United States Court of Appeals
For the First Circuit
Nos. 08-2319, 08-2320
CARMEN L. RODRÍGUEZ-GARCÍA,
Plaintiff, Appellee, Cross-Appellant,
v.
WILLIAM MIRANDA-MARÍN, MUNICIPALITY OF CAGUAS,
Defendants, Appellants, Cross-Appellees,
WILFREDO PUIG,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Lipez, Baldock* and Howard,
Circuit Judges.
Luis Pabón-Roca, with whom Grisselle González-Negrón and
Faccio & Pabón-Roca were on brief, for the Municipality of Caguas.
José Enrico Valenzuela-Alvarado, Assistant Solicitor
General, with whom Irene S. Soroeta-Kodesh, Solicitor General,
Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z.
Girón-Anadón, Deputy Solicitor General, were on brief, for William
Miranda-Marín.
Godwin Aldarondo-Girald for Carmen L. Rodríguez-García.
June 21, 2010
*
Of the Tenth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Carmen Rodríguez-García, a career
employee of the Municipality of Caguas, brought suit against Mayor
William Miranda-Marín, Vice Mayor Wilfredo Puig, and the
municipality, alleging violations of the First Amendment and Puerto
Rico law. She claimed, inter alia, that she was transferred from
her position in the Public Works Department ("Public Works")1 to
the Office of Federal Funds ("Federal Funds") in retaliation for
testimony she gave before the Puerto Rico Government Ethics Office.
In a prior appeal, we affirmed a jury verdict in favor of Puig, but
remanded for a new trial against Miranda-Marín and the
municipality. Rodríguez-García v. Municipality of Caguas
("Rodríguez II"), 495 F.3d 1 (1st Cir. 2007).2 On remand, a
magistrate judge presided over the trial by the consent of the
parties, see 28 U.S.C. § 636(c), and the jury found in Rodríguez-
García's favor and awarded her $350,000 in compensatory damages.
Miranda-Marín and the municipality appeal from the
judgment and the denial of several of their post-trial motions.
1
The title of this department (in Spanish, "Departamento de
Limpieza, Ornato y Urbanismo") has been variously translated by the
parties as "Beautification," "Ornate," "Cleaning, Beautification
and Urbanism," and "Public Works." We will refer to it as Public
Works.
2
This is actually the third time this case has come before
us. Initially, the district court granted summary judgment for
defendants on the ground that Rodríguez-García's claims were time-
barred. We vacated that decision and remanded the case for further
proceedings. See Rodríguez-García v. Municipality of Caguas, 354
F.3d 91, 100 (1st Cir. 2004) (Rodríguez I).
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Rodríguez-García cross-appeals from the grant of defendants' post-
trial motion to alter or amend the judgment, which had the effect
of preventing the recovery of double damages pursuant to a
provision of Puerto Rico law. We affirm in all respects.
I.
A. Factual Background
For the purpose of background, we recite here some of the
relevant facts in the light most favorable to the jury verdict.
Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 69 (1st Cir.
2008).3 We recount the trial evidence in more detail when we
analyze defendants' challenge to the sufficiency of the evidence.
1. Transfer
Rodríguez-García served as an executive secretary to
Luisa Flores, director of Public Works, from 1998 until her
transfer in 2000. In the course of processing incoming mail,
Rodríguez-García noticed that Flores was receiving tickets to
political fundraisers and invitations to meetings for the Popular
Democratic Party ("PDP"), the party to which the mayor and Flores
belonged. Rodríguez-García was concerned that the receipt of this
material violated ethics rules prohibiting the use of government
resources to further political campaigns. Nevertheless, she duly
logged the materials and delivered them to Flores.
3
The facts of this case substantially overlap with the facts
recounted in Rodríguez II. Where appropriate, we borrow verbatim
from our previous recitation of the facts and procedural history.
-3-
On two occasions in 1999, Rodríguez-García raised her
concerns with Flores about the receipt of political materials in
the office. Flores ignored her complaints and continued to receive
political materials; sometimes, she stapled political fundraiser
tickets to office employees' paychecks. Rodríguez-García next
raised her concerns with Roberto Carrasquillo, a distant relative
and municipal assemblyman for the Puerto Rican Independence Party
("PIP"). Carrasquillo confirmed the merits of her concerns and
reported the matter to the Puerto Rico Government Ethics Office.
Carrasquillo also denounced the complained-of practice in press
releases, newspaper columns, and media interviews.
On December 21, 1999, Rodríguez-García was summoned to
appear before the Ethics Office, where she provided sworn testimony
regarding her complaint. As part of its investigation, the Ethics
Office issued summonses to a number of other municipal employees,
including Flores, who notified Mayor Miranda-Marín that she had
been summoned.
On February 1, 2000, Flores had a discussion with
Rodríguez-García, unrelated to the Ethics Office investigation,
about the assignment of a particular job task. Rodríguez-García
left the office upset and did not come to work the following day.
When she returned on February 3, she had a heated discussion with
Flores about the missed day of work. Shortly after that
discussion, Rodríguez-García fainted and required medical
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treatment.4 On the recommendation of her doctor, she rested at
home for several weeks. On February 18, she delivered a copy of
her medical release to Human Resources and then met with Vice Mayor
Puig to discuss her absence and planned return to work. She
returned to work several days later, on February 21 or 22.
On the morning of her return, Rodríguez-García called
Puig's office to explain that she was back at the Public Works
office. She was instructed to leave Public Works and report to
Human Resources, where she was informed that she would be
transferred to another department. After initial assignment to the
Education Department, which had no work or space for her,
Rodríguez-García was transferred to Federal Funds. She had not
requested a transfer and asked to return to her position in Public
Works. Although Rodríguez-García retained the same job title and
salary in Federal Funds, her job responsibilities were
significantly reduced.
2. Attempted Reinstatement
On March 3, 2000, Rodríguez-García wrote a letter to
Human Resources requesting a written explanation for her transfer.5
In the months that followed, her attorney, Eladio Cartagena, wrote
4
Medical testimony at trial revealed that Rodríguez-García
had a history of depression and other psychological ailments and
had been prescribed a variety of medications.
5
Rodríguez-García hand-delivered her letter to Human
Resources and the office of the vice mayor.
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three letters on her behalf to Mayor Miranda-Marín, who had the
final authority to transfer and reinstate municipal employees.
Cartagena's first letter to the mayor, dated March 8, requested
Rodríguez-García's reinstatement to Public Works and suggested that
her transfer was motivated by the Ethics Office complaint.
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 transfer of Mrs.
[Rodríguez-García]." The letter stated that the transfer had been
made at Rodríguez-García's request, that it was considered a
temporary transfer, and that "we would have no inconvenience in
newly reinstating Mrs. [Rodríguez-García] to her former position"
in Public Works.
Cartagena sent a second letter to the mayor on April 10
requesting the offered reinstatement. A copy of the letter was
also sent to Heriberto Martínez, director of the Legal Advisor's
Office. In a conversation on April 10, Martínez informed Cartagena
that Rodríguez-García's reinstatement was pending and there would
be a meeting between the personnel department and Rodríguez-
García's supervisor in Public Works, Flores. Cartagena sent a
third letter to Miranda-Marín dated May 31, informing him that, on
the basis of the offered reinstatement, Rodríguez-García had met
with the interim Human Resources director and the director of
Public Works and they had refused to reinstate her. The May 31
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letter further notified the mayor of Rodríguez-García's intention
to file a civil action based on the retaliatory transfer and
refusal to reinstate her.
Later that year, in September 2000, Rodríguez-García
happened upon Mayor Miranda-Marín in a public square. She
approached him, grabbed his arm, shook him, and asked about her
case. He asked what was happening to her. Before she could
elaborate, she was escorted away by his assistants.
In October 2000, Rodríguez-García filed a petition
against the municipality and Flores in the Superior Court of Puerto
Rico.6 Cartagena spoke to the press about the suit, explaining
Rodríguez-García's allegations that she had been unlawfully
transferred in retaliation for her Ethics Office complaint.
Miranda-Marín responded to Rodríguez-García's claims in a
television interview.
On June 27, 2001, Rodríguez-García wrote to Miranda-Marín
a final time, complaining that she lacked significant work
responsibilities and was depressed. She entreated him to resolve
her complaint and reinstate her to her former position. She was
never reinstated to her position at Public Works. She remained in
6
The petition was subsequently amended to include a political
discrimination claim; the amended petition did not include Flores
as a defendant as she had died in the interim. Rodríguez-García
later filed and was granted a voluntary dismissal of the petition
without prejudice.
-7-
her position at Federal Funds until sometime in 2003, when she was
transferred to the Department of Building Conservation.
B. Procedural History
On November 7, 2001, Rodríguez-García filed this action
in federal court against the municipality, Mayor Miranda-Marín, and
Vice Mayor Puig. She alleged that the defendants transferred and
refused to reinstate her because of her political affiliation and
in retaliation for her testimony before the Ethics Office, in
violation of the First Amendment and Puerto Rico law. She brought
her federal law claims pursuant to 42 U.S.C. §§ 1981, 1983 and
1985.
In August 2004, the district court granted partial
summary judgment to defendants, dismissing Rodríguez-García's
political discrimination claim and her claims under §§ 1981 and
1985. In December 2004, Rodríguez-García proceeded to trial on her
surviving retaliation claim. In a pretrial evidentiary ruling, the
court ruled that Cartagena's March 8, April 10 and May 31 letters
to the mayor, and the March 27 letter in response, could be offered
as evidence only for the limited purpose "of negating defendants'
contention that plaintiff herself requested a transfer," and not as
evidence of the mayor's knowledge of Rodríguez-García's claim. At
the close of Rodríguez-García's case, the court granted judgment as
a matter of law to Miranda-Marín in his personal capacity under
Federal Rule of Civil Procedure 50(a), concluding that the
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remaining evidence was insufficient as a matter of law to establish
that the mayor knew of Rodríguez-García's employment situation, and
therefore he could not be held personally liable for her transfer
or nonreinstatement.
At the trial's conclusion, the jury found in favor of
Puig, rejecting Rodríguez-García's claim that the vice mayor had
taken an adverse employment action against her. However, the jury
found that she had established municipal liability for that adverse
employment action and awarded her $285,000 in damages. The court
granted the municipality judgment as a matter of law under Federal
Rule of Civil Procedure 50(b), finding the verdict inconsistent
with Rodríguez-García's theory at trial that municipal liability
derived from Puig's retaliatory acts.7
On appeal, we affirmed the jury verdict in favor of Puig,
but held that the court erred in dismissing the case against
Miranda-Marín based on its erroneous limitation on the use of the
letters between attorney Cartagena and the mayor. Rodríguez II,
495 F.3d at 14. As we explained, if the letters had been correctly
admitted as evidence of his knowledge of Rodríguez-García's
complaint and the mayor's personal involvement in addressing it,
"she would have had a basis for arguing that the mayor knew about
7
The court noted that Rodríguez-García had also pursued a
theory of municipal liability based on Miranda-Marín's conduct, but
that the court had dismissed the claims against the mayor on his
Rule 50(a) motion.
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and was directly involved in the disposition of her transfer and
the failure to remedy it." Id. at 13. We therefore granted
Rodríguez-García's request for a new trial against the mayor and,
because municipal liability could be premised on the mayor's
liability, against the municipality as well. Id. at 14.
Prior to the start of the second trial, Miranda-Marín and
the municipality (hereafter, "defendants") filed a motion in limine
requesting that the jury be instructed that Puig took no adverse
employment action against Rodríguez-García, based on the jury
verdict in the first trial. The court denied the motion.
Defendants also filed a motion in limine arguing that Rodríguez-
García should be barred from presenting a claim under Puerto Rico
Law 115, P.R. Laws Ann. tit. 29, § 194a, because, inter alia, she
had waived that claim by not pursuing it in the first trial. Law
115, which prohibits discrimination against employees for offering
testimony before a legislative, administrative or judicial forum,
provides that "[t]he employer's liability regarding the damages and
the unearned salaries shall be double the amount determined as
having caused the violation" of this provision. P.R. Laws Ann.
tit. 29, § 194a(a), (b). The court denied the motion, concluding
that Rodríguez-García could proceed to trial on her Law 115 claim.
At the close of Rodríguez-García's case, defendants moved
for judgment as a matter of law under Rule 50(a), which the court
denied. The jury returned a verdict in her favor against both the
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mayor and the municipality and awarded Rodríguez-García $350,000 in
compensatory damages for emotional pain and suffering. The court
doubled the damages award pursuant to Law 115, issuing a judgment
against defendants in the amount of $700,000.
In post-trial motions, defendants challenged both the
verdict and the damages award. Defendants filed a renewed motion
for judgment as a matter of law under Rule 50(b), contending that
the evidence was insufficient to support a finding of liability as
to either the mayor or the municipality. Defendants also moved for
a new trial and for remittitur of the damages award under Federal
Rule of Civil Procedure 59, contending that the court erred in
refusing to give the requested jury instruction as to Puig and that
the $350,000 damages award was excessive. Finally, defendants
moved to alter or amend the judgment under Rule 59(e) on the ground
that Rodríguez-García had waived her Law 115 claim and therefore
the court should not have doubled the jury award.8
The court denied defendants' motions for judgment as a
matter of law, a new trial, and remittitur, but granted their
motion under Rule 59(e) on the ground that Rodríguez-García had
8
Defendants' motion for a new trial under Rule 59 focused on
the requested jury instruction and the damages award. Although the
motion contained a conclusory statement that the verdict was
against the weight of the evidence, it made no argument on this
point. Accordingly, the trial court treated defendants' motion for
judgment as a matter of law as raising a challenge to the
sufficiency of the evidence, and their motion for a new trial as
raising challenges to the damages award and the court's refusal to
give the requested jury instruction.
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waived her Law 115 claim. Accordingly, it entered an amended
judgment in the amount of $350,000.
Miranda-Marín and the municipality appeal, contending
that (1) the evidence was insufficient to support the finding of
liability, (2) the court erred in failing to give the requested
jury instruction as to Puig, and (3) the damages award was grossly
excessive. As a result, defendants argue, the court erred in
denying their motions under Rules 50(b) and 59 for judgment as a
matter of law, a new trial, and remittitur. Rodríguez-García
cross-appeals, contending that she did not waive her Law 115 claim
and therefore the court erred in granting defendants' Rule 59(e)
motion to amend the judgment.
II.
A. Standard of Review
We review the denial of a renewed motion for judgment as
a matter of law de novo as to questions of law. Valentín-Almeyda
v. Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006). As
to matters of fact, we view the evidence "in the light most
favorable to the verdict, making no determinations of our own as to
the credibility of witnesses or the weight of the evidence,
reversing only if a reasonable person could not have reached the
conclusion of the jury." Id. at 95-96 (internal quotation marks
and citation omitted). We review the denial of a motion for a new
trial for abuse of discretion. Jennings v. Jones, 587 F.3d 430,
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436-37 & n.7 (1st Cir. 2009). The district court "has the power
and duty to order a new trial whenever, in its judgment, the action
is required in order to prevent injustice." Id. at 436 (quotation
marks and citation omitted). We likewise review the denial of a
motion for remittitur for abuse of discretion, reversing only if
"the jury's verdict exceeds any rational appraisal or estimate of
the damages that could be based on the evidence before the jury."
Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 13 (1st
Cir. 2009) (internal quotation marks and citation omitted).
B. Sufficiency of the Evidence
Defendants contend that the court erred in concluding
that there was sufficient evidence to sustain the jury's finding
that defendants retaliated against her for speaking out against the
receipt of political materials in her office.9
"Public employees do not lose their First Amendment
rights to speak on matters of public concern simply because they
are public employees." Curran v. Cousins, 509 F.3d 36, 44 (1st
Cir. 2007). Instead, "[t]he First Amendment prevents the
government, except in the most compelling circumstances, from
wielding its power to interfere with its employees' freedom to
9
Such a violation of First Amendment rights by a state actor
is actionable under section 1983, which imposes liability on any
person who, under color of state law, "subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws . . . ." 42 U.S.C. § 1983.
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believe and associate, or to not believe and not associate." Rutan
v. Repub. Party of Ill., 497 U.S. 62, 76 (1990). We have
articulated a three-part test for determining whether a challenged
employment action violated a public employee's First Amendment
right to freedom of speech. First, the court examines "'whether
the employee spoke as a citizen on a matter of public concern.'"
Curran, 509 F.3d at 45 (quoting Garcetti v. Ceballos, 547 U.S. 410,
418 (2006)). Second, the court must "balance . . . the interests
of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees." Id. at 44 (quoting Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968)). Third, the employee must "show that the
protected expression was a substantial or motivating factor in the
adverse employment decision." Id. at 45. If the employee
demonstrates that the speech was a substantial or motivating factor
in the employer's retaliatory action, the employer may avoid
liability by showing that it would have reached the same decision
even absent the protected conduct. Id. This is the so-called Mt.
Healthy defense. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977).
Defendants primarily contend that the evidence presented
at trial is insufficient to support the jury finding that (1)
Rodríguez-García suffered an adverse employment action sufficient
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to support her § 1983 claim, (2) defendants would not have taken
the same adverse employment action in the absence of her protected
conduct, (3) the mayor is personally liable for retaliation under
§ 1983, and (4) the municipality is liable under § 1983. We
address each challenge in turn.10
1. Adverse Employment Action
Actions short of dismissal or demotion, including denials
of promotions, transfers, and failures to recall after layoff, can
constitute adverse employment actions. Rutan, 497 U.S. at 75; see
also Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 19 (1st
Cir. 2008). Employment actions are sufficiently adverse to support
a First Amendment § 1983 claim "if those actions, objectively
evaluated, would 'place substantial pressure on even one of thick
skin to conform to the prevailing political view.'" Bergeron v.
10
Defendants also claim that Rodríguez-García's sworn
testimony before the Ethics Office does not constitute speech on a
"matter of public concern," see Connick v. Myers, 461 U.S. 138, 146
(1983), because Carrasquillo, not Rodríguez-García, initiated the
complaint with the Ethics Office. Defendants did not raise this
argument in the district court, in either their Rule 50(a) or 50(b)
motions, and it is therefore waived. See Parker v. Gerrish, 547
F.3d 1, 12 (1st Cir. 2008) (issue is waived on appeal if not
pressed in Rule 50 motion). Defendants also direct our attention
to Garcetti, in which the Supreme Court held that "when public
employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their
communications from employer discipline." 547 U.S. at 421.
However, defendants make no effort to explain how Garcetti applies,
if at all, to the facts of this case, and we thus deem this
argument waived for lack of appellate development. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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Cabral, 560 F.3d 1, 8 (1st Cir. 2009) (quoting Agosto-de-Feliciano
v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc)),
abrogated on other grounds by Maldonado v. Fontanes, 568 F.3d 263
(1st Cir. 2009). This standard is met "when the employer's
challenged actions result in a work situation 'unreasonably
inferior' to the norm for the position." Agosto-de-Feliciano, 889
F.2d at 1218; see also id. at 1218, 1220 (explaining that
factfinder must "canvass the specific ways in which the plaintiff's
job has changed" and "determine whether the employee has retained
duties, perquisites and a working environment appropriate for his
or her rank and title").
Emphasizing that Rodríguez-García did not receive a
reduction in salary or change in job title when she was transferred
to Federal Funds, defendants contend that the evidence does not
support a finding that her transfer and nonreinstatement amounted
to an adverse employment action. We disagree. Although she
retained the same job title and salary after her transfer to
Federal Funds, her job duties and working environment were
substantially altered. In Public Works, a large, active office,
Rodríguez-García had a variety of job responsibilities including
logging incoming mail, maintaining the director's schedule,
organizing files, taking dictation, creating letters, and working
with other departments on human resources and administrative
matters. After her transfer to Federal Funds, a small office that
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already had an executive secretary, Rodríguez-García had few tasks
assigned to her. Although she occasionally scanned the newspaper
for announcements of Federal Funds proposals, opened incoming mail,
made photocopies, or answered the phone if the other executive
secretary was absent, she spent most of her time doing nothing.
She could not assist in many office tasks, such as performing
Internet searches and taking dictation in English, because she was
not proficient in English, and she could not compete for employment
awards or bonuses because she performed few job duties. In
addition, she was assigned to work in a windowless storage area
alongside cleaning materials and inactive files. A reasonable jury
could conclude that these assignments and working conditions were
unreasonably inferior to the norm for Rodríguez-García's position
of executive secretary.11
2. Mt. Healthy Defense
Defendants do not contend that Rodríguez-García failed to
establish that her protected conduct was a substantial or
motivating factor in the adverse employment decision. Instead,
they argue that no reasonable jury could have rejected their Mt.
Healthy affirmative defense. A defendant seeking the protection of
11
Defendants also suggest, based largely on the testimony of
the director of Federal Funds, Gilberto Charriez, that Rodríguez-
García performed many job tasks in Federal Funds and seemed happy
in her position there. However, the jury was free to credit
Rodríguez-García's description of her working conditions and reject
Charriez's conflicting testimony.
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the Mt. Healthy defense bears the burden of persuasion "to prove by
a preponderance of the evidence that the adverse employment action
would have been taken 'even in the absence of the protected
conduct.'" Guilloty Perez v. Pierluisi, 339 F.3d 43, 56 (1st Cir.
2003) (quoting Mt. Healthy, 429 U.S. at 287). Thus, even if the
defendant's actions were motivated in part by the plaintiff's
protected conduct, the defendant can still prevail if he or she can
show that the protected conduct was not the "but-for" cause of the
adverse action. Rodríguez-Marín v. Rivera-González, 438 F.3d 72,
81 (1st Cir. 2006).
Defendants argue that the evidence conclusively
established that Rodríguez-García would have been transferred even
absent her involvement in the Ethics Office investigation. Their
Mt. Healthy defense relies primarily on testimony from Vice Mayor
Puig. Puig testified that in early February 2002, Rodríguez-García
came to his office distraught and informed him that she had had a
heated argument with Flores and did not want to return to Public
Works and that, for health reasons, her doctor had recommended that
she be transferred out of that department. Puig further testified
that he then arranged for her transfer to accommodate this request.
Rodríguez-García presented a different account of her
transfer. She testified at trial that she had not requested the
transfer, her doctor had not recommended it for health reasons, and
she preferred to stay in her position in Public Works. She also
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offered the letters she and her attorney had sent to Human
Resources and Mayor Miranda-Marín shortly after her transfer, which
sought an explanation for the transfer and requested reinstatement
to her position in Public Works. Given this conflicting evidence,
a reasonable jury could find that Rodríguez-García's testimony
before the Ethics Office, and not her purported transfer request,
was the but-for cause of the transfer.12 We conclude that the jury
could reasonably reject defendants' Mt. Healthy defense.13
3. Personal Liability of Mayor Miranda-Marín
Although government officials "'may not be held liable
for the unconstitutional conduct of their subordinates under a
theory of respondeat superior,'" Sanchez v. Pereira-Castillo, 590
F.3d 31, 49 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009)), officials may be held liable "if the plaintiff can
12
In addition, there is no evidence indicating that Rodríguez-
García's repeated requests for reinstatement between February 2000
and 2003 would have been refused even in the absence of her
protected conduct.
13
Defendants also suggest that, under the second prong of our
test outlined above, the First Amendment interests in this case are
outweighed by a legitimate government interest in curtailing
plaintiff's speech. See Pickering, 391 U.S. at 568. However,
instead of addressing the nature of Rodríguez-García's speech and
why they had legitimate interests in curtailing it, defendants
simply reiterate their contention that Rodríguez-García was
transferred at her own request rather than in retaliation for her
Ethics Office complaint. This contention relates to defendants'
motivation for the adverse employment action, not to the balancing
of employee speech and government interests. To the extent that
defendants intend to raise a distinct argument under Pickering, it
is deemed waived for lack of appellate development. Zannino, 895
F.2d at 17.
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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," Rodríguez II, 495
F.3d at 10 (internal quotation marks and citation omitted). Under
either a direct or indirect theory of liability, "the plaintiff
must show that the official had actual or constructive notice of
the constitutional violation." Id. (citing 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, 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.")).
Defendants maintain that the mayor cannot be held
personally liable because he knew nothing about Rodríguez-García's
Ethics Office complaint, her claim that she was transferred in
retaliation for that complaint, or her request for reinstatement
until after this action was filed in federal court. However, ample
evidence supports a finding to the contrary. The jury heard
evidence that Rodríguez-García's attorney sent at least three
letters to Miranda-Marín regarding her transfer and request for
reinstatement, dated March 8, April 19, and May 31, 2000. Human
Resources responded to the March 8 letter, stating that the letter
had been referred by the mayor and that Rodríguez-García would be
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reinstated. In addition, Rodríguez-García herself sent a letter to
the mayor dated June 27, 2001, again complaining of her transfer
and requesting reinstatement. Defendants insist that the mayor
never personally received any of these letters, pointing to
evidence that correspondence addressed to the mayor was routinely
diverted to the appropriate municipal office or department before
reaching him. However, as we determined in Rodríguez II, whether
the mayor personally received the letters sent to him is "a factual
question appropriate for jury determination," id. at 13, and here
the jury heard the evidence and rejected the mayor's claim of lack
of notice.
Furthermore, apart from Rodríguez-García's letters to the
mayor, the record contains additional evidence that the mayor was
aware of the Ethics Office investigation, her claim of retaliatory
transfer, and her request for reinstatement. Sometime after
Rodríguez-García testified before the Ethics Office in December
1999, Flores informed Miranda-Marín that she had been summoned by
the Ethics Office, and the mayor offered to help her secure legal
representation. In September 2000, Rodríguez-García confronted the
mayor in a public square, grabbed him, and asked what he intended
to do about her case. In October 2000, Rodríguez-García filed a
lawsuit against the municipality in Superior Court, alleging that
her transfer and nonreinstatement were in retaliation for her
Ethics Office complaint. Shortly thereafter, the mayor commented
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on Rodríguez-García's lawsuit in a television interview.14 Although
the mayor testified at trial that he remained unaware of Rodríguez-
García's employment situation or the subject of her complaint
despite these events, the jury was free to reject that testimony.
Thus presented, the evidence adduced at trial is
sufficient to sustain the imposition of § 1983 liability on the
mayor for his own direct acts or omissions with respect to
Rodríguez-García's nonreinstatement. See id. A reasonable jury
could find that Miranda-Marín had knowledge of the Ethics Office
investigation, had knowledge of Rodríguez-García's claim that she
was transferred and deprived of duties in retaliation for her
testimony before the Ethics Office, and received her repeated
requests for reinstatement. Moreover, as mayor, Miranda-Marín had
final authority over transfers and reinstatements of municipal
employees. Nevertheless, the mayor declined to reinstate
Rodríguez-García to her position in Public Works in response to her
repeated requests.
4. Liability of the Municipality
As with government officials, a municipality cannot be
held liable for the constitutional violations of municipal
employees on a respondeat superior theory. Monell v. Dep't of Soc.
14
Miranda-Marín asserted that the lawsuit was part of a scheme
by Rodríguez-García's lawyer, who had appeared in an earlier
political commercial against the mayor, and that Rodríguez-García
was related to Carrasquillo, who allegedly had a personal agenda
against the mayor.
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Servs., 436 U.S. 658, 691 (1978). Instead, liability attaches to
a municipality under § 1983 "only if the violation occurs pursuant
to an official policy or custom." Welch v. Ciampa, 542 F.3d 927,
941 (1st Cir. 2008). A plaintiff can establish an official policy
"by showing that the alleged constitutional injury was caused by
. . . a person with final policymaking authority." Id.; see also
Rodríguez II, 495 F.3d at 13 ("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 liability."). Although liability may not be
imposed on a municipality for a single instance of misconduct by an
official without final policymaking authority, liability may be
imposed on a municipality for "a single decision by a final
policymaker." Welch, 542 F.3d at 942 (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986)).15
We have recognized on a number of occasions that "mayors
in Puerto Rico are the government officials ultimately responsible
for employment decisions of the municipality." Rodríguez II, 495
F.3d at 13 (quotation marks and citations omitted); see also
Acevedo-Garcia v. Monroig, 351 F.3d 547, 553 n.1 (1st Cir. 2003)
(noting that under Puerto Rico law, mayors of municipalities have
15
Relying on our decision in Fabiano v. Hopkins, 352 F.3d 447
(1st Cir. 2003), defendants suggest that a single incident of
misconduct cannot expose a municipality to § 1983 liability. We
squarely rejected this same argument in Welch. See 542 F.3d at
942.
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the power to appoint and remove municipal officials and employees,
and thus mayor's "employment decisions ipso facto constituted the
official policy of the municipality" (internal quotation marks and
citation omitted)). Therefore, liability can be imposed on the
municipality for Miranda-Marín's own direct acts or omissions with
respect to Rodríguez-García.16
C. Requested Jury Instruction as to Vice Mayor Puig
Recounting what happened in the first jury trial in this
case, defendants contend that the court erroneously declined to
instruct the jury in the second trial that Vice Mayor Puig had not
taken an adverse employment action against Rodríguez-García.
Following that first trial, in which Puig and the municipality were
defendants, the jury rejected Rodríguez-García's claim that the
vice mayor had taken an adverse employment action against her.
Presented with a special jury verdict form that asked, "Did
Plaintiff establish by preponderance of the evidence that defendant
Wilfredo Puig took adverse employment action against her?", the
jury answered in the negative. Prior to the second trial,
defendants Miranda-Marín and the municipality invoked collateral
16
Defendants further contend that the mayor is entitled to
qualified immunity because he did not cause any violation of a
constitutional right. In support of this position, defendants
simply reiterate their contentions that Rodríguez-García was
transferred based on her own request and not in retaliation for her
Ethics Office testimony and that the mayor had no knowledge of her
transfer and request for reinstatement. As discussed above, ample
evidence supports a jury finding to the contrary on both of these
points.
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estoppel and moved that the court instruct the jury that Puig took
no adverse employment action against Rodríguez-García. The court
denied the motion in limine in a thorough written order, concluding
that the requested instruction would likely confuse and unduly
influence the jury and would not promote judicial economy because
closely related issues remaining in the case would require that
much of the same evidence be presented to the jury.
Collateral estoppel, now often called issue preclusion,
prevents a party from relitigating issues that have been previously
adjudicated. Enica v. Principi, 544 F.3d 328, 336 (1st Cir. 2008).
The doctrine serves the twin goals of "protecting litigants from
the burden of relitigating an identical issue" and "promoting
judicial economy by preventing needless litigation." Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Collateral
estoppel may be applied where "(1) the issue sought to be precluded
in the later action is the same as that involved in the earlier
action; (2) the issue was actually litigated; (3) the issue was
determined by a valid and binding final judgment; and (4) the
determination of the issue was essential to the judgment." Ramallo
Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86 (1st Cir. 2007).
In the past, courts "adhered to the doctrine of
'mutuality of estoppel,' which ordained that 'unless both parties
(or their privies) in a second action are bound by a judgment in a
previous case, neither party (nor his privy) in the second action
-25-
may use the prior judgment as determinative of an issue in a second
action.'" Acevedo-Garcia, 351 F.3d at 573 (quoting Blonder-Tongue
Labs. v. Univ. of Ill. Found., 402 U.S. 313, 320-21 (1971)).
However, mutuality is no longer strictly required for the
application of collateral estoppel in federal courts. Fiumara v.
Fireman's Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir. 1984).
Instead, the central question is "whether a party has had a full
and fair opportunity for judicial resolution of the same issue."
Id. Nonmutual collateral estoppel may be invoked either
offensively, by a plaintiff who "seeks to foreclose the defendant
from litigating an issue the defendant has previously litigated
unsuccessfully in an action with another party," or, as in this
case, defensively, by a defendant who "seeks to prevent a plaintiff
from asserting a claim the plaintiff has previously litigated and
lost against another defendant." Parklane Hosiery, 439 U.S. at 326
n.4; see id. at 329-32. We have also recognized that collateral
estoppel is "no longer limited to ultimate issues: necessary
intermediate findings can now be used to preclude relitigation."
Biggins v. Hazen Paper Co., 111 F.3d 205, 210 (1st Cir. 1997); see
also Restatement (Second) of Judgments § 27, cmt. j (1982).
Rodríguez-García makes two arguments in support of the
court's decision not to apply collateral estoppel. First, she
argues that collateral estoppel cannot be applied in this case
because the parties in the two proceedings were not identical.
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This argument is foreclosed by the precedent permitting defensive
nonmutual collateral estoppel. Second, Rodríguez-García argues
that the issue litigated and decided in the first trial, whether
Vice Mayor Puig took an adverse employment action against her, is
not the same as the issue to be decided in the second trial,
whether Mayor Miranda-Marín is personally liable for the alleged
retaliation.
As we explained in Rodríguez II, Miranda-Marín could be
held liable either based on his own "direct acts or omissions,"
that is, his direct participation in the unconstitutional conduct,
or based on his indirect "condonation or tacit authorization" of
unconstitutional conduct by his subordinates. 495 F.3d at 10
(internal quotation marks omitted); see also Whitfield v. Meléndez-
Rivera, 431 F.3d 1, 14 (1st Cir. 2005). A finding of liability
under the former theory, that Miranda-Marín directly participated
in the refusal to reinstate Rodriguez-Garcia, would not depend in
any way on whether the vice mayor took an adverse employment action
against her. However, a finding of liability under the latter
theory, that Miranda-Marín condoned or tacitly authorized an
adverse employment action taken by a subordinate such as Vice Mayor
Puig, could require the jury to decide precisely the same issue
that was decided by the jury in the first trial -- whether the vice
mayor took an adverse employment action against Rodríguez-García.
-27-
Here, although the special verdict form used in the
second trial does not indicate whether the jury found Miranda-Marín
liable on a direct or indirect theory of liability, we can be
reasonably sure that the jury found the mayor liable on a direct
liability theory.17 Rodríguez-García's theory of liability at the
second trial was that Miranda-Marín was directly involved in her
nonreinstatement, not that the mayor condoned or tacitly authorized
any alleged adverse action by Puig. She offered evidence that
Miranda-Marín had the ultimate authority to transfer and reinstate
municipal employees, knew that she had been transferred in
retaliation for her Ethics Office complaint, knew of her repeated
requests for reinstatement, and nevertheless refused to reinstate
her. She did not offer any evidence that Puig received her
17
The special verdict form used in the second trial asked the
jury whether they found "by a preponderance of the evidence that
plaintiff's transfer, or failure to be reinstated, resulted from
Mayor William Miranda Marín's direct acts or omissions, or from his
indirect conduct that amounted to condonation or tacit
authorization." Thus, the verdict form does not indicate whether
the jury found the mayor liable on a direct or indirect theory of
liability. Where a general verdict or special verdict question
encompasses multiple claims or multiple theories of liability, one
of which is unsupported by the evidence or otherwise defective, "a
new trial is usually warranted." See Mass. Eye & Ear Infirmary v.
QLT Phototherapeutics, Inc., 552 F.3d 47, 73 (1st Cir. 2009); see
also David v. Rennie, 264 F.3d 86, 105-06 (1st Cir. 2001).
However, this rule is "by no means rigid;" instead, "we apply a
generous harmless error analysis in order to determine whether it
is reasonably likely that the jury in fact relied on a theory with
adequate evidentiary support." Mass. Eye & Ear, 552 F.3d at 73.
