United States Court of Appeals
For the First Circuit
Nos. 04-2568, 04-2569, 04-2570
PEDRO BISBAL-RAMOS,
Plaintiff-Appellant/Cross-Appellee,
v.
CITY OF MAYAGÜEZ; ROBERTO PÉREZ-COLÓN,
Defendants-Appellees/Cross-Appellants,
MUNICIPAL ASSEMBLY OF MAYAGÜEZ,
Defendant, Appellee,
JOSÉ GUILLERMO RODRÍGUEZ,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
John R. Gibson, Senior Circuit Judge*
and Lipez, Circuit Judge.
Israel Roldán-González, for plaintiff-appellant and cross-
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
appellee.
Tessie Leal-Garabís, Quiñones Sánchez & Guzmán, PSC, with whom
Pablo Hymovitz-Cardona, was on brief, for Roberto Pérez-Colón,
appellee/cross-appellant.
Juan Rafael González-Muñoz, González Muñoz & Vicéns Sánchez,
with whom Vanesa Vicéns Sánchez, was on brief, for defendants-
appellees and cross-appellants City of Mayagüez and Roberto Pérez-
Colón in his official capacity.
October 11, 2006
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JOHN R. GIBSON, Circuit Judge. Pedro Bisbal-Ramos
appeals from the district court's reduction of the compensatory and
punitive damages awarded him by a jury in his suit against the City
of Mayagüez, Puerto Rico, and Roberto Pérez-Colón, the President of
the Mayagüez Municipal Assembly, alleging harassment and
termination of employment in violation of his First Amendment
rights. Bisbal also contends that the district judge who reduced
the damages should not have done so because he was not the same
judge who presided at trial. The City1 cross-appeals, arguing that
there was no evidence to support the jury's finding that any
workplace harassment was politically motivated or that it resulted
from a City policy or custom. Pérez also cross-appeals, arguing
that the evidence at trial did not support any award of punitive
damages and that he was entitled to qualified immunity. We affirm
the district court's denial of judgment as a matter of law, but
remand for the district court to determine whether to enter a
remittitur.
Bisbal is a member of the Popular Democratic Party, or
PDP, and is apparently a fairly prominent and well-connected one.
His brother was a municipal assemblyman from 1993 up through the
1
Pérez was also named in his official capacity, and in his
official capacity, he joined the City's cross-appeal. Because a
claim against Pérez in his official capacity is essentially a claim
against the City, Gomez v. Rivera Rodríguez, 344 F.3d 103, 120 n.
12 (1st Cir. 2003), we will name only the City in discussing the
cross-appeal.
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time of the trial in this case. At trial, Pérez, another PDP
member and the President of the Mayagüez Municipal Assembly, was
able to recount which candidates Bisbal had supported in numerous
elections going back to 1992.
Bisbal met Pérez at a political event in 1992. Bisbal
went to work for the City of Mayagüez in 1993 in the municipal
housing department. His position was a "transitory" one, but his
one-year contract was renewed through 1995. In August 1995, Pérez,
who was the nominating authority for the Assembly, nominated Bisbal
to work for the Municipal Assembly as "office administrator." Up
to that time, the job had been performed by another person, María
Eugenia Soto Nieto, a permanent employee, but Bisbal joined her.
Bisbal's duties included ordering supplies, working on accounting
and budgeting, drafting ordinances and resolutions, recording
assembly proceedings, serving the assembly members coffee, and
delivering notices of the meetings. He earned a salary of $1725
per month, which eventually was raised to $1785. Bisbal's first
two employment contracts with the Assembly were for a year each,
and his third contract was for six months. At the end of 1997, he
received a notice that his appointment would terminate at the end
of 1997, but nevertheless, he received a six-month renewal at the
beginning of 1998. Beginning in 1999, his renewals came in three-
month or one-month increments. Bisbal stated that the change to
shorter appointments in 1999 was part of a pattern in which
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"basically, they just started to withdraw their trust on me and to
sort of move me out of the way and sort of leave me out on the
fringes of the Municipal Assembly."
