United States Court of Appeals
For the First Circuit
No. 08-1098
TERESITA MERCADO-BERRIOS,
Plaintiff, Appellee,
v.
MARÍA CANCEL-ALEGRÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille Vélez-Rivé, U.S. Magistrate Judge]
Before
Lipez, Baldock,* and Howard,
Circuit Judges.
Laura Maldonado-Rodríguez, with whom Saul Roman Santiago was
on brief, for appellee.
Susana I. Peñagarícano-Brown, 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 appellant.
June 30, 2010
*
Of the Tenth Circuit, sitting by designation.
LIPEZ, Circuit Judge. This case involves claims for
political discrimination and speech retaliation in violation of the
First Amendment. Plaintiff Teresita Mercado-Berrios worked as a
transitory government employee in Puerto Rico. Toward the end of
her term of employment, she applied for, and was denied, a
permanent position. She subsequently filed suit under the Civil
Rights Act of 1871, 42 U.S.C. § 1983, alleging that defendant María
Cancel-Alegría, who was responsible for the hiring decision,
violated the First Amendment by considering her political
affiliation and protected speech activity in the hiring decision.
After a six-day trial, the jury returned a verdict for Mercado-
Berrios on both theories, awarding her $213,000 in compensatory
damages and $1,000,000 in punitive damages.
Cancel-Alegría now challenges both the imposition of
liability and the amount of damages. Considering the arguments
that Cancel-Alegría has made, and disregarding others that might
have been made but were not, we affirm the judgment as to the
speech retaliation claim and compensatory damages, reverse as to
the political discrimination claim, vacate the punitive damages
award, and remand to the district court for a new trial on punitive
damages unless Mercado-Berrios consents to a reduction of her award
from $1,000,000 to $500,000.
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I.
We draw the facts from the trial record, reciting them in
the light most favorable to the verdict. Marcano Rivera v. Turabo
Medical Ctr. P'ship, 415 F.3d 162, 165 (1st Cir. 2005).
The basic factual outline is not in dispute. Plaintiff
Teresita Mercado-Berrios' former employer, the Puerto Rico Tourism
Company ("the Tourism Company" or "the Company"), is a public
corporation of the Commonwealth of Puerto Rico. P.R. Laws Ann.
tit. 23, § 671a. Mercado-Berrios began work as a transitory
employee within the Company's Tourism Transportation Division on
June 9, 2003. By contract, her term of employment was set to last
for six months. Defendant María Cancel-Alegría was the Company's
Director of Tourism Transportation at the time.
The Tourism Transportation Division was a new addition to
the Tourism Company when Mercado-Berrios began work. In 2002, the
Legislative Assembly of Puerto Rico assigned the Company
responsibility for "[r]egulating, investigating, overseeing,
intervening and imposing sanctions to those juridical persons or
entities engaged in rendering tourist ground transportation
services in the Commonwealth of Puerto Rico." P.R. Laws Ann. tit.
23, § 671e(12). The Tourism Transportation Division was created to
perform those new duties. Cancel-Alegría began working in March of
2003 as the only employee within the new division. Because she had
only three months to bring the new division to full operational
-3-
capacity, she initially hired many employees on a transitory basis.
She explained that transitory appointments have "a birth date and
an ending" and are exempt from the ordinary public notice and
competitive entrance requirements for civil service positions.
Mercado-Berrios was one such transitory employee. She
left her former job to work for six months as a Tourism
Transportation Officer within the Overseeing Division of the
Tourism Transportation Division.1 She claims that she was promised
that she would be hired on a permanent basis at the end of her
transitory appointment. The Tourism Transportation Officers worked
in the operational arm of the Tourism Transportation Division,
which was known as the Overseeing Division. Their duty stations
were primarily at ports and airports. Mercado-Berrios worked at
Luis Muñoz Marín International Airport, where her basic
responsibilities were to inspect luxury vehicles and taxis for
compliance with Commonwealth safety regulations; to check those
vehicles' documentation; to orient tourists regarding ground
transportation services; to handle transportation-related
complaints; and to submit daily reports on the work she performed.
Several layers of management separated Mercado-Berrios from Cancel-
Alegía, and the two women had little contact with one another.
1
Mercado-Berrios ended up serving for seven months. In
December of 2003, the Executive Director of the Tourism Company
extended the transitory appointments for one month because
permanent employees had not yet been hired.
