United States Court of Appeals
For the First Circuit
No. 05-1847
CARMEN L. RODRIGUEZ-GARCIA,
Plaintiff, Appellant,
v.
MUNICIPALITY OF CAGUAS; HON. WILLIAM MIRANDA-MARIN; WILFREDO
PUIG, AS VICE MAYOR OF CAGUAS AND IN HIS PERSONAL CAPACITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Godwin Aldarondo-Girald, for appellant.
Michael Craig McCall, with whom Luis E. Pabon-Roca, Grisselle
Gonzalez Negron, and Faccio & Pabon Roca, were on brief for the
Municipality of Caguas, William Miranda-Marin and Wilfredo Puig in
their official capacities.
Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negron-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodriguez, Deputy Solicitor General, were on brief for William
Miranda-Marin and Wilfredo Puig in their personal capacities.
July 31, 2007
LIPEZ, Circuit Judge. Appellant Carmen Rodriguez-Garcia,
a career employee in the Municipality of Caguas ("the
municipality"), claimed that she was transferred from the Public
Works Department ("Public Works")1 to the Office of Federal Funds
("Federal Funds") in violation of the First Amendment and Puerto
Rico law. Although she enjoyed the same title and salary in the
two positions, Rodriguez-Garcia alleged that the transfer
constituted a demotion because she had no significant work
responsibilities at Federal Funds. She further alleged that the
transfer was intended as retaliation because she complained of
improper campaign tactics by the mayor and others in the municipal
government, sparking an investigation by the Puerto Rico Office of
Ethics ("Ethics Office"). Alternatively, she asserted that the
transfer, motivated by her political affiliation, was an act of
political discrimination.
Prior to trial, the court granted summary judgment to
defendants on the political discrimination claim. At trial,
Rodriguez-Garcia proceeded against Mayor Miranda Marin and Vice
Mayor Wilfredo Puig in their personal and official capacities on
her retaliation claim, arguing that their actions supported
liability against the municipality based on their final authority
over her transfer. The court dismissed the retaliation claim
1
The title of this department – which, in Spanish, is
"Limpieza, Ornato y Urbanismo" – is variously translated by the
parties as "Beautification," "Ornate," "Cleaning, Beautification
and Urbanism," and "Public Works" (among others). We will refer to
it as the Public Works Department ("Public Works").
against Mayor Marin as a matter of law at the completion of
appellant's case. Although the jury found Vice Mayor Puig not
personally liable, it found the municipality liable on the
retaliation claim. Finding this jury verdict inconsistent with
Rodriguez-Garcia's theory of the case – that the liability of the
municipality was contingent on the personal liability of the mayor
or the vice mayor – the district court entered judgment as a matter
of law for the municipality.
We affirm in part, reverse in part and remand to the
district court for further proceedings. Specifically, we affirm
the district court's grant of summary judgment to defendants on
Rodriguez-Garcia's political discrimination claim. We also affirm
the judgment in favor of Vice Mayor Puig on Rodriguez-Garcia's
retaliation claim and the decision of the district court vacating
the jury award against the municipality. However, we order a new
trial on Rodriguez-Garcia's retaliation claim against Mayor Marin
and the municipality because the district court's dismissal of the
case against the mayor rested upon an erroneous evidentiary ruling
involving the application of Federal Rule of Evidence 408 dealing
with "compromise and offers to compromise." That error was not
harmless.
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I.
A. Factual Background
1. Rodriguez-Garcia's Transfer
Rodriguez-Garcia served as Executive Secretary for the
Director of Public Works, Luisa Flores, from 1998 until her
transfer in 2000.2 In that position, she was required to open all
incoming mail and enter it into a log. In 1999, Flores began
receiving tickets to fundraisers and notices of leadership meetings
for the Popular Democratic Party ("PDP"), the party to which both
the mayor and Flores belonged. Rodriguez-Garcia suspected that the
receipt of this material violated a rule prohibiting the use of
government resources to further political campaigns. Nevertheless,
she duly logged the materials and delivered them to Flores.
Rodriguez-Garcia first discussed her concerns with Flores
in 1999, but they were ignored. She then contacted a distant
relative, Roberto Carrasquillo, who was a municipal assemblyman for
the minority Puerto Rican Independence Party, ("PIP"). He
confirmed the merit of her concerns and, with her permission,
lodged a complaint with the Ethics Office. Rodriguez-Garcia was
summoned to the Ethics Office to testify concerning her complaint
on December 21, 1999, and she complied.
2
She worked for two previous Directors before Flores and had
been a municipal employee since 1992.
-4-
On February 1, 2000, Flores reprimanded Rodriguez-Garcia
in front of her co-workers for failing to perform one of her tasks.
