Borges-Colon v. Roman-Abreu

          United States Court of Appeals
                       For the First Circuit

No. 04-1221

                    SAMUEL BORGES COLÓN, ET AL.,

                       Plaintiffs, Appellees,

                 LISA MARIE DE JESUS FLORES, ET AL.,

                             Plaintiffs,

                                 v.

              JOSÉ R. ROMÁN-ABREU; JUAN A. NORAT-FLORES,

                       Defendants, Appellants,

                          IRAIDA HORNEDO,

                             Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
      [Hon. Jose Antonio Fusté, Chief U.S. District Judge]


                               Before

                         Boudin, Chief Judge,
                     Stahl, Senior Circuit Judge,
                      and Lynch, Circuit Judge.


     José J. Sánchez Vélez and Rafael A. Robles Díaz, Commonwealth
of Puerto Rico, Department of Justice, Civil Rights Legal Task
Force, with whom Yldefonso López Morales and O'Neill & Borges Law
Firm were on brief, for appellants.
     Claudio Aliff-Ortiz, with whom Pablo Landrau Pirazzi and
Aldarondo & López Bras were on brief, for appellees.


                          February 6, 2006
           LYNCH, Circuit Judge.        This is the latest in a series of

cases    which     involve     the   tension    between    a    newly   elected

administration's ability to reorganize government, on the one hand,

and, on the other hand, two constitutional limitations -- the First

Amendment's prohibitions against discriminating against government

employees based on their political affiliation and the Fifth and

Fourteenth       Amendments'     prohibitions    against       depriving     such

employees of property interests in their employment without due

process of law.

           This court has had to address these tensions in cases,

usually from Puerto Rico, in which the newly elected officials

represent a particular party and the reorganization results in the

termination of employment of workers of another political party.

See, e.g., Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121 (1st Cir.

2004); Angulo-Alvarez v. Aponte de la Torre, 170 F.3d 246 (1st Cir.

1999).   The mere fact that the impact falls mainly on members of

the party which has lost power is not, of course, sufficient to

warrant federal court interference with the policy choices of a new

administration which reflects the voters' choice that changes are

desirable.   Sanchez-Lopez, 375 F.3d at 140.          By the same token, a

new administration cannot cloak political discrimination merely by

labeling the change a legitimate reorganization.               Id. at 132.    Nor

may it deliberately effectuate a legitimate reorganization in a

politically discriminatory manner.           Id. at 140.


                                       -2-
            Here,   the   reorganization   involved    a   new   Popular

Democratic Party (PDP) administration in San Lorenzo, Puerto Rico,

headed by defendant Mayor José R. Román-Abreu (Mayor Román).        The

new administration chose to "privatize" the sanitation division,

with the result that thirty-six career employees, almost all New

Progressive Party (NPP) members, were laid off.       A jury found that

these career employees, as well as one non-career employee from a

different   department,   were   unconstitutionally   terminated   from

employment.    As to the career employees, the jury awarded a total

of $887,097 compensatory damages against defendants Mayor Román and

Juan A. Norat-Flores ("Norat"), the director of the Municipality's

Department of Public Works; it also awarded $108,000 in punitive

damages against Mayor Román.      As to the one non-career employee,

the jury awarded $28,400 compensatory damages and $3,000 punitive

damages against Mayor Román.      The court, post-verdict, denied the

defendants qualified immunity, denied motions for judgment as a

matter of law and adjustment of damages, and ordered the career

employees reinstated.     We affirm the district court's judgment in

full.

                                   I.

            Mayor Román and Norat appeal on five grounds. They argue

that (1) there was insufficient evidence as to causation to support

a finding of political discrimination, (2) both defendants were

entitled to qualified immunity, (3) the district court abused its


                                  -3-
discretion in ordering the career employees reinstated, (4) the

compensatory damages were excessive, and (5) the punitive damages

against Mayor Román were unwarranted.          We recount the facts in

favor of the verdict as a reasonable jury could have found them.

Whitfield v. Melendez-Rivera, 431 F.3d 1, 2 (1st Cir. 2005).

A.         The Career Employees

           Román was elected mayor of the Municipality of San

Lorenzo on November 7, 2000, and took office on January 9, 2001.

He defeated incumbent NPP Mayor Víctor Figueroa Orozco.             He then

appointed Norat, previously a Public Works employee in another

city, to head San Lorenzo's Department of Public Works.                  The

Department had several divisions, including sanitation, which was

responsible for garbage collection and other cleaning tasks.

           Soon after taking office, Mayor Román and other municipal

officials,    including     Norat,     began   planning      the   possible

privatization of the sanitation division.          The officials testified

that they did so because of lackluster garbage collection, and that

they   conducted    a   cost-benefit    analysis    and   determined   that

privatization would save San Lorenzo hundreds of thousands of

dollars a year. However, two PDP-affiliated witnesses -- plaintiff

Samuel Borges Colón ("Borges"), a former sanitation supervisor, and

Sandra   González   Díaz   ("González"),   defendant      Iraida   Hornedo's

predecessor as municipal human resources director -- testified that

Mayor Román had said in their presence that the privatization plan


                                     -4-
was a device to force NPP workers out of government employment.

Further, González testified that in privatizing the sanitation

division, the Municipality did not follow its 1997 Layoff Plan,

which required that transitory workers be fired first in the event

of layoffs.    She testified that Mayor Román and "other fellow

officers . . . [and] ranking employees" had said that "with this

privatization process, they were going to be able to get rid of

employees that were not belonging to the political party of the

people in power." She also testified, based on her experience as

municipal human resources director, that the criteria used to

appoint personnel in San Lorenzo after Mayor Román took office were

as follows: "[t]o be affiliated with the PDP, to be acquaintances

of the mayor or relatives of the mayor, to be friends with some

high-ranking functionary."

           Borges testified that soon after the mayoral election he

met with Mayor Román, who told him "that he needed me there at

public works, to help him, because the first thing he wanted to do

was to take the NPP's out of the municipality."   Asked about Mayor

Román's attitude toward public works employees, Borges testified as

follows:

           A: Well, his attitude was that, since they
           were NPP's, he didn't want them there.

           Q: And how did you know that?




                                -5-
          A: Because they would tell me, the engineer
          would tell me,[1] Mr. Martin Davila would tell
          me, that they wanted to get rid of the NPP
          employees in order to place Popular Democratic
          Party followers.

          Q: When, if at any time, did the mayor tell
          you that those were his intentions after he
          became mayor of San Lorenzo, you know?

          A: On numerous occasions at Public Works, when
          we would meet with Mr. Norat.

          Q: Do you recall what were his words?

          A: That he had to get rid of the NPP employees
          because he had to place his people.

          In the summer of 2001, Norat took the privatization

proposal and the favorable cost-benefit analysis to the Municipal

Assembly for approval.   On August 30, 2001, the Assembly approved

Municipal Ordinance No. 7 ("the ordinance"), authorizing Mayor

Román to negotiate the privatization of the sanitation division.

Mayor Román signed the ordinance the next day.

          In the ordinance, the Municipal Assembly set conditions

on the privatization process.    It stated that the company with

which the Municipality contracted for privatization had to agree,

when hiring, "to consider all of the municipal employees who

qualify within their standards of selection of employees pursuant

to its Human Resources regulations."      It also added a second

requirement:



1
    Norat is an engineer.      Throughout the trial transcript,
witnesses refer to him as "Engineer Norat" and "the engineer."

                                -6-
           The remaining employees belonging to the
           sanitation area will be retained in their
           positions or will be relocated to other
           dependencies of the municipality pursuant to
           the needs of the service. . . .

           The Municipality of San Lorenzo agrees to
           protect and guarantee the vested rights of the
           regular employees who are working in the
           Department of Sanitation.

           The city began soliciting privatization proposals.                 Five

companies submitted proposals; the municipal bids board selected a

firm   called     ARB   and   arranged     for      ARB   to    take   over    the

Municipality's sanitation service.

           On January 23, 2002, Mayor Román wrote a letter to

thirty-six      sanitation    employees      (the     "career     plaintiffs"),

informing them that their jobs were terminated effective February

25.    Though the events leading up to privatization had taken

months, this was the career plaintiffs' first official notice of

potential privatization or its possible effect on their jobs.                  Of

the thirty-six career plaintiffs, thirty-five were affiliated with

the NPP,2 while the last, Borges, was a PDP member who had had a

falling-out with Mayor Román over Borges' sympathy for NPP co-

workers.   Most of the career plaintiffs testified that Mayor Román

knew   their    political     affiliation,    either      because      they   were



2
   Thirty-five of the career plaintiffs, as well as transitory
employee plaintiff Sheidi N. Hernández Morales, testified about
their political affiliation and activities. One career plaintiff
had died by the time of trial; his daughter testified on his behalf
that he had been an NPP member.

                                     -7-
neighbors or because Mayor Román had seen them participating in NPP

electioneering activities.

           The January 23 letter, signed by Mayor Román, stated:

           As a result of the privatization . . . the
           sanitation program of the Municipal Department
           of Public Works is eliminated, which entails
           the lay-off and elimination of all the
           positions assigned to said program.

           Pursuant to the above, you are laid off from
           your position effective February 25, 2002.
           You have 30 days as of the date of this
           communication to appeal this decision before
           the Board of Appeals of the Personnel System
           of the Government.

The   letter   also   stated,    however,     that   the   ordinance     and   the

contract between San Lorenzo and ARB "provide[] for the recruitment

and job security of the personnel affected by this negotiation."

It added that "[t]he Municipality will coordinate this process and

will notify the day and time of the job interviews."

           All of the affected workers were "career employees."

Under   Puerto   Rico   law,    as   career   employees,    they   had    vested

property rights in their jobs and, in general terms, could only be

removed for cause and were entitled to procedural due process

protections.3    In this case, the 1997 Layoff Plan, which required


3
   Some government employees in Puerto Rico are classified as
"career" or "permanent," which is "the equivalent of having job
tenure with attendant vested property rights." Vázquez-Valentín v.
Santiago-Díaz, 385 F.3d 23, 27 n. 4 (1st Cir. 2004); see also
González-De-Blasini v. Family Dep't, 377 F.3d 81, 86 (1st Cir.
2004). An alternative classification, "contract" or "transitory,"
means employment is under a short-term contract and does not carry
property rights. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 553

                                      -8-
that transitory workers be fired before such career workers in the

event layoffs were necessary, was not followed.4

             The January 23 letter was delivered to most of the career

plaintiffs at a meeting on January 25, 2002, at the Priscilla

Flores Theater.     San Lorenzo's new director of human resources,

Hornedo,5 spoke to the workers, telling them that the Municipality

had set up a process to help them get jobs with ARB.     Hornedo also

told the career plaintiffs that if any of them had questions or

concerns, they could come to her office to talk with her and review

their personnel files.       The career plaintiffs were given ARB

applications during this meeting, and some filled them out and

submitted them on the spot.      Unemployment officials attended the

meeting, bringing along unemployment benefits forms for them to

fill out.6



(1st Cir. 2003). We do not delve into the complexities of Puerto
Rico law on layoff of career employees.
4
   As of January 9, 2001, San Lorenzo had seventy-one transitory
employees. Plaintiffs' counsel stated during opening argument that
the Román administration had hired at least 214 more since taking
office in January 2001. Testimony confirmed the existence of well
over one hundred such transitory hires.
5
    González had left the job in December 2001.
6
   Even though the career plaintiffs' jobs were not technically
terminated until February 25, 2002, they had already worked their
last shift. Norat told them that, instead of reporting to work,
they should stay home and they would be paid anyway as compensatory
time.   During the weeks prior to February 25, ARB provided San
Lorenzo with sanitation service, even though the career plaintiffs
were still on the payroll.

                                  -9-
          During the months that followed, a few of the career

plaintiffs   obtained   jobs    with   ARB.7    Most,    however,   found

themselves without jobs either at ARB or within the Municipality.

Some testified that they approached Hornedo and asked her to find

them other jobs in the Municipality; she told them no jobs were

available.    One career plaintiff, Raul Galarza Santana, said

Hornedo told him she had spoken to Mayor Román, and the Mayor "had

said there was no chance for me being rehired."           Another career

plaintiff, Ivan Rosa-Rivera, said Hornedo told him: "I am deeply

sorry.   This decision has already been taken.          These are orders

coming from above, and you are dismissed from your work."           Mayor

Román was in charge of all personnel decisions in the Municipality.

          Many of the career plaintiffs also testified that they

filled out applications with ARB but were never offered jobs or

contacted for interviews.      Others testified that they were offered

jobs at ARB, but under conditions that made the jobs difficult or

impossible to accept.    The offered jobs were in Cataño and other

towns some distance from San Lorenzo.      Some had no way to get there

for work; others said ARB offered to pick them up in San Lorenzo



7
  Six career plaintiffs testified that they worked for ARB at some
point. Of those, one testified that he quit after one day because
of the working conditions, while two others worked for ARB for
several months. Three of the career plaintiffs held jobs with ARB
at the time of trial; however, there was testimony that one of
those three was fired for missing work to testify at the trial,
while a second had been told he would be fired for the same reason.


                                   -10-
and drive them back and forth, but that that would mean getting up

at 2 or 3 a.m. and returning home at 11 p.m. -- a twenty-hour day.

One of the career plaintiffs, David de Jesus-Santa, testified that

he took the Cataño job, managed to get ARB to transfer him to San

Lorenzo for two months, but was then told he would be assigned to

Cataño again; he quit because he had no way to get there.   Another,

Rafael Martinez-Santana, testified that when he approached Juan

Reyes Burgos, the president of ARB, to ask for work, Burgos told

him that "he would give me work, but not in San Lorenzo; that the

mayor [Román] had told him to give me work, but not in San Lorenzo.

He did not want me in San Lorenzo."

           Other evidence also established a political motivation

for the elimination of the career plaintiffs' positions.     Borges

testified that at least four of the five former sanitation workers

who kept their jobs with the Municipality after the privatization

were PDP-affiliated.8    Well over one hundred of the transitory

municipal workers hired by the Román administration were PDP-

affiliated.   One witness testified he could not identify any NPP

hires among a list of all the new transitory employees.     Various

career plaintiffs testified that the Municipality made no attempt

to offer them these transitory jobs, even when they were qualified

for the positions.




8
    He did not identify the party affiliation of the fifth worker.

                               -11-
           Further, some of the plaintiffs testified that, while

their job descriptions were technically eliminated, PDP loyalists

were hired and took over their job duties under different titles.

For example, career plaintiff Benito Claudio-Figueroa testified

that he was a heavy vehicle and equipment supervisor, and that a

man whom he knew to be a PDP member was performing his old job for

the Municipality, under the new title "Deputy Director of Public

Works." Finally, a number of career plaintiffs testified that they

had been employed elsewhere in the Department of Public Works prior

to the Román administration, but had been asked by Norat to switch

to   sanitation   in   2001,      after   Mayor   Román's     election.         These

plaintiffs all testified that they were not offered their old

positions back, and most testified that those positions were filled

by workers they knew to be PDP loyalists.

           The only non-NPP member among the thirty-six terminated

career   plaintiffs,        Borges,   testified        that   despite     his     PDP

affiliation, he opposed political firings and said as much to

Norat,   the   head    of   the   Department      of   Public   Works.      Borges

testified that on August 17, 2001, Norat told Borges that the Mayor

was unhappy with Borges because Borges supposedly had met with a

group of NPP employees who were suing the Municipality in a

separate action.       Borges was placed on twenty days' compensatory

leave.   He was placed on another leave later in the year, and in




                                      -12-
December, he testified, he returned from an illness to find that

his supervisory duties had been reassigned to a PDP loyalist.

             Borges was among the employees terminated via the January

23, 2002 letter.       After the meeting at the Flores Theater, he

approached ARB official Burgos and told him he was available to

work for ARB.      He testified that Burgos told him "that he was

sorry, that he could not give me work about the municipality of San

Lorenzo because the Honorable Mayor had told him that . . . he

could not offer work to any of the people who had been dismissed;

that he could give me work, but in the municipality of Cataño."

When Burgos told him the arrangement -- that he would be picked up

at 3 a.m., driven to Cataño, and then driven back to San Lorenzo at

night -- Borges "told [Burgos] that schedule would be impossible

for me because that would mean being away from my home almost all

day and night."     Borges also approached Hornedo and asked her to

reevaluate his case.     He testified that Hornedo told him that "she

had orders from the mayor that there was no more work for me."

B.           The Non-Career Employee

             The other plaintiff in this appeal, Sheidi N. Hernández

Morales ("Hernández"), was differently situated.           She was first

hired by the Municipality of San Lorenzo under a transitory, or

contract, appointment effective July 1, 1993.         Thereafter, she was

appointed to various transitory positions in San Lorenzo over the

next   six    years,   though   the    appointments    were   not   always


                                  -13-
consecutive.   In July 1999, she was hired for a six-month position

as a Social Worker in the Municipality's Childcare Network; she

received an excellent evaluation.   Her contract as a Social Worker

was renewed in January 2000 and again in July 2000 and January

2001.   The last of these contracts was due to expire on September

30, 2001.   On September 17, 2001, Hernández received a letter from

Mayor Román telling her to make arrangements with her supervisor to

use her accumulated leave time during the rest of the month.

Thereafter, her contract was not renewed.

            While Hernández was not a career employee and had no

property interest in her job protectable under the Due Process

Clause, she did produce evidence that her position continued to

exist and was filled by a PDP member, and this resulted from

discrimination against her based on party affiliation.   González,

the former human resources director, testified that Mayor Román

knew that Hernández was affiliated with the NPP.         Asked why

Hernández' appointment was not renewed, González replied: "Every

day, [Hernández' supervisor] Ms. Carmen Contrerras . . . was

publicly stating, both in meetings and out of meetings, asking when

she was going to be able to get rid of the two NPP affiliates who

were in her office."   Mayor Román made all personnel decisions in

the Municipality while González worked in his administration, a

period lasting from January to December 2001.




                                -14-
            Plaintiff     Hernández     testified    that      after    the   PDP

electoral victory, the work atmosphere in her division of municipal

government became uncomfortable and hostile.                   Contrerras, her

supervisor at the Childcare Network, harassed the NPP employees in

the     office,    telling   them     that    they   were      from    the    past

administration and that the new administration was "going to make

a big change."       Contrerras told Hernández her contract was not

being renewed because of lack of funds.              But there was evidence

that was not true: a co-worker in accounting told Hernandez that

"there was going to be more funds, and, in fact, the salaries might

even be raised."      Eventually, PDP-affiliated employees were hired

to replace Hernández and three other NPP-affiliated transitory

employees who had not received new contracts.

C.          Testimony of Defendants

            The defendants, Mayor Román, Norat, and Hornedo, gave a

markedly different version of events.             They testified that soon

after    Mayor    Román   took   office,     conditions   in   the     sanitation

division began to deteriorate noticeably: the number of citizen

complaints about trash service skyrocketed, and garbage trucks

began breaking down with more frequency.9                 This crisis, they

testified, was what spurred the decision to transfer workers from


9
   This deterioration coincided, however, with the Municipality's
decision to let the contracts of at least fifteen transitory
sanitation workers expire; according to at least one witness, that
caused a labor shortage that led to the decline in the quality of
service.

                                      -15-
elsewhere in Public Works into sanitation, as well as the eventual

decision to privatize sanitation.           The defense also pointed to the

ordinance adopted by the Municipal Assembly, which cited a desire

to offer "a better quality of service" as one reason to privatize.

            Mayor      Román    and    Norat        testified       that   political

affiliation had nothing to do with the privatization decision or

its execution.      Indeed, Mayor Román testified that he did not know

plaintiff     Hernández,    and   as   to     the    career     plaintiffs,    Norat

testified that city leaders pondering privatization considered it

"nonnegotiable" that whoever won the contract had to hire all of

the displaced workers.         Hornedo testified that the administration

fully intended to coordinate the displaced career plaintiffs'

hiring with ARB, and to rehire those who did not find ARB jobs; she

testified that most of the career plaintiffs never approached them

seeking jobs and never completed the ARB hiring process.                   However,

Mayor Román admitted on cross-examination that the January 23, 2002

termination letter did not tell the employees about the process

they would have to use to seek ARB employment and did not tell them

that   they    could    seek    reemployment         with     the    Municipality.10

Furthermore, while Hornedo testified that several of the career

plaintiffs returned to ask the Municipality for jobs and were


10
    This testimony dovetailed with that of many of the career
plaintiffs, who expressed bewilderment when asked on cross-
examination whether they had approached the Municipality and asked
to be rehired. Said one: "I mean, no. They fired me. If they
fired me, how can they give me a job?"

                                       -16-
offered   positions,        she    admitted     that    those    positions      were

transitory     --    much   less   desirable     than   the     career   jobs    the

plaintiffs had previously held.11

          Mayor Román offered the defense that he relied on legal

advice.   He testified that he sought the advice of González and a

municipal attorney in deciding how to proceed with privatization;

he said they advised him that he should not follow the 1997 Layoff

Plan, but instead should follow the new municipal ordinance and

make sure the displaced workers were guaranteed employment with

ARB.   González contradicted this testimony.               She testified that

early in Mayor Román's term, he called her into his office and

asked her to bring a list of Public Works employees.                 He told her

to read the list and cross off the names he indicated; he explained

that "he was going to get rid of some public works employees at the

time of the privatization."            González testified that she "told

[Román]   to    be     careful     with   the    new    lawsuit     [a   separate

discrimination complaint concerning other employees], and that we

had to follow the processes established by law."                    She said he

replied, "I'm . . . the mayor and I make the decisions."                 González

also testified that she thought the 1997 Layoff Plan should have

been followed, that she was not consulted as to details of the



11
   Hornedo testified that one fired worker, a Mr. Ventura Gomez,
accepted a transitory position with the Municipality.    Ventura
Gomez was not among the career plaintiffs, and his political
affiliation is not clear from the record.

                                       -17-
privatization, and that the reason the Layoff Plan was not followed

was that "the mayor didn't want to use it."             The attorney upon

whose advice Mayor Román said he relied did not testify.

           Mayor Román also denied saying anything to Borges about

plaintiffs' political affiliations.        In fact, the Mayor testified,

it was Borges who first suggested privatization to him.               Borges

testified to the contrary.

                                     II.

           On May 24, 2002, the thirty-six career plaintiffs, along

with Hernández and two other former municipal employees,12 filed

suit against Mayor Román, Norat, Hornedo, and the Municipality.

Their   complaint,   filed   under    42   U.S.C.   §   1983   and   related

provisions of Puerto Rico law, alleged as to every plaintiff that

(1) the three defendants had terminated them in violation of their

due process rights, and (2) the terminations of their employment

were based on political affiliation and were therefore also in

violation of their First Amendment rights.

           Jury trial commenced on October 1, 2003, and ended on

November 10, 2003.     At the close of plaintiffs' evidence, the

defense moved for Fed. R. Civ. P. 50 judgment as a matter of law on

all issues. The district court granted the motion as to Hernández'

political discrimination claims against Norat and Hornedo, but



12
   The jury found for the defense as to these two plaintiffs, and
they do not appeal. We do not discuss them further.

                                 -18-
allowed her political discrimination claim to go forward against

the Mayor.     The court otherwise denied the motion, leaving the

career plaintiffs' due process and political discrimination claims

intact.

          On    November   7,   2003,    at   the   close   of   testimony,

defendants renewed their motion for judgment as a matter of law on

the remaining issues -- Hernández' political discrimination claim

against Mayor Román and the career plaintiffs' due process and

political discrimination claims against all the defendants.           They

argued that Hernández had not proved that the Mayor even knew her

political affiliation, and that her position was not filled for

months after the non-renewal of her contract; thus, they argued,

there was a failure of evidence as to political discrimination. As

to the career plaintiffs, the defense argued that (1) Norat could

not be held liable because there had been no evidence establishing

that he had a say in the decision to terminate the sanitation

workers, and (2) all defendants could not be held liable because

the privatization decision stemmed from public health concerns, not

political discrimination, and because the Mayor relied on legal

advice in deciding what shape privatization should take.                The

district court denied the motion in full.

          On November 10, 2003, the jury returned its verdicts. As

to Hernández, the jury found Román liable and assessed compensatory

damages of $28,400 and punitive damages of $3,000.               As to the


                                  -19-
thirty-six career plaintiffs, the jury found both Román and Norat

(but not Hornedo) liable. It assessed compensatory damages against

Román and Norat in amounts ranging from $18,537 to $33,200 per

career   plaintiff;      the    total   was    $887,097.     It    also   assessed

punitive damages against Román only, in the amount of $3,000 per

career plaintiff, for a total of $108,000.                 The verdict form the

jury was given did not ask it to indicate whether it was finding

for plaintiffs on due process grounds, First Amendment grounds, or

both.

            On November 14, 2003, the district court entered judgment

against Mayor Román and Norat in the amounts the jury had awarded.13

It   also   ordered     the    career   plaintiffs     reinstated      to    career

positions at the Municipality, with the "same salaries, benefits,

seniority, and equivalent functions as they had before their

illegal dismissal from employment."             The defendants renewed their

Rule 50 motion for judgment as a matter of law, submitted a Rule 59

motion requesting that the compensatory and punitive damages be

remitted,     and    asked     the   district     court     to    reconsider    its

reinstatement order.          These motions were denied.

            On      appeal,    Mayor    Román    and   Norat      bring     several

challenges.      First, as to the thirty-six career plaintiffs, they



13
   While the Municipality itself was initially a defendant in this
case, it was not listed as such on the verdict form, the jury made
no finding against the Municipality per se, and the district court
entered judgment only against the Mayor and Norat.

                                        -20-
argue that (1) plaintiffs never demonstrated on the evidence a

prima facie causal connection between their political affiliation

and the termination of their employment; (2) the defense evidence

compelled a finding that there was a legitimate, non-discriminatory

reason for the privatization; and (3) even if some political animus

had been present, defendants still should prevail because the

evidence showed that such animus was not the but-for cause of the

privatization. They also argue that both Mayor Román and Norat are

entitled to qualified immunity. As to remedy, they argue that even

if there were liability here, the district court's reinstatement

order   was    inappropriate;   that   compensatory   damages   should   be

remitted because of plaintiffs' failure to mitigate; and that

punitive damages were unavailable on these facts as a matter of

law.

              As to Hernández, Mayor Román argues that she cannot

sustain a First Amendment claim because there was no evidence of

political animus as a cause of the non-renewal of her contract, and

because Hernández' contract would not have been renewed in any

event since she was not qualified for her Social Worker position.

He also argues that Hernández' damages should have been remitted.

              Plaintiffs argue first that defendants have waived most

of their challenge because they failed to argue on appeal the issue

of due process violation of the career plaintiffs' rights.           They

argue that since the jury issued an undifferentiated verdict that


                                   -21-
could have rested on due process grounds, plaintiffs' silence

effectively concedes due process liability and ends the case.

Alternatively, they argue that all of defendants' assignments of

error as to qualified immunity, the finding of liability, the

amount of damages, and the reinstatement order are meritless.

            Given the nature of the evidence and the remedies, we

prefer to rest our holdings on First Amendment grounds and do not

reach the due process question.

                                   III.

A.          Legal Standards

            We review de novo the district court's denial of judgment

as a matter of law.      The verdict must be upheld "unless the facts

and inferences, viewed in the light most favorable to the verdict,

'point so strongly and overwhelmingly in favor of the movant that

a    reasonable   jury   could   not   have   [returned   the    verdict].'"

Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)            (alteration

in original) (quoting Hendricks & Assocs., Inc. v. Daewoo Corp.,

923 F.2d 209, 214 (1st Cir. 1991)).

            "Even though we draw all rational inferences from the

facts in favor of plaintiff, 'the plaintiff is not entitled to

inferences based on speculation and conjecture.'" Vázquez-Valentín

v. Santiago-Díaz, 385 F.3d 23, 29-30 (1st Cir. 2004) (quoting

Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir. 1990)).            The party who

bears the burden of proof "must have presented 'more than a mere


                                   -22-
scintilla of evidence in its favor' to withstand a motion for

judgment as a matter of law."    Id. at 30 (quoting Invest Almaz v.

Temple-Inland Forest Prods. Corp., 243 F.3d 57, 76 (1st Cir.

2001)).

            As to the substantive law, the burden was on plaintiffs

to   show    discrimination   based     on   political     affiliation.

Governmental employees who are not in policy-making positions of

confidence are shielded from adverse employment decisions based on

their political affiliations.    Figueroa-Serrano v. Ramos-Alverio,

221 F.3d 1, 7 (1st Cir. 2000); see also Rutan v. Republican Party

of Ill., 497 U.S. 62, 64, 75, 79 (1990) (political discrimination

claims may extend to hiring, promotions, transfers, and recalls

after layoffs); Branti v. Finkel, 445 U.S. 507, 517-19 (1980);

Elrod v. Burns, 427 U.S. 347, 356 (1976) (stating that freedoms of

"political belief and association constitute the core of those

activities protected by the First Amendment").           Plaintiffs who

bring political discrimination claims bear the burden of "producing

sufficient direct or circumstantial evidence from which a jury

reasonably may infer that plaintiffs' constitutionally protected

conduct . . . was a 'substantial' or 'motivating' factor behind

their dismissal."    Acevedo-Diaz, 1 F.3d at 66.    "Defendants then

carry the burden to establish . . . a nondiscriminatory reason for

the challenged action . . . ."    Ruiz-Casillas v. Camacho-Morales,

415 F.3d 127, 131 (1st Cir. 2005); see also Vázquez-Valentín, 385


                                 -23-
F.3d at 30 ("The defendant, of course, may offer rebuttal evidence

to   attempt   to   disprove   that    political   affiliation   played   a

substantial role in the adverse employment action.").

           There is a separate but related defense under the Mt.

Healthy doctrine, Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977):

           [E]ven if a plaintiff can demonstrate that her
           political affiliation was a substantial factor
           in the adverse employment action taken against
           her, there is no constitutional violation if
           the defendant can show both (i) that it would
           have taken the same action in any event, and
           (ii) that it would have taken that action for
           reasons that are not unconstitutional.

Sanchez-Lopez, 375 F.3d at 124 (citing Mt. Healthy, 429 U.S. at

286-87).   This affirmative defense ensures that a constitutional

violation will only be found where "political discrimination was

the ultimate 'but for' cause of an adverse employment action." Id.

at 125.    This is appropriate because, "[a]s the Supreme Court

noted, to adopt a view of causation that focuses solely on whether

protected conduct played a part in an employment decision . . .

would put an 'employee in a better position as a result of the

exercise of constitutionally protected conduct than he would have

occupied [otherwise].'" Id. at 131 (second alteration in original)

(quoting Mt. Healthy, 429 U.S. at 285).

           The Mt. Healthy defense, then, is particularly important

in these cases where a new administration reorganizes government in

ways which particularly disadvantage incumbent employees who belong

                                      -24-
to the party formerly in power.          These incumbent employees have no

right to thwart the will of the voters that a new regime make

changes, if the new regime would have made those changes even in

the absence of any prohibited discrimination.

B.            Political Discrimination and the Career Plaintiffs

              The defendants argue that no reasonable juror could have

found political discrimination on these facts.                They point to the

testimony of Román and Norat that the sanitation division was

privatized      because    of   public    health   and    quality-of-service

concerns, and that political affiliation played no role in their

decisions. This, they argue, constitutes (1) evidence showing lack

of discriminatory animus, (2) evidence of a non-discriminatory

reason for the privatization, and (3) evidence sufficient to show,

under Mt. Healthy, that political discrimination was not the "but-

for" cause of the decision to eliminate career plaintiffs' jobs.

              Defendants make two additional arguments.              First, they

point to the testimony that a system was in place to ensure that

the   fired    employees    were   rehired,   either     by    ARB   or   by   the

Municipality; they suggest this compels a conclusion that no

discrimination was intended. Second, they argue that the municipal

ordinance authorizing privatization, and Román's testimony that he

followed the advice of his human resources director and an attorney

in devising the privatization process, show that both the decision




                                     -25-
to privatize, and the decision to privatize in a way that cost the

career plaintiffs their jobs, were free of discriminatory intent.

          In our view, the case does not turn on the legitimacy of

a decision by a Municipality to privatize its sanitation division.

To be sure, the evidence presented some reasons to doubt such

legitimacy: the Mayor had expressed a desire to rid the Department

of Public Works of NPP members, and to fill the jobs with PDP

members, and he could not do so within the current structure, given

that the sanitation workers were protected as career employees

under Puerto Rico law.    Further, there is some evidence that the

new regime deliberately made matters worse in order to provoke a

sanitation crisis which would justify a decision to privatize.