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Cancel-Alegría described the Overseeing Division as "the most
delicate area" under her supervision because of the constant
interaction between her employees and the tourists, drivers, and
airport personnel.
By all accounts, Mercado-Berrios was a conscientious
employee who vigorously enforced the safety regulations within her
purview. Her supervisors' reviews were consistently glowing. The
luxury vehicle and taxi drivers received her efforts with less
enthusiasm, however. On several occasions, drivers became angry
with Mercado-Berrios for performing inspections in what they
perceived to be an overly aggressive manner. The luxury vehicle
drivers, in particular, were not accustomed to close scrutiny, and
they pressured the Tourism Company to rein in Mercado-Berrios and
the other Tourism Transportation Officers.
In December of 2003, two supervisors instructed the
Tourism Transportation Officers to "hold your horses" and stop
issuing citations to luxury vehicles that were not in compliance
with the safety regulations. The officers understood the
instruction to have come from Cancel-Alegría. Mercado-Berrios
complained to William Ríos-Vázquez, a shift supervisor, that she
was "uncomfortable" with the new policy because she thought it
reflected "a lack of respect" for the work she and her co-workers
were performing, and because the lax enforcement would put "the
tourist, who is the person that is paying for service, his life was
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at risk." She made similar complaints to two other employees:
Cesar Ramos, a shift supervisor, and Julia Palacios, an attorney.
Around the same time, Mercado-Berrios and a number of her
transitory co-workers applied for permanent positions as Tourism
Transportation Officers. There was testimony that all the
transitory employees expected to be appointed to permanent
positions as long as their performance was satisfactory. However,
on January 16, 2004, one day after the transitory appointments
expired, Mercado-Berrios was told that she would not be appointed
to a permanent position and should turn in her identification to
the Human Resources Office. Cancel-Alegría later testified that
she decided not to recommend Mercado-Berrios for a permanent
position because
there were so many complaints that had been
received in the way that she performed the
interventions, that we really couldn't afford
the luxury of -- well, the clientele that we
deal with in transportation, I always say that
it is like a minefield. Well, in this case
that would happen could certainly, as we
Puerto Ricans say, could set off the beehive.
So I didn't need personnel that would add more
of a situation -- I didn't need more personnel
to add more situations to the ones that they
already had.
The following year, Mercado-Berrios commenced an action
in the District of Puerto Rico under 42 U.S.C. § 1983, naming
Cancel-Alegría and others as defendants.2 Mercado-Berrios alleged
2
The district court entered judgment as a matter of law
for the other defendants. That ruling is not challenged in the
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that Cancel-Alegría chose not to appoint her to a permanent
position because of her political views and in retaliation for
complaining about the "hold your horses" instruction, all in
violation of the First Amendment. After a six-day trial, the jury
returned a verdict for Mercado-Berrios on both claims. The jury
awarded Mercado-Berrios $113,000 for lost income and benefits,3
$100,000 for pain and suffering, and $1,000,000 in punitive
damages. The district court denied Cancel-Alegría's motions for
judgment as a matter of law and her motion for a new trial and/or
remittitur. This appeal followed.
II.
We review the district court's denial of a motion for
judgment as a matter of law de novo. Mass. Eye and Ear Infirmary
v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir. 2009).
A Rule 50 motion is properly granted when "'the facts and
inferences viewed in the light most favorable to the verdict point
so strongly and overwhelmingly in favor of the movant that a
reasonable jury could not have returned the verdict.'" Id.
(quoting Borges Colón v. Román-Abreu, 438 F.3d 1, 14 (1st Cir.
2006)).
present appeal.
3
This portion of the award constitutes legal damages
rather than an equitable award of backpay and frontpay. See
Negrón-Almeda v. Santiago, 528 F.3d 15, 26-27 (1st Cir. 2008).
-7-
As framed in the district court's instructions and the
verdict form, the question before the jury was whether Cancel-
Alegría's decision not to hire Mercado-Berrios to a permanent
position was motivated by impermissible considerations. The jury
found that two such considerations entered into the hiring
decision. First, it found that Cancel-Alegría discriminated
against Mercado-Berrios based on Mercado-Berrios' "political
beliefs or ideas." Second, it found that Cancel-Alegría retaliated
against Mercado-Berrios because of Mercado-Berrios' "speech
activity."
Each of these findings implicates a distinct line of
First Amendment cases. Under the first line of cases, government
officials are forbidden from taking adverse action against public
employees on the basis of political affiliation or belief, unless
political loyalty is an appropriate requirement of the position in
question. See Welch v. Ciampa, 542 F.3d 927, 938-39 (1st Cir.
2008). The second line of cases "call[s] for a different, though
related, inquiry" when a public employee's speech, rather than her
political affiliation or belief, is at issue. O'Hare Truck Serv.,
Inc. v. City of Northlake, 518 U.S. 712, 719 (1996). The basic
rule in such cases is that government officials may not take
adverse action against a public employee for speaking "as a citizen
on a matter of public concern" unless there is "an adequate
justification for treating the employee differently from any other
-8-
member of the general public." Curran v. Cousins, 509 F.3d 36, 45
(1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)).
A. Political Discrimination
The essence of Mercado-Berrios' political discrimination
claim is that she was not hired for a permanent position because
she was an insufficiently zealous supporter of the Popular
Democratic Party ("PDP"), as evidenced by her refusal to buy or
sell PDP event tickets and her failure to secure an endorsement
from a PDP politician.4 The jury agreed, finding that her
"political beliefs or ideas were a substantial or motivating
factor" in Cancel-Alegría's hiring decision. Cancel-Alegría
attacks that finding on appeal, arguing that the evidence does not
support the jury's conclusion. Having carefully reviewed the trial
record, we agree with Cancel-Alegría.
Several former employees testified that the Tourism
Transportation Division was highly politicized, especially during
the period between October 2003 and the general election in
November 2004. Nearly every employee within the Tourism
Transportation Division, including Mercado-Berrios and Cancel-
Alegría, was affiliated with the PDP. According to William Ríos-
4
Neither party disputes that Cancel-Alegría's decision not
to hire Mercado-Berrios to a permanent position constitutes an
adverse employment action for purposes of the First Amendment
claims at issue here. See Morales-Tañon v. P.R. Elec. Power Auth.,
524 F.3d 15, 19 (1st Cir. 2008).
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Vázquez, a shift supervisor, it was widely acknowledged that
"political backing" from a PDP member of the Legislative Assembly
was an "important" factor in Tourism Transportation Division
appointments. Additional testimony revealed that certain employees
within the Tourism Transportation Division pressured their co-
workers to participate in, or purchase tickets to, PDP events.
Although there was no evidence that Cancel-Alegría
personally pressured her employees, there was testimony that much
of the political activity took place in close physical proximity to
Cancel-Alegría's office, that Cancel-Alegría spoke "about political
activities and fund raising activities" on at least one work-
related occasion, and that some of the political activity within
the Tourism Transportation Division benefitted Cancel-Alegría's
brother, a local senator. The jury could reasonably have inferred
from this evidence that Cancel-Alegría was aware of, tacitly
approved of, and perhaps even encouraged the partisan political
activity within her department.
Nevertheless, "a politically charged atmosphere . . .,
without more, provide[s] no basis for a reasonable inference that
defendant['s] employment decisions about plaintiff were tainted by
[her] disregard of plaintiff's first amendment rights." LaRou v.
Ridlon, 98 F.3d 659, 661-62 (1st Cir. 1996) (quoting
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir.
1990)). Even when it is clear that the defendant has a political
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agenda or harbors political biases, it remains the plaintiff's
burden to produce evidence of a causal connection between those
biases and the challenged employment action. Such evidence can be
direct or circumstantial, and it can come in a wide variety of
forms. Cf. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.
1991) (noting in age discrimination and retaliation case that
sources of circumstantial evidence of retaliation "include, but are
not limited to, evidence of differential treatment in the
workplace, statistical evidence showing disparate treatment,
temporal proximity of an employee's protected activity to an
employer's adverse action, and comments by the employer which
intimate a retaliatory mindset") (internal citations omitted).
Whatever form the evidence takes, however, it must be sufficiently
probative to support a finding that the plaintiff's "protected
activity or status was a 'substantial or motivating factor' in the
[employment] decision, that is, that the protected activity or
status was an impetus for, or moved the employer towards, the
[employment] decision." Costa-Urena v. Segarra, 590 F.3d 18, 25
(1st Cir. 2009).
Mercado-Berrios failed to adduce sufficient evidence of
this sort. Most importantly, there was no evidence that Cancel-
Alegría was aware of Mercado-Berrios's refusal to buy and sell
raffle tickets and to attend PDP events. The two women rarely
encountered one another, and they never had any private
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conversations, let alone politically-oriented discussions or
interactions. In addition, nothing suggests that Mercado-Berrios's
political beliefs were so widely known that she would have been a
"conspicuous target[]" for discriminatory action. Acevedo-Díaz v.
Aponte, 1 F.3d 62, 69 (1st Cir. 1993). In the absence of proof
that Cancel-Alegría knew of Mercado-Berrios's unwillingness to
participate in PDP political activity, it is difficult to see how
that unwillingness could have been a substantial or motivating
factor in Cancel-Alegría's hiring decision. See Carrasquillo v.
Puerto Rico ex rel. Justice Dep't, 494 F.3d 1, 5 (1st Cir. 2007)
("[I]f Jiménez did not know Carrasquillo's political views, they
could not have been a substantial factor motivating any adverse
employment action.").
The numerical evidence does not buttress Mercado-
Berrios's position. Of the twenty-two transitory employees who
applied for permanent positions, twelve were not hired.5 Yet
Mercado-Berrios never attempted to show that those who were hired
were more politically active than those who were not hired. Cf.
Rodríguez-Ríos v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998)
(plaintiff presented evidence that a reorganization resulted in
"seven PDP-member demotions, with no evidence that any NPP member
was either demoted or discharged"). Although comparative evidence
5
In total, two hundred fifty people applied for twenty
permanent positions.
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is not necessary, it can be helpful in a case like this where there
is little else to suggest that the plaintiff was, or was likely to
be, targeted for her political views.
Mercado-Berrios contends that Cancel-Alegría's stated
reason for not hiring her -- that she was too aggressive with the
taxi and limousine drivers -- was pretextual. There is no evidence
of pretext, however. By all accounts, Mercado-Berrios was not
hired because her conscientious job performance upset the limousine
drivers, who were not accustomed to close scrutiny. In this
regard, she is partly a victim of her own success on the speech
retaliation claim. She presented strong evidence that Cancel-
Alegría chose not to hire her because she enforced the safety
regulations too vigorously and because she complained about the
efforts to rein her in. The strength of that evidence highlights
the absence of any evidence that her political orientation was an
additional factor motivating Cancel-Alegría's hiring decision.
The most favorable testimony from Mercado-Berrios's
perspective came from Eileen Ramos, the head of Human Resources at
the Tourism Company, who flatly stated that Cancel-Alegría took
political considerations into account in her hiring decisions:
Q: Now, there has been testimony here
today that Ms. Cancel did not at any
time take political considerations to
make a recommendation for a position.
What do you have to say about that?
COURT: In relation to a career position,
correct?
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Q: In relation to the career positions at
the Tourism Transportation Division for
the tourism transportation officer
position.
A: I would say that's not true.
Q: Why?
A: Well, because the career positions that
were posted for tourist transportation
officer and other positions in that
office, well, the human resources
office didn't have any participation in
the selection of those candidates.
Well, in the hiring, meaning in the job
announcement, et cetera, yes, we did
have participation. But in the
selection process, that was done in the
Division of Tourist Transportation
office, in that department. They made
a panel, interviewing panel to
interview the people, but we didn't
have any participation in the
selection.
Although this evidence gives us pause, we conclude that
it falls short of providing a sufficient evidentiary basis for a
jury finding in Mercado-Berrios's favor. Ramos concluded that
politics must have been taken into account because the Human
Resources department had been improperly excluded from the hiring
process. But that impression was conclusory and speculative. By
her own admission, Ramos had no personal knowledge of the decision-
making process. Thus, her opinion is too thin a reed on which to
rest the entire jury verdict. Without more, we cannot say that it
was reasonable for the jury to conclude that Mercado-Berrios's
political beliefs were a substantial or motivating factor in
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Cancel-Alegría's decision not to hire her.6 We therefore reverse
the judgment as to Mercado-Berrios's political discrimination
claim.
B. Retaliation for Speech
In addition to political discrimination, the jury found
that Cancel-Alegría refused to hire Mercado-Berrios because she had
vocally resisted efforts to stop the safety inspections of luxury
vehicles. "Official reprisal for protected speech offends the
Constitution [because] it threatens to inhibit exercise of the
protected right, and the law is settled that as a general matter
the First Amendment prohibits government officials from subjecting
an individual to retaliatory actions . . . for speaking out."
Hartman v. Moore, 547 U.S. 250, 256 (2006) (internal quotation
marks and citations omitted). The general rule holds true in the
public employment context: the government is largely forbidden from
taking adverse action against its employees in retaliation for
6
In resisting this conclusion, Mercado-Berrios relies
heavily on Gutiérrez-Rodríguez v. Cartagena, a due process police
brutality case in which we discussed the standard of causation
under section 1983. See 882 F.2d 553, 561 (1st Cir. 1989) (holding
that police officers could be held liable for unconstitutional
shooting because they "directed and participated in the acts that
led to the shooting"). That case is not illuminating here. There
is substantial evidence that Cancel-Alegría exercised direct
control over the hiring decisions for the Tourism Transportation
Division. If there were proof that the decision not to hire
Mercado-Berrios to a permanent position was motivated by her
political affiliation, Cancel-Alegría could be held liable for
having directly "subject[ed]" Mercado-Berrios to a deprivation of
constitutional rights. 42 U.S.C. § 1983.
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their protected speech. See Rankin v. McPherson, 483 U.S. 378,
383-84 (1987).
However, in recognition of the government's interest in
running an effective workplace, the protection that public
employees enjoy against speech-based reprisals is qualified.
Retaliatory employment actions do not violate the First Amendment
if: (1) the speech in question was "made pursuant to the employee's
official duties," Garcetti v. Ceballos, 547 U.S. 410, 413 (2006);
or (2) the speech did not touch on a "matter of public concern,"
Connick v. Myers, 461 U.S. 138, 146 (1983); or (3) the interest of
the government as an employer in "promoting the efficiency of the
public services it performs" outweighs the interest of the employee
in "commenting upon matters of public concern," Pickering v. Board
of Education, 391 U.S. 563, 568 (1968). Cancel-Alegría invokes on
appeal the first of these exceptions, relating to speech made
pursuant to the employee's official duties.7
In Garcetti v. Ceballos, the Supreme Court held that "the
First Amendment does not prohibit managerial discipline based on an
employee's expressions made pursuant to official responsibilities."
7
Cancel-Alegría makes several remarks in her brief that
could be taken as allusions to other exceptions. For example, she
says that any restriction on Mercado-Berrios' speech was justified
because the Tourism Company's "interest was to intervene with firm
hands, but courteous and that the user be the priority." That may
be a reference to the Pickering balancing test. The argument is
not developed, however, and we therefore deem it waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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547 U.S. at 424. The relevant inquiry under Garcetti thus has two
basic components -- (1) what are the employee's official
responsibilities? and (2) was the speech at issue made pursuant to
those responsibilities? -- both of which are highly context-
sensitive. See Foley v. Town of Randolph, 598 F.3d 1, 7, 9 (1st
Cir. 2010) (emphasizing that the context of the plaintiff's speech
was "critical to [the] analysis" and that the holding was "limited
to the particular facts of this case"). Moreover, in identifying
the employee's job responsibilities, the proper inquiry is
"practical" rather than formal, focusing on "the duties an employee
actually is expected to perform."8 Garcetti, 547 U.S. at 424-25.
Cancel-Alegría focuses her argument on the daily incident
reports in which Mercado-Berrios recorded her interventions with
taxis and luxury vehicles. She contends that those reports are not
protected by the First Amendment because Mercado-Berrios created
and submitted them pursuant to her duties as a Tourism
Transportation Officer. That is undoubtedly correct, as Mercado-
Berrios herself acknowledged at trial. But as Mercado-Berrios has
repeatedly made clear -- in her testimony, in her opening statement
8
As we recently emphasized, this does not mean that the
employer must have expressly required the employee to speak. See
Foley, 598 F.3d at 6; see also Weintraub v. Bd. of Educ., 593 F.3d
196, 203 (2d Cir. 2010). Many employees enjoy significant
discretion in determining what actions ought to be taken "pursuant
to" their job responsibilities. The voluntary or discretionary
aspect of their actions does not exempt them from employer control.
See Foley, 598 F.3d at 7.
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and closing argument at trial, in her opposition to the Rule 50(b)
motion, and in her brief on appeal -- the incident reports are not
the basis for her retaliation claim. Rather, her claim is that
Cancel-Alegría retaliated against her for complaining about her
superiors' interference with the performance of her job duties.
The relevant question is whether those complaints were made
pursuant to her official responsibilities.
That is not an easy question to answer. On the one hand,
Mercado-Berrios's complaints were not made "pursuant to" her job
duties in the most literal sense. Her responsibilities as a
Tourism Transportation Officer were limited to inspecting vehicles,
conducting safety interventions, reporting regulatory violations
and interventions, and assisting passengers. The record contains
no hint that her superiors at the Tourism Company expected her to
raise broad policy and safety concerns in carrying out her official
duties. Indeed, Cancel-Alegría expressed frustration at Mercado-
Berrios' tendency to venture beyond her narrow responsibilities.
Garcetti can be read to suggest that unofficial
communications that are not "part of what [the plaintiff] . . . was
employed to do," like Mercado-Berrios's complaints, fall outside
the scope of its rule. 547 U.S. at 421. The Supreme Court was
deliberate in its choice of words. It referred thirteen times to
speech made "pursuant to" an employee's job duties, most notably in
its statements of the question presented and the holding. Id. at
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413, 421. Elsewhere, it described the relevant class of speech in
similar terms.9 The Court did not expressly indicate that it meant
to sweep more broadly and include, for example, all speech that
relates to, contributes to, or incidentally facilitates the
performance of official functions.
On the other hand, some of the considerations identified
in Garcetti, such as the importance of "affording government
employers sufficient discretion to manage their operations," id. at
422, may suggest a wider scope. Several courts of appeals,
focusing on those cues, have construed the decision to cover all
speech made "during the course of performing an official duty" that
"reasonably contributes to or facilitates the employee's
performance of [an] official duty." Brammer-Hoelter v. Twin Peaks
Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007); see also
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.
2007) (per curiam) ("Activities undertaken in the course of
performing one's job are activities pursuant to official duties.").
On that view, complaints like Mercado-Berrios's might be
unprotected, since they could be said to facilitate job performance
by removing (or attempting to remove) an obstacle. The D.C.
9
For example, the Court referred to speech that "owes its
existence to a public employee's professional responsibilities,"
547 U.S. at 421; speech that the employer "has commissioned or
created," id. at 422; speech that the employee "was paid to" make,
id.; speech that the employee's "duties . . . required him to"
make, id.; speech that amounts to the employee's "work product,"
id.; and speech that is an "official communication[]," id. at 423.
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Circuit has explicitly embraced such a view. See Winder v. Erste,
566 F.3d 209, 215 (D.C. Cir. 2009) ("[W]e have consistently held
that a public employee speaks without First Amendment protection
when he reports conduct that interferes with his job
responsibilities, even if the report is made outside his chain of
command.").
In short, there are strong arguments that the "pursuant
to official duties" doctrine of Garcetti does not apply to Mercado-
Berrios's complaints to her superiors, but there are also strong
arguments to the contrary. Cancel-Alegría has addressed none of
this complexity, focusing only on the daily incident reports filed
by Mercado-Berrios despite ample notice of the basis for Mercado-
Berrios's speech retaliation claim. Even after Mercado-Berrios
again clarified her position in her brief to this court, Cancel-
Alegría declined to file a reply brief. We will not do a party's
work for her. Consequently, we will not address arguments on
appeal that Cancel-Alegría might have made, but did not make, about
the application of Garcetti to Mercado-Berrios's complaints.10 See
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) ("[A]
litigant has an obligation to spell out its arguments squarely and
distinctly or else forever hold its peace.") (internal quotation
marks and citation omitted). Because Cancel-Alegría has not
10
We also will not address Cancel-Alegría's qualified
immunity argument, which simply refers back to her misguided merits
argument.
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contested the sufficiency of the evidence, or made any other
argument attacking the speech retaliation claim, the judgment is
affirmed as to that claim.
III.
Cancel-Alegría's final argument is that the damages award
is excessive and should have been reduced by the district court.11
"[T]he measure of damages in section 1983 actions is a matter of
federal common law." Figueroa-Rodriguez v. Aquino, 863 F.2d 1037,
1045 (1st Cir. 1988) (citing Carey v. Piphus, 435 U.S. 247, 257-59
(1978), and Sullivan v. Little Hunting Park, Inc., 396 U.S. 229,
238-40 (1969)). Although punitive damages awards are subject to
constitutional limits as well, see, e.g., State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408 (2003), Cancel-Alegría has not
argued that the award in this case exceeds those limits. We
therefore limit our review to whether the award is excessive as a
matter of federal common law. See Hardeman v. City of Albuquerque,
377 F.3d 1106, 1122 (10th Cir. 2004) (applying common law standard
because constitutional argument had been forfeited). Under the
traditional common law standard, a district court will not disturb
the jury's compensatory or punitive damages award unless the award
is "'grossly excessive,' 'inordinate,' 'shocking to the conscience
11
She also argues that the district court should have
granted a new trial because the verdict was against the weight of
the evidence. The district court did not abuse its discretion in
denying that request.
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of the court,' or 'so high that it would be a denial of justice to
permit it to stand.'"12 Wagenmann v. Adams, 829 F.2d 196, 215, 216
(1st Cir. 1987) (quoting Segal v. Gilbert Color Sys., Inc., 746
F.2d 78, 80-81 (1st Cir. 1984)); see also 1 Sheldon H. Nahmod,
Civil Rights & Civil Liberties Litigation §§ 4:12, 4:45 (4th ed.
2009). We, in turn, review the district court's denial of
remittitur for abuse of discretion. See McDonough v. City of
Quincy, 452 F.3d 8, 22 (1st Cir. 2006) (citing Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 433 (1996)).
A. Compensatory Damages
The jury awarded Mercado-Berrios $113,000 for "loss of
earnings, salaries, and benefits" and $100,000 for "emotional pain
and suffering." With respect to the lost earnings, the following
facts were either stipulated to or supported by the evidence at
trial: Mercado-Berrios earned $2,400 per month as a Tourism
Transportation Officer; she left the Tourism Company in January of
2004; she earned approximately $900 per month in a secretarial
position from March of 2004 until October of 2004; she earned less
than $10,000 in 2005; she earned no income in 2006; and she paid
approximately $1,000 per year in medical expenses that would
12
Because Cancel-Alegría has not raised the issue, we do
not consider what effect, if any, the Supreme Court's decision in
Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), has had on our
section 1983 damages jurisprudence. Cf. Mendez v. County of San
Bernardino, 540 F.3d 1109, 1122 (9th Cir. 2008); Kunz v. DeFelice,
538 F.3d 667, 678 (7th Cir. 2008).
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otherwise have been covered by her government benefits plan. She
also testified that, as of the trial date in 2007, she remained
unable to find steady work. On those facts alone, Mercado-Berrios
lost approximately $71,000 in income and benefits in the three
years after her departure from the Tourism Company.
Cancel-Alegría presented no evidence to suggest that
these figures are inflated or that Mercado-Berrios unreasonably
failed to mitigate her damages. Even factoring in taxes,
accounting for the likelihood that Mercado-Berrios would eventually
find steady employment, and discounting the estimated stream of
future income to its present value, cf. Jones & Laughlin Steel
Corp. v. Pfeifer, 462 U.S. 523 (1983), we conclude that the jury's
award for lost earnings was reasonable. See Segal, 746 F.2d at 81
("Even in cases . . . which involve only economic loss, review must
proceed with great deference for the jury's assessment: 'the jury
is free to select the highest figures for which there is adequate
evidentiary support.'" (quoting Kolb v. Goldring, Inc., 694 F.2d
869, 872 (1st Cir. 1982))).
The award for pain and suffering is likewise reasonable.
We have recognized that "converting feelings such as pain,
suffering, and mental anguish into dollars is not an exact science.
The jury is free 'to harmonize the verdict at the highest or lowest
points for which there is a sound evidentiary predicate, or
anywhere in between . . . so long as the end result does
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not . . . strike such a dissonant chord that justice would be
denied were the judgment permitted to stand.'" Correa v. Hosp. San
Francisco, 69 F.3d 1184, 1198 (1st Cir. 1995) (quoting Milone v.
Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988)). Mercado-
Berrios testified at length about the mental and emotional distress
she suffered as a consequence of her departure from the Tourism
Company. For example, she told the jury that she suffered from so
much stress that she was unable to sleep, that her relationships
with friends and extended family suffered, and that she eventually
had to seek the help of a psychologist. In light of the evidence,
we do not find the jury's award "to cross the outer limit of the
wide universe of acceptable awards." Id.