Bisbal testified that the reason his job changed in 1999
was that the others in the Assembly office became caught up in a
campaign for the November 14, 1999 PDP primary. Bisbal testified
that the Mayagüez Municipal Assembly virtually became the campaign
headquarters for Charlie Hernández, a candidate for Representative,
and that all those working for the Assembly quit doing their
official duties and devoted themselves to campaign activities.
All, that is, except Bisbal, who supported Ferdinand Lugo,
Hernández's rival. Bisbal was the lone Lugo supporter in the
office. Bisbal testified that in this environment, he had nothing
to do at work except some "small routine things." He felt
"completely cast aside." Significantly, Pérez supported Hernández.
Two weeks after the primary, on November 29, 1999, Bisbal
received notice that his contract would not be renewed after
December 31, 1999. Pérez made the decision not to renew the
contract and he signed the notice of termination. Pérez testified
that Bisbal was the only employee at the Municipal Assembly whom
Pérez knew to be supporting Lugo, and Bisbal was the only employee
who lost his job at this time. Bisbal testified that he "made a
large number of efforts to go in and talk to [Pérez]," but he was
never allowed in to see him. The City had budgeted for Bisbal's
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position through June 30, 2000. Pérez testified, "From 1995 to
1999 I made a lot of movement to get [Bisbal] another position in
the Municipal Government of Mayagüez. After the termination of his
contract in '99 I didn't make anymore."
Bisbal sued the City, its mayor, and Pérez in his
official and individual capacities, alleging violation of his First
Amendment rights under 42 U.S.C. § 1983. Specifically, he alleged
that he had been harassed in the workplace and that his employment
had been terminated because of his political allegiance to Dr.
Miguel Rodríguez, the opponent of the mayor in the primary.2
The defendants moved for summary judgment. The Honorable
Juan M. Pérez-Giménez held that there were issues of fact
precluding judgment in favor of the City and Pérez, but that Bisbal
had produced no evidence that the Mayor was involved in any way
with the alleged harassment or termination of employment;
accordingly, Judge Pérez-Giménez dismissed the claim against the
Mayor.
The case against the City and Pérez was tried to a jury
before the Honorable Robert J. Ward. The jury returned a verdict
against the City and Pérez on both the harassment and termination
claims; it awarded compensatory damages of $60,690 for non-renewal
2
At trial, Bisbal did not discuss his support of the Mayor's
opponent, but only the Lugo-Hernández race for Representative.
There was no objection, so we consider the complaint amended under
Fed. R. Civ. P. 15(b).
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of the employment contract and $250,000 for harassment. It further
awarded punitive damages of $300,000 against Pérez in his
individual capacity.3
The defendants moved for judgment as a matter of law, or
in the alternative, for remittitur or partial new trial, but
attacked only the $250,000 harassment award and the punitive
damages, not the $60,690 award based on termination of employment.
Before he could rule on the motion, Judge Ward died. Judge Pérez-
Giménez ruled the motion in Judge Ward's stead. Judge Pérez-
Giménez denied the motion for judgment as a matter of law and the
motion for new trial, holding that there was sufficient evidence of
political persecution and harassment and of deliberate indifference
to Bisbal's constitutional rights. However, he reduced the
harassment compensatory damages award from $250,000 to $50,000 and
the punitive damages from $300,000 to $5,000.
Bisbal did not object in the district court to the
reduction of the damages, but instead immediately took this appeal,
contending that the district court erred in reducing the damage
awards. The City cross-appealed, arguing that there was not
sufficient evidence to establish that the motivation for depriving
Bisbal of his duties in November 1999 was political retaliation or
3
Because punitive damages are not available against the
municipality, Newport v. Fact Concerts, Inc., 453 U.S. 247, 271
(1981), the punitive damages were awarded only against Pérez in his
individual capacity.
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that the deprivation was the result of a City policy or custom.
Pérez also cross-appealed, arguing that there was not sufficient
evidence to support the award of punitive damages against him. The
defendants do not appeal the verdict against them for termination
of Bisbal's employment.
We will take up the cross-appeals first, because the
cross-appeals go to the propriety of any award, whereas Bisbal's
appeal concerns the size of award. If the defendants win their
cross-appeals, there will be no need to consider Bisbal's appeal.
I.
The City contends that the district court erred in
denying its motion for judgment as a matter of law since there was
no evidence of political harassment of Bisbal in the workplace in
November 1999 and no evidence to establish municipal liability for
harassment. We review de novo the district court's denial of a
motion for judgment as a matter of law. Borges Colón v. Román-
Abreu, 438 F.3d 1, 14 (1st Cir. 2006). In assessing the
sufficiency of the evidence to support a jury verdict, we ask
whether, viewing the evidence in the light most favorable to the
verdict, a rational jury could have found in favor of the party
that prevailed. Gillespie v. Sears, Roebuck & Co., 386 F.3d 21,
25-26 (1st Cir. 2004).
A.
In order to show that he suffered cognizable political
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harassment by a government employer, Bisbal had to prove by clear
and convincing evidence that he was subjected to an unreasonably
inferior work environment. Ortíz García v. Toledo Fernández, 405
F.3d 21, 23 (1st Cir. 2005). Bisbal must further show by a
preponderance of the evidence that his political affiliation was a
substantial factor in causing the environment to become inferior.
Id. The City could still avoid liability by proving that it would
have acted the same way regardless of Bisbal's political
affiliation. Id.
The standard in this Circuit for the degree of
mistreatment that is cognizable in a political discrimination case
was set by Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,
1217-20 (1st Cir. 1989) (en banc), which held that an employee must
prove by clear and convincing evidence that his or her job had been
rendered "unreasonably inferior" to the norm for that position and
that the change was of a magnitude that would cause "reasonably
hardy individuals to compromise their political beliefs and
associations in favor of the prevailing party." Shortly after
Agosto-de-Feliciano was decided, the Supreme Court decided Rutan v.
Republican Party of Illinois, 497 U.S. 62 (1990), which suggested
in a footnote that even trivial acts of political discrimination by
a government employer would give rise to a constitutional claim.
Id. at 76 n.8. Although we have adverted to uncertainty in how
these two standards fit together, we have continued to apply the
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Agosto-de-Feliciano standard. Otero v. Commonwealth of Puerto Rico
Indus. Com'n, 441 F.3d 18, 21-22 & n.4 (1st Cir. 2006); Rosario-
Urdaz v. Velazco, 433 F.3d 174, 178 n.3 (1st Cir. 2006); see
Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d 97, 101 n.5 (1st
Cir. 1997).
Bisbal's evidence is that, whereas he was busy at work
before the primary, once the primary campaign started, he had
nothing to do at work: "Before that, I always had a lot of work to
do, and once the primary started, I was completely cast aside."
After the start of the primary campaign, his work day consisted of
sitting at his desk, punching his time card in, punching out and
doing "some small routine things."
The City does not dispute that depriving an employee of
all or almost all his work for an indefinite period can be
sufficient to establish an "unreasonably inferior" work
environment. See Rosario-Urdaz, 433 F.3d at 179 ("utterly
depriving an employee of work indefinitely . . . might make out a
claim"); González-Piña v. Rodríguez, 407 F.3d 425, 432 (1st Cir.
2005) (holding that such facts were more than a scintilla of
evidence, but reserving the question of whether they established
unreasonably inferior conditions); Rivera-Jiménez v. Pierluisi, 362
F.3d 87, 94-95 (1st Cir. 2004) (denial of benefits and assignments
sufficient to show adverse action). Therefore, we will assume that
the evidence established an unreasonably inferior work environment.
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The City contends that Bisbal did not prove that anyone
intentionally deprived him of duties; instead, the City contends
that the evidence showed that once the primary campaign began, the
Municipal Assembly office simply quit doing official work, as all
the employees but Bisbal were caught up in the political campaign.
Where the plaintiff is prominent in the opposition to the
prevailing faction in a highly-charged political atmosphere, and is
known to the defendant to be so, a jury can infer from these facts
plus timing that adverse action is politically motivated. See
Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 75 (1st Cir.