Rodríguez-García's evidence and argument at trial focused entirely
on a direct rather than an indirect theory of liability.
Therefore, it is reasonably likely that the jury relied on a direct
theory of liability, a theory amply supported by the evidence.
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requests for reinstatement or was involved in the decision not to
reinstate her. As the trial court explained in its order denying
defendants' motion for a new trial:
Defendants overstate the importance of Puig's
actions as they relate to plaintiff's theory
of the case as it was presented through
evidence in the second trial. . . . Although
there was evidence (elicited mainly by the
defendants) that Puig authorized plaintiff's
initial transfer in February 2000, no evidence
was presented that Puig received any of
plaintiff's requests for reinstatement, or
that he was involved in any decision not to
reinstate her from February 2000 until early
2003; rather, the evidence presented at trial
indicated that all such requests were made to
Miranda-Marín and were referred to the head of
Human Resources.
Rodríguez-García's opening and closing arguments similarly focused
on the mayor's direct participation in Rodríguez-García's
nonreinstatement, rather than any indirect authorization of alleged
adverse actions by Puig. Thus, a finding of liability under the
theory Rodríguez-García pressed at the second trial, that the mayor
was directly involved in the decision not to reinstate her, is
consistent with the jury verdict in favor of Puig in the first
trial.
Moreover, "[n]onmutual issue preclusion is not available
as a matter of right." 18A Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice & Procedure § 4465 (2d ed.
2010). Instead, a district court may refuse to apply nonmutual
collateral estoppel when, for example, its application "would badly
-29-
distort matters" before the jury, Biggins, 111 F.3d at 210 (citing
Federal Rule of Evidence 403), or would "not result in efficiency
gains because litigation of the 'live' issue may require
introduction of some of the same evidence pertinent to the estopped
issues," Acevedo-Garcia, 351 F.3d at 577. Although, as defendants
point out, Biggins and Acevedo-Garcia involved offensive nonmutual
collateral estoppel, concerns about juror confusion and judicial
economy are relevant to defensive nonmutual collateral estoppel as
well. See 18A Wright, Miller & Cooper, supra, at § 4465 ("Whatever
values may be gained by nonmutual preclusion are substantially
diminished when the need to try related issues requires
consideration of much the same evidence as bears on the issue
tendered for preclusion. . . . Beyond the lack of time saving,
moreover, preclusion on one issue while closely related issues must
be tried may substantially distort decision of the issues that
remain open." (footnote omitted)); Restatement (Second) of
Judgments § 29(6).
The district court carefully weighed the merits of the
requested jury instruction and concluded that it was not
appropriate in this case. Citing Federal Rule of Evidence 403, the
court found that the requested instruction could lead the jury to
make improper inferences as to related issues remaining in the
case, such as whether Rodríguez-García's transfer or
nonreinstatement constituted an adverse employment action, whether
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she was transferred at her own request rather than in retaliation
for her protected activity, and whether municipal actors other than
the vice mayor took an adverse employment action against her. The
court further found that the instruction would not promote judicial
economy because these remaining, closely intertwined issues would
require introduction of much of the same evidence at trial. In
view of the court's well-supported concerns about juror confusion
and judicial economy, we conclude that the court did not err in
refusing to instruct the jury that Vice Mayor Puig had not taken an
adverse employment action against Rodríguez-García.
D. Damages
Finally, defendants argue that the trial court erred in
declining to reduce the damages award, asserting that the award was
grossly excessive. The jury awarded Rodríguez-García $350,000 in
compensatory damages for her emotional pain and suffering.
We may overturn a damages award only if it is "grossly
excessive or so high as to shock the conscience of this court."
Valentín-Almeyda, 447 F.3d at 103. We accord "broad discretion to
the trial court's decision to affirm the jury's award of damages
because of that court's greater familiarity with local community
standards and with the witnesses' demeanor at the trial." Id.
(quotation marks and citation omitted). Damages for pain and
suffering, in particular, "defy exact mathematical computation and
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are not susceptible to proof by a dollar amount." Acevedo-Garcia,
351 F.3d at 571 (internal quotation marks and citations omitted).
At trial, Rodríguez-García and her psychiatrist, Dr.
Julio Fontanez, testified at length about the suffering she endured
as a result of her transfer and nonreinstatement. Rodríguez-García
explained that the lack of duties in her new position made her feel
"very bad," "depressed," "like I was nothing, like I wasn't there.
. . . I continued being Executive Secretary 1, but I wasn't that.
In practice, I wasn't that. And they let me know that everyday,
having me there." The transfer affected her home life as well,
causing her to "withdr[a]w from my family, from my children, my
daily life. From my mother, my family. I wanted to be alone,
withdrawn, just thinking. . . . I tried to get away . . . from what
was me."
Dr. Fontanez, who treated Rodríguez-García from July 1997
until December 2002, testified that her psychological condition
deteriorated over this period. Although Rodríguez-García had
typical symptoms of depression as of 1997, over time her condition
grew "more acute," requiring increased medication and, beginning in
June 2000, repeated hospitalizations. Fontanez testified to
Rodríguez-García's recurring complaints about her work situation
after the transfer, and identified that situation as an important
factor in her deteriorating condition.
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In light of this evidence, we cannot say that the court
abused its discretion in affirming the damages award. Although
generous, the award of $350,000 was not grossly excessive or so
high as to shock the conscience. Moreover, this award is similar
to noneconomic compensatory damages awards we have upheld in other
employment discrimination and retaliation contexts. See, e.g.,
Monteagudo v. Asociación de Empleados del Estado Libre Asociado de
P.R., 554 F.3d 164, 174-75 (1st Cir. 2009) (upholding $333,000
damages award in sexual harassment case where plaintiff testified
that she suffered from depression, cried every evening and was
unable to sleep); McDonough v. City of Quincy, 452 F.3d 8, 22 (1st
Cir. 2006) (affirming $300,000 damages award in Title VII
retaliation case, "the bulk" of which was for emotional distress in
the form of humiliation and damage to reputation and family
relationships).
III.
In her cross-appeal, Rodríguez-García contends that the
court erred in concluding that she waived her claim under Law 115.
Law 115 prohibits an employer from discriminating against an
employee for offering testimony before a legislative,
administrative or judicial forum in Puerto Rico and, importantly,
provides for double damages for a violation of this provision. 29
P.R. Laws Ann. tit. 29, § 194a(a), (b).
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Following our decision in Rodríguez II remanding the case
for a new trial against the mayor and municipality, Rodríguez-
García raised a Law 115 claim in the joint proposed pretrial order
("2007 pretrial order"). Defendants objected, arguing that she had
waived this claim by failing to include it in the joint pretrial
order filed by the parties and approved by the court prior to the
first trial ("2004 pretrial order"). The court concluded that
Rodríguez-García could proceed to trial on her Law 115 claim, and
it subsequently doubled the $350,000 compensatory damages award
pursuant to that provision. However, on defendants' post-judgment
motion to alter or amend the judgment under Rule 59(e), the court
determined that its prior ruling was in error. In a written order,
the court thoroughly analyzed the record and concluded that
Rodríguez-García had waived her Law 115 claim by not including it
in the 2004 pretrial order or successfully moving to modify the
order, and she had not shown any manifest injustice that would
result from not permitting her to modify the 2004 pretrial order to
include this claim. The court then entered an amended judgment in
the amount of $350,000.
We review the court's decision on a Rule 59(e) motion for
abuse of discretion. See Negrón-Almeda v. Santiago, 528 F.3d 15,
25 (1st Cir. 2008). A final pretrial order "is intended to
'control the subsequent course of the action,' and can be modified
only 'to prevent manifest injustice.'" Correa v. Hosp. San
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Francisco, 69 F.3d 1184, 1195 (1st Cir. 1995) (quoting Fed. R. Civ.
P. 16(e)). Therefore, "[a]n appellate court should not lightly
relieve a litigant from the condign consequences of its failure to
list a theory . . . at that critical stage of the proceedings,"
id., and "issues not included in the final pretrial order are
generally waived," id. (citing Ramirez-Pomales v. Becton Dickinson
& Co., 839 F.2d 1, 3 (1st Cir. 1988)).
As the court explained in its detailed order granting
defendants' Rule 59(e) motion, even assuming that Rodríguez-
García's complaint adequately raised a Law 115 claim,18 she waived
that claim by failing to include it in the 2004 proceedings. In
the 2004 pretrial order, Rodríguez-García raised several claims
arising under Puerto Rico law,19 but did not assert a Law 115 claim
and did not request double damages. Defendants noted this
omission, stating in the pretrial order that Rodríguez-García had
18
Rodríguez-García's complaint contained one mention of Law
115, invoking supplemental jurisdiction "for causes of action
arising under the Puerto Rico Constitution and laws of the
Commonwealth of Puerto Rico, among them, Act 115 . . . ."
However, the complaint's asserted causes of action included several
claims arising under Puerto Rico law, but did not include a claim
under Law 115. The complaint's prayer for relief likewise did not
request double damages under Law 115, although it generally
requested "all damages to which [Rodríguez-García] is entitled."
19
In the 2004 pretrial order, in addition to her federal law
claims, Rodríguez-García asserted claims under Article II, §§ 1, 6
and 7 of the Puerto Rico Constitution; the Puerto Rico Public
Service Personnel Act, Act No. 5 of Oct. 14, 1975, P.R. Laws Ann.,
tit. 3, §§ 1301-1323 (repealed Aug. 3, 2004); and Articles 1802 and
1803 of the Puerto Rico Civil Code, P.R. Laws Ann., tit. 31, §§
5141, 5142.
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not sought a remedy under Law 115. Thereafter, Rodríguez-García
made no objection to the language of the 2004 pretrial order and
did not seek to modify the order prior to the first trial.
Furthermore, at the first trial, the court rejected her attempt to
proceed under Law 115. After the close of evidence, Rodríguez-
García argued to the court that Law 115's three-year statute of
limitations governed the action. However, defense counsel argued
that "this is not a Law 115 case" and opposed any attempt by
plaintiff to amend her complaint to include a Law 115 claim. The
court agreed, ruling that "they are not amending their case to be
Law 115."20
Rodríguez-García takes issue with the trial court's
analysis, contending that she did not waive her Law 115 claim prior
to the first trial. She points to statements in the 2004 pretrial
order, by the judge during the first trial, and in our opinion in
Rodríguez II, that refer to her claims under "state law" or "Puerto
Rico law." See, e.g., Rodríguez II, 495 F.3d at 2, 6. For
example, the court instructed the jury in the first trial that
plaintiff's claim "under Puerto Rico law" was "identical for all
practical purposes to the federal claim," and if the jury found
defendants liable under federal law, they would also be liable
20
The following day, Rodríguez-García objected to the jury
instructions, requesting an instruction under Law 115. The court
did not rule on this objection, and Rodríguez-García did not raise
the issue again.
-36-
under Puerto Rico law. However, as noted above, the complaint and
the 2004 pretrial order expressly included several claims arising
under Puerto Rico law. There is nothing to suggest that the
statements Rodríguez-García points to, which refer generally to
state or Puerto Rico law, encompassed Law 115.
In sum, we conclude that the court's determination that
Rodríguez-García waived her Law 115 claim, and that its earlier
ruling to the contrary was erroneous, was not an abuse of
discretion. See Ruiz-Rivera v. Pfizer Pharmaceuticals, LLC, 521
F.3d 76, 81-82 (1st Cir. 2008) (a court may grant a Rule 59(e)
motion "where the movant shows a manifest error of law or newly
discovered evidence" (quotation marks and citation omitted)).
IV.
For the foregoing reasons, the judgment is affirmed.
Each party shall be responsible for its own costs.
So ordered.
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Rodriguez-Garcia v. Miranda-Marin
Court: Court of Appeals for the First Circuit
Date filed: 2010-06-21
Citations: 610 F.3d 756
Copy Citations