his Alianza claims in bad faith. The district court specifically found that the Defendants retaliated against Guzman by refusing to turn over the oral examiners' documents, and that without those documents his efforts at mediation necessarily failed. The district court awarded Guzman $75,000 in compensatory damages, and Defendants appealed.

III. DISCUSSION

A. Standard of Review

Defendants challenge specific findings of fact made by the district court. This court reviews findings of fact under the clearly erroneous standard. See Fed. R. Civ. P. 52(a); Salve Regina College v. Russell, 499 U.S. 225, 233 (1991). "A finding of fact is not clearly erroneous unless it is without factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made." Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990) (quotations omitted).

B. No Evidence of Action by the Defendants

Defendants argue that the district court's finding of fact number thirty-five was clearly erroneous:

35. Mr. Guzman has shown that his speech on discrimination in the Albuquerque Police Department was a substantial factor or a motivating factor in Defendants' refusal to disclose, despite the existence of a signed confidentiality agreement and other guarantees of confidentiality, his testing records so that any of his efforts at mediation necessarily failed.

Specifically, Defendants argue that no evidence was presented at trial from which the district court could have found that they were involved in withholding the documents Guzman requested during mediation. Based on an independent review of the record, this court agrees. No evidence was presented at the trial which would link these two individuals to the decision to withhold the documents or to any other act which would defeat Guzman's efforts at mediation.4 Because there is no evidence of personal involvement by the Defendants, we reverse.5 See Grimsley v. MacKay, 93 F.3d 676, 680 (10th Cir. 1996).

IV. CONCLUSION

For the reasons stated above, this court reverses the decision of the District Court for the District of New Mexico and remands with instructions to the district court to vacate its judgment and enter judgment for the Defendants.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge