United States Court of Appeals
For the First Circuit
No. 04-2589
MIGUELINA PEGUERO-MORONTA,
Plaintiff,
MARIBEL NEGRÓN-ALMEDA, ET AL.,
Plaintiffs, Appellants,
v.
CARLOS GABRIEL SANTIAGO, ET AL.,
Defendants, Appellees,
VILMA JIMÉNEZ,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Pablo Landrau Pirazzi, with whom Aldarondo & López Bras was on
brief, for appellants.
Héctor Benítez-Arraiza, with whom Francisco Ríos-Rivera and
Llovet Zurinaga & López, P.S.C. were on brief, for appellees.
September 20, 2006
LIPEZ, Circuit Judge. Maribel Negrón-Almeda, Aracelis
Gascot-Cuadrado, and Nilda Pérez-Montalvo (collectively,
"Plaintiffs"), former employees of Puerto Rico's Commercial
Development Administration ("CDA"), brought suit against Carlos
Gabriel Santiago, Susana Hernández Colon, and Vilma Jiménez
(collectively, "Defendants"), officials of that agency, pursuant to
42 U.S.C. § 1983 for wrongful termination because of their
political affiliation. Plaintiffs asserted that these adverse
employment actions violated their First Amendment rights under the
United States Constitution.
At trial, Plaintiffs' case focused on the circumstances
of their dismissals at the end of the probationary periods for
their career positions. At the close of Plaintiffs' case,
Defendants moved for judgment as a matter of law pursuant to Fed.
R. Civ. P. 50(a), asserting that Plaintiffs had not presented a
prima facie case of political discrimination. The district court
granted that motion in part and denied it in part. After
Defendants presented their case, which sought to justify
Plaintiffs' terminations because of their poor job performance,
Defendants renewed their Rule 50(a) motion. Relying on our
decision in Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23 (1st
Cir. 2004), which has now been vacated by the United States Supreme
Court on the basis of its decision in Unitherm Food Sys. v. Swift-
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Eckrich, 126 S. Ct. 980 (2006),1 the district court concluded that
Plaintiffs had presented insufficient evidence of political
discrimination to get their case to the jury.2 Conducting our own
review of the evidence presented at trial, which includes a
credibility contest between Plaintiffs and Defendants over the
circumstances of Plaintiffs' job loss, we vacate the district
court's judgment in favor of Defendants and remand for further
proceedings.
I.
Before we summarize the evidence in this case, we must
describe the ruling of the trial judge at the heart of this appeal.
The jury trial began on September 20, 2004. At the close of
Plaintiffs' case on September 21, 2004, Defendants moved for
judgment as a matter of law under Fed. R. Civ. P. 50(a), asserting
that Plaintiffs had not presented sufficient evidence to reach the
1
See Vázquez-Valentín v. Santiago-Díaz, 126 S. Ct. 1329
(2006).
2
Vázquez-Valentín v. Santiago-Díaz was another political
discrimination case from Puerto Rico. There, we reviewed a
district court's denial of the defendants' motion for judgment as
a matter of law pursuant to Fed. R. Civ. P. 50(a). The defendants
asserted that the plaintiff had presented insufficient evidence of
political discrimination to permit the case to go to the jury. We
agreed. See generally 385 F.3d at 23. However, in order to
conduct that evaluation of the defendants' motion, we excused the
defendants' failure to preserve that ground pursuant to Fed. R.
Civ. P. 50(b), which requires renewal of a Rule 50(a) motion after
the jury has returned a verdict. In Unitherm, the Supreme Court
ruled that a party must renew its Rule 50(a) motion pursuant to
Rule 50(b), or that ground for appeal is waived. See generally 126
S. Ct. at 980.
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jury on their case of political discrimination. Specifically,
Defendants argued that Plaintiffs had not demonstrated that their
political affiliation was a substantial or motivating factor in
their terminations. The district court granted Defendants' Rule
50(a) motion in part and denied it in part:
(1) All claims against Vilma Jiménez ("Jiménez"),
Director of Human Resources and Legal Services, were dismissed;
(2) The claims brought by Maribel Negrón-Almeda
("Negrón") and Aracelis Gascot-Cuadrado ("Gascot") against Susana
Hernández Colon ("Hernández"), a Human Resources Officer, were
dismissed;3
(3) The First Amendment claim of Nilda Pérez-Montalvo
("Pérez") against Hernández survived;
(4) The First Amendment claims of all of the Plaintiffs
against Carlos Gabriel Santiago ("Santiago"), Administrator of the
CDA, survived.
At the close of their case on September 27, 2004,
Defendants moved for judgment as a matter of law a second time on
the remaining claims, on essentially the same grounds as their
3
Plaintiffs do not appeal these dismissals prompted by
Defendants' first Rule 50(a) motion. Plaintiffs had also brought
claims pursuant to Articles 1802 and 1803 of the Puerto Rico Civil
Code, 31 LPRA §§ 5141 and 5142. These claims also did not survive
the district court's first Rule 50(a) ruling, and Plaintiffs did
not appeal that ruling. We also note that the court dismissed the
claims of another plaintiff, Miguelina Peguero-Moronta, prior to
trial in an Opinion and Order dated March 31, 2004. She is not
involved in this appeal.
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first Rule 50(a) motion. Ruling from the bench that same day, the
district court granted Defendants' motion. In presenting their
renewed Rule 50(a) motion, Defendants relied heavily on our
decision in Vázquez-Valentín, which was published during the trial.
It is also apparent from the record that the district court
reviewed Vázquez-Valentín during the noon break between the morning
session of the trial -- when Defendants made their second Rule
50(a) motion -- and the afternoon session when the district court
ruled on the motion. The district court explained its reading of
the import of Vázquez-Valentín in these terms:
If this case -- if the case of Vázquez-Valentin did
not meet the standard of proof for jury submission as to
the fact of whether political discrimination was a
substantial or motivating factor in the challenged
employment action, then this case, that we are trying
now, the one that is before us, doesn't meet it, either.
The truth of the matter is that the case of Vázquez
. . . contained a lot more evidence of potential
discriminatory motives and of a circumstantial nature
than the one that we are trying.
So under those circumstances, it seems to me that I
don't see how I can let this case go to the jury . . . .
I recognize, and I know, on the basis of my experience,
that when these things happen in the context of positions
like this, usually you have to look carefully, because
there is always the good possibility that improper
political motives were behind the personnel action. But
it is not what I think; it is what the evidence sustains.
And obviously, the problem that I have here is that
there is no evidence other than a scintilla of evidence
to let this case go to a jury, and this case [Vázquez-
Valentín] is extremely clear as to what is required. And
the case before me doesn't satisfy the standard.
. . . .
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So on the basis of that, I have no other alternative but
to disregard my own feelings as to what the case is and
enter a judgment under Rule 50, dismissing it on the
basis of insufficiency of evidence on the issue of
political discrimination under this case of Vázquez v.
Santiago [sic]. No other alternative.
Plaintiffs read this ruling as reflecting the district
court's focus on the evidence in their case only and a disregard of
the evidence presented by Defendants. If, in fact, the district
court examined only the evidence presented in Plaintiffs' case when
granting Defendants' renewed Rule 50(a) motion, this would be an
error of law. See Wright & Miller, Federal Practice and Procedure,
Civil 2d § 2534 (2d ed. 1994) ("A renewed [Rule 50(a)(1)] motion
will be judged in the light of the case as it stands at that
time."); Potti v. Duramed Pharms, Inc., 938 F.2d 641, 645 (6th Cir.
1991) ("Our review of whether there was [sufficient] evidence [to
survive judgment as a matter of law] . . . must be based on the
entire record, not just the record at the end of plaintiffs' case,
because [the defendant] proceeded to offer evidence in its own
defense.").
Although Plaintiffs' reading of the district court's
ruling is plausible, Defendants advance an equally plausible
reading -- the district court evaluated all of the evidence adduced
during the trial when it announced its bench ruling. For example,
in an exchange with defense counsel concerning the renewed Rule
50(a) motion, the district court insisted "[r]emember, I wanted the
[sic] hear the evidence as a whole."
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In the end, we need not decide which characterization of
the district court's ruling is accurate. Even if the district
court had unambiguously focused only on Plaintiffs' evidence -- and
hence had committed an error of law by disregarding Defendants'
evidence when ruling on the renewed Rule 50(a) motion -- we could
not rule in Plaintiffs' favor if, in fact, the totality of the
evidence did not permit their case to go to the jury. We engage in
de novo review of the district court's decision granting judgment
as a matter of law. See Webber v. Int'l Paper Co., 417 F.3d 229,
233 (1st Cir. 2005). We can affirm on any basis available in the
record because "[w]e are not wedded to the lower court's rationale,
but, rather, may affirm its order on any independent ground made
manifest by the record." InterGen N.V. v. Grina, 344 F.3d 134, 141
(1st Cir. 2003). Therefore, the dispositive question on appeal is
whether, in light of the totality of the evidence, the district
court correctly ruled that there was insufficient evidence of
political discrimination to permit the Plaintiffs' case to go to
the jury. To pursue this inquiry, and to provide an adequate basis
for explaining our decision, we must first set forth in some detail
the evidence adduced at trial.
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II.
On November 7, 2000, general elections were held in
Puerto Rico. The Popular Democratic Party's ("PDP") candidate for
governor won that election, leading to a change of administration
from the incumbent New Progressive Party ("NPP") to the PDP.
Defendant Santiago was appointed Administrator of the CDA on or
about January 7, 2001. As such, he was in charge of all of the
CDA's operations. At the time of the change in regime, Defendant
Hernández served as a Human Resources Officer and Officer of Labor
Relations, meaning that she carried out hiring and termination
decisions and managed payroll, with Santiago's approval. Plaintiff
Pérez worked in the human resources department of the CDA, where
she maintained attendance and payroll records. Plaintiff Negrón
served as the director of the general services division. She was
responsible for supervising the maintenance of the CDA's physical
plant and equipment, obtaining supplies, and providing support for
the vehicles and equipment of her division. Plaintiff Gascot was
director of the CDA's management and entrepreneurial school. Her
duties included managing the school's equipment and physical
resources, budgeting, and planning the school's curriculum.
Within three to four weeks after the change of
administration in early January 2001, all of the Plaintiffs had
lost their jobs at the CDA. Plaintiffs' case consisted almost
entirely of descriptions of what happened to them in those three to
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four weeks, and the circumstances of their terminations from the
CDA. Defendants' case consisted entirely of explanations of why
they were justified in terminating Plaintiffs. Although the trial
lasted six days, and included other witnesses,4 we summarize only
the testimony of the three Plaintiffs and the two remaining
Defendants. For the testimony of each of the Plaintiffs -- Pérez,
Negrón, and Gascot -- we divide the summary of their testimony into
three sections: (1) before the change of administration; (2) after
the change of administration; and (3) political affiliation
testimony. Then we summarize the testimony of Defendants --
Santiago and Hernández -- with Santiago's testimony related as it
pertains to each of the three Plaintiffs; and Hernández's related
only as it pertains to Plaintiff Pérez. As noted earlier, the
First Amendment claims of each of the three Plaintiffs against
Santiago survived Defendants' first Rule 50(a) motion. But only
Pérez's claim against Hernández survived that same motion.
A. The Plaintiffs
1. Nilda Pérez-Montalvo
a. Employment history before Santiago's arrival
Pérez obtained a bachelor's degree in economics and a
master's degree in business administration, specializing in human
4
The other witnesses were the respective Plaintiffs' spouses.
Their testimony included their observations of their spouses in the
aftermath of their dismissals from the CDA, and the impact those
dismissals had on their households.
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resources. She worked in government for about nine years before
leaving to raise her children. At the time she left, she served as
an economist at the Statistics Bureau in the Department of Labor.
After her children matured, she decided to return to work.
She returned to work first in the private sector at a
temporary employment services company, Top Notch. Top Notch told
her to apply for a vacant secretarial position in the CDA
administrator's office, which she obtained. While working in the
administrator's office, Pérez applied for and obtained a career
position in the CDA's human resources office.5
Pérez stated that her first task in her position in the
human resources department was to update the time cards of all CDA
employees, which had fallen behind since her predecessor's
departure in December 1999. She was "supposed to check the time
cards, the weekly time cards, that all the employees had to punch
and check to see if they had worked every day, if they had not
worked every day. See if they had taken leave . . . . In other
words, I was supposed to record their attendance on a weekly
basis." Pérez testified that she performed this work, at least
5
"Puerto Rico law distinguishes between 'career' employees
and 'trust' employees. Career employees are permanent and may only
be removed from their positions for just cause after due filing of
charges. By contrast, trust employees shall be of free selection
and removal, i.e., removable with or without cause."
Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 23 n.2 (1st Cir.
2006) (internal citations and quotation marks omitted).
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initially, on an adding machine, which her predecessor had done,
despite her knowledge of computer programs and usage.
Subsequently, she began to use a computer to do her work. She
stated that the attendance records were current up to December 2000
at the time of her termination.
As a probationary employee, Pérez was subject to periodic
evaluations of her performance during the probationary period,
which spanned from July 15, 2000 to January 15, 2001. She was
evaluated three times prior to Santiago's appointment as head of
the CDA for the following time periods: (1) July 15, 2000 to
September 15, 2000; September 18, 2000 to November 15, 2000; and
(3) November 16, 2000 to December 31, 2000. These prior
evaluations, all of which were positive, were signed by Margarita
Martinez, who was the director of the human resources department
for this period (and replaced by Jiménez when the administration
changed). However, Pérez understood that Hernández, not Martinez,
was her immediate supervisor, although Pérez was never officially
told this.
b. Employment history following Santiago's
arrival and alleged performance deficiencies
Pérez stated that her final evaluation for her position
in the human resources department covered the period from January
1, 2001 to January 15, 2001, the final day of her probationary
period. She was evaluated by Hernández, her superior in the human
resources office. However, Pérez also stated that, during those
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fifteen days, she and Hernández were actually in the office at the
same time for only six and a half days because of weekends and
holidays. On this final written evaluation, Hernández had written
that Pérez was not receptive to instructions, unreliable, and
"rarely willing to collaborate."
No one reviewed Pérez's final evaluation with her. Also,
Pérez never received any verbal admonishment or reprimand for the
various mistakes reported on the final evaluation. The written
evaluation was handed to her on her final day at the CDA, which was
January 12, 2001.6
On cross-examination, defense counsel questioned Pérez's
testimony that she had never been verbally reprimanded for errors
she committed in her work. Defense counsel also asked about the
details of those instances of error. Pérez claimed that she had no
recollection of having committed any errors. Defense counsel also
6
Defendants' Exhibit Number 9, Circular Number 580 --
entitled "Guidelines on Probationary Periods" -- from the Central
Office of Administration of Personnel for the Commonwealth of
Puerto Rico, which Santiago reviewed during his testimony under
direct examination, states in relevant part:
It would be enough to warrant a separation of an employee
in a probationary period when an intermediate evaluation
or a final evaluation of the employee doesn't reach the
expected level in one or more of the factors for
evaluation . . . if, in the supervisor's criteria, most
of the deficiencies constitute sufficient cause to
justify such separation . . . . If the employee has had
more than one supervisor in different periods of
evaluation, it can be enough to use the criteria of one
of the supervisors for separation if this one considers
such action is to be taken.
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questioned Pérez regarding the necessity of using a computer to
complete the tasks assigned to her. Pérez contended that a
computer was necessary to perform her tasks "efficiently".
c. Political affiliations
Pérez testified that she was affiliated with the NPP and
had been since she was a teenager. During election years, she had
attended party meetings. Although Pérez testified that she knew
Hernández's political affiliation, she never explicitly identified
that affiliation for the court. As to Santiago, Pérez knew that he
was the new appointee for Administrator of the CDA for the incoming
PDP administration.
Regarding Defendants' knowledge of her political
affiliation, Pérez stated that her affiliation with the NPP was
widely known at the CDA. Politics was openly discussed at the
office, particularly during the 2000 election year, and she was
"very open about [her] affiliation . . . . When [she] obtained the
position in the human resources office [she] spoke with [her]
fellow co-workers there about [her] political affiliation." Just
before the 2000 elections, she stated that she had left to attend
an NPP meeting during her lunch hour and all of her co-workers saw
her leave. While Pérez never directly discussed politics with
Hernández, she believed that Hernández knew her political
affiliation because there were only six people in her office at the
CDA. In her prior position in the CDA administrator's office, all
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of the employees were affiliated with the NPP, and she "didn't hide
[her affiliation] because [she] didn't have reason to."
2. Maribel Negrón-Almeda
a. Employment history before Santiago's arrival
Negrón had a bachelor's degree in business
administration. After obtaining her degree she began work in the
private sector, where she worked until she married and left the
workforce for a time. After that break, she began working at the
CDA shortly before the change in administration. Her position, a
career position, had a six-month probationary period from August 1,
2000 to January 31, 2001.
Negrón testified that she was evaluated three times prior
to Santiago's arrival at the CDA for the following time periods:
(1) August 1, 2000 to September 30, 2000; (2) October 1, 2000 to
November 30, 2000; and (3) December 1, 2000 to December 31, 2000.
Juan Matos Gonzalez, Negrón's supervisor and the auxiliary
superintendent of the CDA prior to the change in administration,
performed these evaluations, all of which were positive. Gonzalez
occupied a trust position and tendered his resignation effective
December 31, 2000. To Negrón's knowledge, no one was appointed to
replace him following Santiago's arrival.
b. Employment history following Santiago's arrival and
alleged performance deficiencies
Plaintiffs' counsel asked Negrón about some "incidents"
that occurred following the arrival of Santiago. One incident
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involved changing the locks on the door of Santiago's office.
According to Negrón, Santiago's secretary instructed her to have
the lock installed a certain way, and Negrón contacted the
appropriate company and conveyed these instructions. However, the
technician installed the lock incorrectly. "The following day
[Negrón] was told there was a problem. [She] once more called the
company. The company came back and they once more reinstalled the
lock." The only verbal admonishment Negrón acknowledged "had to do
with [this incident]. That was the wrong way. So we proceeded to
change it."
Another incident involved the placement of some file
cabinets and other furniture, including a counter/desk. Negrón
testified that once she received the requests from Santiago, she
attempted to contact the two employees who performed these duties;
however, the position for one of those employees was vacant, and
the other employee was "quite old[,] and those file cabinets
weighed approximately 100 pounds." She informed Santiago of the
problem, but told him that she would ask two other employees to do
the moving. Because these two employees were not specifically
tasked with this type of work, they had to coordinate schedules to
find a time that would work, which caused a delay in the moving of
the cabinets. To Negrón's recollection, Santiago was pleased with
the work that was done.
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Negrón also recalled Santiago asking her "to have an air
conditioner duct moved which was in his office." She "coordinated
with the company that had the air conditioning contract . . . [and]
received the estimate for the work." However, that work was never
carried out while Negrón was at the CDA "because [Santiago] never
signed the authorization for [her]."
On her final evaluation, for the period from January 9,
2001 to January 31, 2001, Santiago gave her failing marks. In the
written evaluation Negrón received, Santiago stated that Negrón had
ignored his instructions and performed tasks carelessly and
negligently. The evaluation contained similar comments about her
cooperativeness. Negrón stated that Santiago never discussed his
negative evaluation with her. Negrón testified that Santiago gave
the evaluation to her at the end of the work day on January 31,
2001, her final day at the CDA, and informed her that she did not
pass her probationary period.
On cross-examination, defense counsel questioned Negrón's
account of her performance of the tasks requested by Santiago.
Specifically, he asked her: whether the furniture and file cabinets
were moved on the same day that she was told to have them moved;
for more details as to why the air conditioner was never installed;
and whether the lock had been installed improperly because she
conveyed inaccurate instructions to the technician. Negrón
responded that: any delay in moving furniture and file cabinets was
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caused by unavoidable logistical issues, and the objects were moved
as fast as possible; the air conditioner was not installed because
Santiago never gave proper written authorization; and the improper
installation was the result of an error by the technician (rather
than an error in her instructions) that was corrected as soon as
was possible.
c. Political affiliations
Negrón testified that she had been affiliated with the
NPP since "[she] was very young." This affiliation was formalized
in June 2000 when she went to an NPP office and filled out
paperwork to that effect. Negrón stated that she knew the political
affiliation of Santiago: "[D]uring the few times that I was able to
talk to him he would stress that he enjoyed the full trust of the
governor and he would always say that he enjoyed a position of
trust because he had the governor's trust, so I understood that he
had -- he was affiliated to that party [PDP]." In particular,
Negrón recalled Santiago raising this issue of political
affiliation when he asked her to change the car that had been
assigned to him at the CDA.
As for Defendants' knowledge of her political
affiliation, Negrón believed that her affiliation was known at the
CDA because "the elections were already approaching by that time.
. . . [I]n my area people would talk. . . . We would talk about
who would win and who would lose . . . . We would talk and you
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would talk about who you felt was going to win and everybody just
knew your party."
3. Aracelis Gascot-Cuadrado
a. Employment history before Santiago's arrival
Gascot had a bachelor's degree in business
administration, with a focus on secondary education, and a master's
degree in administration and supervision of schools. She worked as
a teacher in a number of high schools, and then later in a
superintendent's office until 1993 when she began working in the
CDA as the entrepreneurial director, which at that time was
categorized as an "Assistant II" position. She worked in this
position for seven years. In the spring of 2000, Gascot became
aware of a posting, dated April 14, 2000, for the position of
director of the CDA's management and entrepreneurial school, a
career position. She applied for and obtained this position, which
had an "eight-month probation period [and] I was to have
evaluations every two months . . . the first evaluation undertaken
from June the 1st to July the 31st. The first of the first two
months of work." The probation period would end on January 31,
2001. Gascot's duties included managing the school's equipment and
physical resources, budgeting, and planning the school's
curriculum.
Within that eight-month period, Gascot was evaluated for
the following time periods: (1) June 1, 2000 to July 31, 2000; (2)
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August 1, 2000 to September 30, 2000; (3) October 1, 2000 to
November 30, 2000; and (4) December 1, 2000 to December 31, 2000.
These evaluations were performed by Gonzalez. Gascot received all
positive evaluations. After Gonzalez's departure following the
change in administration, Gascot was not informed of anyone taking
Gonzalez's position.
b. Employment history following Santiago's arrival and
alleged employment deficiencies
Aside from a general, agency-wide meeting where he was
introduced to the CDA as the newly-appointed administrator on
January 9, Gascot recalled only "one occasion in which [she] met
personally with Santiago," which occurred on January 14 or 15. On
that occasion she went to his office: "[a] group of employees was
dismissed [from their jobs] and he asked me to explain to him
regarding an aid program for them. I explained to him what the
program was about, and what was normally done." Gascot stated that
Santiago never discussed the nature of her work at the CDA and
never conducted any evaluation of the program she directed. Gascot
testified that "during the transitionary period a report was made
for the work performed at the school and it stated the amount of
participants which had increased and the working plan." While it
is unclear from the record whether Gascot prepared this report
herself, Gascot stated that Santiago never requested from her
either statistics about the school or that working plan.
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On her final evaluation, for the period from January 1 to
January 31, Gascot noted that as to her planning, organization, and
performance, Santiago had written the same thing: "improper
utilization of funds and resources available in the offering of
courses, careless in the effective maintenance of the vehicle
assigned to the school." Gascot testified that this "evaluation
was not discussed with me at any time" and "was given to me on
January 31, 2001. That was the date that ended my probation
period." On January 31, Gascot was told not to leave work that day
without going to the administrator's office. She went to the
administrator's office at 5:10 pm, where she was handed a letter
that read, in part: "[i]n view of the above, effective today,
January 31, 2001, you are being separated from the position you
have been occupying at the agency. If you are not in agreement
with this decision you are entitled to discuss it within the next
ten days with the personnel administration." Gascot stated that
"[w]hen the document was given to me and I was about to talk . . .
[Defendant] Ms. Vilma Giménez [sic] tells me that that [sic] is not
the forum for me to talk."
According to Gascot, it was only later, through
Santiago's deposition, that she learned why Santiago had given her
such a negative final evaluation. Gascot recalled that Santiago
had "said that [she] had been assigned a mobile unit [truck] . . .
[which] was deteriorated and [she] had used it wrongly and it was
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not well used and there were badly used funds." To Gascot's
knowledge, the vehicle was purchased by a prior administrator in
1995 or 1996 for the CDA. It was her understanding that "[a]ll
agency vehicles are under the General Services Administration.
They are the ones who provide maintenance of the vehicles." Gascot
claimed that she never used the vehicle during her time as director
of the managerial school. Gascot also learned through Santiago's
deposition that rumors came to him from other business centers and
business people that the courses were "inefficient" and
"nonoperative," but he could not recall the names of anyone from
whom he heard these rumors.
On cross-examination, Gascot again testified that she
believed that the agency vehicle for which Santiago held her
responsible was, in fact, "the responsibility of the general
services department," which, as of August 2000, was run by Negrón.
c. Political affiliations
Gascot stated that she was affiliated with the NPP, and
had been since she first voted forty (40) years ago. She
participated in ladies' groups, political reelection groups, and
professional agencies. She also belonged to an NPP group comprised
of CDA employees that met outside of working hours. During the
2000 election, Gascot participated in municipal campaigns, and
served as an election functionary, checking voter lists. Gascot
testified that she knew the political affiliations of both
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Hernández and Santiago -- they were both members of the PDP. As to
Hernández, Gascot stated that Hernández "had been working [at the
CDA] for many years. She has held high posts within her town.
She's also worked within her political party and it is known
throughout all the [CDA] employees that she belongs to the Popular
Democratic Party." As to Santiago, Gascot testified that "when he
came to the [CDA] he came from COFEC [Corporation for the Economic
Development of the Capital City] . . . . It was a department
within the municipality of San Juan created when Sila Maria
Calderon [the new PDP governor] was there."
Gascot testified that her affiliation was known at the
CDA because she first arrived at the CDA as a special aide under an
NPP administration, a trust position. Gascot recalled specifically
that Hernández had direct knowledge of her affiliation. Gascot
recalled an incident when she first started working as the director
of the managerial school. Hernández, who Gascot identified as the
"institutional brain" of the CDA, asked her to identify her
political affiliation. By "institutional brain," Gascot understood
Hernández to be an individual who "dedicate[s] themselves to
identify[ing] the [political affiliation of the] people when they
come in." Hernández was "the person who knows everybody in there."
-22-
B. The Defendants
1. Carlos Gabriel Santiago
Before being appointed as head of the CDA, Santiago was
appointed the executive president of COFEC, "a corporation of
economic development for the capital city [of Puerto Rico]. It is
a development company which gives loans to small businesses in San
Juan and also other municipalities in the island." He was
appointed by COFEC's board of twelve directors. He became
administrator of the CDA on January 7, 2001, and he "stopped being
the director in January 2002."
a. Pérez
While Santiago acknowledged that Hernández made the final
decision on Pérez's retention of her position following her
probationary period, he stated that Hernández had consulted with
him. Hernández told him that she "wasn't satisfied with the
inefficient way that Pérez was performing the task of her job, and
[Hernández] understood that [Pérez] wasn't going to fulfill the
expectations of the position." Santiago ultimately endorsed
Hernández's dismissal of Pérez.
On cross-examination by Plaintiff's counsel, Santiago
conceded that prior to Pérez's termination, Santiago did not speak
to her to discuss his intentions to terminate her. He admitted
that he did not remember if Hernández had told him about Pérez's
-23-
educational qualifications or the fact that Pérez's position had
been vacant for six months prior to her filling that position.
b. Negrón
Santiago stated that he got to know Negrón and that "her
performance was low, very low . . . more than poor. It was just
bad." He testified that he gave her instructions to move furniture
and file cabinets, change locks, and repair air conditioners. As
to the moving of furniture and file cabinets, he stated that he
gave Negrón the instruction personally, but she did not comply.
Moreover, Santiago stated that Negrón misplaced the file cabinets
"because it was more than an issue of instructions or permission.
It was more of [Negrón] started establishing territory in the
agency . . . . So it was more of hostility to me." He stated that
the file cabinets were misplaced and Negrón's reaction was simply
"[t]hat there was no space anywhere else except in my office." On
another occasion involving the moving of files, according to
Santiago, it "took a few days, three or four days, because the
argument was the same: There was no space, so those had to remain
there."
As to the counter/desk, Santiago stated that Negrón
"counterordered" the moving of the counter from a location
preferred by Santiago. He felt "concerned and even pressured
psychologically because the situation was more than just me saying
things one way and things happening another. And it was more of a
-24-
controversy." As to the air conditioning duct, Santiago confirmed
that the air conditioning in his office was never repaired. He
also confirmed that the reason "was that the order had to be in
writing." However, Santiago testified that he thought this was
unreasonable. "[Negrón] insisted that every task that she was
ordered to do, even if it was the simplest of tasks, had to be in
writing . . . it wasn't enough that it had to be [in] a memorandum
for [Negrón], but it also had to be -- the requisition had to be
signed. . . . the process was done twice for whatever was needed."
According to him, he asked Negrón three times to fix the air
conditioning duct, and it was never done.
As to the installation of a new lock on his office door,
Santiago recalled that he was in his office when it was installed.
After the installation, when he went to leave, "the lock [was]
installed inside out, meaning that the lock that has the key is on
the inside, and on the outside is the part where you can do it
manually. . . . And so I am locked in my office. I am trapped."
His specific complaint was that Negrón did not remain to supervise
the installation of the lock. In his opinion, with the lock
incident as an exemplar, "it was impossible to articulate a
particular operational plan with [Negrón] because, if things this
simple could not be solved and saying that this was simply a
mistake . . . it was something that would concern any supervisor .
. . . it even got to the point in my mind that I concluded that, if
-25-
ever there was a person that was not going to cooperate . . . it
was [Negrón]."
On his final evaluation of Negrón, regarding the
"performance" factor, Santiago stated that Negrón "did not meet the
goals and objectives, be them small as they could be, and also the
effective solutions of unforeseen situations like the one regarding
the lock . . . . It shouldn't be the duty of a director to
constantly be in controversy with the head of an agency. It [was
her duty] to keep in operational conditions the physical facilities
of the agency, which [Negrón] did not perform, did not do." As to
the "cooperation" factor, "[Negrón] didn't have the appropriate
attitude. It was more of a serious problem in terms of personality
in terms of trying to be in controversy all the time. And also to
collaborate . . . that never happened. . . . And to obtain the
maximum effort from the personnel. [Negrón] never complied with
this. On the contrary, she prevented things from happening."
According to Santiago, the period from January 9 to January 31 was
"more than enough" time to observe Negrón's performance. He
treated this stretch of time as 20 days.
On cross-examination, Santiago revised this number of
days for observing Negrón to 16. He also admitted that his office
was isolated from Negrón's (a floor away) such that he only
observed her when the two had direct interaction. Santiago
conceded that one of the pieces of furniture that he requested be
-26-
moved, a counter, was something that Negrón could not move on her
own. As to the lock, Plaintiffs' counsel asked, among other
things, why Santiago did not prevent the incorrect installation of
the lock since he was in his office when it was installed.
Santiago stated that he was occupied with work and that the door
was actually some distance from his desk. As to the air
conditioning problem, Plaintiffs' counsel asked Santiago whether it
was in fact reasonable policy for Negrón to have written
authorization for work done in order to keep a record for
accounting purposes, and because checks were issued by a separate
department of the CDA. Santiago replied that Negrón's paperwork
"was additional," meaning redundant. Plaintiffs' counsel also
questioned Santiago as to the difficulty of completing Negrón's
paperwork (essentially, writing "Approved"). Santiago responded
that it would set a problematic precedent, requiring signatures for
everything.
3. Gascot
Santiago stated that he had an opportunity to evaluate
Gascot's performance, which he described as "'poor,' that it did
not meet the standard." He claimed that as far as planning,
coordinating, and directing the entrepreneurial school, Gascot
"peformed duties that were more of a routine, more of a day-to-day
operational basis and instead of planning and coordinating and
looking to the future, that effort did not exist." As to the
-27-
agency vehicle in dispute, Santiago stated that Gascot "and I had
had our differences in how to use the mobile truck to the
entrepreneurial school, the fact that it had been abandoned in the
parking lot of the agency to be deteriorated." He testified that
the vehicle was assigned to the entrepreneurial school; the funds
for it came from the entrepreneurial school; and the side of the
vehicle said "Commercial Development, Entrepreneurial School."
Santiago identified documents confirming the disrepair of the
vehicle, dated December 28, 2000 and January 11, 2001.
Additionally, auditors from the controller's office requested
documents and information from Negrón regarding the purchase,
maintenance, and future use of the agency vehicle in question.
Santiago stated that he believed that no one in the CDA
wanted to be responsible for the vehicle -- "[t]he entrepreneurial
school said it was from general services, and general services said
it belonged to the entrepreneurial school." In summary, Santiago
expected Gascot "[t]o assume responsibility, to assume
responsibility for things that are under her direct supervision .
. . [b]ut that didn't even happen." Santiago also claimed that he
"never saw [an] annual plan [for training services] from" Gascot.
He continued "I honestly think that . . . Gascot didn't have the
capacity to prepare such a plan."
Santiago also testified that Gascot failed to develop or
propose a number of plans: a "capacitation plan" for communication
-28-
between the central school in San Juan and centers throughout the
island; "a study of needs . . . to develop a study determining
the needs for training which is offered to businessmen"; a
"promotion advertising plan" for "what was going to be published in
the advertisements." Additionally, he criticized Gascot for
allowing "the course of offering of the entrepreneurial school [to]
become obsolete or inefficient in terms to what the businessmen
wanted."
Santiago claimed that he spoke to Gascot about all of
these failures, but she gave her "usual response, that she didn't
give me a clue -- or she didn't give me any way that I could
believe that she was going to be in charge of that, that she would
take care of it." He conceded that "[c]ertainly there were other
issues" on his mind during the transition period, but that he
devoted "from five to 10 hours" to the entrepreneurial school and
Gascot. He stated that he "saw the [prior] evaluations in the
file, but those evaluations were not in agreement with what [he]
saw . . . of Gascot's work performance." He performed the final
evaluation of Gascot with the help of Hernández and Jiménez.
On cross-examination, Santiago admitted that his office
was a number of floors away from that of Gascot, and he only
observed her when the two had direct interaction. He also
identified a transition report that was given to him on his arrival
at the CDA, which stated that the agency vehicle for which Gascot
-29-
was responsible was purchased from "General Services by Commercial
Development Services" and that the vehicle was already eight years
old when it was purchased, meaning it was twelve years old when
Santiago first saw it. Santiago also conceded that evaluations of
an employee's probationary period should only take into account
actions performed during that period.
Plaintiffs' counsel also questioned Santiago about an
apparent inconsistency between his testimony on direct examination
and his response to an interrogatory prior to trial. The
interrogatory had asked for any and all reasons for dismissing
Gascot; Santiago listed and explained only the vehicle incident.
He did not mention any inability to engage in planning. Santiago
also stated that, even though he was an accountant, he did not
check the agency's property ledger to determine, ultimately, who
was responsible for the vehicle, but that he "must have sent
somebody to check it."
Under further questioning from Plaintiffs' counsel,
Santiago identified a 2000/2001 work plan for the entrepreneurial
school, but stated that he had never seen the document. He also
conceded that when he left the CDA a year after becoming its
administrator, the courses being offered by the entrepreneurial
school had not changed.
-30-
2. Susana Hernández Colon
Hernández's testimony focused only on Pérez.7 On direct
examination, Hernández testified to a number of instances where
Pérez "worked [] attendance sheets without being duly authorized by
the immediate supervisor . . . meaning that the agency would pay
employees that had not been working." However, on questioning by
the district court as to whether "somebody else could have been at
fault," Hernández conceded that it was possible "that more than one
person may have been involved in this negligence." Hernández also
recounted incidents where she directly asked Pérez to review the
vacation ("leave") records of certain employees, including some
outgoing ones. According to Hernández, Pérez committed errors on
these types of records as well, the consequence being that "we
would have paid the employee less days when the employee would have
had a right to be paid their full days." Pérez was working on nine
cases during her final probation period in January 2001, and
Hernández testified that "this work area is simple. It is simple
math that one has to do, but you are not simply calculating work
days . . . out of nine cases, six cases that weren't worked right
. . . I mean more than half the work that she did was bad."
Hernández testified that the only equipment necessary for
attendance work was a calculator; a computer was unnecessary.
7
As noted earlier, the claims of the other two Plaintiffs
against Hernández had been dismissed by the district court in
response to Defendants' first Rule 50(a) motion.
-31-
Hernández also stated that Pérez used a computer to do this work
when other employees in the human resources department required use
of a computer. Later, Hernández "approached [Pérez], and [told
her] that instructions had been given so that she would leave the
desk that had the computer, move to another desk, so that the
computer could be used by the human resources analyst." According
to Hernández, Pérez refused to move.
In her final evaluation of Pérez, covering January 1 to
January 15, Hernández found Pérez had not been compliant in three
areas: availability to learn, reliability, and cooperation. As to
availability to learn, Hernández stated that Pérez "was given
instructions toward her work, toward specific functions . . . and
she worked them wrong." As to reliability, Hernández testified
Pérez "didn't prove capable of following instructions. Also . . .
it is more that . . . she didn't want to do what was said to her.
She didn't assume the responsibilities of the position." As for
cooperation, Hernández recalled specifically Pérez's refusal to
allow others to use the computer that she was using.
On cross-examination, Hernández admitted that during
Pérez's final period of probation, she actually supervised Pérez a
total of only six to seven days. She conceded that the final
evaluation report was supposed to be given, in accord with
regulations, ten days before the date of separation. In Pérez's
case, the final evaluation was only given on the date of
-32-
separation, which was January 12. Although in her final evaluation
she speculated that Pérez did not want to continue working at the
CDA, she acknowledged that four years ago she had considered Pérez
a hard worker who would never leave her position.
Plaintiffs' counsel also questioned Hernández about
Pérez's apparent errors. Hernández testified that some of the
"errors" she testified to on direct examination occurred before she
became Pérez's supervisor; that it is improper to evaluate an
employee based on things that were done during a period for which
the employee had already been evaluated; and that one type of error
had nothing to do with Pérez at all. Hernández also stated that
all of the attendance and payment records are recalculated at the
end of a calendar year or when an employee leaves the agency before
the end of the year. Errors made in the initial calculation are
usually caught and corrected to avoid improper payment.
III.
In light of this evidence, we must now decide if the
district court ruled correctly that there was insufficient evidence
of political discrimination for Plaintiffs' case to reach the jury.
In conducting this review, we keep in mind that Rule 50(a) motions:
will be granted only in those instances where, after
having examined the evidence as well as all permissible
inferences drawn therefrom in the light most favorable to
non-movant, the court finds that a reasonable jury could
not render a verdict to the party's favor. In carrying
out this analysis the court may not take into account the
credibility of witnesses, resolve evidentiary conflicts,
-33-
nor ponder the weight of the evidence introduced at
trial.
Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 273 (1st Cir. 2000)
(quoting Irvine v. Murad Skin Research Labs, Inc., 194 F.3d 313,
316-17 (1st Cir. 1999)). Even though we draw all rational
inferences from the facts in favor of the non-moving party, that
party "is not entitled to inferences based on speculation and
conjecture." Ferreru v. Zayas, 914 F.2d 309, 311 (1st Cir. 1990).
A non-moving party who bears the burden of proof, as Plaintiffs do
here, must have presented "more than a mere scintilla of evidence
in its favor" to withstand a motion for judgment as a matter of
law. Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d
57, 76 (1st Cir. 2001). Additionally, we are not obligated to
disregard uncontradicted evidence offered by defendants. Santiago-
Negron v. Castro-Davila, 865 F.2d 431, 445 (1st Cir. 1989).
A. Proving and defending political discrimination claims
A government employee who does not occupy a policy-making
position of confidence and trust, such as Plaintiffs here, is
protected from adverse employment decisions based on the employee's
political affiliation. See Figueroa-Serrano v. Ramos-Alverio, 221
F.3d 1, 7 (1st Cir. 2000). A plaintiff bringing a political
discrimination claim bears the burden of "producing sufficient
direct or circumstantial evidence from which a jury reasonably may
infer that [his] constitutionally protected conduct -- in this
case, political affiliation . . . was a substantial or motivating
-34-
factor behind [his] dismissal." Acevedo-Diaz v. Aponte, 1 F.3d 62,
66 (1st Cir. 1993) (internal quotation marks omitted); see also Mt.
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). A
plaintiff bears the burden of persuasion on this issue throughout
the case.
Proving that political affiliation was a substantial or
motivating factor in an adverse employment decision requires more
than "[m]erely juxtaposing a protected characteristic -- someone
else's politics -- with the fact that the plaintiff was treated
unfairly." Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 74
(1st Cir. 2000) (internal citation omitted); see also Mercado-
Alicea v. P.R. Tourism Co., 396 F.3d 46, 52 (1st Cir. 2005)
("Statements of political affiliation -- unaccompanied by any
specific factual information to support the claim and unrelated to
any employment action taken by defendant against plaintiff are
patently insufficient to establish an act of political
discrimination.") (citing López-Carrasquillo v. Rubianes, 230 F.3d
409, 414 (1st Cir. 2000) (internal citation and quotation marks
omitted)). The Supreme Court has cautioned that the mere fact that
an adverse action was taken after an employee exercises First
Amendment rights is not enough by itself to establish a prima facie
case. See Board of County Comm'rs v. Umbehr, 518 U.S. 668, 684-85
(1996).
-35-
To meet this burden, political discrimination plaintiffs
often present evidence of verbal or written statements of political
or personal animus. See, e.g., Rodríguez-Marín v. Rivera-González,
438 F.3d 72, 76 (1st Cir. 2006) (witness testified that a defendant
had "made several comments to her to the effect that he was under
political pressure for leaving too many NPP members in cushy
positions"); id. at 78 (witness testified that a defendant insisted
that she use phraseology consistent with a particular political
party); id. at 81 (witness testified that the defendants "made
statements to her indicating that her demotion was politically
motivated"). Plaintiffs who have lost their jobs also present
evidence about the hiring practices of the defendant in the wake of
an election generally -- i.e., evidence that the defendants filled
all, or most, recently vacated positions with supporters of their
political affiliation -- or, more specifically, evidence that the
plaintiff's immediate successor had the same affiliation as the
defendant. For example, in Acosta-Orozco v. Rodriguez-de-Rivera,
132 F.3d 97 (1st Cir. 1997), where "the plaintiffs were all members
of the adverse party . . . their superiors knew this, and . . .
their duties were given to active supporters of the party in
power," we found there was ample evidence for the plaintiffs' case
to avoid summary judgment. Id. at 101; see also Rodriguez-Rios v.
Cordero, 138 F.3d 22, 24 ("[O]ther evidence adduced by plaintiff
established a prima facie case . . . . [P]laintiff adduced that
-36-
every employment task for which she had been responsible prior to
her demotion was performed thereafter by an NPP member and that at
least three new recruits . . . were NPP members.").
A defendant, of course, can offer evidence challenging
the claim that political affiliation played a substantial or
motivating factor in the adverse employment action. Additionally,
even if a plaintiff establishes by a preponderance of the evidence
that political affiliation played a substantial or motivating
factor in the adverse employment action, a defendant can raise an
affirmative defense specific to this type of case: that is, a
defendant can attempt "to prove by a preponderance of the evidence
that [the] plaintiff [] would have been dismissed regardless of
[his] political affiliation." Acevedo-Diaz, 1 F.3d at 66; see also
Mt. Healthy, 429 U.S. at 287; Sanchez-Lopez v. Fuentes-Pujols, 375
F.3d 121, 124 (1st Cir. 2004).
In the language of burden-shifting, we have explained the
Mt. Healthy affirmative defense as follows:
[w]e stress that under the Mt. Healthy burden shifting
scheme, unlike Title VII cases, the burden of persuasion
actually shifts to defendants after plaintiff establishes
a prima facie case. Under Title VII, once the plaintiff
establishes a prima facie case, the employer need only
submit enough evidence to raise a genuine issue of
material fact -- i.e., only the burden of production
shifts to the employer. However, in a First Amendment
political discrimination case, in which the Mt. Healthy
scheme is applicable, the burden of persuasion shifts to
the defendant, and the plaintiff-employee will prevail
unless the fact finder concludes that the defendant has
produced enough evidence to establish that the
-37-
plaintiff's dismissal would have occurred in any event
for nondiscriminatory reasons.
Cepero-Rivera v. Fagundo, 414 F.3d 124, 133 n.1 (1st Cir. 2005)
(internal citations and quotation marks omitted).
B. The nature of Plaintiffs' and Defendants' cases
1. Plaintiffs' case
Plaintiffs presented an unusual case of political
discrimination. They did not present any evidence of overt
statements of political discrimination. They also did not present
evidence that employees of their political affiliation had been
replaced predominantly by employees with an opposing political
affiliation. Plaintiffs did not even show that their own
replacements, if any, had an opposing political affiliation.
Instead, after showing that Defendants had opposing political
affiliations and had knowledge of their political affiliations,
Plaintiffs focused almost exclusively on the suspicious way they
were treated by Defendants near the end of their probationary
periods, and the allegedly spurious reasons supplied by Defendants
for their failure to survive their respective probationary periods.
Plaintiffs saw in this evidence a circumstantial case of political
discrimination.
2. Defendants' case
Aware of the Mt. Healthy line of cases, Defendants
presented a case that also focused on the reasons for Plaintiffs'
dismissal. In their view, they were attempting to establish that
-38-
regardless of any political discrimination, Plaintiffs' dismissals
would have occurred anyhow for non-discriminatory reasons. When
they renewed their Rule 50(a) motion, Defendants stated that "[i]t
is defendant's [sic] position that we have presented to the
Honorable Court a strong Mt. Healthy defense." Defendants' counsel
continued: "Defendants produced sufficient facts about plaintiffs
[sic] failure to properly perform their duties, and will [sic] have
rendered the same evaluations and will [sic] have taken the same
termination decision for the reasons that are nondiscriminatory, in
other words, Mt. Healthy defense."
C. Vázquez-Valentín and the district court's decision
In concluding that Plaintiffs had not made the requisite
showings to get to the jury on their political discrimination
claims, the district court relied on our Vázquez-Valentín decision.
In Vázquez-Valentín, the plaintiff attempted to challenge her
demotion in the wake of a change in political administration by
relying on some of the typical indicia of political discrimination.
See generally 385 F.3d at 23. The defendants in that case
"reassigned several hundred employees, including [the plaintiff]."
Id. at 35. The plaintiff asserted that her reassignment to a lower
position was based on improper political discrimination rather than
the defendants' claim of a systematic reclassification of existing
positions. Id. at 28-29. To demonstrate that the defendants had
knowledge of her political affiliation, the plaintiff referred to
-39-
a single encounter during routine campaign canvassing, and
testimony about her prior activities and positions under a previous
administration. Id. at 37-38. As to political animus, the
plaintiff offered two comments made by the defendants, id. at 36,
38. The plaintiff also presented evidence about her qualifications
for the job at issue, and the gradual erosion of her
responsibilities when the new administration took charge.
In concluding that Vázquez-Valentín presented
insufficient evidence to get to the jury on her political
discrimination claim, we specified the following deficiencies: (1)
she had not presented evidence creating a reasonable inference that
the defendants were even aware of her political affiliation when
her personnel file was reviewed and she was reassigned to another
position; (2) her evidence fell short of proving that she had been
treated in a discriminatory manner because of undisputed testimony
that she did not meet the statutory procedural requirements for her
present position; (3) one of the statements she relied on -- the
mayor's comment about "cleaning house" -- was not a direct
statement about NPP employees; (4) her supervisor's statement of
political animus was a stray comment that could not be attributed
to the defendant city officials; (5) the actions of her supervisor
in failing to provide her with adequate work for five months
similarly could not be attributed to the defendants; and (6)
importantly, the plaintiff offered no evidence that PDP members
-40-
were hired to replace the reassigned NPP members. Vázquez-
Valentín, 385 F.3d at 37-40.
Apparently focusing on these deficiencies, the district
court saw Vázquez-Valentín as a baseline for the amount of evidence
a political discrimination plaintiff must present in order to reach
the jury:
If this case -- if the case of Vázquez-Valentín did not
meet the standard of proof for jury submission . . . then
this case, that we are trying now . . . doesn't meet it
either. . . . The truth of the matter is that the case
of Vázquez . . . contained a lot more evidence of
potential discriminatory motives and of a circumstantial
nature than the one that we are trying.
The district court's statement is a fair observation as far as it
goes. As already noted, there is no evidence in this case of
politically discriminatory remarks. There is no evidence of large
scale demotions or firings of the members of one political party.
But the court's focus on some of the more familiar indicia of
political discrimination described in Vázquez-Valentín may have
prevented the district court from recognizing that the evidence of
political discrimination presented by Plaintiffs had produced a
political discrimination case very different from Vázquez-Valentín.
D. The sufficiency of the evidence
A plaintiff must typically make four showings to prove
a case of political discrimination: (1) the plaintiff and the
defendant belong to opposing political affiliations; (2) the
defendant has knowledge of the plaintiff's opposing political
-41-
affiliation; (3) there is a challenged employment action; and (4)
"sufficient evidence, whether direct or circumstantial . . . that
political affiliation was a substantial or motivating factor . . .
that the challenged employment action stemmed from politically
based animus." González-de-Blasini v. Family Dept., 377 F.3d 81,
85-86 (1st Cir. 2004) (internal citations and quotation marks
omitted).
Plaintiffs testified, on direct examination, that they
were all affiliated with the NPP. They presented enough
circumstantial evidence of Santiago and Hernández's affiliation to
permit a reasonable factfinder to conclude that Defendants were
affiliated with the PDP. Plaintiffs proffered testimony that their
political affiliations were well-known within the CDA itself, and
Hernández, one of the Defendants, asked one of the Plaintiffs to
identify her political affiliation. Also, Plaintiffs' evidence
portrays a relatively small workplace where everyone knew who
everyone else was and political affiliations were common office
knowledge. Given this evidence, a reasonable jury could conclude
that Defendants knew of Plaintiffs' political affiliations. There
is no dispute that Plaintiffs were terminated from their career
positions at the end of their probationary periods.
Therefore, not surprisingly, this appeal turns on the
fourth showing required to prove political discrimination -- that
political discrimination was a substantial or motivating factor in
-42-
the challenged employment action. Before evaluating the evidence
on this issue for each Plaintiff, we must make some preliminary
points applicable to each Plaintiff's case. We are reviewing a
district court's decision to grant judgment as a matter of law. As
a result, we must evaluate the evidence in the light most favorable
to the non-moving party, here Plaintiffs, and we draw all
reasonable inferences in their favor. See Figueroa-Torres, 232
F.3d at 273. We "may not take into account the credibility of
witnesses, resolve evidentiary conflicts, nor ponder the weight of
the evidence introduced at trial." Id. That is the province of
the jury.
Moreover, in political discrimination cases where the
defendants present evidence of the non-discriminatory reasons for
the adverse employment decisions at issue, the falsity of those
reasons can provide circumstantial evidence that political
discrimination was a substantial or motivating factor in the
adverse employment decision. This proposition is well-established
in Title VII law. In Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000), the Supreme Court stated that "[p]roof that
the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is quite probative of
intentional discrimination, and it may be quite persuasive . . . .
In appropriate circumstances, the trier of fact can reasonably
infer from the falsity of the explanation that the employer is
-43-
dissembling to cover up a discriminatory purpose." Id. at 147
(internal quotation marks and citation omitted.); see also St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 517 ("[P]roving the
employer's reason false becomes part of (and often considerably
assists) the greater enterprise of proving that the real reason was
intentional discrimination"); McDonough v. City of Quincy, 452 F.3d
8, 17 (1st Cir. 2006)("Evidence that the defendant's reason was
pretext may . . . ground a finding of liability."); Fite v Digital
Equipment Corp., 232 F.3d 3, 7 (1st Cir. 2000). The evidentiary
significance of a false explanation for an employment decision is
based on a general proposition of evidence law. As the Supreme
Court explained in Reeves: "[s]uch an inference [of falsity] is
consistent with the general principle of evidence law that the
factfinder is entitled to consider a party's dishonesty about a
material fact as 'affirmative evidence of guilt.'" Reeves, 530
U.S. at 147 (emphasis added). This general proposition applies in
this case. However, we are not suggesting that a jury's finding
that Defendants gave false explanations for their adverse
employment decisions would be sufficient alone to establish that
political discrimination was a substantial or motivating factor in
those employment decisions. We are simply saying that such a
finding would be circumstantial evidence of such discrimination.
We may also consider the circumstances surrounding the
adverse employment decisions affecting the Plaintiffs. Prior to
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the change in administrations, all three Plaintiffs had uneventful
probationary periods with only positive evaluations. Their final
evaluations were the only negative marks on their records. These
final evaluations were conducted over a brief period of time -- for
as little as two weeks (Pérez) to four weeks (Gascot), at a time
when Santiago and Hernández faced many other demands for their
attention because of the transition in administrations. Although
not required to do so, Santiago conceded that he did not take into
account Plaintiffs' prior, positive evaluations in reaching his
termination decisions. Plaintiffs were never admonished for their
alleged performance deficiencies at the time of their occurrences,
and they received their negative evaluations on the day of their
respective terminations, in contravention of a regulation requiring
that the termination and final evaluation "be given to the employee
no less than 10 days before the date of separation."
Again, we are not suggesting that this evidence alone
establishes that political discrimination was a substantial or
motivating factor in the adverse employment decision of Defendants.
Still, the three employees who described these strikingly similar
stories were members of the same political party, now out of power.
See, e.g., Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 80 (1st
Cir. 2006) ("It is suspicious that both of [the NPP plaintiffs]
were demoted without being given any notice or opportunity to
defend their promotions, especially since the initial explanation
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offered for the demotions was simply missing documentation. . . .
Further, these missing documents mysteriously reappeared after [the
plaintiffs] presented their copies of the missing documents. . . .
Even after the missing documents were replaced, [the plaintiffs]
were not reinstated; rather, other justifications were given for
their demotions.").
Importantly, Defendants presented no evidence that they
were conducting final evaluations of all probationary employees in
the CDA. They presented no evidence that these three employees
were the only probationary employees in the department. They
presented no evidence that they were engaged in a systematic review
of the personnel files of all employees in search of hiring or
promotion irregularities. Under the circumstances, a jury could
conclude that the common denominator that explains the strikingly
similar stories of Plaintiffs was their shared political
affiliation.
Without repeating the summaries of the evidence already
presented, we turn now to a closer examination of the evidence
presented by each Plaintiff, with a particular focus on the points
of conflict in the testimony of the parties.
1. Pérez
In her testimony, Pérez described her job duties and
responsibilities, said that she performed them well, and noted that
all of her prior evaluations during the probationary period were
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positive. Pérez used a computer in compiling the wage and vacation
information for which she was responsible. She said a computer was
"indispensable . . . to do it efficiently". Hernández painted a
different picture of Pérez's performance, stating that she
performed her duties deficiently, committed computational errors,
insisted unnecessarily on the use of a computer, and was
insubordinate when told to cease using a particular computer.
Pérez challenged Hernández's account in several ways. On
cross-examination, Hernández acknowledged that she disregarded a
regulation requiring that a probationary employee receive the last
evaluation ten days before the date of separation.8 Pérez received
her last evaluation on the day of her separation. Hernández
admitted that by not following the applicable regulation
prescribing when evaluations are given to an employee, she
increased the number of days she had to conduct Pérez's final
8
From the trial transcript, we discern that this regulation,
which Hernández described as "the regulations of essential areas
and merits, and it establishes the probationary period," was
entered as Defendant's Exhibit Number 10. Paragraph number five
stated that:
Any employee can be separated from the position
during or at the end of the probationary period after
being duly oriented and trained, if it is determined that
his progress adaptability to the guidelines in the public
service has not been satisfactory.
The separation must be done through an official
communication signed by the secretary, accompanied by the
last evaluation. Said communication should be given to
the employee no less than 10 days before the date of
separation.
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evaluation from two days to twelve days. With respect to the
computational errors attributed to Pérez, Hernández admitted, on
questioning by the district court, that other employees could have
been responsible for Pérez's errors. On cross-examination,
Hernández also acknowledged that she exaggerated the severity of
the consequences of any errors Pérez might have committed in her
wage calculations. Finally, Hernández admitted that she included
in her final evaluation alleged errors that would have been
accounted for in the November 16 to December 31 evaluation, thereby
inappropriately considering job performance outside of the final
evaluation period. (Additionally, these prior evaluations were
positive in spite of those errors.)
In light of these challenges to Hernández's account of
Pérez's performance deficiencies, and the responsibility of the
jury for assessing the credibility of witnesses, we conclude that
a reasonable jury could choose to believe Pérez's account of her
performance and reject Hernández's account.9
9
There is essentially no credibility contest between Pérez
and Santiago. Pérez offered virtually no testimony implicating
Santiago in her adverse employment action. Her only particularized
evidence consists of Santiago's testimony that he relied on
Hernández's evaluation of Pérez and approved Hernández's decision
to dismiss her. Santiago essentially "rubber-stamped" Hernández's
termination of Pérez. This is not enough evidence to permit a
reasonable jury to conclude that political discrimination was a
substantial or motivating factor in Santiago's decision to
terminate Pérez. We must affirm the court's dismissal of Pérez's
claim against Santiago.
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2. Negrón
Much like Pérez, Negrón testified about her job duties
and her satisfactory performance of those duties. Also like Pérez,
Negrón discovered the specific objections to her work at the end of
the final day of her probationary period, a violation of the ten-
day notice required by the regulation prescribing procedures for
probationary periods described above. Negrón also described a
number of specific tasks she was asked to perform for Santiago on
his arrival as CDA Administrator. The three tasks at issue were:
the installation of a new door lock for Santiago's office; the
moving of certain furniture and file cabinets; and the repair of an
air conditioning duct in Santiago's office. Because of the content
of her final probationary evaluation, Negrón anticipated Santiago's
negative account of her performance of these tasks and provided
explanations in her direct testimony for the way she performed
them. These explanations for her performance were never given
directly to Santiago or anyone else at the agency because she was
never given the opportunity to do so.
Santiago testified to a starkly different version of
Negrón's performance of these tasks. On cross-examination,
Plaintiffs' counsel challenged the basis for Santiago's objections.
As to the moving of the furniture and file cabinets, Negrón had
explained that the furniture and file cabinets were moved as fast
as possible, and that the delay was caused by the lack of personnel
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to move the objects. Santiago conceded that Negrón had to wait for
additional personnel because she could not have moved the objects
on her own. As to the installation of the lock on Santiago's
office door, Negrón maintained in her direct testimony that the
technician installed the lock improperly despite the specific
instructions that she provided. When she was notified of this
error, she promptly had the lock reinstalled properly. On cross-
examination, Santiago was asked whether Negrón ordered the
technician to install the lock backwards. He admitted, "I didn't
say that she did it." Instead, he complained that she should have
checked the installation when the work was completed. But he also
conceded that installing a lock is "not that complex" and that it
was not necessary for her to observe the entire installation. As
to the repair of the office's air conditioning, Santiago
acknowledged that the only reason the air conditioning was not
fixed was because he refused to provide the written authorization
requested by Negrón. When Plaintiffs' counsel asked Santiago the
reason for his refusal, Santiago said that Negrón's paperwork was
"redundant" and it would set a bad precedent. He never said the
request was improper or against CDA policy.
Based on Negrón's points of contention with Santiago's
account of her job performance, including the violation of the ten
day requirement, we conclude that a reasonable jury could choose to
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believe Negrón's account of her work and reject Santiago's account
as a false explanation.
3. Gascot
Like her fellow Plaintiffs, Gascot described a relatively
uneventful probationary period. She detailed her duties as head of
the managerial/entrepreneurial school and recounted her
satisfactory performance of those duties, as evidenced by her prior
positive evaluations. Like Negrón, based on the contents of her
final negative evaluation, Gascot anticipated the objections that
Santiago had with the performance of her duties. In his
evaluation, Santiago stated as reasons for Gascot's dismissal:
"Improper utilization of funds and resources available in the
offering of courses, careless in the effective mantenance of the
vehicle in the school." Later, in response to an interrogatory
requesting all of the reasons for Gascot's dismissal, Santiago
mentioned only a single reason: her mismanagement of a CDA vehicle.
In his deposition testimony, he elaborated to some degree on his
dissatisfaction with Gascot's job performance. He referred to
Gascot's mishandling of the CDA vehicle; he said that the school's
"courses were ineffective"; and he said that Gascot "did not have
an organized working plan for the school." On direct examination
at trial, Santiago significantly expanded on the deficiencies in
Gascot's performance, listing a number of other "plans" that Gascot
had failed to produce, including a "capacitation plan," a "study of
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needs," and a "promotional advertising plan." On cross-
examination, Santiago admitted that his answer to the interrogatory
had not included many of the problems with Gascot's performance
that he was now describing.
Curiously, when Defendants' counsel cross-examined
Gascot, he permitted her to testify that she had prepared a
training and service plan for the school and had submitted it as
part of transition procedures to Santiago. Moreover, Gascot stated
in response to that same cross-examination that Santiago "had no
criteria for rendering" his negative evaluation because "[h]e did
not meet with me and ask for the plan. He did not ask me for the
study or the research of needs. He didn't . . . [say] let's see
where are the studies. If he had asked me I would have given them
all to him and would have avoided all of this."
On cross-examination, Santiago admitted to receiving a
transition report, introduced into evidence by Plaintiff's counsel,
which included a document that Santiago identified as a "working
plan" for the school, though he claimed to have never seen that
working plan before. This exchange suggested that Santiago
criticized Gascot for her failure to plan, yet he had received a
document from her reflecting such planning. Additionally, Santiago
conceded that while he criticized Gascot for not updating the
entrepreneurial school's curriculum, that curriculum had remained
unchanged at the time of Santiago's departure from the CDA one year
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later, well after Gascot's departure. Also, he acknowledged that
the contents of the transition report he received called into
question Santiago's claim that the disrepair of the CDA vehicle was
caused by Gascot's neglect because the vehicle was already old when
Gascot assumed her responsibilities.
Because of these challenges to Santiago's account of
Gascot's performance, we conclude that a reasonable jury could
choose to believe Gascot's account of her performance and reject
Santiago's account as a false explanation.
4. Summary
In essence, Plaintiffs described satisfactory job
performances throughout their probationary periods until the new
administration arrived with a different political affiliation.
Then they received negative evaluations based on a limited period
of observation. Those negative evaluations were presented to them
on the last day of their probationary periods when they were
terminated from their positions, in violation of a regulation
requiring that such evaluations be presented to the probationary
employees ten days before separation. In their testimony,
Defendants explained the deficiencies in the job performance of
Plaintiffs justifying these adverse employment decisions. In both
their direct testimony, which anticipated some of the explanations
by Defendants, and in cross-examination of Defendants, Plaintiffs
challenged the authenticity of these accounts. In the presence of
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this conflicting testimony, a reasonable jury could believe
Plaintiffs and disbelieve Defendants. As we have already explained,
the fact that a jury could find that Defendants gave false
explanations has evidentiary significance. See Reeves, 530 U.S. at
147 (stating that "the factfinder is entitled to consider a party's
dishonesty about a material fact as 'affirmative evidence of
guilt'").
However, Plaintiffs cannot establish their case of
political discrimination solely by persuading a jury that
Defendants' explanations were false. Plaintiffs have the burden of
establishing specifically that political discrimination was a
substantial or motivating factor for the adverse employment action.
See Acevedo-Diaz, 1 F.3d at 66. On this issue, there was other
relevant evidence that a jury could consider to supplement a jury
finding of false explanations for the adverse employment decisions.
These three dismissals all happened within one month of
a change in political administrations. The temporal proximity
between a change in political administrations and an adverse
employment action is relevant to the issue of whether political
affiliation was a substantial or motivating factor in the adverse
employment decision. See Acevedo-Diaz, 1 F.3d at 69 ("Mere
temporal proximity between a change of administration and a public
employee's dismissal is insufficient to establish discriminatory
animus" (emphasis added).). Moreover, a jury could conclude that
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it was more than coincidence that the three probationary employees
who lost their jobs were members of the same political party now
out of power. For unexplained reasons, these three employees
became the focus of hurried evaluations that, in some important
respects, did not conform to the regulations for such evaluations
of probationary employees. These hurried evaluations gave the
appearance of a coordinated effort to rid the agency of three
employees who shared a different political affiliation than the
party now in power.
Under these circumstances, a reasonable fact finder could
conclude that Plaintiffs have established that political
discrimination was a substantial or motivating factor in the loss
of their jobs. Therefore, it was an error of law for the court to
grant Defendants' second Rule 50(a) motion and keep from the jury
Pérez's claim against Hernández, and the claims of Negrón and
Gascot against Santiago.
In summary, we affirm the district court's dismissal of
Pérez's claim against Santiago. We vacate its dismissal of Pérez's
claim against Hernández, and the claims of Negrón and Gascot
against Santiago. Each party is to bear its own costs.
So ordered.
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