* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 15 2000 

### PATRICK FISHER Clerk 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”), respecti vely 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 spo ken out about discrimination in-2-

the Albuquerque Police Department (“APD”), and thatthe 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 han d over certain documents requested by Guzman during the mediation. Defendan ts appealed, arguing inter aliathat there was insufficient evidence to support th e district court’s finding that they were involved in the decision not to turn overthe documents. This court agrees. Because there was no evidence to link these individuals to the alleged retaliatory act, we exercise our jurisdiction pursu ant 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 resignat ion in August 1998. He rose to the position of Sargent in 1983, and in the year s following he sought to be promoted to Lieutenant. The process by which an of ficer in the APD is promoted to Lieutenant includes both a written and an oral e xamination, with only the most successful candidates on the written examination qu alifying 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.1 Guzman and Polisar had also been involved in a disp ute in the mid-1980s

which led to a verbal altercation between the two m en. -3- Throughout Guzman’s career at APD, he was both a me mber of and held leadership positions in several police unions, incl uding the Chicano Police Officers’ Association, the Latino Peace Officers’ A ssociation, and the New Mexico Peace Officers’ Association. As a union rep resentative, Guzman met with Defendant Chavez when Chavez was a mayoral can didate. Guzman sought to discuss issues which included the perceived disc rimination 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 refu sed to meet with Guzman to discuss union members’ concerns, includin g concerns over discrimination. 1 Guzman asked then-mayor Chavez to persuade Polisar to meet with union leaders. Chavez refused Guzman’s reques t, and he and Guzman exchanged threats. In 1994, Guzman participated in a class action laws uit, which became known as the “Alianza ” lawsuit, in which the plaintiffs alleged various forms of anti-Hispanic discrimination in the APD. Defendant s in the Alianzalawsuit included the City of Albuquerque (“City”) and Defen dants Chavez and Polisar.2 The Alianza defendants refused to mediate the claims of police officer Gil

Najar, another police union leader, and Najar was n ot a party to the tolling agreement. All of the Alianzalawsuit plaintiffs except for Najar and Guzman resolved their claims through mediation. -4- Guzman and the other plaintiffs eventually agreed t o dismiss the suit in exchange for the City’s agreement to toll the statute of lim itations on most of the individual plaintiffs’ claims. This arrangement was reduced t o a written document, the “Tolling Agreement,” in which the parties also stat ed their intention to mediate most of the Alianza plaintiffs’ claims. 2 Guzman participated in three mediation sessions. P articipants at these sessions included Guzman, his attorney, and police officer Sal Baragiola. During the mediation, Guzman asked to see the documents wh ich were prepared by examiners at his past oral examinations. Guzman ho ped and believed that these documents would explain why he did not qualify for promotion, either by identifying mistakes he had made or by revealing an y possible biases on the part of the examiners. Baragiola told Guzman that he re quested the documents from Deborah Martinez, an employee of the City’s Human R esources department, but that she refused to release them. Guzman’s attorne y also requested the documents directly from Martinez, but she was denie d access to them as well. As a result of these refusals, Guzman terminated the m ediation.3 Guzman’s testing file was also the subject of a dis covery dispute in this

litigation. The documents were turned over to Guzm an during the trial, and the district court gave Guzman the opportunity to condu ct additional discovery based on the documents. -5- Guzman then initiated this lawsuit, in which he all eged that the Defendants: 1) discriminated against him by failing to promote him because of his Hispanic national origin, in violation of the F ourteenth Amendment; and 2) retaliated against him for his speech on discrimination, in violation of the First Amendment. Guzman originally named as defendants P olisar, Chavez, and Baragiola, all in their official and individual cap acities. Pursuant to pre-trial motions, Guzman stipulated to the dismissal of Bara giola in both his individual and official capacity, and to the dismissal of Chav ez and Polisar in their official capacities. A bench trial was held in October 1998 and, followi ng an extensive recess during which Guzman conducted additional discovery, was concluded in January 1999. 3 The district court issued findings of fact and co nclusions of law stating that: 1) Guzman had failed to show that Defendants discriminated against him by denying him a promotion; but 2) Defendants had reta liated against Guzman because of his protected speech by mediating his Alianzaclaims in bad faith. The district court specifically found that the Defe ndants retaliated against Guzman by refusing to turn over the oral examiners’ documents, and that without-6-

those documents his efforts at mediation necessaril y 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 clear ly 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 review ing 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 guaran tees of confidentiality, his testing records so that any of his efforts at mediation necessarily failed.4 In his brief, Guzman also argues that when the Defe ndants offered to

mediate the Alianza lawsuit, they already knew that the City’s policy w as to refuse access to the oral examination records, and therefore the offer to mediate was made in bad faith. We do not read the districtcourt’s findings of fact and conclusions of law as relying on this theory. More over, our review of the record has also failed to reveal evidence of any prior kno wledge by the Defendants of the City’s policy with regard to releasing testing reco rds.

5 In light of our conclusion above, we need not reach the Defendants’ arguments that 1) there was insufficient evidence t o support the district court’s finding that the testing documents were withheld in retaliation for Guzman’s speech and 2) all of Guzman’s evidence on damages r elated to his discrimination claim, and thus there was insufficient evidence to support the district court’s award of damages.

-7- 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 Defen dants, we reverse. 5 See Grimsley v. MacKay , 93 F.3d 676, 680 (10th Cir. 1996).-8-

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 enterjudgment for the Defendants. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge