United States Court of Appeals
For the First Circuit
No. 07-2739
ANTONIO COSTA-URENA, ET AL.,
Plaintiffs, Appellees,
v.
MILTON SEGARRA, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Ripple* and Selya,
Circuit Judges.
Antonio Sagardia De Jesus, Secretary of Justice, Commonwealth
of Puerto Rico, Landrón & Vera, LLP., Eileen Landrón Guardiola and
Eduardo A. Vera Ramirez, on brief for appellants.
Marie Elsie López-Adames and González-López & López-Adames, on
brief for appellees.
December 22, 2009
*
Of the Seventh Circuit, sitting by designation.
HOWARD, Circuit Judge. In 2001, Antonio Costa-Urena
("Costa-Urena"), Luis Jirau ("Jirau"), and Carlos Rueda ("Rueda")
were terminated from career positions that they held with the
Puerto Rico Tourism Company, an agency of the Commonwealth of
Puerto Rico. These terminations prompted them to sue various
Commonwealth officials under 42 U.S.C. § 1983, claiming that their
terminations violated both the First Amendment and the Due Process
Clause of the Fourteenth Amendment. Their spouses, also plaintiffs
in the action, sought to recover derivatively for these violations
under Article 1802 of the Puerto Rico Civil Code. See P.R. Laws
Ann. tit. 31, § 5141. A jury found in favor of the plaintiffs,
awarding them compensatory damages against defendant Milton
Segarra, and the district court ordered additional relief against
the defendant governor of Puerto Rico.
On appeal, Segarra, who was the former director of the
Puerto Rico Tourism Company and who remains in the case in his
individual capacity, and the governor, who is a defendant in his
official capacity, launch a number of challenges to the judgments
against them. Most notably, they claim that the First Amendment
judgment must be vacated because of erroneous jury instructions and
that the procedural due process judgment must be reversed because
the plaintiffs lacked a constitutionally protected property
interest in their career positions. Both claims hit the mark.
Accordingly, we vacate the judgment in favor of the plaintiffs on
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the First Amendment claim, remanding for a new trial on that claim,
and we reverse the judgment on the procedural due process claim.
I.
Some background helps to place the issues in perspective,
and to the extent that facts are presented here, they are presented
in the light most favorable to the jury's verdict. See Whitfield
v. Melendez-Rivera, 431 F.3d 1, 3 (1st Cir. 2005). In Puerto Rico,
state1 employees fall generally into two categories: those who
hold "career" positions and those who hold "trust" or "confidence"
positions. See Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 3
n.1 (1st Cir. 2000). Trust employees are involved in "policy-
making" or render direct services to particular government figures.
P.R. Laws Ann. tit. 3, § 1465; see also Cruz-Gomez v. Rivera-
Hernandez, 444 F.3d 29, 30 n.1 (1st Cir. 2006). They are generally
of free selection and removal, meaning that, with limited
exceptions which need not be catalogued here, they may be hired and
fired at will. Cruz-Gomez, 444 F.3d at 30 n.1. Career employees,
on the other hand, hold "permanent" positions. Maymi v. P.R. Ports
Auth., 515 F.3d 20, 24 n.2 (1st Cir. 2008). They must be selected
with reference to merit-based criteria, P.R. Laws Ann. tit. 3, §
1462b, and may only be removed from their positions for cause and
1
Puerto Rico is treated as a state for the purposes of a §
1983 analysis. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.6
(1st Cir. 2008).
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after certain procedures are followed. Id. § 1462e; see also
Cruz-Gomez, 444 F.3d at 30 n.1.
Career employees are entitled to the protections of the
First and Fourteenth Amendments. Rodriguez-Marin v. Rivera-
Gonzalez, 438 F.3d 72, 39-80 (1st Cir. 2006) ("The First Amendment
protects the right of public career employees . . . . to engage in
political activities without fear of adverse employment actions.")
(citation omitted); see also Colon-Santiago v. Rosario, 438 F.3d
101, 108 (1st Cir. 2006) (recognizing that career employees have a
property interest in continued employment that is protected by the
Due Process Clause of the Fourteenth Amendment). Consistent with
the First Amendment, Puerto Rico is prohibited from terminating
career employees based on their political affiliation, see Maymi,
515 F.3d at 25. Further, consistent with the Due Process Clause of
the Fourteenth Amendment, the Commonwealth must afford career
employees appropriate "process" before terminating them. Borges
Colon v. Roman-Abreu, 438 F.3d 1, 8-9 & n.3 (1st Cir. 2006).
As exemplified by the above-cited cases, these principles
are sometimes put to the test when newly installed administrations
terminate career employees who happen to march to a different
political drumbeat. Such actions, in turn, often prompt the
terminated employees to claim political discrimination and to
challenge the adequacy of pre-termination procedures.
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That is more or less the situation presented here. At
one point, each of the three primary plaintiffs held the career
position of "Collections Officer" with the Puerto Rico Tourism
Company ("Tourism Company" or "agency"). Rueda acquired this
position in 1995, Jirau in 1996, and Costa-Urena in 1997. At all
relevant times, each of the plaintiffs was also a member of the New
Progressive Party. In 2000, the Popular Democratic Party was
elected to power in Puerto Rico. Shortly after the installation of
the new government, the plaintiffs were terminated from their jobs.
The plaintiffs claim that the defendants terminated them because of
their political affiliation. The defendants respond by saying that
the plaintiffs were terminated not for political reasons but
because they never lawfully held their positions as Collections
Officers in the first place. Specifically, the defendants claim
that the plaintiffs do not meet the educational pre-requisites for
the Collections Officer position, namely, the requirement of a
bachelor's degree from an accredited institution in either business
administration or a related field. It is undisputed that the
plaintiffs do not hold such degrees.
The roots of this particular dispute extend back to 1995,
before any of the plaintiffs were hired to be Collections Officers.
That year, the Tourism Company revised its "Classification Plan."
This plan, among other things, sets out the primary
responsibilities and employment requirements for positions in the
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Tourism Company. As part of the revision process, the Tourism
Company established certain minimum requirements for the career
position of Collections Officer. These included the requirement
that a Collections Officer possess a "Bachelor in Business
Administration or related fields from an accredited institution."
Despite the existence of the requirement, the Tourism Company
presented the qualification as optional when it published the job
announcement for the position of Collections Officer in 1995. The
announcement noted: "The required academic preparation may be
substituted by additional experience in the Collections area."
The three plaintiffs, each of whom at that time lawfully
held another career position with Tourism, responded to this job
announcement or a materially similar announcement. Although none
of the plaintiffs held the requisite bachelor's degree in business
administration or a related field, each was hired to be a
Collections Officer because of "experience in the Collections
area." At no point was the Classification Plan amended to be
consistent with the job announcements or vice-versa.
Following the 2000 election, the Tourism Company came
under new leadership, appointed by PDP governor Sila Maria
Calderón. Not long after this transition in power, officials at
the Tourism Company began reviewing personnel files. A review of
these files indicated that each of the plaintiffs failed to meet
the minimum requirements for the position of Collections Officer,
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as set out in the relevant Classification Plan. This discovery set
into motion a series of events: the plaintiffs were notified of
their perceived lack of credentials; informal hearings were held;
and the plaintiffs were terminated. Milton Segarra, the then-
Executive Director of the Tourism Company, made and carried out
this decision.
After unsuccessfully challenging their terminations in a
post-termination administrative hearing, the plaintiffs filed suit
in federal court under 42 U.S.C. § 1983, claiming that their
dismissals violated the First Amendment because they were
politically motivated and that the Commonwealth had denied them the
procedural protections guaranteed by the Due Process Clause of the
Fourteenth Amendment. The plaintiffs' spouses also brought a
derivative tort action under Article 1802 of the Puerto Rico Civil
Code. See P.R. Laws Ann. tit. 31, § 5141. The matter eventually
proceeded to trial.
At the close of the plaintiffs' case, the defendants
moved orally for judgment as a matter of law under Rule 50(a) of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 50(a).
The district court denied this motion. After some skirmishing
between the defendants and the court over jury instructions, the
case was submitted to the jury. The jury found for the plaintiffs
on both the First Amendment claim and the procedural due process
claim, awarding damages to the plaintiffs and their spouses. At
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this point, the defendants filed a renewed motion for judgment as
a matter of law under Rule 50(b) and an alternative motion for a
new trial. See Fed. R. Civ. P. 50(b), 59(a). The district court
summarily denied these motions. This appeal ensued.
II.
The defendants claim that the district court committed a
host of errors during the proceedings below. We address each of
their arguments in turn.
A. First Amendment claim
The defendants argue that they are entitled to a new
trial on the plaintiffs' First Amendment/political discrimination
claim because the district court's instruction on the political
discrimination claim was incorrect as a matter of law. This claim
of instructional error is reviewed de novo. SEC v. Happ, 392 F.3d
12, 28 (1st Cir. 2004).
A jury instruction is erroneous if it is misleading,
confusing, or incorrect as a matter of law. Davignon v. Clemmey,
322 F.3d 1, 9 (1st Cir. 2003). If the instruction is erroneous, a
new trial will be ordered if "the error, based on the entire
record, was prejudicial." Romano v. U-Haul Int'l, 233 F.3d 655,
665 (1st Cir. 2000) (citation omitted). Put differently, a new
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trial will be unnecessary if the error was harmless. Id.; see also
Fed. R. Civ. P. 61.2
Before examining the challenged instruction, we identify
the relevant ground rules. As alluded to above, the First
Amendment prohibits the dismissal of a career employee based on
political affiliation. Maymi, 515 F.3d at 25.3 When a terminated
employee claims that he or she was dismissed in violation of the
First Amendment, the Supreme Court's decision in Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), governs the
analysis. Under Mt. Healthy, the plaintiff must initially
introduce evidence sufficient to indicate that a constitutionally
protected activity or status was a "substantial or motivating
factor" in the termination decision. Borges Colon, 438 F.3d at 15
(noting that this evidence may be direct or circumstantial in
nature). If a plaintiff establishes this prima facie case, the
burden then shifts to the employer, who at this point may assert
what is commonly referred to as a "Mt. Healthy defense."
Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72, 81 (1st Cir.
2006). To establish such a defense, the employer must prove, by a
2
This "harmless error" standard applies where, as here, a
party has properly objected to the court's instruction at trial.
Davignon, 322 F.3d at 9.
3
This may be the case even if the employee acquired the
career position in contravention of state law. See Santiago-Negron
v. Castro-Davila, 865 F.2d 431, 436 (1st Cir. 1989). Nevertheless,
such a fact, as we will discuss below, has relevance in the
procedural due process inquiry.
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preponderance of the evidence, that it would have made the
termination decision regardless of the employee's protected
activity or status. Gonzalez-Pina v. Guillermo Rodriguez, 407 F.3d
425, 431-32 (1st Cir. 2005) (citing Mt. Healthy, 429 U.S. at 287).
As has been noted in the past, Mt. Healthy's burden
shifting framework tends to obscure the following principle:
showing that a protected activity or status was a "substantial or
motivating factor" in the termination decision, that is, that the
protected activity or status was an impetus for, or moved the
employer towards, the termination decision, may not be enough for
the plaintiff to succeed. The employer can defeat liability by
establishing that it would have made the same termination decision
anyway, without regard to the plaintiff's protected activity or
status. Mercado-Alicea v. P.R. Tourism Co., 396 F.3d 46, 51 (1st
Cir. 2005) (recognizing that the First Amendment analysis must
distinguish between a result caused by a constitutional violation
and one not so caused). Put differently, the employer must be
given a chance to establish that the plaintiff's activity or status
was not the "proximate cause" of the termination.
The district court's instruction did not adequately
convey this principle and was thus incorrect. The instruction
reads:
If you find that the defendants'
intervention in dismissing career employees in
violation of the principles outlined in these
instructions was, in fact, made in retaliation
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for the exercise of the Constitutional right
of free speech, which includes the liberty of
political affiliation, then you must find for
the plaintiffs.
If, on the other hand, you find that
the personnel actions had nothing to do with
the plaintiff's political preferences, then
you must find for the defendants.
(emphasis added).
The problem lies with the highlighted "had nothing to do
with" language. Under Mt. Healthy, even if the protected activity
or status (here, political affiliation) "had something to do with"
the termination decision, it would not necessarily result in a
victory for the plaintiffs. If the defendant/employer were able to
satisfy the jury that it would have fired the plaintiffs regardless
of political affiliation, then the defendant would be entitled to
a verdict in its favor. The instruction as worded, however,
signaled to the jury that if it found that the plaintiff's
political affiliation "had something to do" with the termination
decision, the jury would be precluded from finding for the
defendants. The instruction thus prevented the jury from
considering whether the defendants had presented a valid Mt.
Healthy defense.
Having concluded that the instruction was erroneous, we
must also consider whether the error was nevertheless harmless.
Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001).
The plaintiffs argue that any instructional error was harmless
because the defendants were not entitled to present a Mt. Healthy
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defense in the first place. The defense, they say, was exposed as
pretextual at trial, as the plaintiffs introduced evidence that two
other Collections Officers, Luis Luciano and Jose Bayon, kept their
Collections Officer jobs despite not having the requisite degree.
The argument overreaches. Although the defendants could
not fully explain why they permitted Bayon to keep his job, there
was evidence that the 1995 Classification Plan did not apply to
Luciano because the Tourism Company hired him in 1985, well before
the plan was in place. And given that the defendants consistently
maintained at trial that they terminated the plaintiffs for an
identifiable, non-discriminatory reason, we think the evidence was
sufficiently mixed that it would allow (though not compel) a
reasonable, properly instructed jury to find that the defendants
had established a Mt. Healthy defense. As a result, we must vacate
the judgment on the First Amendment claim and remand for a new
trial on this claim.
B. Procedural due process claim
The defendants also attack the district court's handling
of the plaintiffs' procedural due process claim. They first argue
that the claim should never have been submitted to the jury, but
rather decided by the court as a matter of law. See Fed. R. Civ.
P. 50(a), (b). Alternatively, the defendants argue that they are
entitled to a new trial on the procedural due process claim because
of an error in the court's jury instructions.
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We review de novo the denial of a renewed motion for
judgment as a matter of law under Rule 50(b), viewing the evidence
in the light most favorable to the nonmoving party, here, the
plaintiffs. Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 61
(1st Cir. 2007).
A person is only entitled to procedural due process if
she can establish that the government deprived her of a
constitutionally protected interest. Bd. of Regents v. Roth, 408
U.S. 564, 569 (1972) ("The requirements of procedural due process
apply only to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and property.").
Here, the plaintiffs claim a constitutionally protected property
interest in continued public employment, specifically, in their
positions as Collections Officers. See Gonzalez-De Blasini v.
Family Dep't, 377 F.3d 81, 86 (1st Cir. 2004) ("[A] public employee
who possesses a property interest in continued employment cannot be
discharged without due process of law."). The defendants argue
primarily that the plaintiffs have no protected interest in their
positions as Collections Officers.4
4
On appeal, the defendants also argue that, even if the
plaintiffs did have a protected property interest in their jobs as
Collections Officers, the Commonwealth nevertheless provided them
with all the process they were due.
This argument is unavailable. In their only Rule 50(a)
motion, which they made orally at the close of the plaintiffs'
case, the defendants never argued that the plaintiffs received
adequate process before their termination. It is well-established
that arguments not made in a motion for judgment as a matter of law
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Whether the plaintiffs had a protected property interest
in their jobs is a question of state law. Rosario-Torres v.
Hernandez-Colon, 889 F.2d 314, 319 (1st Cir. 1989) (en banc) ("The
sufficiency of a claim of entitlement to a property interest in
public employment must be measured by, and decided with reference
to, local law.") (citing Bishop v. Wood, 426 U.S. 341, 344 (1976));
see also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 53
(1st Cir. 1990) ("Constitutionally protected property interests
originate in extra-constitutional sources"). Under Puerto Rico
law, the positions held by the plaintiffs are "career" positions.
As a general rule, those who lawfully hold such positions have a
protected property interest in continued employment in those
positions. Figueroa-Serrano, 221 F.3d at 6.
The key word is "lawfully." To possess constitutionally
protected property interests in their career positions, the
plaintiffs must have valid claims to those positions. Id. An
employee's claim is not valid if the hire contravened Commonwealth
laws and regulations, which include the Puerto Rico Personnel Act
and agency regulations promulgated under that Act. Kauffman v.
Puerto Rico Tel. Co., 841 F.2d 1169, 1173 (1st Cir. 1988); see also
under Rule 50(a) cannot then be advanced in a renewed motion for
judgment as a matter of law under Rule 50(b). See Correa v. Hosp.
San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995) ("As the name
implies, a renewed motion for judgment as a matter of law under
Fed. R. Civ. P. 50(b) is bounded by the movant's earlier Rule 50(a)
motion.").
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Vazquez-Valentin v. Santiago-Diaz, 459 F.3d 144, 149 (1st Cir.
2006) (recognizing that hirings made "in violation of Commonwealth
laws and regulations normally are null and void ab initio")
(citation omitted)); Correa-Martinez, 903 F.2d at 54 ("We have
regularly held that, under Puerto Rico law, government employees
hired illegally to permanent or career positions are neither
invested with property interests in continued employment nor
entitled to the due process protections which inure to their
legally hired counterparts.").
Here, the defendants contend that the plaintiffs did not
lawfully hold their positions as Collections Officers because the
Tourism Company hired them to those positions in contravention of
its own Classification Plan. See De Feliciano v. De Jesus, 873
F.2d 447, 454 (1st Cir. 1989). That plan, promulgated under the
Personnel Act, required each Collections Officer to hold a
bachelor's degree in business administration or a related field.5
Because they lacked any property interest in their Collections
Officer positions, the argument runs, the plaintiffs were not
entitled to any process with respect to the loss of those
positions.6
5
The plaintiffs assert that the plan was not public, but they
do not contest that the plan was both validly enacted and binding.
6
The defendants present this argument in two ways. They
argue that the evidence presented a trial, which included the
relevant Classification Plan, established that each of the
plaintiffs failed to qualify for the Collections Officer position.
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We agree. The Classification Plan clearly required each
Collections Officer to hold a bachelor's degree in a certain field.
The plaintiffs candidly admit that they do not hold such degrees.
Under circumstances such as these, where the plaintiffs were
recruited and hired to career positions in contravention of
regulations promulgated under the Personnel Act, the plaintiffs
cannot develop a protected property interest in their career
positions. See De Feliciano, 873 F.2d at 452-55; see also Correa-
Martinez, 903 F.2d at 53-55.
This result may seem unfair. After all, the agency must
bear some fault in this story. It recruited the plaintiffs in
plain contravention of its own Classification Plan. But, as De
Feliciano illustrates, "fault" is not a relevant factor in the due
process inquiry. 873 F.2d at 454. In that case, the plaintiffs
argued that they were entitled to procedural due process even if
they had been hired in contravention of state law because, "any
failure to abide by the rules when they were hired was not their
fault, but the fault of the [state agency]." Id. In rejecting
this argument, we observed, "[T]he legal question has nothing to do
with fault. It has to do with whether or not Puerto Rico law gave
They also rely on the doctrine of collateral estoppel, arguing that
the plaintiffs failed to appeal an administrative decision rendered
against them, and that facts established in this proceeding
definitively doom their claim. We need not venture into the
thicket of the collateral estoppel doctrine, as the record evidence
is sufficient to establish the lack of a protected property
interest.
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the plaintiffs a sufficient 'property' interest in their jobs as to
invoke the protection of the Fourteenth Amendment." Id. Such
reasoning applies with equal force here.
We note that, although the plaintiffs were precluded from
developing property interests in their specific positions as
Collections Officers, they still may have held (at the time of
their terminations) constitutionally protected property interests
in their career employment with the Tourism Company. After all,
each of the primary plaintiffs in this case held another career
position before being hired to his Collections Officer position.
Nevertheless, the question of whether the plaintiffs held
a protected property interest in other career positions was never
squarely before the jury. The district court's instruction focused
on procedures due when the defendants took away the Collections
Officer positions. Moreover, throughout the proceedings below, the
plaintiffs plainly sought to establish a protected property
interest in their positions as Collections Officers, not in some
other career position. In their complaint, for example, they
requested reinstatement only to their positions as Collections
Officers. Conversely, the plaintiffs failed to make the requisite
efforts to establish a protected interest in other career
employment with the Tourism Company. For example, they did not
introduce evidence of the wages that would have earned in other
career position had they not been terminated outright from agency
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employ. Nor, for aught that it appears, did the plaintiffs request
jury instructions that would have notified the jury that they were
also claiming property interests in career employment other than as
Collections Officers. Under these circumstances, the jury verdict
in favor of the plaintiffs on the procedural due process claim is
inextricably tied to the Collections Officer positions.
Accordingly, it cannot stand.
Because we reverse the judgment in favor of the
plaintiffs on the procedural due process claim, there is no need to
address the defendants' alternative argument claiming instructional
error.
C. Qualified Immunity
Segarra, who was sued in his personal capacity, argues
that he is entitled to qualified immunity with respect to the
plaintiffs' First Amendment claim. "The qualified immunity
doctrine provides defendant public officials an immunity from suit
and not a mere defense to liability." Maldonado v. Fontanes, 568
F.3d 263, 268 (1st Cir. 2009); see also Mitchell v. Forsyth, 472
U.S. 511, 526 (1985) (noting that qualified immunity is "an
entitlement not to stand trial or face the other burdens of
litigation"). Accordingly, were we to find that Segarra deserves
qualified immunity in this case, he would be spared the crucible of
a new trial on the plaintiffs' First Amendment claim.
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A two-part test governs the qualified immunity question.
Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009); Maldonado, 568
F.3d at 268-69. A court should deny a defendant qualified immunity
if: (1) the facts a plaintiff has either alleged or shown
establish a violation of a constitutional right; and (2) the
constitutional right at issue was "clearly established" at the time
of the defendant's alleged misconduct. Pearson, 129 S. Ct. at 815;
see also Maldonado, 568 F.3d at 269. A right is "clearly
established" if the contours of the right are sufficiently clear
such that "a reasonable official would understand that what he is
doing violates that right." Anderson v. Creighton, 483 U.S. 635,
640 (1987). Put another way, a right is clearly established if, at
the time the defendant acted, he was on clear notice that what he
was doing was unconstitutional. Maldonado, 568 F.3d at 269 (citing
Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
We may be brief. The plaintiffs have alleged facts that,
if found by a jury to be true, would establish that the defendants
violated the plaintiffs' First Amendment rights by terminating them
based on their political affiliation. Further, it is clearly-
established, and was at the time of the events in question, that
terminating a non-policy-making employee based on political
affiliation violates the First Amendment even if a valid
alternative ground exists for the termination. See Sanchez-Lopez
v. Fuentes-Pujuols, 375 F.3d 121, 132-33 (1st Cir. 2004); Santiago-
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Negron, 865 F.2d at 436. Accordingly, Segarra is not entitled to
qualified immunity.
Segarra's claim that the plaintiffs were terminated
because they held their positions unlawfully fails to alter this
analysis. The reason for the plaintiffs' termination is a disputed
issue of material fact. Under such circumstances, a grant of
qualified immunity is inappropriate. See Roure v. Hernandez Colon,
824 F.2d 139, 141 (1st Cir. 1987).
D. Damages and other remedies
The defendants challenge the award of damages to the
plaintiffs' spouses. They also challenge the reinstatement orders
issued by the district court. We address these challenges in turn.
1. Damages award to spouses
The jury awarded the plaintiffs' spouses the following
amounts: (1) Costa-Urena's spouse, $43,000; (2) Jirau's spouse,
$58,000; (3) Rueda's spouse, $54,000. The defendants argue that
the district court's errors may have led the jury inappropriately
to award these damages under § 1983, a statute under which the
spouses of plaintiffs are prohibited from recovering as derivative
plaintiffs. In particular, they complain about the court's
instructions to the jury and the wording of the verdict form
submitted to, and used by, the jury. Because the defendants failed
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to lodge the requisite objections before the district court, our
review is for plain error only. Davignon, 322 F.3d at 9.7
Although we need not get into specifics, the defendants
present a losing argument. Nevertheless, a far more persuasive
argument exists for vacating the spousal awards. In the past, we
have explained that a cause of action under Article 1802 "is wholly
derivative and, thus, its viability is contingent upon the
viability of the underlying employment discrimination claim." See
Hernandez v. Phillip Morris USA, Inc., 486 F.3d 1, 12-13 (1st Cir.