Rodriguez-Garcia acknowledges that this reprimand was unrelated to
her testimony in the Ethics Office investigation. Upset,
Rodriguez-Garcia left the office early and did not return to work
the next day. Instead, she spent that day resting and on
medication.3 On February 3, she had a heated conversation with
Flores about the missed day of work; shortly after that
conversation, she passed out and required medical care. Her doctor
advised her to rest, which she did until February 18. On that
date, Rodriguez-Garcia delivered a copy of her medical release to
the Human Resources Office ("Human Resources"). She then went to
Vice Mayor Wilfredo Puig's office to discuss the doctor's
recommendations and her intention to return to work.
The contents of the conversation between Rodriguez-Garcia
and Vice Mayor Puig are hotly contested. According to Rodriguez-
Garcia, she told the vice mayor that, despite her doctor's
recommendation that she not return to Public Works, she wanted to
return because she thought she could work things out with Flores.
She testified that Vice Mayor Puig then told her that Flores had
showed him a copy of the mail log that Rodriguez-Garcia kept and
3
Extensive medical testimony at trial established that
Rodriguez-Garcia had been prescribed a wide variety of
pharmaceuticals over the years to treat recurrent depression and
other psychological ills.
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that the Ethics Office was investigating the use of municipal
resources to distribute political propaganda. Apparently unaware
that Rodriguez-Garcia had already testified before the Ethics
Office on this matter, Vice Mayor Puig suggested that she would be
summoned to testify and asked her what she would say. At trial,
Rodriguez-Garcia testified: "I told him that I'd tell the truth.
That I'd tell the truth because that was my job." According to
Rodriguez-Garcia, Vice Mayor Puig told her that "whatever truth I
said could affect him, the Mayor and the party, and I told him that
I was very sorry, but that was my job." He then told her that "he
could no longer count on me." Vice Mayor Puig recalled a very
different conversation. He testified that Rodriguez-Garcia
requested a transfer out of Public Works and that there was no
discussion of the Ethics Office investigation.
Shortly after this meeting, Rodriguez-Garcia was
transferred out of her position at Public Works. After initial
assignment to the Municipal Education Department, where she had no
work to do, she was transferred to Federal Funds. Rodriguez-Garcia
claims she did "very little, practically nothing," at Federal Funds
because the office already had an Executive Secretary; she alleges
that this lack of work was intended to encourage her to quit
municipal employment altogether. Rodriguez-Garcia testified that
the lack of work made her feel "bad," "uncomfortable," "ashamed,"
and "depressed," and that it affected her home life: "I locked
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myself in, within that problem, and I couldn't see beyond
[it]. . . . and I forgot that the kids were growing up, that I had
a husband, a mom, a family, and that became my life as a whole."
In contrast, the Director of Federal Funds, Gilberto Charriez,
testified that his office was understaffed and desperate for
workers when Rodriguez-Garcia arrived and that she seemed happy in
her new position. He also described ordering pizza on busy work
nights when Rodriguez-Garcia stayed late with the rest of the staff
to meet deadlines, lunches eaten together in a conference room,
office Christmas parties and meeting Rodriguez-Garcia's family
outside of work on social occasions.
2. Attempts at Reinstatement
Following her transfer, Rodriguez-Garcia sent a letter to
Human Resources dated March 3, 2000, requesting a written
explanation for her transfer.4 Her attorney, Eladio Cartagena,
followed up on this first letter with three additional letters.
The first of these, dated March 8, was directed to the mayor. This
letter requested Rodriguez-Garcia's reinstatement to Public Works
and suggested that her transfer was motivated by the Ethics Office
investigation. Cartagena received a reply from Human Resources
dated March 27 that began, "The Hon. William Miranda Marín, Mayor,
has referred to us your letter dated March 8, 2000 concerning the
4
The letter indicates that a copy was also sent to Mr.
Armando Melendez at Human Resources.
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transfer of Mrs. [Rodriguez-Garcia]," and stated that: (1) the
transfer had been made at Rodriguez-Garcia's request because of
differences she had with her direct supervisor; (2) it was
considered a temporary transfer; and (3) that "we would have no
inconvenience in newly reinstating Mrs. [Rodriguez-Garcia] to her
former position." Cartagena sent a second letter to the mayor on
April 10, requesting the offered reinstatement.5 Receiving no
response, he penned a third letter on May 31 informing the mayor
that, on the basis of the offered reinstatement, Rodriguez-Garcia
had met with the interim Human Resources director and the director
of Public Works and that they had refused to reinstate her. The
May 31 letter also notified the mayor of Rodriguez-Garcia's
intention to file a civil action based on Mayor Marin's failure to
reinstate her.6
Sometime thereafter, Rodriguez-Garcia happened upon the
mayor in a public square, where she approached him and asked about
the resolution of her complaint. According to Rodriguez-Garcia's
testimony, she "grabbed him strongly" and asked about her case. He
5
The letter indicates that a copy was also sent to Mr.
Heriberto Martinez, Director of the Legal Advisor's Office.
6
For convenience, the three letters written by Rodriguez-
Garcia's attorney and sent on her behalf and dated March 8, April
10 and May 31 and the letter from Human Resources dated March 27
will be referred to hereinafter as "the Letters." We distinguish
these four letters from any other correspondence related to
Rodriguez-Garcia's claims because, as we will discuss, they were
the subject of a contested evidentiary ruling.
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responded "what was my case, what was happening?" Before she could
elaborate, she was escorted back to her office by his assistants.
Finally, on June 21, 2001, Rodriguez-Garcia wrote to the mayor
again, complaining that she lacked significant work
responsibilities and was depressed; she entreated him to resolve
her complaint and reinstate her to her former position. Rodriguez-
Garcia was never reinstated to her position at Public Works.7
In his testimony as part of the defendants' case, Vice
Mayor Puig maintained that he was never informed that Rodriguez-
Garcia opposed her transfer after their initial meeting, where he
says she requested the change. He was asked: "there are many
documents stating that Ms. Rodriguez did not want the transfer, did
you know that?" He replied: "They never came to my attention, none
of them, stating that she did not want to go."
Armando Melendez, an executive in Human Resources who had
met with Rodriguez-Garcia at Vice Mayor Puig's behest, testified
that Rodriguez-Garcia expressed her desire not to be transferred
during their meeting; however, she called later that same day and
said she did want the transfer. Melendez's written report on this
7
However, in April 2003, Rodriguez-Garcia was transferred to
the Department for Conservation of Buildings and, shortly
thereafter, she secured a position as an executive secretary in the
Technical Services Division for Maintenance and Energy. She
testified that she was happily employed in both of these positions.
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meeting, dated February 22, 2000, and submitted as evidence at the
trial, supports his testimony.8
Finally, Heriberto Martinez, who was director of the
Legal Advisor's Office at the time of the transfer, testified that,
upon Rodriguez-Garcia's request, he contacted Human Resources to
look into her case. In a conversation with Melendez, Martinez was
led to believe that Rodriguez-Garcia would be reinstated to her
position. Martinez also spoke directly with Vice Mayor Puig, who
reiterated that Rodriguez-Garcia had requested her initial
transfer. When Martinez reported to Rodriguez-Garcia what he had
been told, she reiterated that she wanted to return to Public
Works. Rodriguez-Garcia's counsel pressed Martinez on whether
Rodriguez-Garcia had said that she did not request the initial
transfer, but Martinez would testify only to her statement that she
wanted to return to Public Works.
Thus, there is a direct conflict between Rodriguez-
Garcia's testimony and the account of the defendants. According to
her, she never requested a transfer, and the transfer that was
imposed upon her, to an office where she had no responsibilities,
was in retaliation for her complaint to the Ethics Office.
According to Vice Mayor Puig, Rodriguez-Garcia requested a
transfer, supposedly because of her conflict with Flores, and that
8
It states: "Mrs. Rodriguez states she does not want to be
transferred; however, during the afternoon she contacts us and
tells us she has thought it over and does want the transfer."
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was the last he heard of her employment predicament. According to
Melendez, Rodriguez-Garcia initially requested not to be
transferred but later called and requested a transfer.
Furthermore, according to her supervisor at Federal Funds,
Rodriguez-Garcia joined a busy office that was short-staffed at the
time of her transfer and where there was plenty of work to keep her
busy.
B. Procedural Background
In October 2000, Rodriguez-Garcia filed a petition in the
Superior Court of Puerto Rico seeking an injunction against the
municipality and Luisa Flores, alleging that she had been
transferred in retaliation for her Ethics Office complaint, in
violation of Puerto Rico law.9 Rodriguez-Garcia later filed and
was granted a voluntary dismissal without prejudice. On November
7, 2001, she filed a new action in federal court against the
municipality, Mayor Marin and Vice Mayor Puig, claiming that she
had been transferred and demoted on the basis of her political
affiliation ("the political discrimination claim") and her
involvement in the Ethics Office investigation ("the retaliation
claim"), in violation of the First Amendment and Puerto Rico law.
9
The petition was later amended to include a political
discrimination claim under the First Amendment; the amended
petition did not include Flores as a defendant, as she had died in
the interim.
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She brought her federal law claims under 42 U.S.C. §§ 1981, 1983
and 1985.
Defendants moved for summary judgment on a number of
grounds. In an August 2004 opinion and order, the district court
granted the motion in part and denied it in part.10 In particular,
the court found that Rodriguez-Garcia had not established a prima
facie case of political discrimination under the First Amendment
and that her claims under §§ 1981 and 1985 were inapt because she
had not alleged any discriminatory action based on race or class.11
However, the district court found that Rodriguez-Garcia had placed
sufficient facts in dispute to warrant a jury trial on the
retaliation claim and that these factual disputes foreclosed a
ruling at that stage on the mayor's and vice mayor's claimed
10
Defendants previously had moved for summary judgment on
several grounds, including that the statute of limitations had run.
The district court granted the motion on that basis, but we vacated
the decision in January 2004 and remanded the case for further
proceedings. See Rodriguez-Garcia v. Municipality of Caguas, 354
F.3d 91 (1st Cir. 2004).
11
42 U.S.C. § 1981 states, in pertinent part, that "[a]ll
persons within the jurisdiction of the United States shall have the
same right . . . to make and enforce contracts . . . as is enjoyed
by white citizens." Section 1985(3) provides a damages remedy in
the event that "two or more persons . . . conspire . . . for the
purpose of depriving . . . any person or class of persons of the
equal protection of the laws." The court found that Rodriguez-
Garcia's claim did not fit within the language of either statutory
section. Rodriguez-Garcia does not appeal these rulings.
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entitlement to qualified immunity. Motions and cross-motions for
reconsideration were filed and denied.
Before the trial commenced, defendants filed a motion in
limine to exclude the testimony of several witnesses and the
Letters under Federal Rule of Evidence 408, which excludes "conduct
or statements made in compromise negotiations regarding" a "claim
that was disputed." Fed. R. Evid. 408(a)(2), (a). The court
denied the motion as to the testimony and allowed the Letters into
evidence, but only "for the limited purpose of negating defendants'
contention that plaintiff herself requested a transfer."
At the close of the plaintiff's case, Mayor Marin
requested and was granted judgment as a matter of law in his
personal capacity under Federal Rule of Civil Procedure 50(a).
Noting that the Letters could not be relied upon as evidence of the
mayor's notice of her claim because of the limited ground of their
admission, the court explained that the remaining evidence, "[a]
mere letter of protest and request [to Human Resources] for
investigation which [was] ignored by a supervising authority,"12 was
insufficient as a matter of law to establish that the mayor knew of
Rodriguez-Garcia's employment situation and thus he could not be
12
The court is referring to Rodriguez-Garcia's March 3 letter
to Human Resources requesting a written explanation for her
transfer. This letter was not excluded under the court's Rule 408
ruling.
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found liable for any participation in her transfer and lack of
reinstatement.
At the trial's conclusion, the jury rejected Rodriguez-
Garcia's claim that Vice Mayor Puig had taken an adverse employment
action against her. However, it did find that she had established
municipal liability for that adverse employment action and awarded
her $285,000.00 in damages. In response to the municipality's
motion, the court granted judgment as a matter of law under Federal
Rule of Civil Procedure 50(b), finding the jury's verdict
inconsistent with Rodriguez-Garcia's theory of the case. The court
denied Rodriguez-Garcia's motion to vacate judgment and,
alternatively, for a new trial, and she proceeded with this appeal.
Rodriguez-Garcia challenges each of the district court's
dispositive rulings: (1) the grant of summary judgment for
defendants on her political discrimination claim; (2) the grant of
the Rule 50(a) motion dismissing the case against Mayor Marin in
his personal capacity; and (3) the decision to grant judgment as a
matter of law to the municipality. She also challenges the jury
verdict in favor of Vice Mayor Puig. With respect to the
municipality, she contends that either the jury verdict should be
restored or that she is entitled to a new trial on her claim
against Mayor Marin, Vice Mayor Puig and the municipality. She
insists that the verdict in favor of Vice Mayor Puig was against
the weight of the evidence.
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II.
A. The Political Discrimination Claim
We review the grant of summary judgment on the political
discrimination claim de novo, drawing all reasonable inferences in
favor of Rodriguez-Garcia. Aguiar-Carrasquillo v. Agosto-Alicea,
445 F.3d 19, 25 (1st Cir. 2006). As a necessary element of
establishing a prima facie case of political discrimination, a
plaintiff must show that party affiliation or advocacy of political
ideas was a substantial or motivating factor behind the challenged
employment action. Peguero-Moronta v. Santiago, 464 F.3d 29, 45
(1st Cir. 2006).
The district court granted summary judgment to defendants
because it found that "plaintiff's fluid political affiliation
makes it difficult for the Court to find that defendants were well
aware and motivated by her alleged support for the [party in
opposition to the mayor's party]." Indeed, Rodriguez-Garcia
testified at her pre-trial deposition that, while she claims to be
a member of the PIP, she voted for candidates from several parties
in the 2000 elections.13 She also admitted that she acted as an
electoral college official for the mayor’s party, the PDP, in the
1996 elections.
13
We limit our review to the record as it stood before the
district court when it granted summary judgment. See J. Geils Band
Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,
1250 (1st Cir. 1996).
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On appeal, Rodriguez-Garcia does not contest the court’s
characterization of her partisan affiliation; rather, she attempts
to shift the basis of her political discrimination claim from
political affiliation to political speech. However, this attempt
at recharacterization makes her political discrimination claim
indistinguishable from her retaliation claim, which focuses on the
defendants' reaction to her discussions with the Ethics Office. As
presented to the district court at the time of its summary judgment
ruling, her political discrimination claim was dependent upon
establishing that defendants were aware of and motivated by her
political affiliation. We agree with the district court that the
plaintiff did not establish a genuine issue of material fact on the
relationship between her transfer and her political affiliation.
We therefore affirm the district court's grant of summary judgment
for defendants on this claim.
B. Reinstatement of the Jury Verdict
Rodriguez-Garcia urges us to reinstate the jury's verdict
against the municipality, arguing that the court erred when it
found the verdict inconsistent with her theory of the case. The
district court characterized Rodriguez-Garcia's case as depending
on retaliation taken against her by Mayor Marin and Vice Mayor
Puig, as parties with "final authority" to bind the municipality.
Since the claim against the mayor had already been dismissed, the
court viewed municipal liability as contingent upon Vice Mayor
-16-
Puig's liability. Therefore, the jury's rejection of the claim
against Vice Mayor Puig made municipal liability inconsistent with
Rodriguez-Garcia's theory of the case.
On appeal, Rodriguez-Garcia argues that the jury could
have based municipal liability on the actions of a conspiracy of
municipal workers, including but not limited to Vice Mayor Puig.
Seen through the lens of this alternative theory, the jury's
verdicts are not necessarily inconsistent, and the judgment against
the municipality should be reinstated.14
The municipality argues that Rodriguez-Garcia's failure
to object to the judge's inconsistency determination before the
jury was dismissed bars our review of this issue. We agree. We
have followed an "iron-clad rule" that a party that fails to raise
an objection based on verdict inconsistency before the jury is
dismissed waives the issue. See Wennik v. Polygram Group
14
Although it is not entirely clear, Rodriguez-Garcia's brief
also could be read to allege a theory of liability arising from the
municipality's general custom or practice of retaliating against
workers who voice complaints against the mayor's party. Her brief
cites Monell, 436 U.S. at 691, which holds that municipalities can
be found liable under 42 U.S.C. § 1983 when either official policy
or "'custom' even though such a custom has not received formal
approval through the body's official decisionmaking channels"
operates to deprive a plaintiff of her constitutional rights. Such
a theory was not developed in the district court and therefore is
not available on appeal. At trial, the court specifically stated:
"In the pre-trial, I don't have any theory of the plaintiff's that
could establish liability against the Municipality that there was
a previous pattern, and the Municipality was engaged . . . .
That's not a theory that is stated here." Rodriguez-Garcia agreed.
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Distribution, Inc., 304 F.3d 123, 130 (1st Cir. 2002); Campos-
Orrego v. Rivera, 175 F.3d 89, 98 (1st Cir. 1999); Toucet v. Mar.
Overseas Corp., 991 F.2d 5, 8 (1st Cir. 1993) (collecting cases).
Here we confront the opposite situation: Rodriguez-Garcia failed to
specifically voice her opinion that the verdict was consistent
before the jury was dismissed.
In the typical case, it would be pointless to require a
party to assert that a favorable verdict was consistent. However,
this is not the typical case. Here, the district court had twice
indicated that, if the jury found Vice Mayor Puig not liable and
the municipality liable, it would enter judgment for the
municipality as a matter of law.
First, after the jury instructions were read, the defense
noted that the instructions did not preclude the jury from finding
in favor of Vice Mayor Puig but against the municipality. The
court responded: "If they don't find [Vice] Mayor Puig liable and
for some reason they find the municipality liable . . . the
municipality is not liable." Rodriguez-Garcia did not object to
this statement at the time; she also failed to object to this
statement shortly thereafter, when specifically asked if she had
objections to preserve.
Second, after closing arguments, the court gave the
parties an opportunity to "represerve" their earlier objections.
The defense again raised its concern that the jury instructions
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allowed for a mixed verdict. The court responded: "Okay, but I
told you that if for all purposes they find Mr. Puig not liable, as
a matter of law I am going to have the municipality dismissed. So
that is not going to be a problem." The defense then stated: "I
understand, Your Honor, and I think that we all agree with that
matter, the parties agree, the plaintiff agreed also, so no
problem." Rodriguez-Garcia again raised no objection on this
point, though she preserved other objections.
After the verdict was delivered and the jurors were duly
polled, Rodriguez-Garcia again remained silent. The court
discharged the jury and then declared that it would enter judgment
for the municipality. Although Rodriguez-Garcia finally tried to
argue that the jury verdict was consistent, it was too late. By
failing to preserve an objection to the court's inconsistent
verdict determination before the jury was discharged, Rodriguez-
Garcia has waived her right to argue on appeal that the court erred
in that determination. See Torres-Arroyo v. Rullan, 436 F.3d 1, 6
(1st Cir. 2006) (finding failure to object before the moment of
jury discharge constituted a waiver); Correia v. Fitzgerald, 354
F.3d 47, 57 (1st Cir. 2003) (holding that a failure to object to an
alleged inconsistency while the jury is still empaneled constituted
waiver).
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C. Arguments for a New Trial
Rodriguez-Garcia argues that, in the event we decline to
reinstate the verdict against the municipality, we should grant her
a new trial against all parties, claiming that the district court
erred in dismissing the claims against Mayor Marin and that a new
trial is warranted against Vice Mayor Puig because the jury verdict
in his favor was against the weight of the evidence.
1. Dismissal of the Case Against Mayor Marin
The court dismissed the claims against Mayor Marin in his
personal capacity, finding that, while the "Mayor can in principle
be held liable under a theory of failing to act or take necessary
steps to remedy [her] predicament," Rodriguez-Garcia had not
provided sufficient evidence to establish that the mayor was aware
of her situation. Municipal officials may only be held liable
under § 1983 in their personal capacity if the plaintiff can
establish that her constitutional injury resulted from the direct
acts or omissions of the official, or from indirect "conduct that
amounts to condonation or tacit authorization." Whitfield v.
Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005). On either theory,
the plaintiff must show that the official had actual or
constructive notice of the constitutional violation. See Lipsett
v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988) ("An important
factor in making the determination of liability is whether the
official was put on some kind of notice of the alleged violations,
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for one cannot make a 'deliberate' or 'conscious' choice to act or
not to act unless confronted with a problem that requires the
taking of affirmative steps." (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 483-84 (1986))).
In seeking to convince the court that the mayor knew of
her employment situation, Rodriguez-Garcia relied principally on
the Letters, particularly the March 27 letter from Human Resources
suggesting that the mayor had referred her claim to its attention.
Rejecting this argument, the court noted that it had admitted the
Letters for the limited purpose of establishing that Rodriguez-
Garcia did not request a transfer from Public Works and thus the
Letters could not be used to establish the mayor's knowledge of her
situation. With the Letters excluded, the court found that the
remaining evidence was insufficient to establish that the mayor was
aware of her situation and hence had any direct or indirect
involvement in her transfer, lack of reinstatement, or minimal work
assignments.
We review the court's Rule 50(a) ruling de novo, viewing
the evidence in the light most favorable to Rodriguez-Garcia.
DiRico v. City of Quincy, 404 F.3d 464, 468 (1st Cir. 2005).
However, because that ruling depends upon the correctness of the
court's decision to limit the admissibility of the Letters, we must
first evaluate the court's evidentiary ruling, which we review for
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abuse of discretion. See Pelletier v. Main St. Textiles, LP, 470
F.3d 48, 52 (1st Cir. 2006).
a. Admission of the Letters for a Limited Purpose
In their motion in limine, appellees argued that the
Letters should be excluded under Federal Rule of Evidence 408,
which prohibits the use of "statements made in compromise
negotiations regarding the claim" as evidence of a party's
"liability for . . . a claim that was disputed as to validity or
amount." Fed. R. Evid. 408(a)(2), (a). At a hearing on the
motion, the court initially stated:
[I]t is my impression that these do not fall
under Rule 408. . . . These are the sort of
letters that when anything happens regarding
personnel, the attorney starts to write the
agency to put them on notice. The agency, the
municipality in this case, will respond,
'We've noted your letter. We are going to
look into this.' Then . . . the attorney will
say, 'Oh, you have done this or you haven't
done that.'
Although the court seemed inclined to reject defendants' arguments
that the Letters were covered by Rule 408, Rodriguez-Garcia's
attorney began her arguments against the motion in limine by
focusing on an exception to Rule 408 that allows evidence offered
for a purpose other than showing liability. Specifically, she
argued that "[t]he letters [were] being introduced into evidence
for the limited purpose of proving that defendants in fact knew
that Ms. Rodriguez[-Garcia] did not want the transfer and that they
were aware that she did not want the transfer."
