United States Court of Appeals
For the First Circuit
No. 03-1949
DIANA VÁZQUEZ-VALENTÍN,
Plaintiff, Appellee,
v.
VICTOR J. SANTIAGO-DÍAZ, Individually and as Mayor of Toa Baja;
MUNICIPALITY OF TOA BAJA; MILAGROS DELGADO-ORTIZ,
Individually and as Human Resources Director of Toa Baja,
Defendants, Appellants.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas and Maite D. Oronoz-Rodríguez, Deputy Solicitors
General, and Susana I. Peñagarícano-Brown, Assistant Solicitor
General, on supplemental brief for appellants in their individual
capacities.
Jesus M. Hernández-Sánchez and Guillermo A. Macari-Grillo on
supplemental brief for appellee.
August 22, 2006
LIPEZ, Circuit Judge. In Vázquez-Valentín v. Santiago-
Díaz, 385 F.3d 23 (1st Cir. 2004) (Vázquez I), we reversed a jury's
verdict that Diana Vázquez-Valentín (Vázquez) had been subjected to
political discrimination by her former employers, the municipality
of Toa Baja and its mayor and human resources director. We
reviewed the denial of the defendants' Rule 50(a) motion for
judgment as a matter of law based on the sufficiency of the
evidence, despite the defendants' failure to preserve that ground
of appeal pursuant to Fedg. R. Civ. P. 50(b).1 Vázquez petitioned
for certiorari. After its decision in Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 126 S. Ct. 980 (2006), the Supreme Court
granted Vázquez's petition for certiorari, vacated our 2004
decision, and remanded the case to us for reconsideration. See
Vázquez-Valentín v. Santiago-Díaz, 126 S. Ct. 1329 (2006).
Unitherm established that a party "may not challenge the
sufficiency of the evidence on appeal on the basis of the District
1
During a jury trial under the federal rules, a party may
move during trial and/or at the conclusion of the evidence for
judgment as a matter of law. Fed. R. Civ. P. 50(a). If the
district court denies a Rule 50(a) motion made at the close of all
the evidence, the party may submit a "renewed" motion, under Rule
50(b), after the jury returns its verdict. See also Proposed
Amendment to Rule 50, Subdivisions (a) and (b), effective December
1, 2006, absent contrary Congressional action, Advisory Committee
Notes ("Rule 50(b) is amended to permit renewal of any Rule 50(a)
motion for judgment as a matter of law, deleting the requirement
that a motion be made at the close of all the evidence."). In
addition to not filing a Rule 50(b) motion, the defendants also did
not address the sufficiency or weight of the evidence in a motion
for a new trial pursuant to Rule 59.
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Court's denial of its Rule 50(a) motion" alone. Unitherm, 126 S.
Ct. at 988.
Upon reconsideration, we conclude that the jury's verdict
in favor of Vázquez must now be vacated because of the district
court's exclusion of certain evidence presented by the defendants
-- a point argued by the defendants in Vázquez I but not decided by
us because of our focus on the sufficiency of the evidence. Our
decision to vacate on this ground also requires that we remand this
case for further proceedings in the district court.
I.
After the Supreme Court's remand, we instructed the
parties to brief further "the following three issues addressed in
the original appellate briefs: (1) the district court's evidentiary
rulings, (2) the district court's order that the plaintiff be
reinstated, and (3) the qualified immunity issue." Despite our
instruction, the parties used much of their supplemental briefing
to argue about the scope of the Supreme Court's remand order and of
the applicability of the Unitherm decision to this case. Vázquez
argues that we have to reinstate the jury's verdict in her favor in
light of the Supreme Court's decision. The defendants argue that
we may still order judgment as a matter of law in their favor, on
sufficiency of the evidence grounds. We pause briefly to explain
that the parties have misunderstood the significance of the Supreme
Court's remand order.
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The complete text of the Supreme Court's order in this
case is as follows:
The petition for writ of certiorari is
granted. The judgment is vacated and the case
is remanded to the United States Court of
Appeals for the First Circuit for further
consideration in light of Unitherm Food Sys.
v. Swift Eckrich, 546 U.S. ___ (2006).
Supreme Court orders of this type, colloquially termed "GVRs,"
meaning "granted, vacated, and remanded," do not resolve a case.
See Gonzalez v. Justices of the Municipal Court of Boston, 420 F.3d
5, 7 (1st Cir. 2005). Rather, they tell us that we misapprehended
the law when we entered the judgment now vacated, and that we must
reconsider the case now remanded to us in light of the Supreme
Court's opinion. Id. Sometimes, despite the intervening
precedent, we will enter the same judgment because, after due
consideration, we conclude that the new precedent does not require
a different outcome. See, e.g., United States v. Burnette, 423
F.3d 22 (1st Cir. 2005). Other times, the intervening precedent
will result in a different outcome.
Here, the Supreme Court's decision in Unitherm does not
permit us to conclude once again that a judgment must be entered
for the defendants because of the insufficiency of Vázquez's
evidence. Under Unitherm, we cannot review the denial of a Rule
50(a) motion based on the sufficiency of the evidence when the
party appealing the verdict failed to renew its sufficiency
challenge in the district court pursuant to Rule 50(b). See
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Unitherm, 126 S. Ct. at 987 ("[A] party's Rule 50(a) motion . . .
cannot be appealed unless that motion is renewed pursuant to Rule
50(b).").
Vázquez is equally wrong in arguing that we must
reinstate the jury's verdict. In our 2004 decision, we did not
reach the merits of several of the defendants' arguments for a new
trial because we focused instead on the sufficiency of the
evidence. In fact, we noted that we had doubts about the district
court's evidentiary rulings but we did "not have to decide the
issue." Vázquez I, 385 F.3d at 25 n.1. In light of the remand
from the Supreme Court, we must now address the rulings that
prompted those doubts. See Gonzalez, 420 F.3d at 8.2
II.
We recited the facts at length in Vázquez I, 385 F.3d at
23-29. We incorporate those facts by reference, summarizing only
briefly the details most pertinent to our discussion here.3
Vázquez claimed that she was demoted as a result of the defendants'
2
Unitherm does not mean that a party has to file a post
verdict motion in order to preserve an evidentiary objection for
appeal. Unitherm does not change the rule "that once the district
court 'makes a definitive ruling on the record admitting . . .
evidence, either at or before trial, a party need not renew an
objection . . . to preserve a claim of error for appeal.'" Zachar
v. Lee, 363 F.3d 70, 75 (1st Cir. 2004) (quoting Fed. R. Evid.
103(a)(2)). See also Wright & Graham, Federal Practice and
Procedure: Evidence 2d §§ 5032-5034.
3
To be clear, we do not rely on the vacated legal conclusions
in Vázquez I for our decision here.
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animus against her political affiliation. The defendants, members
of the municipal administration of Toa Baja that took charge in
January 2001, claimed that she was demoted because the previous
municipal administration had promoted her illegally and the
Commonwealth of Puerto Rico had mandated corrective action.
In support of this defense, the defendants invoked an
audit of municipal personnel practices that the Comptroller of
Puerto Rico had completed during the last months of the previous
administration. See Vázquez I, 385 F.3d at 25 n.1. The audit
revealed that Toa Baja had run afoul of numerous Commonwealth laws
relating to the appointment and promotion of municipal employees.
Under Puerto Rico law, "all municipal jobs are governed by so-
called job classification plans that are adopted locally. These
plans set forth the occupational groups and personnel structure of
the municipality, including the primary responsibilities and
employment requirements for each position in city government."
Vázquez I, 385 F.3d at 26. These job classification plans
generally must be approved by the Commonwealth of Puerto Rico
before they can be implemented. Once a job classification plan has
been approved, municipalities normally must use a merit system to
fill the career positions the plan creates. See
Gonzalez-De-Blasini v. Family Dept., 377 F.3d 81, 86 (1st Cir.
2004). "Under this system, career employees must, among other
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requirements, pass a competitive examination to be eligible for
appointment or promotion to a career position." Id.