2008); see also Marcano-Rivera v. Pueblo Int'l, Inc., 232 F.3d 245,
258 n.7 (1st Cir. 2000). Although the underlying employment
discrimination claims in those cases were not political
discrimination claims, we fail to see why the rule would be any
different with respect to such discrimination claims. See Torres-
Rivera v. Calderon-Serra, 412 F.3d 205, 209 & n.5 (1st Cir. 2005).
And here, given the infirmity of the jury's verdict on the
underlying political discrimination claim, the spousal awards are
plainly inappropriate. To be sure, the defendants, who are the
appellants in this case, failed to raise this precise argument in
their brief to this court, thus raising the spectre of waiver. See
7
"[T]he party claiming plain error must show (1) an error,
(2) that is plain (i.e., obvious and clear under current law) (3)
that is likely to alter the outcome, and (4) that is sufficiently
fundamental to threaten the fairness or integrity or public
reputation of the judicial process." Colon-Millin v. Sears Roebuck
de P.R., Inc., 455 F.3d 30, 41 (1st Cir. 2006) (internal quotations
omitted).
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Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990). But
"in certain circumstances we have the discretion to overlook waiver
by inadequate argument," Smith v. Robertshaw Controls Co., 410 F.3d
29, 37 n.9 (1st Cir. 2005) (quoting United States v. Rodriguez-
Marrero, 390 F.3d 1, 18 (1st Cir. 2004)), and, to the extent there
was waiver here, it makes sense to overlook it. The appellants did
challenge the validity of the spousal awards, albeit on a different
ground, and clearly challenged the underlying political
discrimination claims on which those awards were based. And
permitting the spousal awards to stand when we are vacating the
verdicts on which they are based makes little sense. Accordingly,
we vacate the spousal awards as well. We do so, of course, without
prejudice to the derivative claims themselves and to the prospect
of a new trial.
2. Reinstatement
After entering judgment for the plaintiffs on the First
Amendment claim, the district court ordered that the plaintiffs be
reinstated to their positions as Collections Officers. Because we
vacate the judgment on that claim, we must also vacate the district
court's reinstatement order. Should another jury find in favor of
the plaintiffs on the First Amendment claim, the question of
reinstatement remains open for the district court to consider. See
Chungchi Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 42 (1st Cir.
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2003). That said, given the particular circumstances of this case,
we offer some guidance on the reinstatement issue.
Upon a finding of unlawful political discrimination, the
district court may, in its discretion, order that the defendants
reinstate the plaintiffs to their positions as Collections
Officers. This is the case even though the plaintiffs did not
acquire those positions lawfully. Rosario-Torres, 889 F.2d at 320
(noting that for "persons hired to career positions in violation of
the Personnel Act and thereafter cashiered because of party
affiliation . . . one of the remedies available for a political
discharge in violation of first amendment rights is
reappointment.") (internal quotations omitted).
This is not to say that reinstatement is an inevitable
remedy or even an advisable one. Id. at 321. Among the factors a
court should consider when evaluating reinstatement is whether the
employee was hired in violation of local law. Hiraldo-Cancel v.
Aponte, 925 F.2d 10, 14 (1st Cir. 1991) ("Although plaintiffs'
ineligibility for appointment would neither suspend their first
amendment rights nor undercut their entitlement to legal relief
under section 1983, ineligibility considerations do bear on the
appropriateness of the equitable relief of reinstatement."). In
such a case, there are obvious reasons why it would be imprudent to
reinstate the employee to a previous, unlawfully held position.
See id.
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Finally, we note that the defendants argue that the
district court is incapable of ordering reinstatement in this case
under any circumstances. This is so, they claim, because defendant
Segarra is not currently in this case in an official capacity. The
governor of Puerto Rico, however, does remain a party to this case
in an official capacity. In any event, because the reinstatement
question may become moot after additional proceedings, there is no
need to discuss this issue further at this juncture.
III.
The judgment for the plaintiffs on the First Amendment
claim is vacated and the judgment for the plaintiffs on the
procedural due process claim is reversed. The order of
reinstatement is stricken, without prejudice. The judgment on the
spouses' derivative claim under Article 1802 is vacated. The case
is remanded for proceedings consistent with this opinion. The
parties shall bear their own costs incurred in this appeal.
So ordered.
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