Still, this might well be too fragile an underpinning to justify

federal intervention in a decision to privatize.

          1.       Mayor Román

          The verdict against Mayor Román, however, is easily

supported by the manner in which his administration implemented the

decision to privatize.     A jury could readily conclude that the

Román administration implemented privatization in a manner designed

to discriminate.    The administration did so, or so a jury could

find, in violation of multiple separate requirements of local law:

(1) two provisions of the municipal privatization ordinance, (2)

the previously adopted Layoff Plan, and (3) the procedural rights

of career employees.     The municipal ordinance did not authorize


                                 -26-
Román to terminate the career plaintiffs' employment.            Instead, it

required that the private sanitation firm consider the municipal

sanitation workers for jobs, and that sanitation workers who did

not take jobs with the private firm be "retained in their positions

or . . . relocated to other dependencies of the municipality."           The

ordinance also stated that the Municipality agreed "to protect and

guarantee   the   vested   rights"    of    the   career   plaintiffs.   The

privatization system Román and Norat actually implemented did

neither of these things.       As to the 1997 Layoff Plan, González

testified that it applied to privatizations and that she advised

the Mayor to follow the law, and Mayor Román himself conceded that

if the Layoff Plan applied, transitory workers had to be laid off

before any career employee.      The jury could easily conclude that

political motivation was a substantial reason and, indeed, the but-

for reason for the decisions not to follow these laws.

            In addition, there were explicit statements by Mayor

Román of an intent to discriminate.           González testified that the

Mayor said that "with this privatization process, they were going

to be able to get rid of employees that were not belonging to the

political party of the people in power."           She also testified that

Román said the Layoff Plan was ignored because it would have been

an obstacle to firing NPP workers. Others testified that the Mayor

went so far as to instruct ARB officials not to offer the fired

workers jobs in San Lorenzo.


                                     -27-
            Further, the Mayor took the stand, and on important

questions where his testimony was flatly contradicted by other

witnesses, the jury could easily have concluded his testimony was

not credible.     Mayor Román testified that discrimination played no

role in the privatization decision.              But the jury also heard

testimony that Román believed (correctly) that the sanitation

division    was     a    nest   of     NPP-affiliated   workers,     and    that

discrimination did play a role in the decision to privatize.

            Mayor       Román   also     testified   that   he     shaped    the

privatization plan in reliance on advice from his human resources

director and attorney. Here, too, a reasonable jury could conclude

that Mayor Román's testimony was deliberately untrue: his human

resources director, González, testified both that she did not in

fact give Mayor Román such advice and that Mayor Román structured

the privatization plan the way he did specifically so he could fire

NPP-affiliated workers.         The defendants also failed to call as a

witness the attorney on whose legal advice the Mayor purportedly

relied.

            The defendants also testified that they intended to

ensure the career plaintiffs jobs at ARB and rehire them at the

Municipality if necessary. However, a reasonable jury easily could

have concluded that this too was a lie, and that no such system was

in place.   Most of the career plaintiffs never acquired jobs at ARB

or the Municipality, even when they sought them out.                 Some were


                                        -28-
explicitly told that Román had ordered that they not be rehired.

And those who did receive employment offers were confronted with

jobs vastly inferior, either in terms of benefits (transitory

employment) or working conditions (private-sector positions with

long commutes and questionable job security), to those they had

previously held.

          Furthermore,       the   jury    heard   specific    and    detailed

testimony that most, if not all, of the municipal workers hired

since the privatization were PDP-affiliated, and that some of those

new PDP workers performed jobs that the fired sanitation workers

had done, just under the guise of different job titles.               This, in

combination    with    the   evidence     described   above,   is    more   than

sufficient.    See Acevedo-Garcia v. Monroig, 351 F.3d 547, 565-66

(1st Cir. 2003).

          2.          Engineer Norat

          On the evidence, the jury could well have concluded that

Norat was not liable because he did not agree with or intend to

participate in the discrimination effectuated by the Mayor, but did

so only under compulsion.          However, the jury did not exonerate

Norat, and evidence supports its conclusion.

          Borges testified that Norat was present when Mayor Román

spoke of his desire to fire the NPP employees in the Public Works

Department.    Norat was deeply involved with the privatization; he

took it to the Municipal Assembly and he told the career plaintiffs


                                    -29-
to   stay    home   and    take    compensatory        time     after    January      25.

Defendants characterize the privatization decision as one made by

both   men   together:     "Mayor    Román      and    Norat     made    a     difficult

administrative decision, after a thorough analysis, to privatize

the sanitation services."            Importantly, there is evidence that

Norat was not just carrying out Mayor Román's decision, but in fact

harbored political animus himself.                  Asked how he knew that the

Mayor's desire to fire public works employees was politically

motivated,    Borges      replied:    "Because        they     would    tell    me,   the

engineer would tell me, Mr. Martin Davila would tell me, that they

wanted to get rid of the NPP employees in order to place Popular

Democratic Party followers."             The engineer was obviously Norat, or

so a jury could find.            Further, it was Norat who encouraged NPP

members elsewhere in the department to transfer to sanitation

before there was any public discussion of privatizing the division;

these NPP members subsequently lost their jobs upon privatization.

             On this evidence, a reasonable jury could have concluded

that Norat helped Mayor Román devise the plan to privatize the

sanitation     division     in    such    a   way    as   to    remove    the     career

plaintiffs from their jobs, and would not have done so but for

plaintiffs' NPP affiliations.

C.           Political Discrimination and Plaintiff Hernández

             "[T]he fact that a transitory employee does not have a

reasonable expectation of renewal in his or her employment . . .


                                         -30-
does    not   defeat     a     First    Amendment      claim."           Gomez    v.       Rivera

Rodriguez,     344      F.3d    103,     111    n.5   (1st        Cir.    2003)   (internal

quotation      marks      omitted)        (omission          in     original)      (quoting

Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 98 (1st Cir. 1997)).

              Our recitation of the evidence quickly disposes of the

Mayor's arguments that Hernández "failed to demonstrate that Mayor

Román   knew     her,    knew    her     political      affiliation         or    used      that

information as a factor in not renewing her transitory contract."

Mayor    Román     argues       that      the    evidence          established         a    non-

discriminatory reason for the termination of Hernández -- that the

department lacked funds for her position.                     But there was testimony

this was not true, and her PDP replacement was hired only five

months later.        And the Mayor's argument that Hernández was not

qualified for her Social Worker position could easily have been

understood by the jury to be a pretext.                  She had been continually

rehired and had received excellent ratings.

              Mayor Román's final argument on this issue is that

Hernández failed to timely reapply after receiving her dismissal

letter. The evidence on this point actually works to Mayor Román's

disadvantage:        Hernández         testified      that    the        Municipality        was

supposed to summon her to compete for her old job before it was

again filled, and that it did not do so.




                                           -31-
                                           IV.

               We   review   the    district      court's      denial    of   qualified

immunity de novo, Whitfield, 431 F.3d at 6, construing the evidence

"in the light most hospitable to the party that prevailed at

trial,"       and   according      deference      to   "the     jury's    discernible

resolution of disputed factual issues," id. (internal quotation

marks omitted) (quoting Jarrett v. Town of Yarmouth, 331 F.3d 140,

147 (1st Cir. 2003)).

               Qualified immunity "provides a safe harbor for public

officials acting under the color of state law who would otherwise

be liable under 42 U.S.C. § 1983 for infringing the constitutional

rights of private parties."            Id.; cf. Anderson v. Creighton, 483

U.S. 635, 638 (1987).         Public officials are "entitled to qualified

immunity unless the facts establish that their conduct violated a

constitutional right that was 'clearly established' at the time of

the violation such that a reasonable officer would have known that

the conduct at issue was unlawful."                    Whitfield, 431 F.3d at 6

(emphasis in original) (quoting Santana v. Calderón, 342 F.3d 18,

23 (1st Cir. 2003)).

               This circuit usually evaluates qualified immunity claims

under     a     three-part         test.    See,       e.g.,     Torres-Rivera       v.

Calderón-Serra, 412 F.3d 205, 214 (1st Cir. 2005); Riverdale Mills

Corp. v. Pimpare, 392 F.3d 55, 60-61 (1st Cir. 2004).                         First, we

ask whether, "[t]aken in the light most favorable to the party


                                           -32-
asserting the injury, . . . the facts . . . show the officer's

conduct violated a constitutional right."                  Riverdale Mills, 392

F.3d at 61 (internal quotation marks omitted) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)).                If so, the second question is

"whether that constitutional right was clearly established at the

time of the . . . violation."        Whitfield, 431 F.3d at 7.          The third

question is "whether a reasonable officer, similarly situated,

would understand that the challenged conduct violated the clearly

established right at issue."              Riverdale Mills, 392 F.3d at 61

(internal    quotation      marks   omitted)       (quoting    Suboh    v.   Dist.

Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002)).                  The Supreme

Court has instructed us, generally, to analyze the first prong

first, even if the outcome of one of the other prongs might end the

inquiry.    Saucier, 533 U.S. at 201.

            The    district    court's      denial    of   immunity    is    easily

affirmed.      A jury could readily find a violation of plaintiffs'

rights.     Defendants' second argument, that there was no clearly

established right in the career plaintiffs not to have their

employment     terminated     due   to    their    political   affiliation,      is

frivolous.14      Acevedo-Garcia, 351 F.3d at 564; Angulo-Alvarez, 170

F.3d at 249-50.       As to the third prong of the test, defendants


14
    Mayor Román offers no developed argument as to qualified
immunity with regard to contract plaintiff Hernández, and in fact
the doctrine is not even mentioned in the portion of defendants'
brief devoted to Hernández. Any such challenge is waived. See
Acevedo-Garcia, 351 F.3d at 560-61.

                                         -33-
argue that the Mayor relied on advice from counsel and from

González, the human resources director.                 But a jury easily could

have   found   that   this   was    not    so,    and    that   Mayor   Román   was

explicitly warned he should not engage in this scheme in violation

of the rights of these employees.                The evidence shows that the

Mayor and Norat intended exactly to terminate these employees based

on their political affiliation and did their best to cover their

tracks.

                                      V.

           Defendants    next      challenge,      on    several    grounds,    the

district court's order reinstating the career employees.                        Our

review is for abuse of discretion.            Hiraldo-Cancel v. Aponte, 925

F.2d 10, 13 (1st Cir. 1991); Rosario-Torres v. Hernandez-Colon, 889

F.2d 314, 323 (1st Cir. 1989) (en banc).                   We accord the order

considerable deference, as the district court "has had first-hand

exposure to the litigants and the evidence . . . [and] is in a

considerably better position to bring the scales into balance than

an appellate tribunal."       Rosario-Torres, 889 F.2d at 323.

           Two initial arguments are meritless.                 First, defendants

argue that because the career plaintiffs declined to take their

complaint to the Board of Appeals of the Personnel Administration

System (known as JASAP) within thirty days, the municipal personnel

decision became unappealable.             This is clearly incorrect: state

employees asserting claims such as these are not required to


                                     -34-
exhaust administrative remedies before bringing a § 1983 action in

federal court.    Baez-Cruz v. Municipality of Comerio, 140 F.3d 24,

30 (1st Cir. 1998) (citing Patsy v. Board of Regents, 457 U.S. 496,

515 (1982)).     Second, defendants argue that because of the career

plaintiffs' failure to go through JASAP, "the doctrine of issue

preclusion bars the District Court from ordering reinstatement."

This argument makes no sense.    Where there has been no hearing, and

therefore no findings, there can be no issue preclusion.

          Defendants' final argument is that the factors this court

has deemed relevant to the reinstatement question cut against

reinstating the career plaintiffs, and so the district court abused

its discretion.     They admit that the career plaintiffs "in great

part did not find gainful employment after the layoff."     However,

they argue that reinstatement was still inappropriate because,

inter alia, (1) most of the career plaintiffs' old jobs were

eliminated in the privatization, (2) the antagonism between the

parties would create a poor work environment, (3) the career

plaintiffs "were compensated more than adequately" for the loss of

their jobs, and (4) the career plaintiffs did not have "clean

hands" because many did not complete the process of applying to

work for ARB or reapplying for work at the Municipality.

          In the political discrimination context, a violation of

First Amendment rights does not lead a fortiori to reinstatement.

Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428 (1st Cir. 1993). On


                                 -35-
the other hand,"[w]henever an ex-employee sues alleging wrongful

dismissal by a government agency, job restoration may be a material

aspect of meaningful relief."            Rosario-Torres, 889 F.2d at 322.

"[R]outinely incidental burdens" of reinstatement -- for example,

tension in the workplace, or displacement of employees who had

taken on duties previously handled by the fired workers -- "are

foreseeable    sequelae   of    defendant's       wrongdoing,   and   usually

insufficient, without more, to tip the scales against reinstatement

when first amendment rights are at stake in a section 1983 action."

Id. (internal quotation marks omitted). Among the factors relevant

to the reinstatement analysis are the following: "(1) the strength

of the evidence proving the first amendment violation; (2) whether

the discharged employee has found comparable work; [and] (3) the

absence of a property right in the position because the employee

was hired in violation of local law."            Velazquez, 996 F.2d at 429.