2000) ("This circumstantial evidence that the appellant was a
'conspicuous target []' could alone create an issue of fact on
discriminatory animus."); Rodríguez-Rios v. Cordero, 138 F.3d 22,
24 (1st Cir. 1998) (highly-charged atmosphere, conspicuous target,
and reassignment of tasks to members of opponent party); Acevedo-
Díaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993). There was evidence
that Bisbal was actively supporting Lugo, that he was to some
degree prominent, and that Bisbal was the only person in his office
that did support Lugo. Counsel for the City conceded at trial that
Bisbal "may have been a conspicuous target for discrimination."
The Municipal Assembly office definitely had a highly-charged
political atmosphere in November 1999. The timing of the
deterioration in Bisbal's working conditions coincided with the
beginning of the primary campaign. This was sufficient evidence to
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allow the jury to determine that Bisbal was deprived of duties to
retaliate against his political affiliation.
B.
The City contends that Bisbal did not show that the City
or Pérez were responsible for the harassment. Bisbal did not
attempt to prove that the harassment was the result of an official
policy. Bisbal contends that Pérez acted as policymaker for the
City and that Pérez took away his duties in the month leading up to
the primary. The City does not dispute that Pérez was a
policymaker. However, scrutiny of Bisbal's citations to the record
does not reveal any active involvement of Pérez in the harassment.
Bisbal's testimony at trial did not identify who was responsible
for depriving him of his duties. At first he said, "[T]hey just
started to withdraw their trust on me and to sort of move me out of
the way and sort of leave me out on the fringes of the Municipal
Assembly." Bisbal never said who "they" were. Bisbal later said,
"Each and every one of the people who were working there, except
for me, were backing up Charlie Hernández's candidacy . . . ."
Bisbal did not testify that Pérez witnessed the harassment or that
Bisbal informed Pérez of it. Thus, the jury could not find that
Pérez actively instigated the harassment during the work day.
Even in the absence of a positive decision by the
municipality or its policymakers, a municipality may be liable
under § 1983 where a custom or practice is so "well-settled and
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widespread that the policymaking officials of the municipality can
be said to have either actual or constructive knowledge of it yet
did nothing to end the practice." Silva v. Worden, 130 F.3d 26, 31
(1st Cir. 1997) (quoting Bordanaro v. McCleod, 871 F.2d 1151, 1156
(1st Cir. 1989)). The custom or practice must also be the cause
and moving force behind the deprivation of constitutional rights.
Id. The testimony indicates that Bisbal was virtually without
duties for approximately a month, while the entire assembly office
operated as a de facto campaign headquarters. Bisbal testified:
Mr. Roberto Pérez Colón, who was supporting Mr. Charlie
Hernández and all assembly members . . . were all
favoring Charlie's candidacy, and the atmosphere that you
could breathe at the Municipal Assembly was something
quite incredible. It was campaigns for Charlie all the
time, phone calls for Charlie, activities for Charlie.
Basically, that was all that was going on at the
Municipal Assembly in Mayagüez.
The scope, duration, and openness of this transformation of a
government office into a partisan campaign headquarters would allow
a jury to have found that Pérez, the President of the Municipal
Assembly and a conceded policymaker, had to have known what was
happening, yet did nothing to stop it, and that this transformation
caused Bisbal to be deprived of his duties. We therefore determine
that Bisbal made a submissible case of municipal liability for the
harassment.
II.
Pérez in his individual capacity contends that there was
insufficient evidence to support an award of punitive damages
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against him. He specifically does not seek review of the amount of
punitive damages, since he contends that no damages at all should
have been awarded. The special verdict form did not specify
whether the punitive damages were awarded for the termination or
for the harassment.
Pérez does not challenge the sufficiency of the evidence
to support the compensatory award on either the termination or
harassment theory. The evidence showed that Pérez was directly
involved in the termination. The evidence did not show Pérez'
direct involvement in the harassment.
Under 42 U.S.C. § 1983 . . . [a]bsent participation in
the challenged conduct, a supervisor can be held liable
only if (1) the behavior of his subordinates results in
a constitutional violation and (2) the supervisor's
action or inaction was affirmatively linked to the
behavior in the sense that it could be characterized as
supervisory encouragement, condonation or acquiescence
or gross negligence of the supervisor amounting to
deliberate indifference. Deliberate indifference will be
found only if it would be manifest to any reasonable
official that his conduct was very likely to violate an
individual's constitutional rights. The affirmative link
requirement contemplates proof that the supervisor's
conduct led inexorably to the constitutional violation.
Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st Cir. 1995)
(internal citations, quotation marks and punctuation denoting
alterations omitted). We have already determined that the scope,
duration, and openness of the transformation of the Municipal
Assembly offices into a campaign headquarters was sufficient to
allow a jury to infer knowledge by Pérez of such conditions and
failure to correct them, and that this transformation caused the
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violation of Bisbal's rights.
We review de novo the district court's ruling as to the
sufficiency of the evidence to support an award of punitive
damages. Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999).
A jury may be permitted to award punitive damages in a § 1983
action when the defendant's conduct is "shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others." Smith
v. Wade, 461 U.S. 30, 56 (1983). The requirement of "reckless
indifference" means that the defendant must act "'in the face of a
perceived risk that its actions will violate federal law.'" Borges
Colón v. Román-Abreu, 438 F.3d 1, 22 (1st Cir. 2006) (quoting
Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)).
Pérez testified that at the time Bisbal's contract was
not renewed he knew that political discrimination was
unconstitutional. There was evidence from which the jury could
conclude that Pérez made the decision to terminate Bisbal's
employment because of Bisbal's political affiliation and that Pérez
did so with knowledge that the decision would violate Bisbal's
constitutional rights. There was also evidence from which the jury
could have found that Pérez condoned the transformation of the
Municipal Assembly offices into a campaign headquarters, with
reckless indifference to the foreseeable adverse effect on the
rights of dissenting employees in the office. The district court
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did not err in concluding that the evidence supported an award of
punitive damages.
III.
Pérez contends that he is entitled to qualified immunity.
Pérez does not point out what the district court did wrong, and the
motion for new trial or judgment as a matter of law does not
mention qualified immunity. Bisbal, however, does not contend that
the defense was waived. Even if the defense was not waived, it is
clearly insubstantial in this case. If indeed the district court
denied the qualified immunity defense, we review that denial de
novo, taking the facts in the light most favorable to the verdict.
Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 84 (1st Cir.
2006); Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir.
2005).
A public officer is not entitled to qualified immunity if
he violated a plaintiff's constitutional right and if, at the time
of the violation, the right was so clearly established that it
would have been clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Saucier v. Katz, 533 U.S.
194, 201-02 (2001).
The events in question took place in November and
December 1999. It was clearly established by Branti v. Finkel, 445
U.S. 507, 518-19 (1980), that public officers were not allowed to
fire employees on the basis of political affiliation if such
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affiliation was not relevant to the employee's job. No one
contends that Bisbal's job was one for which political affiliation
was a legitimate qualification. It would therefore have been
unreasonable for Pérez to believe it was lawful to terminate
Bisbal's employment for political reasons.
It was also clear after Rutan v. Republican Party of
Illinois, 497 U.S. 62 (1990), and Agosto-de-Feliciano v. Aponte-
Roque, 889 F.2d 1209, 1217-20 (1st Cir. 1989) (en banc), that
subjecting an employee to unreasonably inferior working conditions
on grounds of political affiliation could also violate the First
Amendment. Pérez does not dispute that deprivation of an
employee's duties for an indefinite time creates an unreasonably
inferior work environment. It would therefore have been
unreasonable for Pérez to believe that it was lawful to allow the
Municipal Assembly office to be transformed into a campaign
headquarters, with the attendant consequences for political
dissenters within the office. We therefore can conclude that Pérez
is not entitled to qualified immunity.
IV.
Bisbal contends that it was error for Judge Pérez-Giménez
to rule on the remittitur motion when he was not the judge who
presided over the trial. Fed. R. Civ. P. 63 provides, "If a
hearing or trial has been commenced and the judge is unable to
proceed, any other judge may proceed with it upon certifying
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familiarity with the record and determining that the proceedings in
the case may be completed without prejudice to the parties."