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Despite this inauspicious beginning, Rodriguez-Garcia's
attorney's arguments developed over the course of the hearing on
the motion. By the end, she clearly contested the relevance of
Rule 408 to the Letters. Indeed, just before the court announced
that it would recess to deliberate, her attorney urged the court to
examine the four Letters together:
You cannot look at each letter
individually . . . . You see, Mr. Cartagena
directed a letter to the mayor. And the
mayor, and very wisely by his counsel, is
trying to take himself out of the picture
saying it has nothing to do with me, I didn't
exercise any action, I didn't do anything, I
didn't sign the letter, I didn't send the
letter. But you read [the letter from Human
Resources], the first thing that it says is,
'The Honorable William Miranda Marin, Mayor,
has referred to us your letter dated March 8,
2000, concerning the transfer of Ms.
Rodriguez.' This is evidence of liability
against the mayor. (Emphasis added).
Defense counsel responded: "That's why [Rule] 408 does not permit
the letter to come into evidence." Rodriguez-Garcia's attorney
countered: "This letter is not an admission . . . . It is not a
compromise. Read it." Thus, by the end of the hearing, the court
was on notice that Rodriguez-Garcia intended to use the Letters as
proof of the mayor's liability and not merely as evidence that she
did not request her transfer. Nonetheless, in a written ruling
after the recess, the court "[a]ssume[d] that the communications at
issue [were] indeed compromise related" and it admitted the Letters
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"for the limited purpose of negating defendants' contention that
plaintiff herself requested a transfer."
This limitation, erroneous as a matter of law, was an
abuse of discretion. See Charlesbank Equity Fund II v. Blinds To
Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004) (noting that legal
error always constitutes abuse of discretion). The court's initial
impression that these letters do not fall under Rule 408 was
correct. These Letters cannot reasonably be viewed as "statements
made in compromise negotiations regarding [a] claim" that was in
dispute. Fed. R. Evid. 408(a)(2). The March 8 letter from
Rodriguez-Garcia's attorney to the mayor's office served the
purpose of giving the defendants notice of a claim. Indeed,
appellees acknowledged that Rodriguez-Garcia's attorney had to
write such a letter to comply with local pre-litigation notice
requirements. The March 27 letter from Human Resources, which said
that "The Hon. William Miranda Marín, Mayor, has referred to us
your letter dated March 8, 2000 concerning the transfer of Mrs.
[Rodriguez-Garcia]," simply acknowledged that notice of the claim
had been received and expressed the willingness of Human Resources
to grant Rodriguez-Garcia's request for reinstatement.
Although Human Resources disputed a factual matter (that
Rodriguez-Garcia had not requested a transfer), that disagreement
did not affect their willingness to grant to her, without
qualification or condition, the reinstatement that she sought.
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With Rodriguez-Garcia receiving in this letter exactly what she
wanted, it could easily be thought there were no "compromise
negotiations" taking place in this exchange of correspondence
within the meaning of Rule 408. See, e.g., Merriam-Webster's
Collegiate Dictionary 984 (10th ed. 1998) (defining "compromise" as
"a settlement of differences . . . reached by mutual
concessions."); see also Sandlin v. Shapiro & Fishman, 919 F. Supp.
1564, 1569 (D. Fla. 1996) (finding that letters whose contents
offered no concessions did not meet the definition of "compromise"
and thus were outside the scope of the state analog to Rule 408).
Relatedly, the statement at issue here ("The Hon. William Miranda
Marin, Mayor, has referred to us your letter dated March 8, 2000,
concerning the transfer of Mrs. Rodriguez") is not the kind of
statement that one would be reluctant to make to a potential
adversary in an effort to reach an agreement about a dispute
without the protection of Rule 408. Indeed, if a stand-alone
letter of acknowledgment had been written confirming receipt and
noting that the mayor's office had referred the claim to Human
Resources, there is no question that the letter would have been
admissible as evidence of notice to the mayor of Rodriguez-Garcia's
claim. Thus, admitting this evidence complies with both the letter
and spirit of Rule 408.
The second letter from Rodriguez-Garcia's attorney to
the mayor, dated April 10, simply reiterated the request for the
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transfer. When no reinstatement was forthcoming, her attorney sent
a third letter dated May 31, 2000 announcing his intention to file
a lawsuit. These letters too are outside the ambit of Rule 408.
Therefore, Rodriguez-Garcia should have been permitted to use the
Letters as evidence that the mayor personally had notice of her
claims, an indispensable element of her theory of liability, rather
than simply as evidence that she had not requested a transfer from
Public Works.
b. Harmless Error
It is a short step from the determination that the
district court erred in its decision to limit the admissibility of
the Letters to a determination that it erred in granting the mayor
judgment as a matter of law. The district court, having excluded
the Letters, determined that the remaining evidence – the March 3
complaint letter Rodriguez-Garcia sent to Human Resources15 and the
encounter between Rodriguez-Garcia and the mayor in a public square
– was insufficient to establish supervisory liability. The court
explained: "'[i]f mere receipt of a letter or similar complaint
were enough, without more, to constitute personal involvement, it
would result in liability merely for being a supervisor, which is
contrary to the black-letter law that [§] 1983 does not impose
respondeat superior liability.'" (quoting Johnson v. Wright, 234 F.