According to the Comptroller's audit report, Toa Baja had
adhered neither to the requirement that it submit its job
classification plans to the Commonwealth for approval, nor the
requirement that it use a merit system to fill jobs and make
promotions. The municipality's main structural violations were its
use of an unapproved 1997 job classification plan (Toa Baja's most
recent properly-approved plan dated from 1991) and its habit of
ignoring the normal merit-based appointment system in favor of a
system by which relatives and allies of the mayor routinely
received desirable posts.
Under Puerto Rico law, personnel appointments made in
violation of Commonwealth laws and regulations normally "are null
and void ab initio.” Gonzalez-De-Blasini, 377 F.3d at 86 (internal
quotation marks omitted). Accordingly, the Comptroller's audit
report "recommended" that the municipality take corrective action
to undo any illegal personnel actions. The same report warned that
"[f]ailure to heed a recommendation in an audit report from this
Office, without just cause, may constitute a violation of [Puerto
Rico law]."
In reaction to the audit report, the outgoing municipal
administration began reviewing personnel files and, according to a
letter it sent to Commonwealth officials, "encountered cases of
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employees that did not meet the requirements of their position."
Commonwealth officials responded that these employees would "need
to be re-routed to a classification for which they meet the
requirements." Before any reclassifications took place, the
November 2000 election happened, and the previous administration --
the one responsible for the violations cited by the audit report --
was replaced by an administration headed by the defendant mayor.
Upon taking office, the defendants made several inquiries
to Commonwealth officials about the audit report and its
recommendations. In particular, the defendants asked whether all
employee appointments pursuant to the municipality's 1997 personnel
plan, which had not been properly approved, would have to be
rescinded. The Commonwealth's answer was that "the 1997 plans have
no validity" so "we recommend [] the alternative of reclassifying
[the affected employees] into positions for which they meet the
requirements in accordance with the 1991 plan." In light of this
guidance, the new administration adopted a corrective action plan
that called for a thorough review of personnel files and
reassignment of any improperly-promoted employees.
The resulting reviews and reclassifications had a large
effect on municipal employees. As we noted in Vázquez I, by the
time of the trial, "around six hundred files had been evaluated."
385 F.3d at 26. This number represented slightly less than half of
the municipality's workforce. Of those employees whose files had
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been evaluated, roughly half "had sought an informal hearing
regarding the personnel action that resulted from the review." Id.
Vázquez was one of the many employees who was reclassified as a
result of the new administration's review and who sought a hearing.
Vázquez started working for Toa Baja while a college
student in 1985, as a "transitory" office clerk. She was appointed
to the career position of "Office Worker / Typist I" in 1989. She
held that post until the summer of 1993, when she was elevated to
"Secretary III." Less than two months later, she was promoted
again to "Assistant Director." The post "Assistant Director" was
later renamed "Executive Director II," the position Vázquez held
when the new administration took office. See Vázquez I, 385 F.3d
at 28. When the defendants reviewed Vázquez's personnel records,
they decided that both of her 1993 promotions had been in violation
of the 1991 plan. Specifically, the defendants later explained to
Vázquez that her promotion from "Office Worker / Typist I" to
"Secretary III" had been improper because she had not had the
required courses in business skills or typing, and because she had
not spent the required year as a "Secretary II" or equivalent. Her
second promotion, they said, was improper for want of the required
experience and because it had occurred so soon after the previous
promotion. In the spring of 2001, the defendants informed Vázquez
that the illegality of her 1993 promotions meant that she would
have to be demoted to the position of "Office Worker / Typist I,"
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the same post that she had assumed in 1989. That job had no
supervisory responsibilities and paid less than half as much as her
"Executive Director II" position.
Vázquez protested that she was a college graduate with
many years of experience in municipal government, and that her
college transcript clearly showed that she had taken typewriting
and shorthand courses. (Apparently, the transcript was not in her
personnel file.) When she learned that she would be demoted
despite her educational credentials and experience, Vázquez asked
for and was granted a hearing before an administrative hearing
officer. Vázquez later testified that the hearing lasted about
five minutes. The hearing officer determined in a written decision
that Vázquez had been hired and promoted illegally. Shortly after
her demotion became effective, Vázquez resigned her new position.