Although the district court file does not reveal a separate
certification by Judge Pérez-Giménez of familiarity with the
proceedings, he did state in ruling on the new trial and Rule 50
motion that he had reviewed the record in the case. The record
further shows that the case was originally before Judge Pérez-
Giménez, who in fact ruled on the summary judgment motion. It was
transferred for trial to Judge Ward, but after Judge Ward's death,
Judge Pérez-Giménez presided over a settlement conference and ruled
on the motion for reinstatement. The record does not reveal any
objection by Bisbal to Judge Pérez-Giménez ruling on the pending
Rule 50 motion, either before or after the ruling. Therefore, we
will review the issue only for plain error, see Metropolitan Prop.
& Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 24 (1st Cir.
2003), and no plain error has been shown.
V.
Bisbal contends that the district court erred in reducing
the jury's damages awards. Before we can even state the standard
of review for Bisbal's appeal, we must face a procedural anomaly.
The district court did not enter a conventional remittitur, which
requires giving the plaintiff a choice between accepting a reduced
damage award and a new trial. See generally 11 Charles Alan
Wright, et al., Federal Practice and Procedure, § 2815 at p. 169
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(2d ed. 1995). Instead, the district court simply reduced the
amount of compensatory and punitive damages. Bisbal cites Kennon v.
Gilmer, 131 U.S. 22, 29-30 (1889), arguing that reduction of the
damages violated his Seventh Amendment rights.
With regard to compensatory damages, an order entering
"judgment for a lesser amount than that determined by the jury
without allowing petitioner the option of a new trial, cannot be
squared with the Seventh Amendment." Hetzel v. Prince William
County, Virginia, 523 U.S. 208, 211 (1998) (per curiam). We
therefore must reverse the district court's reduction of the
compensatory damages from $250,000 to $50,000 as legal error. In
Kennon the Supreme Court remanded for the district court to
exercise its discretion in the first instance:
The erroneous judgment of the supreme court of the
territory being reversed, the case will stand as if no
such judgment had been entered; and that court will be at
liberty, in disposing of the motion for a new trial
according to its view of the evidence, either to deny or
to grant a new trial generally, or to order judgment for
a less sum than the amount of the verdict, conditional
upon a remittitur by the plaintiff.
131 U.S. at 30. Accordingly, we will remand for the district court
to decide whether to exercise its discretion to enter a remittitur,
giving Bisbal the choice of whether to accept the reduced award or
to take a new trial.
Whether an award of punitive damages is excessive under
the Due Process Clause is a constitutional question that we review
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de novo. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
418 (2003); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424, 436 (2001). We have in the past held that we may simply
ascertain the amount of punitive award that would be appropriate
and order the district court to enter judgment in such amount.
Rowlett v. Anheuser-Busch,Inc., 832 F.2d 194, 207 (1st Cir. 1987).
This is in accord with the practices of several other circuits that
have concluded that a court may reduce an excessive award of
punitive damages without giving the plaintiff the option of a new
trial. Leatherman Tool Group, Inc. v. Cooper Indus., Inc., 285
F.3d 1146, 1151 (9th Cir. 2002); Ross v. Kansas City Power & Light
Co., 293 F.3d 1041, 1049-50 (8th Cir. 2002); Inter Med. Supplies,
Ltd. v. EBI Med. Sys., Inc., 181 F.3d 446, 468 (3d Cir. 1999);
Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1330-33
(11th Cir. 1999).
In order to evaluate the constitutionality of the award,
we must apply the guideposts prescribed in BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 580-83 (1996), one of which requires us to
compare the amount of punitive damages to the amount of
compensatory damages awarded. Campbell, 538 U.S. at 418;
Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 85 (1st Cir.
2006). Because the amount of compensatory damages that will be
awarded is yet unknown, we are not able to conduct the required
review of the punitive damages award. Moreover, since Bisbal may
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opt for a new trial, it would be premature for us to approve a
punitive damages award based on the compensatory award from the
first trial. We therefore must remand the punitive damages award
as well as the compensatory.
We affirm the district court's denial of the City's
motion for judgment as a matter of law and the district court's
denial of Pérez's motion for judgment as a matter of law as to
punitive damages and qualified immunity. We remand for the
district court to decide whether to order a remittitur offering
Bisbal the choice between a new trial and a reduced damages award.
Each party is to bear its own costs.
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