B. Punitive Damages
Because Cancel-Alegría did not challenge the availability
of punitive damages below, our review of the award is for
excessiveness only. Also, as noted earlier, we will conduct our
review under the traditional common law excessiveness standard
rather than the Due Process excessiveness standard. The standard
is the same as for compensatory damages: the award should not be
disturbed unless it is "'grossly excessive,' 'inordinate,'
'shocking to the conscience of the court,' or 'so high that it
would be a denial of justice to permit it to stand.'" Wagenmann,
829 F.2d at 215, 216; Hardeman, 377 F.3d at 1122. "[T]he amount of
such an award is, in the first instance, committed to the
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discretion of the nisi prius court," Wagenmann, 829 F.2d at 216,
and we review the district court's excessiveness determination for
abuse of discretion only. See Cooper Indus., Inc. v. Leatherman
Tool Group, Inc., 532 U.S. 424, 433 (2001) ("If no constitutional
issue is raised, the role of the appellate court, at least in the
federal system, is merely to review the trial court's determination
under an abuse-of-discretion standard.") (internal quotation marks
and citation omitted).
The $1,000,000 award was likely intended to punish
Cancel-Alegría both for considering Mercado-Berrios's political
affiliation and for considering Mercado-Berrios's protected speech
in the refusal to hire her for a permanent position. The alleged
political discrimination cannot form the basis for a punitive
damages award, however, because it was unsupported by the evidence.
The question is thus whether an award of $1,000,000 for speech
retaliation is excessive under the circumstances of this case. We
conclude that it is.
The conduct in question was undoubtedly reprehensible.
Mercado-Berrios testified at trial that there were "taxi drivers
and chauffeurs who [were] not complying with the rules and the
traffic laws, putting at risk the lives of human beings." In
lashing out at an employee for bringing those safety concerns to
light, Cancel-Alegría chilled the free flow of information relating
to passenger safety and thereby increased the risk that innocent
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passengers would be harmed. Cf. Philip Morris USA v. Williams, 549
U.S. 346, 355 (2007) (noting that risk of harm to the public may be
taken into account in measuring reprehensibility).
At the same time, the retaliation against Mercado-Berrios
appears to have been an isolated incident. No other speech-based
employment actions were taken against Mercado-Berrios, and there is
no evidence that Cancel-Alegría acted similarly against other
employees. It is also clear that the award in this case is large
for a First Amendment claim in the public employment context. Cf.,
e.g., Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 84 (1st Cir.
2006) ($195,000 in punitive damages); Rivera-Torres v. Ortiz Velez,
341 F.3d 86, 102 (1st Cir. 2003) ($250,000 in punitive damages).
Unfortunately, few recent cases provide direct guidance
on this issue. Courts rarely apply the common law excessiveness
standard to punitive damages awards these days, since aggrieved
defendants now commonly invoke the arguably stricter due process
standard. The Tenth Circuit's decision in Hardeman v. City of
Albuquerque is perhaps most on point. The jury in that case found
that the defendant mayor denied the plaintiff a contractual
severance package worth approximately $40,000 because of the
plaintiff's association with African-American groups. 377 F.3d at
1112. The jury awarded $1,000,000 in punitive damages on the
claim, which the district judge reduced to $625,000. Id. The
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Tenth Circuit affirmed under the common law standard. Id. at 1122-23.
We think a similar approach is appropriate here. An
award of $1,000,000 against an individual-capacity defendant based
on the conduct proved at trial is "grossly excessive" and "shocking
to the conscience of the court." Wagenmann, 829 F.2d at 215. In
our judgment, $500,000 is the maximum award that can be justified
on the facts of this case. We therefore vacate the award and
remand to the district court for a new trial on punitive damages
unless Mercado-Berrios consents to a reduction of her award from
$1,000,000 to $500,000.
IV.
For the foregoing reasons, the judgment is AFFIRMED as to
the speech retaliation claim and compensatory damages, REVERSED as
to the political discrimination claim, and VACATED as to punitive
damages. The case is REMANDED to the district court for a new
trial on punitive damages unless Mercado-Berrios consents in the
district court to a reduction of her award from $1,000,000 to
$500,000. Each party shall be responsible for its own costs.
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