Suspecting that the true reason for her demotion was her political
affiliation with the party that had lost the 2000 election, she
timely filed this case alleging political discrimination.
III.
At the trial in April and May 2002, to demonstrate that
they had acted in good faith in demoting Vázquez, the defendants
sought to introduce as evidence the Comptroller's audit and the
communications between the municipal administration and
Commonwealth officials that followed. The defendants made these
efforts during the testimony of their two principal witnesses,
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defendant Milagros Delgado-Ortiz (Delgado), who was the new
administration's human resources director, and the defendant mayor,
Victor Santiago-Díaz (Díaz). During Delgado's testimony, the
defendants attempted to introduce the audit report itself and a
four-page letter to her from the Commonwealth Office of Municipal
Affairs explaining that the 1997 personnel plan was invalid. The
defendants also attempted to have Delgado testify as to the
contents of these documents. During Díaz's testimony, the
defendants attempted to introduce a letter Díaz sent to
Commonwealth officials asking what the municipality should do in
light of the earlier documents, and two letters from the
Commonwealth in response, giving the advice that the municipality
should reclassify its employees. Alternatively, the defendants
sought to have Díaz testify about these letters.
The district court excluded all of this proffered
evidence on two grounds. The district court cited the hearsay rule
and also noted generally that it did not want to expose the jury to
the legal conclusions in the documents. Referring specifically to
the letter from the Commonwealth officials to Delgado, the district
court stated that the document "is a conclusion of law and is
hearsay [and] for this reason [] cannot be admitted as evidence."
The district court also expressed concern that the audit report
could be unfairly prejudicial to Vázquez because it contained many
statements that did not pertain to her appointment specifically.
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See Fed. R. Evid. 403. On appeal, Vázquez echoes these rationales,
which are unpersuasive.
As the defendants point out, the excluded documents were
not hearsay because they were not "offered in evidence to prove the
truth of the matter asserted." Fed. R. Evid. 801(c); see also
Ramírez-Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc.,
425 F.3d 67, 76-77 (1st Cir. 2005). We indicated as much in
Vázquez I: "The exclusion of these documents as hearsay is
troubling. So crucial to the defendants' case, and offered as an
explanation for the personnel actions undertaken by the defendants
rather than for the truth of the personnel irregularities described
in the documents, these documents are not hearsay, and they were
highly relevant. Their exclusion might well have justified a new
trial." 385 F.3d at 25 n.1. The "matters asserted" in the
documents were that many Toa Baja employees had been hired without
due regard for procedures, that the Mayor and his administration
would be liable under the Commonwealth's ethics laws if they did
not take measures to remedy the hiring abuses of the previous
administration, and that the approach of reviewing personnel files
and reclassifying employees was consistent with the Commonwealth's
guidance. The defendants "offer[ed] these assertions to explain
the basis for [their] decision to [demote Vázquez]." Ramírez-
Rodriguez, 425 F.3d at 77. The issue at trial was not whether
Vázquez was appointed properly or whether the new administration
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was legally liable for the abuses of its predecessors. Rather, the
issue for the jury was whether the defendants had demoted Vázquez
as a result of her political affiliation, or for some other reason.
"In short, the documents were not offered to prove" that the new
administration was legally obligated to demote Vázquez, "but rather
to demonstrate that h[er] superiors had reason, based on a thorough
investigation, to believe that [they were required to demote her]."
Id. Accordingly, the documents were not hearsay.
