Torres-Santiago v. Municipality of Adjuntas

United States Court of Appeals
For the First Circuit

No. 10-2248

MYRTA TORRES-SANTIAGO; MIGDALIA RODRÍGUEZ-RIVERA;
JOSÉ RIVERA-DEL VALLE,

Plaintiffs, Appellants,

v.

MUNICIPALITY OF ADJUNTAS; JAIME H. BARLUCEA-MALDONADO, in his
official capacity as Mayor of the Municipality of Adjuntas,

Defendants, Appellees,

WALVER BÁEZ-LUGO, in his personal and official capacity; DANIEL
PORTELA, in his personal and official capacity; HERNÁN CARABALLO,
in his personal and official capacity; CLARIBEL PAGÁN, in her
personal and official capacity; JOHN DOE; RICHARD DOE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

José Martinez Custodio for appellants.
Luis R. Pérez Giusti, with whom Adsuar Muñiz Goyco Seda &
Pérez-Ochoa, P.S.C. was on brief, for appellees.

September 7, 2012
 LIPEZ, Circuit Judge. This appeal involves an award of

$59,787.50 in attorney's fees against unsuccessful plaintiffs in a

civil rights action. Plaintiffs Myrta Torres-Santiago, Migdalia

Rodríguez-Rivera, and José Rivera-del Valle argue that their

lawsuit was not so frivolous or unreasonable as to justify an award

of fees to the defendants. We agree, except for Torres's inferior

working conditions claim against Walver Báez-Lugo and Rivera's

claims against Hernán Caraballo. There was no reasonable basis for

those claims. Hence, we vacate the fee award and remand for

further proceedings relating to any attorney's fees incurred by the

Municipality of Adjuntas in relation to those claims only.

I.

Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 and

Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit 31,

§ 5141, alleging that the Municipality of Adjuntas (the

"municipality") and its Mayor, Jaime H. Barlucea-Maldonado (the

"Mayor"), engaged in unlawful political discrimination in violation

of the U.S. Constitution and the laws and Constitution of the

Commonwealth of Puerto Rico. In making these claims, the complaint

also named as defendants the plaintiffs' direct supervisors, Walver

Báez-Lugo, Daniel Portela, and Hernán Caraballo (together, the

"supervisory defendants") in their individual capacities, as well

as the Mayor in his individual capacity. The complaint included

due process and equal protection claims pursuant to the Fifth and

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Fourteenth Amendments to the Constitution. The plaintiffs sought

compensatory and punitive damages and declaratory and injunctive

relief.

The Mayor and supervisory defendants successfully moved,

in their individual capacities, to dismiss plaintiffs' due process

and equal protection claims. The municipality, the Mayor in his

official and personal capacities, and the supervisory defendants in

their personal capacities then filed a motion for summary judgment

on the remaining claims. The motion was granted in favor of the

supervisory defendants and denied as to the municipality and Mayor.

On the eve of trial - more than a year after the plaintiffs first

submitted a settlement demand - the municipality and Mayor made a

settlement offer and engaged in negotiations.1 Settlement

negotiations were unsuccessful, and the parties proceeded to trial

on January 19, 2010. On January 27, 2010, the jury returned a

verdict in favor of the municipality and Mayor.

On March 17, 2010, the municipality filed a motion for

$63,687.50 in attorney's fees pursuant to 42 U.S.C. § 1988(b),

arguing that it was entitled to fees because the "[p]laintiffs

engaged in a totally unfounded, frivolous and reiterated [sic]

1
At oral argument, plaintiffs represented that they received
the settlement offer from the municipality and Mayor on January 19,
2010, the first day of trial. The municipality and Mayor stated
that they presented the offer approximately one week before the
start of trial, but the court only became aware of and involved in
the settlement negotiations on January 19. The difference is
immaterial to our analysis.

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attempt to charge [d]efendants with political discrimination

allegations." The supervisory defendants did not seek attorney's

fees.

On September 7, 2010, the district court granted the

motion in part. In a written decision, the district court began

its analysis by listing "some important factors" that the Eleventh

Circuit has identified for consideration when making the case-by-

case determination about whether a plaintiff's claim is frivolous:

"(1) whether the plaintiff established a prima facie case; (2)

whether the defendant offered to settle; and (3) whether the trial

court dismissed the case prior to trial or held a full-blown trial

on the merits." (quoting Sullivan v. Sch. Bd., 773 F.2d 1182, 1189

(11th Cir. 1985)). Applying this law, the district court wrote the

following:

[The municipality and Mayor] allege that the
court should award them attorney['s] fees
because Plaintiffs were aware that their
claims against [Báez, Portela, and Caraballo]
lacked merit. Yet, the Plaintiffs pursued
their actions against these [supervisory]
co-defendants[,] thus multiplying the costs of
litigation. The Court agrees. After
reviewing the evidence submitted at the motion
for summary judgment stage, the Court found
that the Plaintiffs were unable to establish a
prima facie case against [the supervisory
defendants] because Báez belonged to the same
political party as Plaintiffs and because
Plaintiffs were unable to establish any
involvement on the part of Portela and/or
Caraballo with respect to the alleged adverse
employment actions complained of.

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With regard to the municipality and Mayor, the district court

recognized that the Sullivan factors indicated that the plaintiffs'

claims were not frivolous or unreasonable:

Applying the Sullivan factors enumerated
above, we would be forced to conclude that the
Plaintiffs' action against Barlucea and the
Municipality [was] not frivolous inasmuch as
they were able to establish a prima facie case
at the summary judgment stage, the
[municipality and Mayor] offered settlement
and a full-blown trial on the merits was seen
as to these two co-defendants.

Nevertheless, the court noted contrary authority that supported a

different outcome:

"[C]ases that are ultimately viewed as
frivolous may well survive motions to dismiss
under a system of notice pleading that does
not require factual detail and even motions
for summary judgment in which the evidence may
be presented in sketchy fashion and
credibility may not be taken into account."
Greenberg v. Hilton Intern. Co., 870 F.2d 926,
940 (2d Cir. 1989). The Court first notes
that the only reasons the Plaintiffs survived
summary judgment were that, pursuant to the
applicable standard, the Court could not make
credibility determinations and the evidence
had to be examined in the light most favorable
to the Plaintiffs. The Plaintiffs must have
known that they would not be afforded such
indulgence at trial and to the extent they
refused to accept a sound settlement offer
prior to the commencement of the jury trial,
the Court finds that the Plaintiffs’ claim
became unreasonable thereon.

The court provided no further rationale for its decision to award

fees.

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 Read one way, the district court's language suggests that

the plaintiffs' action only became unreasonable after they refused

to settle the case on the eve of trial. If that were the district

court's view, the only relevant litigation costs of the

municipality would have been those related to case preparation from

the time of the rejection of the settlement demand and the cost of

trial. But the district court awarded the municipality $59,787.50

in attorney's fees, the cost it determined to be reasonable for the

entire course of the litigation. Hence, we review the attorney's

fee award as one that does, in fact, cover the entire course of

litigation.

II.

We review fee awards for abuse of discretion.

Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 236 (1st Cir. 2010).

"[T]hus we will not lightly substitute our judgment for that of the

district court, reversing only 'if we are left with a definite and

firm conviction that the court below committed a clear error of

judgment.'" Id. (quoting Tang v. State of R.I., Dep't of Elderly

Affairs, 163 F.3d 7, 13 (1st Cir. 1998) (internal quotation mark

omitted)).

A. Legal Framework

Parties to civil litigation are generally responsible for

their own attorney's fees under the so-called "American Rule."

However, "[f]or private actions brought under 42 U.S.C. § 1983 and

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other specified measures designed to secure civil rights, Congress

established an exception to the 'American Rule.'" Sole v. Wyner,

551 U.S. 74, 77 (2007). That exception operates to facilitate

"effective access to the judicial process," Hensley v. Eckerhart,

461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1

(1976)) (internal quotation marks omitted), by granting federal

district courts the discretion to "allow the prevailing party . . .

a reasonable attorney's fee as part of the costs," 42 U.S.C.

§ 1988(b).

It is well established that "an award of fees in favor of

a prevailing plaintiff in a civil rights suit is 'the rule, whereas

fee-shifting in favor of a prevailing defendant is the exception.'"

Lamboy-Ortiz, 630 F.3d at 236 (quoting Casa Marie Hogar Geriatrico,

Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)). Indeed,

a "prevailing defendant may be awarded fees only 'upon a finding

that the plaintiff's action was frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith.'" Id.

(quoting Rosselló-González v. Acevedo-Vilá, 483 F.3d 1, 6 (1st Cir.

2007)). This standard is, by design, a difficult one to meet.

"Congress granted parties the prospect of a reasonable attorney's

fee under 42 U.S.C. § 1988 to encourage the prosecution of

legitimate civil rights claims; to award fees to prevailing

defendants when the history of a case does not justify it undercuts

that goal and chills civil rights litigation." Id.

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 When determining whether a plaintiff's claims were

"frivolous, unreasonable, or without foundation," or whether "the

plaintiff continued to litigate after [the claims] clearly became

so," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 422

(1978), the court should not evaluate the reasonableness of the

suit based on its ultimate failure:

[I]t is important that a district court resist
the understandable temptation to engage in
post hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his
action must have been unreasonable or without
foundation. This kind of hindsight logic
could discourage all but the most airtight
claims, for seldom can a prospective plaintiff
be sure of ultimate success. No matter how
honest one's belief that he has been the
victim of discrimination, no matter how
meritorious one's claim may appear at the
outset, the course of litigation is rarely
predictable. Decisive facts may not emerge
until discovery or trial. The law may change
or clarify in the midst of litigation.

Id. at 421-22. We have stated that such "hindsight logic" may be

avoided by focusing on the reasonableness of a plaintiff's claim at

the time of filing, Lamboy-Ortiz, 630 F.3d at 237, keeping in mind

that "[e]ven when the law or the facts appear questionable or

unfavorable at the outset, a party may have an entirely reasonable

ground for bringing suit," Christiansburg Garment, 434 U.S. at 422.

When reviewing the district court's decision to award

fees, we too must assess the reasonableness of the suit at the time

the complaint was filed. To do so, we must inevitably rely on the

record created after the complaint was filed. Although

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determinations about whether to award attorney's fees are generally

focused on the claims as they existed at the time the complaint was

filed, "fees also may be awarded on rare occasions where 'the

plaintiff continued to litigate after [the claims] clearly became

[frivolous, unreasonable, or groundless].'" Lamboy-Ortiz, 630 F.3d

at 241 (alteration in original) (quoting Christiansburg Garment,

434 U.S. at 422).

B. Details of Complaint

We recite the allegations of the complaint in some detail

because they are so important to the legal analysis that follows.

In the complaint, the plaintiffs stated that they are affiliated

with Puerto Rico's Popular Democratic Party ("PDP") and alleged

that the Mayor and supervisory defendants are affiliated with the

New Progressive Party ("NPP"). The plaintiffs claimed that shortly

after Barlucea, who is affiliated with the NPP, replaced the

previous mayor, who was affiliated with the PDP, they were

transferred from their jobs because of their political beliefs and

affiliation with the PDP. The plaintiffs claimed that, as a result

of the transfers, they were stripped by the Mayor and supervisory

defendants of significant responsibilities and forced to endure

inferior and unreasonable working conditions in jobs unrelated to

their previous positions. The allegations specific to each

plaintiff's employment and transfer are as follows:

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 1. Myrta Torres-Santiago

Torres was employed by the municipality as an Assistant

Accountant in the Finance Department until the challenged transfer.

In the Finance Department, Torres kept financial records, verified

order statuses, and prepared buying orders. After Mayor Barlucea

replaced the previous mayor, Torres received a letter from his

office, dated January 31, 2005, stating that she was being

transferred to the Department of Recycling and Environmental

Control ("Recycling Department"). Torres alleged that Báez, her

Recycling Department supervisor, approved her transfer and, on

February 4, 2005, assigned her duties that were inferior to her

duties in the Finance Department. Torres also claimed that in the

Recycling Department, she had "inferior and unreasonable working

conditions," which were created by the Mayor and Báez.

2. Migdalia Rodríguez-Rivera

Rodríguez had been employed by the municipality since

2002, and was Manager of Municipal Facilities at the time of the

challenged transfer. In that position, Rodríguez prepared an

activity calendar for the facilities under her supervision,

supervised municipal activities, and ordered materials and

equipment. Mayor Barlucea transferred Rodríguez to the

municipality's Coliseum Rafael Llull Perez without assigning her

any duties. At the Coliseum, Rodríguez worked under Portela, who -

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with the Mayor - created for Rodríguez inferior and unreasonable

working conditions.

3. José Rivera-del Valle

Prior to the challenged transfer, Rivera was employed by

the municipality as an Assistant Accountant in the Finance

Department. There, Rivera registered orders, contracts, and

special funds; verified forms; and maintained daily inspections of

payments, orders, and cancelled checks. Mayor Barlucea transferred

Rivera to the Municipal Cemetery Luz del Gigante to work under

Caraballo. Barlucea did not assign Rivera duties at the time of

the transfer. Rivera alleged that, at the cemetery, he had

inferior and unreasonable working conditions that had been created

by the Mayor and Caraballo.

C. Reasonableness at the Time of Filing

Plaintiffs claim that their transfers, diminutions in

duties, and unreasonable working conditions violated the First

Amendment, which protects public employees who hold nonpolicymaking

positions from adverse personnel decisions rooted in partisan

political concerns. See, e.g., Barry v. Moran, 661 F.3d 696, 703

(1st Cir. 2011). Essentially, plaintiffs argue that Barlucea used

his power as Mayor to move three PDP political activists out of

offices in City Hall and deprive them of almost all meaningful

responsibilities, and that the supervisory defendants also

discriminated by refusing to assign them duties in their new

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positions and providing inferior and unreasonable workplace

conditions. To establish a prima facie case of political

discrimination under the First Amendment, a plaintiff must

establish four elements: "(1) that the plaintiff and defendant have

opposing political affiliations, (2) that the defendant is aware of

the plaintiff's affiliation, (3) that an adverse employment action

occurred, and (4) that political affiliation was a substantial or

motivating factor for the adverse employment action."

Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011) (quoting

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011))

(internal quotation marks omitted). In order to determine the

reasonableness of the plaintiffs' claims, we address the factual

support for each element on the basis of the summary judgment

record.2

2
In the analysis that follows, we rely on the summary
judgment record, including exhibits submitted by the parties with
their motions for and opposing summary judgment. The district
court excluded from consideration "some of the materials submitted
by both [parties]" because of the "lack [of] an authenticating
affidavit" or the "fail[ure] to indicate whether they stem from
discovery materials on file." Given the way the court described
its exclusions, we cannot tell which rejected pieces of evidence we
may have included in our analysis. However, our inability to make
that determination is not important. We consider this evidence
only for its relevance to the reasonableness of the plaintiffs'
lawsuit at the time it was filed. See Lamboy-Ortiz, 630 F.3d at
238. We do not suggest that the excluded evidence developed
through discovery should have been considered at summary judgment.
See id. We do not rely on trial evidence because no transcripts
from the trial were prepared. Plaintiffs did not appeal the
adverse trial determinations. In defending the reasonableness of
their claims in this appeal, plaintiffs rely on the summary
judgment record.

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 1. Opposing Political Affiliations

As the district court noted in its summary judgment

decision, it was uncontested that all of the plaintiffs are

affiliated with the PDP and that Mayor Barlucea and Rivera's

supervisor, Caraballo, are affiliated with the NPP. Rodríguez's

supervisor, Portela, stated in his deposition that although he had

been affiliated with the PDP in the past, he supported NPP

candidate Barlucea for Mayor and was given a trust position in

Barlucea's cabinet. Similarly, Torres's supervisor, Báez, stated

in his deposition that although he was affiliated with the PDP in

2000, he did not participate in PDP election activities in 2004

because he had issues with the PDP mayor who preceded Barlucea.

Báez said that he was appointed by Barlucea in 2005 to a trust

position in Barlucea's cabinet. With regard to Portela and Báez,

the plaintiffs could have reasonably inferred from their

supervisory trust positions in an NPP administration that their

supervisors were members of - or were at least now affiliated with

- the opposing party. See Grajales v. P.R. Ports Auth., 682 F.3d

40, 47-48 (1st Cir. 2012) (stating that it was plausible to infer

defendants' knowledge of plaintiff's political affiliation where

"the plaintiff . . . was named to a prestigious trust position by

a PDP hierarch under a PDP administration"). Given the information

known to the plaintiffs at the time they filed their lawsuit, there

was a reasonable basis for the plaintiffs' belief that they could

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successfully satisfy the opposing political affiliation element of

their claim.

2. Barlucea's and the Supervisory Defendants'
Awareness of Plaintiffs' Political Affiliations

In its summary judgment order, the district court

summarized the evidence that provided a reasonable basis for the

plaintiffs' belief that Barlucea and the supervisory defendants

were aware of the plaintiffs' political affiliations:

It stems from the record that all three
Plaintiffs active[ly] and publicly campaigned
in favor of the PDP and were polling unit
officers or members of electoral colleges.
Specifically, it is plaintiff Torres'[s]
contention that Barlucea knows her political
affiliation because he voted in the electoral
college where she worked as a poll watcher.
Plaintiff Rodríguez asserts that she and
codefendant Portela worked together in the
past in political campaigns, and thus, he is
aware of her political affiliation. As to
co-defendant Barlucea, Rodríguez claims that
he knows her political affiliation because of
her active campaigning, her work as a poll
watcher, and because Adjuntas is a small
close-knit community. Plaintiff Rivera
purports that Barlucea knows his political
affiliation because they used to be neighbors
and talked openly about politics. As to
co-defendant Caraballo, Rivera asserts that
they saw each other at the local state
election commission office where they worked
for their respective parties during elections.

Moreover, in their
opposition, Plaintiffs proffered, by means of
deposition testimony, that their political
affiliations were well-known within the
Municipality of Adjuntas and its municipal
employees. Plaintiffs’ evidence portrays a
relatively small community where most everyone
knew who everyone else was and political

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 affiliations were common knowledge. In light
of all of the foregoing, this Court finds that
a reasonable jury could conclude that
Defendants knew of Plaintiffs’ political
affiliations.

We agree with the district court that based on the

information known to the plaintiffs at the time they filed their

lawsuit, the plaintiffs had a reasonable basis for believing that

they could satisfy the awareness element of their claim.

3. Adverse Employment Actions

To satisfy the third prong of the political

discrimination test, a plaintiff must show that an adverse

employment action took place. Actions short of discharge,

including a substantial alteration in responsibilities, may satisfy

the adverse employment action element. Morales-Vallellanes v.

Potter, 605 F.3d 27, 36 (1st Cir. 2010); see also Welch v. Ciampa,

542 F.3d 927, 936 (1st Cir. 2008).

The complaint alleges that "the Municipality of Adjuntas

. . . ordered the illegal transfer[s]" and the supervisory

defendants "approved the transfer to their departments and assigned

duties to the plaintiffs which were inferior to their original

duties." It is not contested that Mayor Barlucea ordered the

transfers. Plaintiffs presented no evidence that the supervisory

defendants had any part in those transfer decisions. Instead,

plaintiffs allege that the supervisory defendants, subsequent to

those transfers, discriminated against them by subjecting them to

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"inferior and unreasonable working conditions," and by implementing

policies which resulted in the assignment of inferior duties to the

plaintiffs or no work at all.

We first address the transfers ordered by the Mayor and

the claims that those transfers were actually demotions to jobs

with little or no responsibilities. We then examine the

allegations against the individual supervisory defendants.

a. Barlucea's Transfer Orders

After being transferred by the Mayor, each of the

plaintiffs performed fewer and more menial duties. That pattern is

unmistakable.

1. Myrta Torres-Santiago

Torres claims that there was no accounting work in the

Recycling Department and, as a result, she performed no duties

pertaining to what she describes as her official function. While

many of the duties nominally assigned to Torres after her transfer

to the Recycling Department were similar to those that she had

performed in the Finance Office, her supervisor, Báez, acknowledged

in his deposition that Torres did not perform those duties because

they continued to be done by Finance Office employees. Torres also

stated that, on numerous occasions, the Mayor's assistant called

the Recycling Department and said that, per the Mayor's orders,

Torres could not leave the office to get breakfast or to attend

municipal events.

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 2. Migdalia Rodríguez-Rivera

Rodríguez stated that during a meeting in January 2005,

Barlucea asked Rodríguez what her title was. After hearing her

answer, Barlucea told Rodríguez that she could not remain in the

Office of Citizens' Affairs. After her transfer to the Coliseum,

Rodríguez stated that she had no work and voluntarily resorted to

collecting trash. According to Portela, Barlucea told him that

Portela would receive Rodríguez's duties list from Claribel Pagán,3

the Personnel Director in the municipality's Human Resources

Department. Portela did not timely receive the list. In a letter

dated February 11, 2005, Rodríguez lamented to Barlucea that she

had yet to be assigned any duties. Portela stated that he

eventually went to Pagán around March 16 and secured Rodríguez's

duties list. After that date, Portela stated that Rodríguez

"coordinat[ed] and supervis[ed] the conservation and maintenance

activities of the Coliseum," including "coordinating the pick up of

solid waste." Barlucea acknowledged that prior to Rodríguez's

transfer to the Coliseum, he had visited the Coliseum and was aware

that there was no desk or office there.

3
Pagán was not a party to this action, although she was
listed on the docket as a defendant. The district court denied
plaintiffs' motion to amend the complaint to add her as a
defendant.

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 3. José Rivera-del Valle

Rivera stated that his responsibilities were diminished

significantly after Barlucea's transfer order. Despite the

numerous tasks described in Rivera's duties memorandum, he and his

supervisor Caraballo both stated in their depositions that the only

duty Rivera actually performed at the cemetery was keeping a ledger

of the burials.

b. Supervisory Defendants' Actions

We agree with the district court that the mere fact that

the supervisory defendants "approved" the plaintiffs' transfers by

accepting the placements is insufficient to show that the

supervisory defendants were involved in the transfer decision-

making process. A defendant may not be held liable for political

discrimination merely because the defendant supervises the

department to which a plaintiff alleging political discrimination

is transferred. See Ayala-Rodríguez v. Rullán, 511 F.3d 232, 236

(1st Cir. 2007). Rather, "only persons who were directly involved

in the wrongdoing may be held liable." Martinez-Vélez v.

Rey-Hernández, 506 F.3d 32, 41 (1st Cir. 2007) (quoting Kostka v.

Hogg, 560 F.2d 37, 39 (1st Cir. 1977)).

Plaintiffs' claims against the supervisory defendants go

beyond the initial transfer. They allege that the supervisory

defendants abused their positions of authority by creating inferior

and unreasonable working conditions and failing to assign the

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plaintiffs proper duties. As such, there are allegations of

continuing post-transfer adverse employment actions at the hands of

the supervisory defendants.

1. Torres and Báez

Báez stated in his deposition that he received a call

from Pagán telling him that Torres was going to be sent to the

Recycling Department. Báez stated that Pagán gave him the duties

list, which he signed and gave to Torres, telling Torres that Pagán

"gave me the assignments and duties that you have to perform."

Torres stated in her deposition that Báez gave her the list

"knowing well that none of those functions would be carried out [in

the Recycling Department]."

Torres sent a letter to Mayor Barlucea and Báez saying

that the duties assigned to her "cannot be performed and have never

been performed at the Recycling Department, but rather in . . . the

Finance [Office], and therefore, there is no work to be done."

(alteration in deposition transcript). Báez acknowledged receipt

of the letter, and stated in his deposition that he had felt it was

important to respond to the letter. He just forgot to do so. Báez

agreed that many of the listed duties were performed in the Finance

Department, he and stated that in the Recycling Department office,

"[s]ometimes I have seen [Torres] doing some things, and sometimes

I have seen her not doing anything." Despite seeing Torres doing

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nothing on numerous occasions, Báez did nothing to change the

situation.

Torres also said that the Mayor's office called the

Recycling Department numerous times to instruct that Torres could

not leave the office to, for example, get breakfast or attend

activities such as inaugurations, an apparent change in her working

conditions. She stated in her deposition that Báez told one of

Torres's co-workers that "by order of the [M]ayor to avoid

problems" neither Torres nor the co-worker was permitted to leave

the office area.

Under the circumstances described, Torres could have

reasonably believed that Báez had discretion to assign her duties

that could actually be performed at the Department of Recycling,

and he chose not to do it. However, she had no reasonable basis

for believing that Báez was responsible for the restrictions on her

leaving the office. By her own deposition, she knew that Báez was

implementing the Mayor's orders with these restrictions.

2. Rodríguez and Portela

In a letter to the Mayor dated February 11, 2005,

Rodríguez complained that she was forced to work alone, the only

telephone was in an isolated area, and she did not have an office,

desk, or chair. Rodríguez stated in her deposition that she also

made these complaints to Portela. Portela responded to Rodríguez's

complaints by letting her use the Coliseum's small ticket booth and

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a room behind it that contained a table.4 He did not provide a

chair.

Rodríguez also stated that she made numerous complaints

to Portela about ongoing political and sexual harassment of her by

the man responsible for opening the Coliseum door each morning.

She said that Portela refused to engage in a conversation on the

issue and her complaints went unaddressed.

Also, on approximately four mornings in 2005, Rodríguez

had to call Pagán from outside the Coliseum to get someone to

unlock it so that Rodríguez could get inside to begin her workday,

which, according to Rodríguez, generally consisted of sitting on a

bench with nothing to do, or collecting trash. Although Portela

said that Rodríguez never worked alone, Rodríguez's calls to Pagán

in Human Resources asking for someone to open the door suggested

otherwise.

Under the circumstances described, Rodríguez could have

reasonably believed that Portela had discretion to assign her

duties that could actually be performed at the Coliseum, and he

chose not to do it. She could also have reasonably believed that

he was responsible for the inferior working conditions that she was

experiencing, including the ongoing political and sexual harassment

by a co-worker.

4
We cannot tell from the record how much time passed between
Rodríguez's complaint and Portela's provision of a table.

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 3. Rivera and Caraballo

Caraballo stated in his deposition that he learned that

Rivera was being transferred to the cemetery during a meeting with

Pagán, who gave Caraballo a duty sheet and told him to sign it and

give it to Rivera. Although Caraballo said that he read the sheet,

he was new to the department at the time, having been there only

one month, and he did not know whether the functions listed were

carried out at the cemetery and appropriately assigned to Rivera.

Rivera stated in his deposition that the list included tasks that

could not be done at the cemetery. There is, however, no evidence

that Rivera complained to Caraballo about the diminution of his

duties. Moreover, Rivera stated in his deposition that he had a

good working relationship with Caraballo, and that he originally

intended only to sue the municipality and not Caraballo. He was

instructed by his attorney, however, that Caraballo should be

included in the complaint. This pro forma inclusion of Caraballo

in the complaint simply because he was Rivera's supervisor was

unreasonable. See Tang, 163 F.3d at 14 n.9 (stating that "the

plaintiff's reliance on a lawyer's advice is not a complete defense

to attorney's fees claims by defendants").

4. Political Affiliation as a Substantial
or Motivating Factor for the Adverse
Employment Actions

We have often observed that it is rare that a "smoking

gun" will be found in political discrimination cases. Lamboy-

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Ortiz, 630 F.3d at 240. Thus, "circumstantial evidence alone may

support a finding of political discrimination. Moreover, the

quantum of circumstantial evidence needed to prevail at trial will

be considerably greater than that which will provide a plaintiff

with reasonable grounds for filing suit." Id. (citation omitted).

While mere temporal proximity between a change of administration

and an adverse employment action is insufficient to establish

discriminatory animus, Ocasio-Hernández, 640 F.3d at 18, it is

relevant to whether political affiliation was a substantial or

motivating factor in that adverse employment decision,

Peguero-Moronta v. Santiago, 464 F.3d 29, 53 (1st Cir. 2006). Also

probative of discriminatory animus is "a politically charged

employment atmosphere occasioned by [a] major political shift . . .

coupled with the fact that plaintiffs and defendants are of

competing political persuasions." Ocasio-Hernández, 640 F.3d at

17-18 (quoting Acevedo-Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir.

1993)) (internal quotation mark omitted).

In this case, it is undisputed that each of the

plaintiffs was a prominent opponent to Barlucea's candidacy for

Mayor of Adjuntas. See Acevedo-Diaz, 1 F.3d at 69 (noting that an

"active or prominent role[] in [the party's] political activities"

may suggest political animus where "plaintiffs and defendants are

of competing political persuasions"). Moreover, as the district

court noted in its summary judgment opinion, there was a highly-

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charged political atmosphere "inasmuch as there was a political

shift in the Municipality of Adjuntas when Barlucea, a NPP member,

followed Roberto Vera Monroig, a PDP member, as Mayor." The

temporal proximity between Barlucea's inauguration and the

plaintiffs' transfers and subsequent diminution of duties and

workplace conditions is undeniable - Barlucea took office in

January 2005, and each of the plaintiffs was transferred on January

31, 2005. This evidence was sufficient to establish the reasonable

belief of the plaintiffs that their political affiliation was a

substantial or motivating factor in the decision of the Mayor to

transfer them to a job with diminished or no responsibilities,

under inferior working conditions.

The evidence relating to the political animus of the

supervisory defendants Báez and Portela includes the same

background facts, supplemented by the adverse employment actions

that Torres and Rodríguez experienced at the hands of Báez and

Portela in the form of little or no work, and Rodríguez experienced

under Portela's watch in the form of inferior working conditions.

To be sure, it would have been difficult for Torres and Rodríguez

to know at the time that they filed their complaint whether Báez

and Portela were simply carrying out the Mayor's orders, or whether

Báez and Portela had a free hand in the work assignments and

Portela in the inferior working conditions, and hence were imposing

these adverse employment actions out of their own political animus.

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Given the timing of the municipal elections, the charged political

atmosphere in the municipality, and the experiences of Torres and

Rodríguez while under the supervision of Báez and Portela, the

plaintiffs could at least have reasonably believed at the time that

they filed their lawsuit that Báez and Portela, like the Mayor,

were motivated by their own political animus in depriving Torres

and Rodríguez of meaningful work and that Portela was similarly

motivated in imposing inferior working conditions on Rodríguez.

See Gomez v. Rivera Rodriguez, 344 F.3d 103, 122 (1st Cir. 2003)

(stating that political discrimination claims "require[] proof that

the actor . . . intended to discriminate"); see also Rivera-Torres

v. Ortiz-Velez, 341 F.3d 86, 97 (1st Cir. 2003) (stating that

"subjective intent is an essential element of political

discrimination"). Whether they could substantiate that reasonable

belief through the discovery process would be another matter.

D. The Municipality's Arguments

We have concluded that there was a reasonable basis for

the plaintiffs' claims, except for Torres's inferior working

conditions claim against Báez and Rivera's claims against

Caraballo. In arguing to the contrary, the municipality asserts

that the failure of the plaintiffs' claims against the supervisory

defendants to survive summary judgment demonstrates that the claims

as a whole were frivolous. As noted, the court granted summary

judgment for Báez based on its determination that there was no

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genuine issue of material fact as to whether Báez was a member of

an opposing party. Báez had not - unlike Portela - supported

Barlucea's mayoral candidacy. The district court granted summary

judgment to Portela and Caraballo based on the plaintiffs' failure

to generate a genuine issue of material fact on the role of the

supervisors in the "acts complained of by the [p]laintiffs,

[including] the transfers, the absence of duties, the lack of

office equipment or the lack of authorization to leave the office

or attend municipal activities," which it concluded were "the

result of Barlucea's acts and/or orders."

The district court's grant of summary judgment, however,

does not mean that the diminished duties claim against Báez or the

diminished duties and inferior working conditions claims against

Portela were unreasonable at the outset of the litigation. The

standards governing summary judgment and reasonableness for

purposes of attorney's fees under § 1988 are different; "[s]imply

because the district court granted the defendants' motion for

summary judgment does not mean that the plaintiffs' action was

frivolous" or unreasonable. O'Neal v. DeKalb County, 850 F.2d 653,

658 (11th Cir. 1988). Báez's inclusion in the Mayor's cabinet,

even if he was not a member of the NPP, suggested that he now had

a political affiliation opposed to the plaintiffs'. Báez and

Portela were actively involved, at the very least, in the

implementation of policies that significantly reduced the

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responsibilities of Torres and Rodríguez and, in the case of

Portela, subjected Rodríguez to inferior working conditions that

continued even after direct complaints to Portela. Whether the

supervisory defendants' involvement was simply the implementation

of the policies of the Mayor by loyal lieutenants or involved those

defendants' own decisions based on their own political animus was

an appropriate subject for discovery. See Gomez, 344 F.3d at 122

(stating that political discrimination claims "require[] proof that

the actor . . . intended to discriminate"). After discovery was

complete, the district court concluded that there was not enough

evidence in the summary judgment record to let the case against the

supervisory defendants go forward. We do not fault the district

court's judgment on that score. There is no necessary

incompatibility between the district court's decision to grant

summary judgment to Báez and Portela and our conclusion that, at

the outset of this litigation, there was a reasonable basis for the

political discrimination claims against Báez (in part) and Portela.

The denial of summary judgment for the municipality and

Mayor, while not determinative of the reasonableness of the claims

against them, was highly probative of the reasonableness of those

claims, and the district court was wrong to conclude otherwise:

In the run of cases, . . . most claims that
would warrant an award of attorney's fees
under section 1988's relatively stringent
standards — those that are truly "frivolous,
unreasonable, or without foundation,"
Christiansburg Garment, 434 U.S. at 421 — will

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 not survive summary judgment. To overcome a
summary judgment motion, a plaintiff must
introduce evidence that creates a "genuine
issue of material fact" as to the substance of
her claims, i.e., one that "could be resolved
in favor of either party" and "has the
potential of affecting the outcome of the
case." Vera v. McHugh, 622 F.3d 17, 26 (1st
Cir. 2010) (internal quotation marks omitted).
The plaintiff's ability to make such a showing
surely reflects on the question of whether the
claim was, at the time, clearly frivolous,
unreasonable, or without foundation.

Lamboy-Ortiz, 630 F.3d at 242. Here the plaintiffs did generate

genuine issues of material fact in their case against the Mayor

that were appropriately resolved at trial. The jury found that

Torres and Rodríguez had failed to prove by a preponderance of the

evidence that Barlucea had knowledge of their political

affiliation. Rivera established that element, but the jury

determined that he had failed to prove that his political

affiliation was a substantial or motivating factor in the

employment actions against him. The jury was entitled to make

those judgments. But there was abundant evidence in the summary

judgment record that would have supported different conclusions.

E. Reasonableness of Plaintiffs' Decision to Continue to Trial
After Settlement Offer

In its fee decision, the district court awarded fees

based at least partially on the plaintiffs' refusal to accept what

the district court characterized as a "sound settlement offer."5

5
See supra Part I.

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The district court concluded that "the Plaintiffs' claim became

unreasonable thereon." The court did not explain, however, why it

concluded that the plaintiffs' rejection of the settlement offer or

any other factors made further pursuit of their claims

unreasonable. Indeed, the defendants did not argue that the court

should consider the failure to settle as a factor in assessing

whether the standards of § 1988(b) were met. Rather, the district

court sua sponte injected that factor into its decision.

As the Supreme Court explained in Christiansburg Garment,

431 U.S. at 422, "a plaintiff should not be assessed his opponent's

attorney's fees unless a court finds that his claim was frivolous,

unreasonable, or groundless, or that the plaintiff continued to

litigate after it clearly became so." The mere failure to accept

even a "sound settlement offer" does not convert a reasonable claim

into a frivolous one, and neither the municipality nor the district

court explained why the reasonable claims that we have described

had become unreasonable or groundless by the time trial approached.

See Casa Marie Hogar Geriatrico, 38 F.3d at 618 (stating that a

prevailing defendant bears the burden of "establish[ing] that the

plaintiffs' suit was totally unfounded, frivolous, or otherwise

unreasonable"). Thus, on this record, we can only conclude that

the district court's award of attorney's fees in the amount stated

constituted "a clear error of judgment." Lamboy-Ortiz, 630 F.3d at

-29-
236 (quoting Tang, 163 F.3d at 13 (internal quotation mark

omitted)).

III.

For the reasons stated, we have concluded that there was

a reasonable basis for the plaintiffs' claims against the

municipality, Mayor Barlucea, Báez (in part), and Portela when

filed, and there remained a reasonable basis for the claims against

the municipality and Mayor Barlucea throughout the trial process.

We have also concluded that the inferior working conditions claim

against Báez and the claims against Caraballo were unreasonable

when filed. Hence, the district court abused its discretion in

awarding attorney's fees to the municipality other than those that

would not have been incurred but for the inclusion of those

unreasonable claims.

In cases such as this, where there are both frivolous and

non-frivolous claims, the award must include "only . . . fees the

prevailing defendant would not have paid but for the frivolous

claim." Efron v. Mora Dev. Corp., 675 F.3d 45, 47 (1st Cir. 2012);

see also Fox v. Vice, 131 S. Ct. 2205, 2215 (2011) ("Section 1988

allows a defendant to recover reasonable attorney's fees incurred

because of, but only because of, a frivolous claim."). Any fees

that the defendant would have nevertheless incurred to defend

against non-frivolous claims may not be awarded. Fox, 131 S. Ct.

at 2215. Thus, fees incurred to defend the municipality - even if

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the work also benefitted Báez and Caraballo - are unrecoverable.

The district court may in its discretion award to defendants the

fees, if any, that are attributable solely to the additional costs

associated with the unreasonable claims against Báez and Caraballo.

We vacate the fee award and remand for a determination of

any award consistent with this decision.

So ordered. Each party shall bear its own costs.

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