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.
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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
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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
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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?
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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."
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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.
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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
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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.
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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.
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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.
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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
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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
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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.
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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.
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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?"
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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 . . .
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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.
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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.
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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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