The suggestion that the documents were inadmissible legal
opinions fails for similar reasons. The documents did contain
legal conclusions about the propriety of the previous municipal
administration's personnel decisions. But this is not a case about
the propriety of Vázquez's appointment.4 The critical issue in
this case -- the ultimate issue for the jury -- was determining the
defendants' motivations for demoting Vázquez. The documents
offered no legal conclusions about those motivations. Rather, they
described a neutral evaluation of the municipality's personnel
policies that, if truly relied upon, provided a non-discriminatory
basis for Vázquez's demotion. As we explained in a case involving
a similar situation, while the documents were "not admissible for
4
Vázquez's due process claim, which the district court
dismissed on the defendants' Rule 50(a) motion, after the
presentation of evidence but before the case went to the jury, also
did not hinge on the propriety of her appointment. As the district
court noted, Vázquez's claim was "based upon the theory that [her
pre-demotion] hearing was previously determined and was in and of
itself a sham."
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the purpose of proving what obligations the law imposed upon the
Mayor, [they were] admissible to show the Mayor's understanding at
the time and his ensuing state of mind." Gómez v. Rivera
Rodríguez, 344 F.3d 103, 115 (1st Cir. 2003).
Gómez also refutes Vázquez's suggestion that the
documents could have been excluded, in toto, pursuant to Rule 403.
In Gómez we noted that:
The Rule 403 balancing test applies statement
by statement. See Kassel v. Gannett Co., 875
F.2d 935, 952 (1st Cir.1989) (noting that the
trial court “must balance the prejudicial
effect and probative value of each statement
offered”). To use the rule as an instrument
for the wholesale exclusion of a percipient
witness's testimony would be tantamount to
allowing the presider to cut down the entire
tree out of fear that some of the fruit might
prove rotten. Rule 403 requires more delicate
pruning of evidentiary proffers. See id.
(warning against throwing “out the baby with
the bath water”).
Id. at 115 (footnote omitted); see also id. at 115 n.7 ("[T]he need
to limit the jury's use of certain testimony does not give the
trial court carte blanche to exclude it entirely."). Here, there
would be a similar calculus. If, as the district court suggested,
there was some material in the audit report that was unfairly
prejudicial to Vázquez, the remedy should have been to redact the
offending statements from the jury's view, not to exclude the
document entirely.
Anticipating the possible rejection of her arguments,
Vázquez asserts that any error in excluding the documents was not
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prejudicial to the defendants given other material that was
admitted in evidence. She points particularly to the statements
that the district court read to the jury summarizing some of the
excluded material. After refusing to let Delgado testify as to the
contents of the audit report, the district court told the jury
that:
The Comptroller of the Commonwealth of Puerto
Rico performed an audit in which his staff
examined a sample of personnel files. The
report stated that certain irregularities in
the placement of some employees for the
Municipality of Toa Baja had been found. The
report should not be taken as evidence of the
truth or veracity of the statement found
therein, but rather only that the report was
made.
In regard to the letter to Delgado about the illegality of the 1997
personnel plan, the district court told the jury that:
Mrs. Delgado sought advice from [the
Commonwealth]. Mrs Delgado received a letter
in reply to this petition for advice. The
letter received by Mrs. Delgado is evidence
only that she sought and received advice. The
letter in no way proves that the advice she
received was true or legal.
The district court also told the jury, as part of its charge, that:
. . . according to the defendant, plaintiff's
demotion was based on legitimate policy and
administrative consideration devoid of any
political motivation. They contend that their
demotion was a direct result of the
implementation of a plan to reorganize the
working positions within the municipality.
Defendants further claim that the Comptroller
of Puerto Rico concluded that the
municipality's previous administration had
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illegally appointed many employees and had
illegally raised the compensation of others.
Finally, Vázquez points out that during cross-examination of her
own testimony, the defendants persuaded the district court that
Vázquez should read to the jury a letter the defendants had sent
her after she submitted her resignation. The letter stated:
I wish to clarify that the undertakings being
carried out by this municipality with respect
to personnel transactions are due to the
findings made by the Comptroller of Puerto
Rico in his audit report [] and the corrective
action plan, which we are required to submit
to said office, correcting the findings of
irregularities in the proceedings involving
appointment and selection of personnel.
Although these statements by the court and the admission
of this letter reflect a laudable attempt by the court to be fair
to all parties, they were not enough to render the exclusions by
the court inconsequential. The court's third statement and the
letter to Vázquez merely paraphrase the defendants' position at
trial. They did nothing to show that the Commonwealth authorities
had in fact given the legal opinions in question. The district
court's summaries of the audit and one letter also failed to put
the jury on notice of the contents of the excluded documents.