            There   was    no     abuse     of    discretion    in    ordering

reinstatement here.       Plaintiffs presented strong evidence of a

First Amendment violation, and many of the career plaintiffs have

not found work in the aftermath.            The possibility of workplace

antagonism, and the upheaval that will be caused by finding jobs

for   the   fired   workers,      are     the    "foreseeable   sequelae   of

defendant[s'] wrongdoing," Rosario-Torres, 889 F.2d at 322. Nor do

the   damage   awards   obviate    the    need    for   reinstatement.     See

Hiraldo-Cancel, 925 F.2d at 13 (noting that often, "[w]hen a person


                                    -36-
loses his job, it is at best disingenuous to say that money damages

can   suffice    to   make    that    person      whole,"   because    "[t]he

psychological benefits of work . . . are real and cannot be

ignored") (first alteration in original) (internal quotation marks

omitted) (quoting Allen v. Autauga County Bd. of Educ., 685 F.2d

1302, 1306 (11th Cir. 1982)).        Defendants' last argument, that the

career plaintiffs do not have "clean hands," is without merit.              On

the evidence at trial, those plaintiffs who did not apply for jobs

had good reason for their decisions both as to ARB, where working

conditions were poor, and as to the Municipality, where they had

every reason to believe they were unwelcome.

                                     VI.

           Finally, the defendants appeal from the district court's

refusal to remit the various damage awards.           We take the two types

of damages in turn.

A.         Compensatory Damages

           "Where defendants properly preserve a challenge to the

amount of compensatory damages awarded by the jury, 'our inquiry is

limited   to    determining   whether       the   trial   court   abused   its

discretion in refusing to set aside the verdict as excessive,'"

Acevedo-Garcia, 351 F.3d at 566 (quoting Anthony v. G.M.D. Airline

Servs., Inc., 17 F.3d 490, 493 (1st Cir. 1994)), and "the evidence

is viewed in the light most favorable to the prevailing party,"

Velazquez, 996 F.2d at 428.     These deferential standards recognize


                                     -37-
that "[t]ranslating legal damage into money damages -- especially

in cases which involve few significant items of measurable economic

loss   --   is    a    matter    peculiarly     within    a   jury's      ken."    Id.

(alteration       in    original)    (internal     quotation        marks    omitted)

(quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987)).

"Therefore, unless we can say that the award is grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand, we will

not overrule a trial judge's considered refusal to tamper with the

damages assessed by a jury." Id. (internal citations and quotation

marks omitted) (quoting Segal v. Gilbert Color Sys., Inc., 746 F.2d

78, 80-81 (1st Cir. 1984); Ruiz v. Gonzalez-Caraballo, 929 F.2d 31,

34 (1st Cir. 1991)).

            Defendants argue that the compensatory damages should be

reduced because the career plaintiffs failed to mitigate their

losses: they say the career plaintiffs were guaranteed jobs with

ARB or the Municipality but many frittered away that guarantee by

failing     to    apply    for    jobs    and,    in     cases     where    municipal

reemployment was sought and offered, turning it down.

            The       compensatory    damages     awarded     by    the     jury   were

rationally related to the career plaintiffs' economic loss as well

as to their impairment of reputation, their mental anguish, and

their suffering, all standard components of compensatory damages in

§ 1983 actions.         Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.


                                         -38-
299, 307 (1986).      As to economic loss, many of the plaintiffs were

without their jobs and associated benefits for a substantial period

of time -- from at least February 2002 through November 2003, when

the district court ordered them reinstated -- and while their

salaries varied, most earned between $800 and $1,000 per month. As

to    other   damages,   the     career   plaintiffs        testified       they   were

humiliated and stunned by the loss of their "career" jobs.

              As for defendants' mitigation argument: When there was

evidence the Mayor instructed ARB and municipal officials not to

hire the laid-off employees in San Lorenzo, he is ill-situated to

argue that the employees should have, despite the demonstrated

futility of requesting jobs, made the requests anyway.

              As to Hernández, she was awarded $28,400.                       Had her

contract been renewed, she likely would have earned about $1,120

per month, her previous salary.                She went without that salary

during some periods after her dismissal when she was unemployed,

and    though   she   was    working    in     a   transitory      job   in   another

municipality at the time of trial, she testified that she was

ineligible      for   medical     benefits     and   that    her     benefits      were

otherwise     inferior      to   what   she    had   enjoyed    at    San     Lorenzo.

Further, she testified that the non-renewal of her contract caused

her emotional suffering.

              Defendants argue that Hernández failed to mitigate her

damages when she did not pursue municipal reemployment.                     But there


                                        -39-
was evidence that defendants did not contact her to reapply for her

job when it was filled, as they were supposed to.   They cannot now

complain about her failure to reapply.

B.        Punitive Damages

          The review of a preserved challenge to a punitive damages

award is de novo, and the "award will stand unless we find it

'certain' that the amount in question exceeds that necessary to

punish and deter the alleged misconduct."   Románo v. U-Haul Int'l,

233 F.3d 655, 672 (1st Cir. 2000) (quoting Quint v. A.E. Staley

Mfg. Co., 172 F.3d 1, 14 n. 11 (1st Cir. 1999)).       In a § 1983

action, there is also a legal threshold.     The Supreme Court has

said a jury may award punitive damages where the defendant's

behavior is "shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally

protected rights of others."     Smith v. Wade, 461 U.S. 30, 56

(1983).   In the context of intentional discrimination, the Court

has explained that a defendant must act "in the face of a perceived

risk that its actions will violate federal law to be liable in

punitive damages."   Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536

(1999);15 see also Iacobucci v. Boulter, 193 F.3d 14, 26 (1st Cir.

1999) (describing Kolstad and Smith as requiring knowing violation



15
    Kolstad examined the punitive damages provision found in 42
U.S.C. § 1981a(b)(1), but its analysis is applicable to § 1983
punitive damages.   Iacobucci v. Boulter, 193 F.3d 14, 26 n.7 (1st
Cir. 1999).

                               -40-
or "conscious indifference" to the risk of violating a plaintiff's

federally protected rights).

           This does not need extended discussion.        On the basis of

the testimony already described, a jury was warranted in finding

that Mayor Román acted with intent to violate federal law, or at

the very least in the face of a perceived risk that his actions

were in violation of federal law.         Finally, we cannot say it is

"certain" that an award of $3,000 per plaintiff "exceeds [the

amount] necessary to punish and deter the alleged misconduct."

Románo, 233 F.3d at 672.

                                   VII.

           The jury verdict is affirmed in all respects, as are the

district   court's   denial   of   qualified   immunity    and   order   of

reinstatement.   Costs are awarded to plaintiffs.         So ordered.




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