15
While the March 3 letter indicated that a copy was sent to
the vice mayor, it does not mention the mayor.
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Supp. 2d 352, 363 (S.D.N.Y. 2002)). Given the state of the record
that prompted this observation, we understand the court's reference
to the "mere receipt of a letter" to be a reference to the March 3
letter to the acting director of Human Resources.
We appreciate the reluctance to permit a jury to draw an
inference about the personal involvement of the mayor on the basis
of a letter sent to a department head. However, if the court had
correctly admitted the Letters as evidence of the mayor's knowledge
of Rodriguez-Garcia's complaint and his personal involvement in
dealing with it, the court could no longer maintain that Rodriguez-
Garcia was attempting to establish the mayor's liability based
simply on his role as the supervisor of a department head.
Instead, she would have had a basis for arguing that the mayor knew
about and was directly involved in the disposition of her transfer
and the failure to remedy it. Although appellees argue strenuously
that there was no evidence that the mayor personally received the
Letters sent to him, this is a factual question appropriate for
jury determination.
Moreover, because the district court erred in dismissing
the case against the mayor in his personal capacity, it also
improperly hindered Rodriguez-Garcia's case against the
municipality. It is well established that the deliberate acts or
omissions of a municipal policymaker with final authority over the
subject matter in question may expose the municipality itself to
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liability. See Pembaur 475 U.S. at 481-83 (explaining that
municipal liability can be found on a plaintiff's showing of a
"deliberate choice to follow a course of action [] made . . . by
the official or officials responsible for establishing final policy
with respect to the subject matter in question"). We have
repeatedly recognized that "mayors in Puerto Rico are the
government officials ultimately responsible for the employment
decisions of the municipality." Rivera-Torres v. Ortiz Velez, 341
F.3d 86, 103 (1st Cir. 2003); see also Cordero v. De Jesus-Mendez,
867 F.2d 1, 7 (1st Cir. 1989). If Rodriguez-Garcia could establish
the mayor's liability in his personal capacity, she would have a
plausible argument for municipal liability as well. Under these
circumstances, the limited relevance accorded by the district court
to the Letters on the basis of Rule 408 was not a harmless error.
2. The Verdict in Favor of Vice Mayor Puig
Rodriguez-Garcia also urges us to overturn the verdict in
favor of Vice Mayor Puig, arguing that the jury could not have made
a credibility determination in favor of Vice Mayor Puig given the
weight of the evidence suggesting that Rodriguez-Garcia had
consistently opposed her transfer. We disagree.
The question of Vice Mayor Puig's liability turned
largely on whether the jury credited Vice Mayor Puig's or
Rodriguez-Garcia's testimony concerning the conversations that
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allegedly took place between them. Indeed, Rodriguez-Garcia's
closing argument featured a series of rhetorical questions, asking:
Who do you believe? You heard Carmen, but no,
the Vice Mayor tells us that on February 18th
Carmen Rodriguez requested a transfer to
Federal Funds. Who hears him? Who remembers?
. . . Who do you believe? . . . Shall we
believe Wilfredo Puig, who very conveniently
remembers that Carmen requested to go to
Federal Funds . . . Should we believe Wilfredo
Puig, that conveniently understood that Carmen
had no hospitalizations after getting to
Federal Funds? . . . Who will we believe?
Wilfredo Puig, who again, understood that he
could testify as to assigned personnel action,
that he later stipulated that did not exist,
and that he later admitted that he had never
seen. Who do we believe? What happened on
February 18th, what?
Assessing witness credibility is "within the unique province of the
jury." United States v. Thomas, 467 F.3d 49, 55 (1st Cir. 2006).
We will not disturb its verdict in favor of Vice Mayor Puig.
III.
For the reasons set forth above, we affirm the district
court's grant of summary judgment for defendants on Rodriguez-
Garcia's political discrimination claim. We also reject Rodriguez-
Garcia's request that we order reinstatement of the verdict against
the municipality, concluding that Rodriguez-Garcia failed to make
the necessary objection before the jury was discharged. However,
we find that the court erred when it dismissed the case against the
mayor based on its Rule 408 ruling limiting the use of the Letters
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that were so critical to Rodriguez-Garcia's case. We therefore
grant Rodriguez-Garcia's request for a new trial against the mayor
and, because municipal liability may be premised upon the mayor's
liability, against the Municipality of Caguas, as well. Finally,
we decline to disturb the jury's verdict in favor of Wilfredo Puig.
Affirmed in part, reversed in part, and remanded for
further proceedings. The parties shall bear their own costs.
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