First, the district court did not allow the jury to know that the
audit report had contained the admonition that "[f]ailure to heed
a recommendation in an audit report from this Office, without just
cause, may constitute a violation of [Puerto Rico law]." Second,
the court's summary of the letter to Delgado did not let the jury
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know that the Commonwealth had recommended "reclassifying [the
affected employees] into positions for which they meet the
requirements in accordance with the 1991 plan," which is precisely
the course the defendants claimed that they took in regard to
Vázquez. Indeed, the district court's summary of the letter did
not even let the jury know that the Commonwealth had advised the
defendants to reclassify employees at all. In short, the summaries
by the court simply were insufficient to convey the seriousness
with which the Commonwealth had insisted that the defendants remedy
the previous administration's abuses, and the specific measures
they urged the defendants to take. For these reasons, the
exclusion of the documentary evidence was not harmless, and we must
vacate the jury's verdict and remand for a new trial.5
IV.
Several times during the proceedings, the individual
defendants asked the district court to rule that they were entitled
to qualified immunity. They asked for summary judgment on that
ground, a request that the district court denied because there were
disputed issues of fact relating to the defendants' actual
motivations for Vázquez's demotion. The district court explained
that the defendants would not be entitled to qualified immunity if
5
Given this outcome, there is no need for us to discuss the
defendants' contentions that the district court committed error in
making certain remarks during the trial or in ordering the
defendant to reinstate Vázquez as an Executive Director II.
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the jury concluded that they had demoted Vázquez because of
political animus. In the court's view, such a finding would
establish that an objectively reasonable municipal official would
not have acted as the defendants did.6 The defendants also sought
to invoke qualified immunity at trial, asking the district court to
rule in their favor on that issue after Vázquez's case in chief and
again at the close of the evidence. The district court reserved
its decision pending the jury's findings on the defendants'
motivations.
In the end, according to the verdict form, the jury found
that Vázquez's "political affiliation was a substantial or a
motivating factor in the decision to demote her from her position
as Executive Director II." On the basis of this finding, the
district court denied the defendants' motion for qualified
immunity.7 We have now concluded that the jury verdict must be
6
"This Court has identified a three-step process for
evaluating qualified immunity claims: (1) whether the claimant has
alleged the deprivation of an actual constitutional right; (2)
whether the right was clearly established at the time of the
alleged action or inaction; and (3) if both of these questions are
answered in the affirmative, whether an objectively reasonable
official would have believed that the action taken violated that
clearly established constitutional right." Wilson v. City of
Boston, 421 F.3d 45, 52-53 (1st Cir. 2005). In the district
court's view, because a municipal employee's right to be free of
political discrimination is a clearly-established constitutional
right, only the third part of the test was at issue in this case.
7
The defendants did not make any post-trial motion on the
issue; the district court issued a thorough written order denying
qualified immunity the same day the jury returned its verdict.
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vacated because of the exclusion of evidence that the jury was
entitled to hear. Given the centrality of the jury verdict to the
district court's denial of qualified immunity, the district court
should reexamine the qualified immunity issue as well. Indeed, we
note here, as we did in Vázquez I, that the same district court
judge who heard this case presided over a second political
discrimination case from Toa Baja, involving the same defendants
and a group of plaintiffs who brought claims similar to Vázquez's.
See Lugo v. Toa Baja, 329 F. Supp. 2d 221 (D.P.R. 2004). In Lugo,
which reached trial after our decision in Gómez, the district court
appropriately allowed in evidence the same documents that it
excluded in this case. Presumably in light of that evidence, the
district court concluded that the defendants in Lugo (the same
defendants as here) were entitled to qualified immunity. The
documents that we discussed above clearly are relevant to the
qualified immunity analysis and should be evaluated by the district
court when it considers that issue again.
Judgment vacated. Remanded for further proceedings
consistent with this opinion. The parties shall bear their own
costs.
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